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Nifong on FERPA
Topic Started: Oct 31 2010, 10:42 AM (278 Views)
Quasimodo

http://liestoppers.blogspot.com/2007/07/titus-played-fool-july-17-2006-subpoena.html



Judge [Titus] : Mr. Nifong do you wish to respond?

Nifong: Yes your Honor, thank you. Your Honor, let me apologize in advance for my voice. I’ve been suffering from a respiratory infection and it’s a little weak.

First it’s important not to forget what FERPA exists for. If all you heard is what we’ve heard so far today you’d think that FERPA was passed to protect students from inquiries by courts into things that they’re wanting to keep secret.

FERPA is an act that was designed to set up conditions for the availability of public federal funds to educational agencies and institutions. That’s why it exists. What it says is, if you want our money then these are the things you must comply with in order to get that. We’ve put these protections in for any institution that wants federal money. Don’t want Federal money, don’t have to comply with FERPA.

(snip)

If the State seeks a court order, which it can seek ex parte, and that order is issued then the only difference between this and that is that the students in this case are not informed of the issuance of the subpoena. The information is supplied to the court pursuant to that order and they don’t find out about it until after the fact.

The situation we have here your Honor, is that every one of the members of the LAX team who was present at the party that night is a potential witness in this case. Some of those people are no longer members of the not only the Duke LAX but the Durham community, having graduated. Some other of those people are not going to be in the same address that they occupied this past year when school resumes in August.

So, in order to get these witnesses here the State needs a reliable source of information about where they can be located. Now Mr. Williams suggests, well just call the attorneys, but these are the same attorneys that told their clients not to talk with the investigators who were looking into this matter. And, can we really wait to find out whether that’s gonna happen under those circumstances?

We have a history here of the students not speaking to investigators looking into this on the advise of counsel. And yet they’re saying well just ask us and we’ll get you all the information you need to know . [in this instance, their home addresses, so that they can be notified of legal actions] So, where did that sea change occur?

As I indicated to the court before we started here, there was nothing secretive, there was nothing underhanded, there was nothing suggested about the subpoena other than the fact that we may need to have some of these young men here as witnesses. They’re all compellable. We’re not trying to investigate them. We’re not trying to say that there are crimes that we want to prove that they’re guilty of. We want to be put in a position to call them, to tell the jury in Durham, what they observed go on that night when this took place.

And, with respect to the card access, we want to be able to confirm what they tell us about where they went afterwards because that’s what that shows. The times that people went into dorm rooms and things like that. We’re not asking for anything but that 24 hours surrounding this event. We haven’t asked for any of their other records. This is not a fishing expedition; this is an attempt to put the State in a position to try a case where there are a lot of witnesses who have not cooperated with the police.

(snip)

So, if the defendants prevail in this particular motion then the State will certainly have to come to the Court and provide a request to the Court for the information with respect to these home addresses and everything just as I’ve said so that we can subpoena these people as witnesses. I think that we’re entitled to that. These people were witnesses whether they want to be here or not. And, they don’t have you know anything other than the 5th amendment right at this point, not to incriminate themselves because they’re not charged with any offense.

And, I know that it looks sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham.


And that’s the situation, we only indict based on our evidence we can’t indict everybody but we are entitled to present a case to the citizens of Durham whereby they can determine what occurred in this case.
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Quasimodo

So FERPA is not about protecting Family Educational Records?

And a counsel of record is not someone who can provide access to his client?

And the attorneys for the unindicted players were disappointed their clients were not indicted?
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Quasimodo

Defense Attorney Manning (just prior to Nifong's remarks) :

(snip)

That brings me then to not a, it’s a term of art, your Honor, not a criticism in any way of the DA’s procedure in investigating his case but in the absence of the SBI DNA, and the absence of a more sophisticated DNA analysis and in the stark fact that the AV in this matter did not identify Mr. K____ [an unindicted player] in any way, shape, fashion or form when presented with his picture in a photo identification proceeding.

