| KC responds on Iqbal | |
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| Topic Started: Jun 29 2009, 07:28 AM (975 Views) | |
| Quasimodo | Jun 29 2009, 07:28 AM Post #1 |
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http://durhamwonderland.blogspot.com/ (I thought this needed its own thread...) Monday, June 29, 2009 The Iqbal Briefs: The Unindicted Players (snip) By making it harder for plaintiffs to survive a motion to dismiss, Iqbal was a victory for any business (like Duke) or any municipality (like Durham) subjected to a civil suit. It is more than ironic that a decision supported by the four reliable conservatives on the Court could benefit a Duke administration that cowered before politically correct campus ideologues and a Durham Police Department whose conduct veered into race-based demagoguery. Somehow, I doubt that in any other circumstance would Richard Brodhead or the Group of 88 celebrate the work of Antonin Scalia, Clarence Thomas, Samuel Alito, or John Roberts. [Sometimes I think the Court simply fires blindly into the night, at anything that moves. . .] (snip) 1.) “We Didn’t Know What Was Going On” In light of Iqbal’s findings regarding supervisory liability, Durham attorney Patricia Kerner proclaims, almost gleefully, “There are no factual, individual allegations describing conduct that would allow a court to infer that any individual’s actions constitute ‘deliberate indifference’ or why any individual would have had knowledge of a subordinate officer’s conduct.” In other words: in the highest-profile criminal case in the history of the Durham Police Department—one that attracted blanket local and national attention—Durham’s current position is that it’s not plausible to believe that the chain of command in the Durham Police Department “would have had knowledge of a subordinate officer’s conduct.” Durham, perhaps, should amend its city slogan to “Come to Durham: Our Police Leadership Is Clueless!” The DNA Security brief offers a similar line of argument. It concedes that company president Richard Clark attended the meeting at which Nifong and former lab director Dr. Brian Meehan agreed to produce an incomplete report that would exclude the exculpatory DNA evidence that would ultimately bring down the case. But, Clark suggests, he’s not legally liable. Why not? “In the absence of any specific allegation of wrongdoing (or, indeed, even of knowledge) on Clark’s part, Plaintiffs appear to premise their claims against him on his title alone.” Is DNA Security really suggesting that it’s not plausible that Clark had “knowledge” of what occurred at the Nifong-Meehan meetings, meetings at which he was present? Is the company’s line of defense actually going to be that its president ordinarily attends meetings but has no idea what occurs in them? Imagine the new advertising motto: “DNA Security: Our President Is Clueless!” In their brief, Duke attorneys Jamie Gorelick and Donald Cowan also cite Iqbal to excuse the liability of senior Duke administrators. In so doing, however, they choose not to deal with a critical difference between the Iqbal facts and those of the lacrosse case: Chairman Robert Steel’s April 11, 2007 e-mail. The Board chairman informed the world that “throughout the past year President Richard Brodhead consulted regularly with the trustees and has had our continuing support. He made considered and thoughtful decisions in a volatile and uncertain situation. Each step of the way, the board agreed with the principles that he established and the actions he took. As we look back and with the benefit of what we now know there is no question that there are some things that might have been done differently. However, anyone critical of President Brodhead should be similarly critical of the entire board.” [emphases added] Neither Ashcroft nor Mueller, of course, ever issued such a statement regarding the facts in the Iqbal case. For Duke, alas, the “we-didn’t-know-what’s-going-on” defense is undercut by Steel’s e-mail—which he surely now wishes he never had sent. |
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| Quasimodo | Jun 29 2009, 07:33 AM Post #2 |
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2.) Defending Unusual(!) Procedures Gorelick and Cowan also have the thankless task of defending the conduct of former SANE nurse-in-training Tara Levicy. As in the past, they do so in a way that makes a mockery of the “factual allegations” established by the Attorney General’s report. Here’s how Gorelick and Cowan describe Levicy’s role in the case: “The fact that Ms. Levicy met with police officers and prosecutors does not plausibly demonstrate a conspiracy, as Iqbal requires. Rather, it shows only the unremarkable fact [emphasis added] that the police investigating a possible crime gathered information from a health care provider who examined the alleged victim.” There are only two possible justifications for the Gorelick/Cowan description of Levicy’s performance as “unremarkable”: (1) The “information from a health care provider who examined the alleged victim” was accurate. But, of course, we know that Levicy’s information both wasn’t accurate and constantly shifted in manners that went along with Nifong’s ever-shifting rationalizations of the case. (2) It was “unremarkable” for a Duke employee to give such false information—in her capacity as “a health care provider”—to “police investigating a possible crime.” Could Duke really be claiming that either (1) or (2) are plausible explanations for former SANE nurse-in-training Levicy’s conduct? Gorelick and Cowan have the same problem regarding the performance of the Duke Police Department. “Plaintiffs’ assertions about meetings and communications between the Duke and Durham police,” they note, “show only that the two forces were occasionally, and entirely properly, [emphasis added] exchanging information about the case.” Yet among the “information” exchanged was the key-card records of Duke students—“information” that is protected under FERPA. Could Duke be plausibly claiming that the unauthorized release of FERPA-protected information—information that a Durham judge, citing FERPA, later denied to Mike Nifong—constituted the “entirely proper exchange of information”? Durham attorney Kerner likewise meanders into the unusual. “Plaintiffs allege no facts,” she writes, “showing that [former City Manager Patrick] Baker, or anyone else, suggested at the [March 29, 2006] meeting that someone should be arrested for the rape, unless the investigation led to a proper identification [emphasis added] and probable cause for the arrest.” But, of course, no “proper identification” ever occurred in this case: Nifong and the DPD plowed ahead with a lineup that flagrantly violated their own procedures. So what, exactly, is Kerner’s rationalization for the DPD having proceeded with the investigation? And here’s how the attorney for DNA Security describes the meetings between Mike Nifong and former DNA Security lab director Brian Meehan: “A prosecutor’s consultation and coordination with his retained expert is not suggestive of conspiracy but simply describes the ordinary and expected interaction [emphasis added] between key participants in a criminal investigation.” The meetings between Nifong and Meehan resulted in the incomplete report that violated both North Carolina’s NTO law and the constitutional requirements of Brady. Is DNA Security really describing this tête-à-tête as an “ordinary and expected interaction”? Kerner, meanwhile, describes the public statements of David Addison in the following manner: “The only plausible conclusion [emphasis added] is that Addison was attempting to urge witnesses to come forward, in connection with discharging his duties for Durham Crimestoppers.” Is it really Durham’s official position that performing his official duties is the only plausible explanation for a police officer uttering false, inflammatory statements? Perhaps that explains why Addison was subsequently promoted? Could it be that the DPD actually expects its officers to utter false, inflammatory statements, at least when the targets are those without strong support in the Durham “community”? |
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| Quasimodo | Jun 29 2009, 07:34 AM Post #3 |
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3.) Extraordinary Assertions The Kerner brief contains two items so outrageous that they stand out even in the pantheon of bizarre assertions by Durham authorities throughout the case. Kerner concedes that one week before the captains’ party, Sgt. Mark Gottlieb was transferred away from a position in which he would have regular contact with Duke students. And she doesn’t deny that the transfer was related to Gottlieb’s troubling record regarding Duke students. Yet, she adds, this undenied fact of the transfer “has no plausible relation to Plaintiffs’ claims.” Why not? Kerner never says. Of course. Similarly, Kerner contends that Addison’s false and inflammatory statements didn’t cause any harm to the lacrosse players. Why not? “Although Plaintiffs have no doubt catalogued every article, blog, photograph, or comment about the investigation, they do not allege that they were ever individually mentioned at any time by Addison.” So: Addison should be shielded from the legal effects of his misconduct because he referred to the group as a group, never mentioning that perhaps his comments didn’t apply to all of the group? |
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| Quasimodo | Jun 29 2009, 07:35 AM Post #4 |
