Tuesday, April 22, 2008

Follow up on Duke's Motion and Two Other Items

The Administration's Motion Denied

As predicted, the judge in the civil suits denied the Duke administration’s motion to sanction opposing counsel for an alleged violation of Rule 3.6. (See previous post.) Here are details from the News and Observer and the Chronicle.

I wrote a letter to the Chronicle in which I call the actions by Duke’s counsel unprofessional. Understand that this motion was not a request for relief from any alleged harm. The administration’s lawyer denied in court that the motion was a request for a gag order. The motion was solely an attack on the integrity of Charles Cooper and his colleagues and, as I suggested in the previous post, one that had no basis in law. A bar complaint is a very serious matter touching on both the character and professional qualifications of an attorney. It should not be made lightly and certainly not to try and score a rhetorical point.

The administration’s motion is also a mean spirited cheap shot against the players who were also specifically targeted. Although Rule 3.6 only applies to attorneys, the motion requested that the court make a finding that “Plaintiffs and their counsel” violated Rule 3.6 and the local rule incorporating it. It accuses them of violating one of the same rules that their tormentor and the administration’s erstwhile codefendant, Mike Nifong did.

While the administration’s attorneys were rummaging through the Rules of Professional Conduct, perhaps they missed Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Federal Rule of Civil Procedure 11(b)(2) has a similar requirement.

It is hard to see the administration’s motion as a good faith argument for the extension, modification or reversal of existing law. Interpreting a statute or rule is a matter of reading the text, which is entirely controlling, and there was no suggestion that the language used is vague or ambiguous. Duke’s argument that the spirit of the rule was violated, even if it were true, is utterly beside the point. Moreover, Rule 3.6(b)(2), the public documents exception, appears specifically intended to operate as a safe harbor rule for lawyers trying to comply with the general rule stated in Rule 3.6(a). Finally, even if the court did announce a new rule, it could not give it retroactive effect.

What we are left with the administration is attempting to try the case in the media under the guise of upholding the exact opposite principle. For the administration, appearances have always been the only thing that mattered. Still, this is a new low.

Elmo a Citizen

Congratulations to Moezeldin Elmostafa, or “Elmo” as he affectionately came to be known to supporters of the accused players, who recently became a US citizen. He was also recently named “Hero of the Year” by Reader’s Digest magazine. Durham needs more citizens like him.

Elmo was the taxi driver who picked up Reade Seligmann from the party and was able to help document Reade’s alibi. After Reade’s alibi came to light, Mike Nifong sent two detectives working on the lacrosse case to arrest Elmo on a stale warrant. When they arrested him, they asked him if he “had anything new to say about the lacrosse case.” When he said no, they then took him to a magistrate. He was eventually found innocent at trial.

I hope that the recent renewed publicity will focus attention on one loose end that remains in making Nifong fully accountable for his conduct. Attempting to alter the testimony of a witness is obstruction of justice. While Nifong’s ethical misconduct was addressed by the North Carolina Bar, he has never been made to account for his criminal conduct. Also suspicious was Nifong’s conduct in relation to another witness, the second dancer Kim Roberts. The same day that Nifong personally intervened to have her bail reduced on an unrelated criminal charge, she started giving an account that contradicted her earlier statement to police that no rape had occurred.

Elmo’s case also should be instructive to those who saw Nifong as some sort of champion for social justice because he was targeting affluent or supposedly affluent people. As an immigrant looking to become a citizen, Elmo was one of the most vulnerable people in our society. A criminal conviction of any kind could have resulted in his deportation and permanent exclusion from the United States. Yet, Nifong was as willing to maliciously prosecute him for his own purposes as he was Reade, Collin and David. Indeed, given the fact that Elmo refused to change his story when pressured by police, Nifong’s decision to prosecute him anyway was purely vindictive.

Amended Complaint

Bob Ekstrand who is representing three of the players in the civil suits recently filed an amended complaint which contains additional allegations and information. It also contains embedded audio and video exhibits. Warning! It is a huge file (121 MB). Such is the extent of the misdeeds of Duke and Durham’s leaders.