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Blog and Media Roundup - Saturday, Jan 31, 2009; News Roundup
Topic Started: Jan 31 2009, 06:26 AM (621 Views)
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http://www.dukechronicle.com/home/index.cfm?event=displayArticleComments&ustory_id=a5a489f5-7be1-43f4-b6c0-d8cd899878cd


Justice Scalia pays visit to School of Law

see comments.
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http://www.johnincarolina.com/

Informed commentary re: likely Duke/Durham discovery

In response to More re: Who should worry about Duke/Durham discovery? three comments were made that belong on the main page.

Even if you’ve read that post, I encourage you to read it again before reading the post that follows. The third comment especially assumes a detailed knowledge of More re: Who should worry about Duke/Durham discovery??

If you haven't read that post at all, you know the rest of what I'd say.

I’m running the three comments without interspersing any responses because together they just make a great post.

So I’ll leave things like that today but I will comment on some of what the three say tomorrow and Sunday.

You’re of course free to comment when you like.

I’ll thank the three commenters now as we begin with the Ex-prosecutor - - -

It will be interesting to see who actually represents the Duke defendants at the depositions. As long as they keep their stories straight, they probably can be represented by the same law firm.

However, once the depositions begin, I'll bet that all defendants, including those from Duke, will try to lay it off on each other.

When conflicts develop among the officers and employees of an insured, the insurance company, because of its duty to provide a defense, must retain separate counsel for those whose defenses conflict.

When the depositions and document productions start, the legal fees will increase by geometric progression.

To make this even more interesting is the fact that Duke is battling on two fronts, the first with the plaintiffs and the second with its insurance company, which, in turn, may soon battle with another insurance company, as to whether either is responsible to fund the defense.

As observed by the immortal bard himself in Henry VI, Act 2, Scene 5: "Ill blows the wind that profits nobody." Here, while Duke must suffer for its well-deserved misfortune, its paid by the hour lawyers will do naught but profit richly.

Drew followed with - - -

Ex-prosecutor has squarely struck the nail on the head - I have had occasion to be deposed in a number of suits, as well as being the respondent in a number of civil suits.

When you are one of many respondents, and when you cannot count on any of your co-respondents to hold up under pressure, your best (and frankly, only sane) move is to insist on separate counsel.

When the insurance company provides counsel to your employer and any number of individual fellow employees, there's never any guarantee that you won't find yourself thrown under the bus, either by "your" counsel (who occasionally has a vested interest in defending the employer just a little bit harder), or by one of your co-respondents, who thinks they can dodge a bullet by re-aiming the gun at someone else.

In many respects, it would be interesting to see what (if any) indemnity that Duke has provided to its employees in the suits - it could be that Duke will be pulling the strategic strings while at the same time retaining the ability to do the bus-tossing of its employees.

We saw how well they (the University administration) acquitted themselves when the LAX players were "the other guy".

If I were an individually-named respondent, I would tell Duke to take their counsel on a long walk off a short pier, and would insist on hiring my own counsel (at University expense) for any depositions or trial appearances.

I don't know much about the courthouse involved, but it's quite conceivable that they might need to move any proceedings to an alternative facility, in order to accommodate the (presumably) scores of attorneys and respondents.

I've seen it happen when a series of depositions needed to be scheduled in a vacant theatre in NYC, in order have sufficient space for nearly 200 lawyers and another 40 respondents.

The "action" took place on the stage, and the questions, objections, and other legal mouthpiecing came from the seats in the audience. A very expensive way to run a case, and in this case, the costs will likely all fall on Duke's tab.

I would suspect that many of the lawyers could view a case like this as a partner-maker, since the billings will be extraordinary.

If I had a few bucks to spare, I'd open an all-night photocopy and printing/binding service in Durham, or else get a catering business put together.

Lawyers always work late, but rarely work without extensive creature comforts. This case could become a little "profit center" in the Durham economy for some time.

Anonymous added - - -

What a wonderful word - "dissemble" - to disguise or conceal behind a false appearance, per an internet dictionary. I have always thought that this allegation, termed by the Cooper [38 players and some family members] suit "a fraud upon the court", if true, constitutes a premeditated, nefarious act of a potential criminal nature - not to mention a really stupid decision.

As they say, the cover-up is often worse than the crime.