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4.) New Item Finally, the briefs contained one new, and potentially explosive, item. In attempting to defend DPD Capt. Jeff Lamb, Kerner concedes (in perhaps the strongest manner yet from any representative of the City of Durham) that on March 24, 2006, Lamb did, in fact, inform Sgt. Mark Gottlieb that Nifong would be directing the police investigation. We still don’t know why Lamb made that decision—and Kerner doesn’t say. But her brief suggests that prevention from future civil liability might have accounted for Lamb’s very strange action. As Kerner explains, The [Ekstrand] Complaint contains no factual allegations even implying that Lamb knew, or would have any reason to know, that his agreement to have Nifong direct the investigation could create a risk of constitutional injury . . . Nifong was the District Attorney appointed to serve by the Governor, and police officers are immune from liability for taking direction from a prosecutor [emphasis added]. In other words: in violation of DPD rules, Lamb transferred the case to Nifong’s jurisdiction, and because he and his underlings were thereafter “taking direction” from the rogue “prosecutor,” they should be deemed immune from liability. I suspect this is a line of inquiry the Durham attorneys will wish they hadn’t opened for exploration, since it certainly sounds like the DPD knew it was doing something very wrong, and was desperately scrambling for a bureaucratic solution that would absolve it of future civil liability. |
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| Joan Foster | Jun 29 2009, 07:51 AM Post #5 |
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This is KC at his most brilliant! It goes to the heart of the absurdity of these "We're not corrupt...we're clueless" defenses. Either these plaintiffs are too inept to be employed...or too corrupt...take your pick. |
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| chatham | Jun 29 2009, 07:55 AM Post #6 |
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And of course telling two of the Duke police officers to change or "add clarifying statements" to their reports was not part of any higher up intention to make things more real for crystals claims? Who would have known about this. How about the Durham PD because they were in charge. How about Duke PD because they had the reports. I would guess that these 2 could give a few names of who told them what and when. |
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| Quasimodo | Jun 29 2009, 05:45 PM Post #7 |
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KC's further comment in a post at DIW: I suspect that Lamb turned the case over for Nifong for political reasons, and I doubt he did it of his own accord: I'd be amazed if the order didn't come from either Chalmers or Patrick Baker. But, until the Kerner brief, we had never received even a possible explanation on the record from a representative of Durham as to why the DPD acted as it did. We now have such a possible (very after-the-fact) explanation. Unfortunately, it's not a well thought-out excuse. But I see no reason why, on this point, the players' attorneys shouldn't accept Durham at its word, since doing so provides some circumstantial evidence of an intent to conceal. The Lamb-Nifong notice essentially puts Durham in an impossible position. There is no innocent explanation for the move. Durham has never even tried, before last week's filings, to come up with a public rationalization for the decision. Kerner would have better served her client by simply staying away from the matter. That she didn't was a mistake. Edited by Quasimodo, Jun 29 2009, 05:45 PM.
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| Tidbits | Jun 29 2009, 06:40 PM Post #8 |
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This tends to support my theory that Wilson has the best attorney, and is getting the best deal for his money. KC misses one purpose of the briefs. Fees fees fees. Without looking at the documents or analyzing it, my instinct is that KC reads more importance into the lawyer's Lamb comments than the court will. It may be largely ignored. Time will tell. Elsewhere I said that the defendants might gain more ground if they skipped the foolish arguments. When they make a bunch of filler arguments the judge may get on a roll saying, "no, no, no." Will the judge work hard to find something worthwhile in the pile of paper? Why should he do the work the lawyers should have done? He has other things to do. Edited by Tidbits, Jun 29 2009, 06:41 PM.
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| MikeZPU | Jun 29 2009, 06:57 PM Post #9 |
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With respect to the very last point, the Wanted Poster specifically stated "We're not saying that all 46 were involved." So Addison both made false and inflammatory comments about them as a group, and directed some of those to a sub-group as well. Edited by MikeZPU, Jun 29 2009, 06:57 PM.
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| sdsgo | Jun 29 2009, 09:16 PM Post #10 |
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KC should try reading the briefs. Kerner never concedes any such thing. She merely, as she must for the purposes of a Rule 12(b)(6) motion, accepts Plaintiffs’ factual allegations as true, and she then goes on to say why Plaintiffs fail to state a valid claim.
