Thursday, August 30, 2007

Announcements and a Follow Up

KC Johnson to Speak at Duke University

Professor KC Johnson, Durham in Wonderland blogger and
coauthor of Until Proven Innocent, will speak in
Duke’s Page Auditorium on September 11, 2007 at 7:00.

This event is cosponsored by Duke Students for an Ethical Duke and
the Program for Values an Ethics in the Marketplace.

by Jason Trumpbour, FODU spokesperson


One of the groups sponsoring KC Johnson’s address, Duke Students for and Ethical Duke (not to be confused with the equally estimable Duke Students for an Ethical Durham) is a new group dedicated to making sure that the appalling treatment of certain Duke students by the administration and a few of their professors is not forgotten and does not go unaddressed. They are pledged to “defend the dignity and the academic and legal rights of Duke students, both individually and collectively, whether threatened by other students, faculty, or administrators alike.” Here is an article from the Chronicle.

This is a very encouraging development. The fact that the number of groups focusing attention on these issues is growing and not decreasing with time should indicate to the trustees and administration that these issues are not going to go away. It is also good that the students themselves are getting involved. We at FODU are certainly concerned for Duke as an institution. However, most of all, we have done what we have done for the students. Those of us who are alumni want present students to enjoy what we enjoyed while at Duke: a university committed to the care, nurturing and dignity of ALL students. Those who are parents want these things for their children.

Follow up to Duke and the Police

First, a Duke official contacted me after I posted the last update and took issue with two statements I made there. I repeated information that had been told to me personally and which had also been widely reported. However, this official says these two statements are inaccurate and offers an alternative view. As the other bloggers in this case have done, I reproduce this person’s comments below in order to allow a fair opportunity to reply. I also appreciate this person’s willingness to respond and engage us in a dialogue, something lacking among Duke officials up to this point.

1) No one in the university “hired” Wes Covington. In fact, I was the unfortunate agent who brought him into contact with the players. When I met with them on March 17th and first learned of the police search, I was surprised and concerned that they had neither told their parents about it nor retained counsel. I told them to call their parents and consult with them about a lawyer. I said that I would also find out if there was anyone locally who could help them. I then asked Sue Wasiolek for a recommendation and she pointed me to Covington. I was the one who passed his name along to the four captains. They met with him at least once that I am aware of but to the best of my knowledge, he was never formally retained by any of them. I would be surprised if anyone in the administration other than Wasiolek knew anything about this until much later. By 3/24 (the day after the NTO was served) he was entirely out of the picture as far as I know.

2) The persistent rumor about “student/teacher privilege” is somewhat inaccurate. This came up in a meeting between the captains and Trask, Pressler [and] Alleva . . . on 2/24. By then, the players had all retained counsel and been advised not to speak about the matter without the presence of counsel. Trask had been sent down to athletics (I think) to assess the situation and report back to Allen Building. When he asked the players to tell him everything that had happened, they responded that they had been advised not to speak (in fact, they were dying to tell anyone who would listen what had (or hadn’t) happened). Trask responded that they could call their lawyers to come over and that he would wait for them. The players (specifically, David Evans) then said they would go ahead without representation. At that point, Trask said “We could argue that it (their account of the evening of 3/13) is a protected educational record. We might lose that argument.” The players then went on to detail what had happened at the party. Incidentally, it was clear . . . that Trask was absolutely certain that nothing had happened and that the players were innocent; I’m not sure that he played much of a role in what ensued in the following weeks.

Either way, my larger point remains unchanged. Officials of Duke University--and, in a couple of cases at least, I do think genuinely--were indicating to the players their belief in their innocence at the same time that the University was surreptitiously passing protected personal information about them out the back door to police officers with questionable motives and disputed integrity.

The problems with Mike Nifong and his conduct were manifest as I mentioned in the last post. However, Duke had every reason to be very suspicious of the motives of the police as well. Before that interview with the victim occurred, the original police investigator assigned to the case spoke with Sergeant Mark Gottlieb and they agreed that he would take over the case. As detailed last September in both the News and Observer and the Chronicle, Sergeant Gottlieb had been the subject of numerous allegations involving the violation of the rights of Duke students and use of thug-like tactics against them because of some particular animus he had against Duke students. Days before the lacrosse case incident, Durham Police Department officials had moved Gottlieb from patrol to investigations in District 2 apparently in response to these complaints. Duke officials had been notified of the complaints against Gottlieb no later than February. Now Gottlieb was back chasing Duke students, having in his own words “adopted” the lacrosse case. And into Gottlieb’s very hands, Duke personally delivered this protected information without a subpoena.

