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Ekstrand's Second Amended Complaint in McFadyen v. Duke; Filed Feb. 23; Text from Ekstrand's Website
Topic Started: Feb 28 2010, 11:06 PM (579 Views)
sceptical

Judge Beaty ruled on Feb. 16 that the plaintiffs in the civil suits could amend their filings to include state law claims under the North Carolina Constitution. This is important because it would allow the 3 cases to go forward even if the defendants' claims of immunity were to be successful.

Bob Ekstrand, therefore, filed his Second Amended Complaint in McFadyen et al v. Duke et al on Feb. 23. It is not yet up on Justia but I found the text on Ekstrand's website.

The reference is below; however, it is a 110 MB file that takes a while to download depending on your internet connection:

http://www.ninthstreetlaw.com/docs/2AC.pdf

The main addition to the Complaint is a 41st Cause of Action:


Quote:
 
FORTY-FIRST CAUSE OF ACTION:
VIOLATIONS OF ARTICLE I AND ARTICLE IX OF THE NORTH CAROLINA
CONSTITUTION AND CONSPIRACY
(Against the City of Durham and Duke University, directly and based on
the acts and omissions of their respective employees and agents while
acting in their official capacities)

1382. Plaintiffs incorporate here all of the preceding allegations (¶¶ 1 – 1381).

1383. The foregoing acts, omissions, agreements, and concerted conduct of officials,
employees and agents of the City of Durham’s Police Department and Duke
University Police Department, acting in their official capacities as employees of the
City of Durham Police Department and the Duke University Police Department,
constituted willful abuses and perversions of the police powers bestowed upon the
City of Durham and Duke University by the State of North Carolina which directly
and foreseeably caused the deprivations of the rights guaranteed to the Plaintiffs by
Article I, §§ 1, 14, 15, and 19 and Article IX § 1 of the North Carolina Constitution.

1384. As a direct and foreseeable consequence of each of these deprivations, Plaintiffs have
suffered the loss of education, loss of privacy, loss of liberty, physical harm,
emotional trauma, irreparable reputational harm, and economic losses, including but
not limited to the costs of retaining counsel, forensic experts, investigators, and other
professionals reasonably necessary to aid in their defense throughout the 13-month
police investigation of Mangum’s false claims and under constant threat of
prosecution as accomplices or principles in a rape, sexual offense, and kidnapping that
Defendants knew never occurred.

1385. Plaintiffs plead this direct cause of action under the North Carolina Constitution in the
alternative to Plaintiffs’ state-law claims should those causes of action be barred in
whole or part or otherwise fail to provide a complete and adequate state law remedy
for the wrongs committed by the Defendants and their agents and employees.
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sceptical

According to Judge Beaty's Feb. 16 order, the defendants (Duke & Durham) have 21 days from the filing of the Second Amended Complaint to file a new motion to dismiss. Since Ekstrand filed the amended complaint on Feb. 23, then the new motion to dismiss by the defendants would be due March 16.

Things are moving in the civil suits, although glacially slow.

Quote:
 
Defendants may file renewed Motions to Dismiss within 21 days after the Second Amended Complaint is filed, but those renewed Motions to Dismiss should not be accompanied by any further briefing, and should instead incorporate any previous briefing by reference to the relevant docket numbers in this case. FURTHER that Defendants Duke University and the City of Durham may each file an additional supplemental supporting memorandum not to exceed 20 pages addressing any new matters reflected in the Second Amended Complaint, and a Response not to exceed 20 pages may be filed within 21 days thereafter, with a Reply not to exceed 10 pages filed 14 days later.
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MikeZPU

skeptical: thanks for the updates and attendant explanations!
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genny6348
Genny6348
Thanks for the updates and explanations for us needing translation! :)
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sceptical

To really understand the frame-up, I suggest you read pages 30-285 of Ekstrand's amended complaint in McFadyen v. Duke. There are a lot of allegations and claims, but they are backed-up by facts-- and you can be sure Bob Ekstrand did not include all of his ammunition in the complaint.

http://www.ninthstreetlaw.com/docs/2AC.pdf

While Reade, Collin and Dave suffered the most, they also settled with Duke for millions so that their lawsuit does not include Duke or Duke employees (e.g. Tara Levicy) as defendants. Their targets are the Durham PD and other non-Duke enitities such as DNASI.

The Carrington et al lawsuit does name Duke, but these non-indicted players may have problems with the defense's contention that they did not incur significant damages because they did not face an indictment and Duke did not harm them (a contention which I believe is wrong).

What is unique about the Ekstrand suit is that each of the plaintiffs, while not indicted, did in fact suffer harm by actions by Duke (as well as the Durham PD). McFadyen was hung out to dry by Duke upon the release of his vulgar e-mail ( a parody of "American Psycho"). Archer and Wilson were also both suspended by Duke using "kangaroo court" methods for issues not related to the lacrosse case but part of a pattern of unfair treatment by Duke of its students.

To really understand the role of Duke in the hoax (including the actions of Steel, Brodhead, Moneta, Wasiolek and the Duke Police, among others), either the McFadyen suit and/or the Carrington suit needs to go forward.

While Ekstrand sometimes goes overboard with his rhetoric, his Second Amended Complaint is a strong basis for the case to proceed to the deposition phase, hopefully within the next 3-6 months.
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sceptical

Ekstrand contends that much of the responsibilty for Duke's part in the frame-up belongs to then Board of Trustees' Chairman Robert Steel ("The Chairman"). This is a controversial part of Ekstrand's argument because the public evidence is murky about Steel's role. Below are some of Ekstrand's allegations concerning Steel's actions.