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| Quasimodo | Jul 1 2009, 08:05 AM Post #11 |
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More from KC: Wednesday, July 01, 2009 The Iqbal Briefs: The Falsely Accused Players (snip) 1.) The Most Craven Defendant It appears as if disgraced ex-DA Mike Nifong has taken time away from writing poetry and singing in the church choir to write legal memoranda. Though the nine-paragraph brief filed on his behalf was signed by James Craven, its tone and content suggests that much of the drafting came from the disbarred Nifong himself. The brief features the combination of poor lawyering, ill-concealed rage, and treacly self-pity for which Nifong became infamous during the case itself. The nine paragraphs include almost nothing in terms of plausible legal analysis. Instead, Nifong uses his filing to lash out at the three innocent people he tried to send to jail, and at their parents—even though his doing so runs the risk of alienating Judge Beaty. (snip) Footnotes in legal briefs normally reference additional case law, or explicate a minor point not significant enough for inclusion in the body of the text. Not so, however, for the Craven Nifong. Footnote 1 merely says, “Does it?” Even more stunningly, footnote two—which follows the word “innocent”—reads, en toto, “Were they?” (snip) The Craven Nifong also uses his experience as a formerly regular participant in local, state, and national media to reinvent himself as a media critic. “It must be remembered,” he sniffs, “that the complaint in this case, though utilized to begin the lawsuit, was hardly written for the Court alone. Rather it was clearly written for the New York Times, the Washington Post, Court TV, and of course the parents of the three plaintiffs.” (snip) ”And perhaps the disgraced ex-DA has forgotten that throughout the case, the New York Times served as his de facto stenographer, even to the point of producing major articles riddled with factual errors that slanted the portrayal on his behalf. Why the “parents of the three plaintiffs” would expect fair, much less sympathetic, coverage from the Times the Craven Nifong never says. (snip) |
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| Quasimodo | Jul 1 2009, 08:14 AM Post #12 |
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2.) The Return of Mr. Obfuscation In the Nifong ethics trial, Lane Williamson labeled former DNA Security lab director Brian Meehan “Mr. Obfuscation,” and the label continues to apply. Attorneys for Meehan filed a three-paragraph memo, claiming the following: “At the time of the events alleged in the Complaint, Meehan was the Laboratory Director for DNA Security, Inc. (‘DSI’), the DNA testing laboratory retained by the State of North Carolina. Accordingly, the legal arguments set forth in DSI’s Supplemental Brief in Support of Motion to Dismiss which refer to ‘the DSI Defendants’ apply with equal force to Meehan.” It’s worth remembering that the brief for DNA Security president Richard Clark had cited Iqbal to suggest that no evidence exists that Clark knew of what transpired at the key meeting between Meehan and Nifong—that Clark himself attended. (This was the “Our President Is Clueless” defense.) But Meehan has testified, under oath and in great detail, about what occurred at his meeting with Nifong. He so testified (albeit inconsistently) not once, not twice, but three times, in three different courtrooms. So now Meehan is claiming that the court should simply ignore all that testimony, and accept his new claim that, because of his title as “lab director,” no evidence exists that he knew what occurred at a meeting that he himself chaired, to present findings from DNA tests that he himself conducted. In a case that has seen more than its share of breathtaking legal claims, this might be the single most outrageous assertion. |
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| Quasimodo | Jul 1 2009, 08:16 AM Post #13 |
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3.) Arguing the Plaintiffs’ Case? In her somewhat peculiar brief, Durham attorney Patricia Kerner tries to argue that ex-DPD officers Mark Gottlieb and Ben Himan did nothing wrong (or if they did, it was all Nifong’s fault) and that the behavior of Gottlieb and Himan conformed to departmental norms in a city that has no pattern of practice of allowing poor police behavior. On at least two occasions, she falls off this tightrope. The first time comes when Kerner describes the performance of the DPD as “police doing the best they could to faithfully execute their investigatory duties under trying circumstances.” Keep in mind that, in the case of former Sgt. Mark Gottlieb alone, the DPD: claimed to have taken no notes at the key initial meeting with