Second, in the comments, someone asked why turning the key card data over to the police was prejudicial to the players. Sure it was illegal, but how did it harm them? A good investigator will gather as much information as possible and then form a theory. However, that is not how it is always done. Some police investigators unfortunately do not go wherever the evidence takes them. Instead, they make up their mind what happened and then go out and try to find evidence that supports their theory while ignoring all else. Sometimes they will even make up evidence. Even “good” cops sometimes do all this. No better illustration of these problems can be found than the way Durham police actually conducted the lacrosse case investigation.

Let me be clear. There is nothing inherently sinister about police. Most police officers are dedicated, honest professionals who want to make a difference in the community. As in every human organization, there are some who do not live up to these ideals. In the middle are a bunch of people who see police work as just another job. Even under the best circumstances, the role of a defense attorney, as with any other type attorney, is to protect against the worst case scenario. They do that by forcing police to establish probable cause and preventing opportunities for fishing expeditions.

In investigating an alleged crime, the police must establish two things: whether a crime occurred and who did it. In the context of the lacrosse case, the police had skipped over the first step and were already trying to find three people to indict. This was despite their initial skepticism about the accuser’s story. In fact, throughout the entire case, they specifically avoided looking for corroborating evidence to test the accuser’s claims, evidently afraid of what they would find. Remember that the application for the Nontestimonial Order sought by police stated that the dna evidence would “immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are. . . .” Yet, the police did not wait for the results of the DNA testing to come back before inducing Duke to give them the keycard information. The keycard data helped police establish who was at the party and, more importantly, who was not. As described in the Pressler/Yeager book, the police were afraid that the accuser would pick someone out of the lineup who was not at the party and that is exactly what she did.

It is not that information protected by FERPA can never be obtained by police. All police have to show is that they have some particular need for the information, i.e. that it would be helpful to them in their investigation. That is a very low threshold, yet the police and Nifong were unable to make that showing with regard to the key card data. That they were unable to do so demonstrates that no legitimate reason existed for them to have this information.


At 9:41 AM, August 31, 2007, Anonymous Anonymous said...

Thank you for this most useful follow up. It is encouraging to hear that at least ONE Duke official is willing to engage in a civilized dialog with you and offer some clarity on the details. I hope this is just the beginning and not the end. Let us hope that others at Duke decide to follow suit.

There are many unanswered questions about Duke's handling (or mishandling) of the lacrosse case and they will not go away. They will linger and fester until each and every one of them has been addressed in a satisfactory manner. It is my opinion that the sooner Duke gets to those answers the better off it will be. In the long run, an ‘open dialog’ strategy will work much better for Duke than their current strategy of ‘hiding behind a bush.’

At 10:26 AM, August 31, 2007, Anonymous Anonymous said...

Perhaps it will be useful to prepare a list of the key questions/issues we want Duke to answer/clarify and present the list to them. Let's ask these questions and flag the issues as directly and as explicitly as we can and see if we can make some progress. How about it?

At 11:23 AM, August 31, 2007, Anonymous Anonymous said...

I am still as upset about Duke's handling of the case as I was after reading your first installment on this issue. As you rightly stated, this explanation you received from a Duke official does not change anything. The truth of the matter is that many sins were committed by Duke under the leadership of Brodhead. Those sins will haunt Brodhead, Burness and all the others (such as the notorious Gang of 88 members) for the rest of their lives unless they were born without a conscience which may very well be the case.

At 1:37 PM, August 31, 2007, Anonymous Anonymous said...

Jason, please keep on digging into this. We have not seen the end of this saga yet. Duke has to account for every wrong action it has taken. Thank you.

At 12:09 AM, September 01, 2007, Anonymous Anonymous said...

This is another Duke official's attempt at revisionist history. It's similar to Duke inaccurately revising its lacrosse incident website after the AG declared the players innocent.

Duke officials did tell the players not to tell their parents and not to engage independent attorneys. In fact, at a meeting with the lacrosse parents on 3/25/06 Mr.Trask chastised the parents for engaging attorneys for their sons.

Wes Covington, who Duke officials recommended to the lacrosse players, was not even a criminal defense attorney. And Mr.Covington has been charged for violating the NC state bar's ethics rules more than once and had his law license suspended at least once. Duke officials knew, or should have known, of Covington's very questionable reputation. Recommending him to " help " the players in such a serious matter was completely irresponsible. I beleve Covington was looking out for Duke's interests and not the players'.