What basis can there be for the State to then seek to bring into its purview the private information of Mr. K______ and his family? There has to be a nexus, there has to be some connection other than curiosity or ‘I just want to see it’ in order to have a court issue an order which would invade the privacy which is protected by various levels of Federal law.

In Mr. K____’s situation, your Honor, and he is not the only one of the students, but I’m not their lawyer, with whom there’s no photographic identification connection with this case. As to him, for the reasons in our motion and to the facial invalidity to the two subpoenas themselves, we’d move the court to quash the subpoenas as it relates to K_____.

Your Honor, the second subpoena deals with asking for his home address. Yet another invasion of his family’s privacy and his as well. In the absence of any nexus connecting him to these alleged crimes. The fact that he may have been a member of the LAX team, standing alone, does not provide any basis for seeking the information that the State requests. And, on behalf of Mr. ________., I would move to quash both subpoena #1 and subpoena #2 as it relates to him.
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Quasimodo

Defense Attorney Butch Williams (just prior to Nifong's remarks) :

(snip)

It’s there for a number of reasons dissemination of private information but, your Honor, this case presents a particular challenge in regards to the releasing of information due to the vast amounts of publicity that has been garnered by this case. . . Some who had left the area and gone on to other parts of the country and somehow names addresses and things like that have come up both on the internet as well as television things of that, along with pictures. What we don’t know is the number of people who have been following this case all across the country and if somehow this information was released and somehow this information got out, addresses and local surroundings, contrary to FERPA, it would create, one it is violating their privacy as well as it may in fact create a detrimental situation. There have in fact there have been threats you know to students, etc. and some assaults against students since this case has come about and in no ways do we want their personal information to get out and be used for any of those types of purposes.

The other thing I’ll say Judge is that there are other ways to get that particular information I mean this is not the only case that is in Durham county, its not the only case where the DA has had to use witnesses in who he knows has attorneys that are representing folks. It's not uncustomary to just pick up the phone and call a lawyer if you’re seeking to have them come in as a witness or some other form as opposed to going and getting their personal data and information. At some point in time there may be a call for a spirit of cooperation in that particular regard but at this time, Judge, I’m going to have to vehemently object to the subpoena and I’m only listed for one, because my client didn’t have a swipe card so I’m not really interested for my purposes in that but in terms of releasing his home address or any of his other identifying information for this purpose, I vehemently object and its noted in my motion. Thank you.
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Kerri P.
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I remember watching this hearing and judge Titus schooled Nifong on how to prepare a court order request. Judge Titus told Nifong that he needed to prepare a request for each an every player he wanted information on. Nifong was taking the fast way out of doing things. He had put all the players names on one sheet of paper and attached it to the request. He didn't prepare 46 different requests.


I guess he really didn't want to sit there and type up anything unless he really had to. JMOO......
Edited by Kerri P., Oct 31 2010, 10:57 AM.
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Quasimodo

AND HOW DID THE N&O COVER THE STORY? :

(Poster Comments from the N&O's Editor's Blog)

http://blogsarchive.newsobserver.com/editor/index.php?title=duke_lacrosse_comments_1&more=1&c=1&tb=1&pb=1

-------------------------------------------------

The publication in today's N&O of a Lacrosse "mugshot"
of K________'s [name omitted in posts to spare him additional exposure on the NET to this case]
in today's article by Anne Blythe is one of the lowest chapters in your paper's
disgraceful pro-prosecution coverage.

http://www.newsobserver.com/102/story/448364.html

This malicious act attempting to accuse Mr K______ of
"something" by implication is a continuation of the
Nifong-N&O witchhunt on a new front.

(snip)

Based on your paper's past behavior, it is clear to me
that the picture was published _explicity_ to aid in
Nifong's attempt to intimidate the entire team. And
to drag yet one more player into the public shame
arena without cause.


Will the cowardly Mr Vaden say anything? Not a
chance.
An ombudsman without any courage is less than useless,
it makes a charade of the whole enterprise
.

(snip)

----------------------------------------------------

--- Ted Vaden wrote:

I find no problem with publishing the picture with the story.
The story was about K______, acting through his lawyer, trying to stop the DA's search of his school records. The lawyer wouldn't have filed the motion without his client's approval. The newspaper is merely reporting a legal action with no malicious intent.