the complaining witness; conducted a lineup that flagrantly violated city procedures; inexplicably declined to take any notes at a key meeting with the man selected by the department to conduct DNA tests; produced a months-after-the-fact typed “memorandum” transparently designed to paper over holes in the case That behavior, according to the City of Durham, represents the conduct of an officer trying to “faithfully execute [his] investigatory duties under trying circumstances”? If we take that claim at face value, it would seem to directly undercut Kerner’s subsequent assertion in her brief that the normal patterns and practices of the DPD aren’t designed to violate citizens’ constitutional rights. Kerner makes another odd statement, one directly contradicted by the evidence in the case. Dismissing claims that Gottlieb lied to the grand jury, she maintains, “Indeed, given the secret nature of grand jury proceedings, Plaintiffs could not know what was said during those proceedings, [emphasis added] so they cannot make specific factual allegations about Gottlieb’s and Himan’s testimony at all.” Yet Gottlieb—under oath in a deposition to the State Bar—went on record about what he told the grand jury. And what he told the grand jury—that Crystal Mangum’s story was consistent from the time she met with former SANE nurse-in-training Tara Levicy to the time of the arrests—was a lie. Mangum’s story wasn’t consistent. In fact, she never told the same story twice. The version of events the false accuser presented to Levicy on March 14, 2006 differed markedly from the version of events she presented to Gottlieb and Himan on March 16, 2006, which in turn differed markedly from the version of events she presented to Samiha Khanna in her March 24, 2006 N&O interview—each of which, in turn, differed markedly from the version of events she presented in the rigged lineup on April 4, 2006. Was Kerner unaware of Gottlieb’s deposition to the State Bar? Or is she now suggesting that Gottlieb lied in his deposition, and in fact gave truthful testimony to the grand jury? |
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| Quasimodo | Jul 1 2009, 08:17 AM Post #14 |
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4.) Linwood Is Back The always entertaining Attorney pro-se Linwood Wilson, proving again the aphorism that a man who represents himself has a fool for a client, filed a three-paragraph memo on the matter, asserting the following: “In order not to be repetitive and overbearing on the court, Defendant Linwood Wilson joins Defendants Mark Gottlieb, Benjamin Himan, and the City of Durham, North Carolina, Durham Supervisors, in their Supplemental Briefs In [sic, cap.] Support of their [sic, cap.] Motions to Dismiss.” Yet the whole thrust of Attorney Wilson’s previous arguments has been that his client, fired ex-Nifong investigator Wilson, should not be considered in any way a Durham employee, and that his legal status as an employee of Nifong gave him absolute immunity for any of his misdeeds. So why, now, are Wilson’s interests and those of former DPD members Himan and Gottlieb aligned? The Wilson brief doesn’t say. Perhaps Attorney Wilson can consult with Client Wilson and file a supplemental brief in the future. |
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| Baldo | Jul 1 2009, 09:02 AM Post #15 |
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KC makes some great point in responding to the defendant's filings. We shall see what the Plaintiff's responses are. I have been pondering a question. Was Jamie's filing a mistake for some of the defendants at this time? Did she expect a dismissal of the complaint by Judge Beaty? Surely she must have expected Judge Beaty to request briefs. Did that serve the best interest of the defendants? The question seems to be. Have the Plaintiffs presented enough evidence in their prior to Iqbal filing to pass the new bar level that Iqbal seems to demand? At the worst I fully expect Judge Beaty to allow the Plaintiff's attorney to reformulate their complaints to include more evidence to show each defendant's action were calculated to deny the plaintiff's civil rights and in actuality harm them by illegal, discriminatory, and deceitful actions. It seems Jamie's filing opens the door for more damning information to come out prior to depositions. Was it a cure which will eventually kill the patient? Personally I believe Duke should have settled the claim and removed themselves from the other Durham miscreants. By now I imagine they will have spent tens of millions just to fight this when they could have separated themselves with that money in a settlement. But that's rub, maybe they can't! Edited by Baldo, Jul 1 2009, 09:03 AM.
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