On 3/31/06 Duke, in violation of FERPA, provided players' key card information to a corrupt Durham cop who had a history of unfairly targeting Duke students. But even worse, in early June,2006 Duke sent a letter to the unindicted lacrosse players stating that Duke had received a subpoena requiring Duke to give the very same key card information to Durham authorities. The letter further stated that Duke would comply with the subpoena unless the players engaged attorneys to file a motion to quash. The players hired attorneys who filed successful motions. Of course this was an attempt by Duke and the DA/police to cover up Duke's unlawful release of the players' information two months earlier. Clearly these were fraudulent actions which resulted in unnecessary attorney fees and undue anxiety for the players and their families.

Duke's ( administration and faculty ) actions in the lacrosse incident were purposeful and harmful, and in some cases unlawful and even evil. Some people at Duke need to held accountable.

At 9:14 AM, September 01, 2007, Anonymous Anonymous said...

Previous poster (12:09 am): Thank you for the information. This makes it crystal clear. Duke's action was unlawful and there is no excuse for that. The administration was clearly in bed with Nifong and the Durham police in railroading these guys. Those involved must pay the price. This information should be communicated to Dan Blue who is chairing Brodhead’s review committee. He can be reached at .

At 6:51 PM, September 01, 2007, Anonymous Anonymous said...

One player did receive a bill from Wes Covington. Wes Covington tried to get six more of the players to speak with Durham police without counsel. I know because I am the mother of one of those players. Wes Covington made it clear to me, he was not representing any of the boys, yet he was giving them legal advice. That is a problem!

At 4:13 PM, September 02, 2007, Anonymous Anonymous said...

You were correct in your last post about the release of the e-mail that MOST likely it was released by Duke. It was told to the parents that it did NOT come from the captains compters as was thought for about 14 months, more FREPA violations that need to be in discovery. How does one trace that when the sending e-mail reads anonymous, anyone know? The e-mail address is known but not the individual??!!

At 9:38 AM, September 03, 2007, Anonymous Anonymous said...

4:13pm - In emails, you can set the ‘name of sender’ to be anything you like. It sounds like in this case the name of the sender was set to be "Anonymous." That’s not going to be much help. However, every email sent reflects an IP number which is associated with the computer where the email is sent from. A lot of people have expertise in that sort of thing. If you talk to someone with a little IT knowledge, you may be able to determine what the IP number was on that email. That may shine some light on who the sender was or from which location it was sent. This is not rocket science.

At 5:02 PM, September 05, 2007, Anonymous Anonymous said...

Jason, thanks for all you have done. The thing that sticks the most in my craw is that Brodhead, Seele, et al., used the University's money, which inevitably traces back to donations, to settle with the three players and thereby avoid an airing in court of their actions. I don't know what Reid, Collin, and David received-- whatever it was, it wasn't nearly enough to compensate them for what the Duke Administration did to them-- but it is flat out wrong for Brodhead and Steele to cover up (i) the amount they paid, and (ii) the reasons why they felt that the University might have vulnerability for their actions and the actions of others.

I have been working to persuade other Duke Alumni and friends not to contribute to Duke University until disclosure is made of the amount of the settlement and the reasons why it was paid. I will not contribute until something changes. I will gladly give to Duke University, but I will not give to enable Brodhead and Steele to cover up their conduct. I hope FODU will encourage other alumns to suspend contributions.

At 11:45 PM, September 24, 2007, Anonymous Anonymous said...

Although I am not a Duke alumnus, I am a parent of two Duke students/grads and have been a reasonably significant donor. Has anyone developed an approach to restricting donations to purposes other than the direct or indirect support of the Group of 88 and the administration until such time as each confirms in writing that the rush to judgment was wrong and violates the fundamental principles for which institutions such as Duke are supposed to stand?

At 12:34 AM, March 25, 2008, Anonymous Anonymous said...

Interesting article, you make some interesting points.

University directory

At 8:46 AM, May 12, 2008, Anonymous Anonymous said...

I am one of more and more alumni who won't give a cent to Duke until the Brodhead regime comes to an end. His handling of the lacrosse scandal and his general style deserve the adjective Nixonian -- divisive, deceptive, and always catering to the base.

Of course, Nixon is Duke's most prominent alumnus, one who was rejected by its faculty not once but twice over the course of the man's lifetime, first for an honorary degree (when he was vice president), and then much later as site of his presidential library. Brodhead aligned himself with the faculty from Day 1, so still has a job, tainted as he is and the unversity has become.

In the true Nixonian tradition, Brodhead has fallen back on PR. His new hire as VP for PR (oops, Public Affairs) flows from this problem-solving approach. I wonder how many full-tuition scholarships for Durhamites the new VP for PR's salary would cover?

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