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| Blog and Media Roundup - Friday, April 1, 2011; News Roundup | |
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| Tweet Topic Started: Apr 1 2011, 03:01 AM (1,183 Views) | |
| abb | Apr 1 2011, 03:01 AM Post #1 |
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http://www.heraldsun.com/view/full_story_news_durham/12584208/article-Judge-rules-on-lacrosse-suits?instance=main_article Judge rules on lacrosse suits The Herald Sun 03.31.11 - 11:46 pm By Ray Gronberg gronberg@heraldsun.com; 419-6648 DURHAM -- A federal judge on Thursday ruled that alleged civil-rights violations by the city against members of the 2005-06 Duke men's lacrosse team are plausible enough that the two sides should begin trading evidence in anticipation of a trial. U.S. District Court Judge James Beaty Jr. also held that many of the players have plausible claims against Duke University, among them one asserting that school President Richard Brodhead and other Duke officials shared with authorities information the players had told them in confidence. Beaty cautioned, though, that the players' claims so far remain unproven. The upcoming discovery process -- which involves swapping documents and depositions -- will generate evidence he'll eventually use to decide which claims should actually see trial. The judge singled out as especially serious the players' charge that authorities may have rigged or fabricated evidence to support stripper Crystal Mangum's false report that she'd been raped at a team party. On that front, he said, the players are alleging "significant abuses of government power" that merit a factual inquiry, as they are "exactly the type" of conduct the Fourth Amendment to the U.S. Constitution was designed to prevent. Beaty's long-awaited ruling -- covering 490 pages and three different lawsuits -- came some 10 months after the various parties completed their initial round of arguments. The oldest of the lawsuits was filed in the fall of 2007. He did toss a number of claims against the city and Duke, including all that sought damages for emotional distress, all lodged by parents of team members, and an argument by three players that Duke should be liable for not having shouldered aside Durham police and having its own campus police lead the investigation. City exposure limited The judge also made it clear the players won't be able to recover punitive damages from the city -- meaning taxpayers will at most have to compensate them for any actual losses players can prove they incurred because of the investigation. But Beaty said that on many key issues, if the players can show facts are on their side, they could be entitled to relief from his court. He was consistent across the three cases in holding that attorneys for the players can probe whether two police detectives, a nurse at Duke Medical Center and former District Attorney Mike Nifong worked to conceal or fabricate evidence in an attempt to frame their clients. They're entitled to look at whether former Police Chief Steve Chalmers and other Durham Police Department commanders responsible for supervising the detectives failed to do their duty, he said. The city is also potentially liable for any false statements about the players made to reporters by former Deputy Police Chief Ron Hodge and other Police Department officials, Beaty said. The players have a good argument that the act that in March 2006 touched off the media firestorm surrounding the lacrosse case -- the Police Department's public move to take DNA samples from 46 players -- overstepped the Constitution's demand police show probable cause before conducting any search, he said. Also meriting scrutiny is the detectives' search of former player Ryan McFadyen's dorm room and vehicle because of an e-mail he sent teammates, he said. Nifong acts off-limits The judge did, however, say the city can't be held liable for anything the since-disbarred Nifong did. Despite players' claims the former DA acted in practical terms as commander of the police investigation, Nifong was at all times a state employee the city had no legal control of, Beaty said. As to Duke, Beaty said lawyers are entitled to look into whether administrators properly supervised the trainee sexual-assault nurse who gathered evidence from Mangum after the party. Also due for scrutiny is Duke's role in a move players allege it made in collaboration with Nifong to cover up the fact campus officials had given police card-key data that showed when players had entered or left their dorms. Duke isn't liable for actually sharing the data, as the players had no right to expect it to stay private, Beaty said. But the school could be in trouble for handing over the information and, then, weeks later, making players think the transfer was still in doubt. The judge