------------------------------------------------------------


That's pure garbage, Mr Vaden

Your paper published the photo to be salacious and
accusatory. In no other case would your newspaper
have felt free to smear someone in this way.

The caption used, "K_________ is an object of
subpoenas in Durham."

does not permit any other interpretation besides
malicious intent. The caption is a patently
misleading and accusatory.


----------------------------



Comment from: joan foster
06/13/06

(snip)

Sadly most people today are "Headline readers". They scan the headlines (or captions) for a quick impression of what's going on. Journalists know this. Headlines are a great insight into the viewpoint (even agenda) of the journalists who write them. After all, the headline or caption is the journalist's personal summary of the "facts" to follow.

Ted Vaden must be suffering from the same Righteous Townie Revenge Virus that effects so many these days at the N&O. Of course, any fairminded person could understand that "being an object of subpoenas" gives the impression that this young man has the Hand of the Law bearing down on him.

The "object of subpoenas" sounds so much like "the target of investigation.", doesn't it?
Running a photo of him intensifies the subtle smear. People unfamiliar with legal-ese might assume..especially in the context of the "swagger piece" and the "vigilante poster", that these lacrosse players were Durham's equilalent of the Bloods or Crips. To some on this paper, I think they are.

One might have written "Subpoenas filed to stop Nifong". But that would give a different impression, wouldn't it, Ted?

All over the internet, on blogs and discussion boards , people are parsing the headlines, the content , the placement and choice of the articles the N&O is running on the Duke case. It would be a fascinating course to teach in Journalism school.Right along with Dan Rather's National Guard story.

After embracing an allegation, with no evidence...a journalistic "ownership" takes over. After commiting to the swagger story, the vigilante poster, the pink-puff piece on the accuser (soft voiced college coed who got an "A" in a hard course.) and one on "Dean's list Kim...they need these boys to be guilty for their own credibility and conscience. They are invested. The pro-defense stories they print are not coupled with opinion pieces, human interst stories, Ruth's fire, or compelling editorials. After all the fire in the first pro-prosecution reporting , readers can sense the reporting now is flat.

(snip)

Even if Nifong now reveals the Pope was behind the shower curtain and will testify for the Prosecution.....you went too far , too soon. And now, editorial silence.

Lest you chastise me for posting too much or too long, I get up an hour early each day to post somewhere...for Colin, Reade and Dave. You may chastise or delete me. I can copy and post my comments to this paper elsewhere. But I will stay the course till this travesty ends. I don't know these boys, don't care about Lacrosse and have no allegiance to Duke. But silence in face of injustice makes you a consenting co-conspirator. Not me
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Quasimodo

Kerri P.
Oct 31 2010, 10:57 AM
I remember watching this hearing and judge Titus schooled Nifong on how to prepare a court order request. Judge Titus told Nifong that he needed to prepare a request for each an every player he wanted information on. Nifong was taking the fast way out of doing things. He had put all the players names on one sheet of paper and attached it to the request. He didn't prepare 46 different requests.

Isn't this also the same way he should have prepared the NTO? With a probable cause given
for taking DNA from EACH SPECIFIC player?


:confus:
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sdsgo

GONZAGA UNIV. V. DOE (01-679) 536 U.S. 273 (2002)

