Tuesday, March 04, 2008

Duke's Motion

It has been a while since I updated the front page. Between the holidays and my other commitments, I have had to take some time to get caught up with my other affairs. However, FODU is still very much in business. I hope you have noticed that our Moderator has been continuing to keep the media links page updated everyday. I also hope you have been reading the excellent DSED blog, which has done more than fill any gap left by my absence. I will try to update more frequently and I want to do a larger post to get caught up. In the meantime, I just wanted to share my thoughts about Duke’s motion to shut down the informational site http://www.dukelawsuit.com/, which is maintained by a publicist for the players and their lawyers. Duke's caim is that it violates North Carolina Rule of Professional Conduct 3.6, the same rule that was among those Mike Nifong was disbarred for violating.

Well, I must say that I am glad that, after two years, Duke has finally discovered Rule 3.6. When Mike Nifong was out in front of the cameras violating it hourly, they did not want to know one thing about it. As late as September 2006, Bob Steel tried to argue with me about whether Nifong was actually doing anything wrong. Now, if they could only understand it . . .

First, Rule 3.6 only applies to lawyers. It does not apply to parties such as the players and their families. Although not unqualified, parties have a First Amendment right to say whatever they want about a case that is much broader than what is allowed to lawyers. Rule 3.6 certainly does not apply to the heartfelt statement lacrosse parent Steven Henkelman gave at the press conference.

Second, Rule 3.6 allows lawyers to comment on matters in the public record, which includes court filings.

Here are the relevant portions of Rule 3.6:

(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing
an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and,
except when prohibited by law, the identity of the persons involved;

(2) the information contained in a public record;

* * *

At the press conference linked on the site, attorney Charles Cooper did nothing more than summarize the contents of the complaint, which was being filed as he spoke. He appeared careful to so limit his remarks. The memorandum of law in support of Duke’s motion conceded this point. It tried to make a “spirit of the law” argument that the complaint itself was inflammatory and thus no public reference should be allowed to be made to it. Here is the crux of Duke’s argument from the memorandum of law accompanying the motion:

Plaintiffs will almost certainly argue that these statements are fully permitted by Rule 3.6(b)(2), which allows an attorney to comment about “information contained in a public record.” Many of these statements are direct quotes from the Complaint, while others are slight paraphrasings of the Complaint. (See, e.g., Compl. ¶¶ 3, 11(a), 11(b), 11(c).) When a complaint contains such incendiary language, an attorney should not be permitted to hide behind the language of the complaint and make a statement to the press that strings together paragraphs that are highly prejudicial. Such an action is contrary to the very intent of Rule 3.6, “materially prejudices an adjudicative proceeding,” and should not be allowed.

This is not a legal argument. Indeed, the fact that it is not a legal argument is also why they cannot offer one shred of legal authority to support it.

Mike Nifong violated Rule 3.6 by commenting on the evidence, lying about the evidence and inviting antipathy toward the accused. This was conduct squarely prohibited by the rule and manifestly prejudicial. Comments 5 and 6 accompanying the rules give a fuller explanation.

Others have noticed the hypocrisy of Duke criticizing dukelawsuit.com while at the same time maintaining its own informational site about the case which contains dishonest and self serving accounts of the administration’s handling of the Lacrosse Hoax. It is worse than that. Duke was anticipating lawsuits from the very beginning. Remember Mark Simeon, Nifong’s political ally, was lining up the Mangum family for a suit and brought Willie Gary to town in furtherance of that goal. If you will recall, Duke’s site initially linked media accounts that were mostly negative toward the players and ignored accounts critical of the investigation. As the tide started to turn, and Duke’s own misconduct became apparent, Duke began to anticipate suits from the players, instead.

In fall of 2006, Bob Steel made an offer to at least one of the families to pay their legal expenses in exchange for singing an agreement not to sue. Despite the desperation of their situation, they refused. Bob Steel and Richard Brodhead also had a meeting with the families to try and sort out their differences that went nowhere. Duke has known that the present suits were coming for a long time and the twisted apologetics contained on its own informational site were created with that prospect in mind. This strategy reminds me of the famous advice a rugby manager gave to his players before a game: “Be sure and get your retaliation in first!”