The real question is how high up the chain of command did this decision go, or, if discovered later - who knew what, when? It is very hard to imagine what university official would take this decision on his/her own, and would not seek to cover one's ass with written advice of outside counsel - especially if forced by one's duty of employment to sit through such a proceeding in silence.

The fact that such discussions were held by persons is probably privileged for those having the discussion, but the reporting within the organization that counsel should be / had been consulted, is probably not (I am not a lawyer).

Did non-lawyer higher-ups exercise their authority and assume responsibility? Did anyone argue that Duke could not carry on this alleged charade?

That decision process will be interesting to discover.
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http://www.readthehook.com/blog/index.php/2009/01/30/sayeth-grisham-no-uva-case-connection/

Sayeth Grisham: No UVA case connection!
by Courteney Stuart

John Grisham denies recent reports his latest novel, The Associate, was inspired by a Charlottesville case.
FILE PHOTO BY JEN FARIELLO

Although a January 26 Washington Post review of John Grisham’s latest book, The Associate, leads with a description of the infamous UVA 12-step apology case and says the case is “central” to Grisham’s new story, the author himself disputes that claim.

In a statement sent to local media on January 29, Grisham says, “I did not fictionalize the UVA case nor base any part of my novel on it.”

According to the review and a January 27 interview with Grisham on NBC’s Today show, Grisham’s latest protagonist is a recent law school grad who is blackmailed with a cell phone video purportedly showing him in a room three years earlier when two of his college friends have sex with a college freshman who may or may not be conscious.

The real-life 12-step apology case involves a 1984 sexual assault in a UVA fraternity house, and the assailant’s decision to apologize to his victim as part of a Alcoholics Anonymous program more than 20 years later.

Although one of The Associate’s characters also reportedly apologizes as part of a 12-step program, Grisham made no mention of the Charlottesville case on Today. Instead, host Matt Lauer referenced the Duke Lacrosse case, which Grisham confirmed is mentioned in the book.

The real 12-Step apology case victim, Liz Seccuro, earlier expressed enthusiasm at the reported connection between Grisham’s fiction and her real life experience. Told of Grisham’s subsequent denial, she declines comment.

The author of the Post article, Patrick Anderson, stands by his review.

“With all due respect to John Grisham, I don’t think any objective person could read his novel and read accounts of the UVA case and not see a direct connection between them,” writes Anderson in an email. “To say his book is fiction is beside the point. Fiction is often based on fact— fact that is, of course, changed in various ways to suit the writer’s needs. I assume Grisham is denying the obvious at the request of his or his publisher’s lawyers.”

Anderson, however, adds that he doesn’t hold the denial against Grisham.

“I wish him well,” he writes.
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Quasimodo

Quote:
 
Instead, host Matt Lauer referenced the Duke Lacrosse case, which Grisham confirmed is mentioned in the book.



Grisham on UPI :

“Brutally honest, unflinching, exhaustively researched, and compulsively readable, Until Proven Innocent excoriates those who led the stampede—the prosecutor, the cops, the media—but it also exposes the cowardice of Duke’s administration and faculty. Until Proven Innocent smothers any lingering doubts that in this country the presumption of innocence is dead, dead, dead.”

I hope he gets that same idea across in the book...
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HSLAXMOM

http://durhamwonderland.blogspot.com/

Saturday, January 31, 2009
Responding to Nifong

The falsely accused players’ attorneys have filed a response to the 11-line motion to dismiss penned by Nifong attorney Jim Craven.

It makes two major points. First, while Craven and Nifong asserted (in lines four and five) of the 11-line masterpiece that the players had not stated a claim against Nifong for which relief could be granted, the players’ attorneys note that the allegations against Nifong include the disgraced ex-DA’s “involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees.”

Those, in short, would be claims under relevant federal and state laws.

Second, while Craven and Nifong asserted (in lines seven, eight, and nine) of the 11-line masterpiece that Nifong had absolute immunity, because all of his actions “were done in his role as District Attorney,” the players’ attorneys noted that “the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. Citing a variety of Supreme Court precedents, the response brief concluded that “Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer.”

In a timely reminder of this doctrine, the attorneys cited the Supreme Court’s just-decided Van de Kamp v. Goldstein, which explained that “absolute immunity does not apply” for a prosecutor’s “investigative . . . tasks.”