http://www.law.cornell.edu/supct/html/01-679.ZS.html

<snip>

(b) There is no question that FERPA’s confidentiality provisions create no rights enforceable under §1983. The provisions entirely lack the sort of individually focused rights-creating language that is critical. FERPA’s provisions speak only to the Secretary, directing that “no funds shall be made available” to any “educational … institution” which has a prohibited “policy or practice,” §1232g(b)(1). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of individual entitlement that is enforceable under §1983. E.g., Cannon, supra, at 690—693. Furthermore, because FERPA’s confidentiality provisions speak only in terms of institutional “policy or practice,” not individual instances of disclosure, see §§1232g(b)(1)—(2), they have an “aggregate” focus, they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights, Blessing, supra, at 344. The fact that recipient institutions can avoid termination of funding so long as they “comply substantially” with the Act’s requirements, §1234c(a), also supports a finding that FERPA fails to support a §1983 suit. Id., at 335, 343. References in §§1232g(b)(1) and (2) to individual parental consent cannot make out the requisite congressional intent to confer individually enforceable rights because each of those references is made in the context of describing the type of “policy or practice” that triggers a funding prohibition. The conclusion that FERPA fails to confer enforceable rights is buttressed by the mechanism that Congress provided for enforcing FERPA violations. The Secretary is expressly authorized to “deal with violations,” §1232g(f), and required to establish a review board to investigate and adjudicate such violations, §1232g(g). For these purposes, the Secretary created the Family Policy Compliance Office, which has promulgated procedures for resolving student complaints about suspected FERPA violations. These procedures squarely distinguish this case from Wright and Wilder, where an aggrieved individual lacked any federal review mechanism. Finally, because FERPA prohibits most of the Secretary’s functions from being carried out in regional offices, §1232g(g), in order to allay the concern that regionalizing enforcement might lead to multiple interpretations of FERPA, it is implausible to presume that Congress nonetheless intended private suits to be brought before thousands of federal- and state-court judges. Pp. 11—15.
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MikeZPU

So, here's one of Nifong's main arguments: because the defense lawyers counseled their
clients not to talk to investigators, then they can't be trusted to give him (Nifong)
the home addresses of the other LAX players, if he wants to call them to testify as witnesses.

Besides being an inane argument, Nifong was being deceitful as always. He conveniently
omitted the fact that what the defense lawyers ACTUALLY instructed their clients to
do was to not talk to the 'investigators" WITHOUT COUNSEL PRESENT.

He also omitted the fact that neither he or the DPD ever called any of the boys in
for questioning with their lawyers present, which is what's done in REAL investigations
ALL THE TIME!

The defense lawyers never turned down a request to bring their client in for questioning
BECAUSE no such request was ever made!

What Nifong didn't tell the court was that once the boys got lawyers, Nifong and the DPD did
not want talk with them anymore. Even the indicted players were NEVER called in for questioning!

Edited by MikeZPU, Oct 31 2010, 07:43 PM.
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MikeZPU

Nifong turned back the clock of legal protections in this country by over
a hundred years AND the mass media basically supported him all the way!
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chatham
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Sounds to me nifong was trying to cover the illegal seizure of FERPA data previously. OH WAIT!!!! Nifong WAS trying to cover up the illegal seizure of FERPA data......
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Kerri P.
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chatham
Oct 31 2010, 08:12 PM
Sounds to me nifong was trying to cover the illegal seizure of FERPA data previously. OH WAIT!!!! Nifong WAS trying to cover up the illegal seizure of FERPA data......
Right Nifong admitted he already had the FERPA records of the players the day they went to court. I don't remember if judge Titus was very happy with him already being in possession of those records.
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MikeZPU

As many have pointed out here in the past, there are many questions
surrounding this charade.

It would be interesting to know who initiated it: Duke or Nifong?

I think we all suspect it was Duke, realizing that by releasing the FERPA
protected information without either waivers or a proper law enforcement
mandate, they potentially put all their federal funding in jeopardy.

On Nifong's end, we know from Gottlieb's depo that the time-cards were
part of the so-called "evidence" that was presented to the Grand Jury.

In fact, aside from Mangum's "ID", the time-cards were the only other
so-called "evidence" that they had.

So, I have to smile when I reflect on this particular ruling, because it
put Nifong into an even greater quandary. He really was down to just
Mangum's ID ... AND there were motions before the court to suppress that,
since it transparently violated standard protocols in an egregious manner.

It is maddening, though, to know that Nifong directed Meehan to not
report all the non-LAX DNA found on Mangum's not-so-private parts AND,
yet, he's up there pillorying the lawyers in front of the judge for directing
the boys not to speak to the investigators!
Edited by MikeZPU, Nov 1 2010, 09:22 AM.
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