What is particularly telling to me is that, while Duke’s motion complains about prejudice caused by dukelawsuit .com, it does not ask for a specific remedy other than asking that the website and its contents be declared violations of Rule 3.6. It does not ask for a gag order. Motions for gag orders to avoid pretrial publicity are not uncommon and Duke could have made a much stronger argument for one by simply pointing to the harm pretrial publicity might cause. It would not be an availing argument, mind you, given its own attempt to take its case to the public, but a better one. By misframing the issue as a legal ethics and Rule 3.6 issue, it decided to forgo a stronger argument in order to try and score a rhetorical point. Duke is falsely attempting to create the appearance of similarity between the conduct of the plaintiffs and their nemesis Mike Nifong. In other words, Duke is attempting to try the case in the media while at the same time purporting to uphold the opposite principle. But then again, Duke signaled how it intended to fight this suit when it hired a lawyer, Jamie Gorelick, whose principal skill set is not federal civil rights litigation, but political infighting.


At 9:45 AM, March 04, 2008, Anonymous Anonymous said...

Very sensible comments. I will look forward to reading more on Duke's ‘cheap’ political maneuvers.

At 9:54 AM, March 04, 2008, Anonymous Anonymous said...

Genius quote from the coach:

“Be sure and get your retaliation in first!”

At 10:44 AM, March 04, 2008, Anonymous Anonymous said...

When will the current Duke administration stop making a fool of itself?

At 12:51 PM, March 04, 2008, Anonymous Anonymous said...

Finally we may be able to hear from Brodhead and Steel, in their own words, as to what they were up to since March 2006. I am sure this prospect does not make them jump with joy but it is the medicine we all need to start the healing process. I hope the proceedings of the civil suit will be televised so we follow it as closely as possible. I would not want to miss a minute of it.

At 1:43 PM, March 04, 2008, Anonymous Anonymous said...

Jason, as usual, you make a great deal of sense. Thank you for sticking around until we see this saga completely through. Your support and wise words are much appreciated.

At 4:47 PM, March 04, 2008, Anonymous Anonymous said...

Duke's complaint is ridiculous. Those idiots are making a fool of themselves yet once again.

At 5:55 PM, March 04, 2008, Anonymous Anonymous said...

Thank you for your insights. The more I hear about the Duke administration’s handling of the lacrosse case the more I am convinced they behaved in a deplorable way. To put it mildly the actions, and inactions, of these so called administrators were pathetic. Any light shed on these clowns during the civil lawsuits will be most informative and welcome. I will stay tuned

At 8:23 AM, March 05, 2008, Anonymous Anonymous said...

Terrific post. Please keep it up.

At 8:56 AM, March 05, 2008, Anonymous Anonymous said...

Gottlieb and Himan are out of DPD. When will Brodhead and Steel will be out of Duke? This is a great time for some spring cleaning.

At 2:33 PM, March 05, 2008, Blogger Debrah said...

An excellent analysis.

At 3:05 PM, March 05, 2008, Anonymous Anonymous said...

Duke's motion is childish at best!

At 3:13 PM, March 05, 2008, Anonymous Anonymous said...

Great post Jason. We missed you.

At 3:48 PM, March 05, 2008, Anonymous Anonymous said...

"Well, I must say that I am glad that, after two years, Duke has finally discovered Rule 3.6."

Great line!

But you are absolutely right, they still don't understand it.

They just look like they want to surpress free speech.


At 4:47 PM, March 05, 2008, Blogger Gary Packwood said...

Duke trying 'to score a rhetorical point' when they are in the kid business does not sound like good leadership and good managment strategy to me.

I mean, really.

At 6:52 PM, March 05, 2008, Anonymous Anonymous said...

Jason, wonderful explanation.

Now the only other thing I need explained to me is how on earth such supposedly smart people at Duke could behave so stupidly. Over and over again.

I'm sorry, but even after 2 years, it's question I still can't answer.

At 9:05 PM, March 05, 2008, Anonymous Anonymous said...

The Federal Judge should look at Duke attorney Pam Bernard's statements about settlement in light of the strictures of Rule 3.6.

It seems to me that Duke's very first response to the lawsuit was unethical. Seems appropriate.

Mike Nifong would be proud of Duke's ability to prejudice the jury with their very first press release!

At 9:15 PM, March 05, 2008, Anonymous Anonymous said...

Jason, thank you for a clear and concise analysis- I've missed your precision in dissecting events. This is a battle that revolves around one man and it is not Nifong nor Brodhead.

At 2:02 PM, March 06, 2008, Blogger sister of physics brothers said...