Essentially, Nifong performed three roles in the lacrosse case. First: from April 18, 2006 (the day he obtained indictments) until January 12, 2007, he served as the (corrupt, unethical) prosecutor in the case—for which he was disbarred and jailed for criminal contempt, but for which he cannot be sued under the doctrine of absolute immunity for prosecutorial functions.

Second: from March 24, 2006, when his DPD superiors instructed then-Sgt. Mark Gottlieb to take orders on the investigation from Nifong, until May 15, 2006, when he completed his investigatory work with then-lab director Brian Meehan, Nifong served as the de facto lead detective on the case. He revived this role periodically between May 2006 and January 2007, usually when he ordered henchman Linwood Wilson to “re-investigate” the case to develop new “facts” that conformed to whatever theory Nifong happened to be supporting at the time.

Third: between March 27, 2006, when he began his pre-primary publicity crusade, and mid-April 2006, Nifong served as the de facto public spokesperson for the Durham Police Department, regularly briefing the local, state, and national media on the progress of the “investigation” and the state of the “evidence” that the Police “investigation” he supervised had allegedly developed.

The 11-line brief filed by Jim Craven contended that Nifong is entitled to absolute immunity for all of these actions, apparently because all of these actions were proper prosecutorial functions. Perhaps if Craven had devoted more than 11 lines to his brief he could have provided a few facts that might have supported this argument. But as things stand now, as the players’ response brief points out, in claiming that the discredited ex-DA is entitled to absolute immunity for actions he performed in supervising the police investigation or serving as DPD de facto spokesperson, Nifong and Craven want a federal district court to overturn multiple Supreme Court precedents. That’s not likely to occur.
Posted by KC Johnson at 10:56 AM 0 comments
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Kerri P.
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http://www.wral.com/news/news_briefs/story/4441850/
Man accused of indecent liberties with 10-year-old
Posted: Today at 9:43 a.m.

Raleigh, N.C. — Police arrested a 37-year-old immigrant for allegedly abusing a 10-year-old child, according to warrants.

Sheriff Jobe, of 1632 Belaftonte Drive in Raleigh, faces three charges of indecent liberties with a child. Arrests warrants did not say when the alleged incidents occurred.

Immigrations and Customs Enforcement officials were looking into whether Jobe is in the country legally. Court documents show he is a native of Gambia in western Africa.

Jobe was being held at the Wake County Jail under a $75,000 bond Saturday morning.

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Rusty Dog
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http://media.www.dukechronicle.com/media/storage/paper884/news/2009/01/30/News/Justice.Scalia.Pays.Visit.To.School.Of.Law-3605792.shtml

Two great comments left at the Chronicle article about Scalia’s visit to Duke by
The Tortmaster !!

He takes a teachable moment to set the record straight (again) about the Listening Ad.

-snip-
“Moreover, Kit-Kat Bar, when you suggest that the Listening ad wasn't all about the Duke false accusations, you are revising history and revising the words of the ad itself.”

-snip-
“Every time you lie about the Listening ad, and every time you try to revise its history, I will post this. MOO! (My opinions only) Gregory”

very detailed and well worth reading. :cher:


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LaDukie

Yes, excellent comments from The Tortmaster. Has anyone ever found out what was in the Listening Ad before The Chronicle required that it be revised?
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brittany

Rusty Dog
Jan 31 2009, 03:02 PM
http://media.www.dukechronicle.com/media/storage/paper884/news/2009/01/30/News/Justice.Scalia.Pays.Visit.To.School.Of.Law-3605792.shtml

Two great comments left at the Chronicle article about Scalia’s visit to Duke by
The Tortmaster !!

He takes a teachable moment to set the record straight (again) about the Listening Ad.

-snip-
“Moreover, Kit-Kat Bar, when you suggest that the Listening ad wasn't all about the Duke false accusations, you are revising history and revising the words of the ad itself.”

-snip-
“Every time you lie about the Listening ad, and every time you try to revise its history, I will post this. MOO! (My opinions only) Gregory”

very detailed and well worth reading. :cher:


I saw that right after it was posted on The Chronicle and was glad to see Tortmaster was alive and well.
Edited by brittany, Jan 31 2009, 10:08 PM.
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