Quote:
 
XVII. THE CHAIRMAN’S DIRECTIVE

445. The Chairman was aware that Mangum was a deeply disturbed young woman who
exhibited signs of psychosis, and that her accusations were false.

446. The Chairman was aware that Gottlieb was on a vendetta in response to the Gottlieb
Dossier.

447. The Chairman was aware that Nifong was preparing to ride the case into office.

448. The Chairman knew that Addison was lying publicly about the evidence.

449. The Chairman was aware that the investigation belonged to the Duke Police
Department.

450. The Chairman knew that, if the public perceived Duke abandoning the Plaintiffs, the
public would conclude that Duke knew they were guilty.

451. The Chairman knew Plaintiffs were innocent, and, to the extent he was not certain, he
ensured that neither he nor any senior University officials saw the evidence of
innocence that he knew was offered.

452. To the Chairman, Plaintiffs’ innocence was irrelevant: what was “best for Duke”
turned upon perception.

453. Aware of these things, the Chairman announced that it would be “best for Duke” if
Plaintiffs were tried and convicted on Mangum’s false accusations.

454. In response to a plea for Duke to show some measure of support for the students who
were being framed in plain view of the University’s leadership, the Chairman
explained, “sometimes individuals have to be sacrificed for the good of the
Organization.”

455. The Chairman’s Directive, as it was understood by one who received it, was
straightforward: “Steel is going to f**k those lacrosse players.”

XVIII. THE CONSPIRACY TO CONCEAL THE DUKE POLICE
DEPARTMENT’S STATUTORY AUTHORITY TO INTERVENE
AND INVESTIGATE

456. To that end, the Chairman directed the Duke Police Department to act in furtherance
of that objective. For example, the Chairman, through Brodhead, Trask, Burness, and
Graves, directed the Duke Police Department:
A. To cease all efforts to find evidence of the truth, particularly evidence that
contradicted the accuser’s account;
B. To conceal evidence of Duke Police Officers’ prior investigative role in the
investigation;
C. To conceal all evidence of the Duke Police Department’s primary jurisdictional
authority to control the investigation and its power to intervene to prevent the
wrongs conspired to be done;
D. To fabricate false and misleading police reports, disguise them as bystander
“witness” statements, that covered-up the Duke Police witnesses’ personal
knowledge of Mangum’s psychosis, her radically changing story, the
overwhelming consensus among her doctors and nurses at DUMC that she was
lying, and the inability of any doctor, nurse, or police officer to find even a
spider-web of evidence that she was raped or sexually assaulted; and
E. To direct those who were at the hospital on March 14th to give “not-forattribution”
false reports about Mangum’s appearance at DUMC in order to lend
credibility to Mangum’s false claims in the eyes of the public.

457. At all times subsequent to the Chairman’s Directive to force a trial and convictions,
the Duke Police Department had the power to revoke its delegated authority and/or to
intervene to prevent or aid in preventing the unlawful conspiracies and violations of
Plaintiffs’ constitutional rights as alleged herein, and, yet, refused to do so.

458. At all times relevant to this action after March 25, 2006, the Chairman and the
members of the CMT directed the Duke Police Department not to intervene to prevent
or aid in preventing the wrongs that they knew were conspired to be done to Plaintiffs
and their teammates by their co-defendants in this action. In compliance with the
Chairman’s Directive, the Durham Police ‘turned a blind eye,’ and did nothing.

A. The CMT’S Acts in Furtherance of the Conspiracy

459. On or before March 25, 2006, the Chairman directed Defendant Brodhead to create a
Crisis Management Team (“CMT”) to manage the University’s actions relating to the
investigation of Mangum’s claims. The original participants in the CMT were
Defendants Steel, Brodhead, Lange, Trask, Burness, and Moneta. Defendant Victor J.
Dzau (Chancellor for Health Affairs, and President and CEO of Duke University
Health Systems, Inc.) was added to the CMT shortly after it became clear that DUHS
and Tara Levicy were critical to the State’s case. Defendant Allison Haltom (the
University’s Secretary) was also added to the CMT following its first meeting on
March 25, 2006.

460. Both Defendants Trask and Burness had personal knowledge of the Gottlieb Dossier
and the fact that Gottlieb had been removed from the patrol beat as a result of his
misconduct in dealings with Duke students, and, upon information and belief,
informed the Chairman and the CMT Defendants of these facts about Gottlieb on or
before March 25, 2006.

B. Duke Officials Cascade the Message that Only the Durham
Police have the Authority to Investigate and Find the Truth.

461. Nevertheless, the Chairman and CMT Defendants directed the Duke Police
Department to abdicate its jurisdictional responsibility to investigate, and allow the
Gottlieb investigation to proceed unabated. Further, having tied the hands of the
Duke Police Department, the Chairman and the CMT, together with Duke Police
Supervising Defendants, Duke Police Investigator Defendants, Durham Police
Supervising Defendants, Durham Investigator Defendants, and others colluded,
agreed, and conspired to mislead Plaintiffs and the public into believing: (1) that the
only law enforcement agency with the authority to investigate Mangum’s allegations
was the Durham Police Department, and (2) that Duke Police Department had no
power or authority to investigate Mangum’s allegations.
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Quasimodo

Quote:
 
B. To conceal evidence of Duke Police Officers’ prior investigative role in the
investigation;
C. To conceal all evidence of the Duke Police Department’s primary jurisdictional
authority to control the investigation and its power to intervene to prevent the
wrongs conspired to be done;
D. To fabricate false and misleading police reports, ...



Poisoning a jury pool?

Interfering with witnesses?

Obstruction of justice, anyone?
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