The defendants in my lawsuit also tried to shut my blog down. It doesn't work. So I am left bewildered by the Duke defendants' embarassing efforts in this regard. As in my case, a protective order will be placed on discovery. But I find even this deporable. Defendants (who are trying to hide misdeeds) play many evasive games with discovery and this should be visible to all us taxpayers. The courts are so back-logged and the system so cumbersome, discovery, when you are dealing with Duke clowns like these, is like pulling teeth.

At 8:27 PM, March 07, 2008, Anonymous Anonymous said...

Once again, Jason offers some common sense to Duke's latest missive. He is correct about Jamie Gorelick. She is a political partisan, first and foremost, and her job is simply to play as much hardball as possible.

Duke could have done the right thing, but instead decided to continue to try to please the hard left that apparently rules the university now. There is no way -- no way -- Duke can justify the conduct of Tara Levicy, its faculty, its administration, and everyone else.

At 8:43 PM, April 03, 2008, Blogger S & B said...


Great comments. So glad to have you back and to hear your voice again!

At 3:16 PM, April 21, 2008, Anonymous Anonymous said...

3 years ago May 11, 2005 is the day the nightmare began for my only brother and family, when he was found executed 3 weeks before retiring from IBM in Durham NC. Words cannot begin to express the agony knowing he was not only beaten then executed, his body parts stolen, then what was "left" of him burned like an animal. No horror movie or nightmare could compare to the grisly reality that has touched not only my family, but many others as well!

Crimes against humanity exist 24/7 in every part of our globe, meanwhile our government not only knows and condones, it also participates in! I NEVER would have any clue of these awful truths had we not experienced and witnessed them, and is why I have gone public from right after my brother was killed, promised him, God, our mother, and others who too have been slain by hired hit men whom many are killed is by our own police. Murders, drugs, prostitution, sexual slavery, kidnapping, numerous crimes ending with trafficking of human organs, dead or alive.

There are reports by our own Government Accounting Office for many years telling the rise in this heinous reality, yet media will not touch it, and few are willing to come forward to expose because it is a "business" making billions of dollars to our broken country from the blood and souls of "strangers."

The global demand and profit by far exceeds any other criminal act where a kidney alone can fetch a million dollars. Half of India's population exists with only one, sold so they could live?! Where is the irony here?! Looking the other way only lets evil win, and these are truths that MUST be exposed!

I am personally begging whomever reads this to write to the Governor, and US Courts, and request action be taken to re-open my brother's death, and to help save lives! I alone cannot stop the endless cases of rape and slaughter, but "United" we can let our Government know that "WE" the people have rights, and acknowledge what is going on in again, not just our nation, but globally!

I know "The Powers That Be" do NOT want these horrific TRUTHS to see the light of day, and have been personally threatened with death. This is why I have gone public from the beginning, and have suffered and learned too much to look away and do nothing! I want JUSTICE for my most beloved brother, who was such an integral center of our family that has been completely destroyed. Nothing will bring Jack, or any of the innocents, but going public and yelling from the rooftops can start a chain of events that will lead to change and become aware of what is REALLY going on in our OWN Government! You will be not only shocked, you will be speechless!

I only wished what I am saying was a lie and a bad dream, but the reality is the brutal truth, and no words to describe the torment and rage that we all are indeed worth more dead than alive. PLEASE read the following links, and PLEASE write to the US Court on behalf of my family, so that we can finally have the TRUTH, JUSTICE, and RIGHTS that WE have as CITIZENS!

Rhonda Fleming
Cleveland, Ohio

Sister of my dearest friend Allen Jackson Croft Jr, who was found executed May 11, 2005 under a trestle in Durham North Carolina. He lived at 106 Carlion in Durham, and was only 3 weeks from retiring when he was "suddenly" found executed and "staged" to look like a suicide. Law Enforcement have fought us, threatened to charge me for harassment, neglected countless requests to every department and official in the state, and in Washington, and have been left like a dog chasing it's own tail, and enough is enough! They CANNOT be ALLOWED to get away with what they did to him, and others, and as long as I have breath in my body I will NEVER give in until there is JUSTICE FOR JACK!


Please write to: Federal Circuit Clerk/Executive

Street Address:
Howard T. Markey National
Courts Bldg
717 Madison Place, N.W.
Washington, DC 20439
Phone: 202-633-6550
Internet Web Site:
The address for all correspondence is:
You may contact the Governor's Office by sending a letter to Governor Easley,
by e-mailing the Governor's Office or by calling the Governor's Office at:
1-800-662-7952 valid in North Carolina only
(919)733-4240, or (919)733-5811.

Governor Michael F. Easley
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301

Fax: (919)715-3175 or (919)733-2120

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