considered a fraud claim against Brodhead and Executive Vice President Tallman Trask potentially viable because of claims the officials enticed players to talk to them about the case by promising some sort of "student-administrator privilege." Dean of Students Sue Wasiolek, an attorney, is also due for scrutiny for allegedly counseling players not to secure their own legal representation and trying to steer them to a lawyer of Duke's choosing. Beaty tossed a variety of breach-of-contract claims based on the Duke administration's alleged failure to shield players from criticism coming from faculty members, fellow students and protestors. But he did allow one breach-of-contract claim to go forward, which alleges that Duke violated its own procedures in the course of disciplining McFadyen over the e-mail that'd prompted the search of his dorm |
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| abb | Apr 1 2011, 03:06 AM Post #2 |
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http://www.heraldsun.com/view/full_story_news_durham/12582420/article-Robinson-Everett--late-law-school-icon--honored-by-Duke?instance=main_article Robinson Everett, late law school icon, honored by Duke The Herald Sun 03.31.11 - 09:40 pm By Melinda Vaughn Duke University News Service DURHAM -- A new endowed professorship will honor the late Duke University law professor Robinson Everett. Everett who taught at Duke for more than 51 years. Everett, who died in 2009 at age 81, was a senior judge of the U.S. Court of Appeals for the Armed Forces and a leading authority on military law and justice. He taught classes in military justice, criminal law, sentencing and criminal procedure. "We are grateful to the many donors and organizations that have helped to make this professorship possible," said Duke Law Dean David Levi. "This professorship will allow us to recruit and attract faculty of the highest caliber, who will carry on the traditions of excellence in teaching and service that professor Everett modeled so capably and generously. I can think of no better way to honor him." Major contributions to the professorship came from the Kathrine Everett Charitable Trust, named for Everett's mother, one of the earliest women to graduate from the UNC School of Law, and 1966 Duke Law School graduate David Noble, a retired trial lawyer. Gifts were matched by funds from The Duke Endowment's Strategic Faculty Initiative. In all, 72 donors have contributed to the fund, with more than $2.5 million raised so far to pay for the professorship. Everett, a graduate of Duke Law School, was a Durham native who joined his parents in law practice in 1955 and practiced through most of his academic career. He served as chief judge of the U.S. Court of Appeals for the Armed Forces from 1980 to 1990, when he assumed senior status. His work as counsel to a U.S. Senate subcommittee in the 1960s led to legislation that modernized the U.S. military court system. Also involved in redistricting litigation, Everett served as both a plaintiff and lead counsel in challenging the creation of North Carolina's 12th congressional district. He argued the matter before the U.S. Supreme Court on four occasions, prevailing in a 1996 ruling that found the district was unlawfully created. Everett, whose father was one of Duke's earliest law graduates, was a generous supporter of the school throughout his life. In 1993, he founded the Duke Center on Law, Ethics and National Security (LENS) to support and encourage teaching and scholarly research on national security law topics. He also established the Reuben Oscar and Robinson O. Everett Scholarship Endowment. "Robinson Everett embodied the qualities of leadership and service in and through the law," Levi said. "He was the model of the citizen-lawyer. By establishing this professorship, we ensure that his example will continue to inspire us." |
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| abb | Apr 1 2011, 03:28 AM Post #3 |
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http://williamlanderson.blogspot.com/2011/03/what-if-you-are-falsely-accused-part-i.html Thursday, March 31, 2011 What if you are falsely accused? Part I: What NOT to do None of us believe that we ever will be falsely accused of a sex crime. After all, we have been brought up to believe that the USA has the best "justice" system in the world, and that police and prosecutors are honest people who never would try to frame an innocent person. Unfortunately, that is not the case anymore. Police gladly will frame innocent people and prosecutors are all-too-happy to put innocent people on trial or force them to plead out to crimes they didn't commit because they cannot afford to defend themselves. THAT is the reality of law in the USA. Most likely, the person reading this won't ever be charged in a sexual assault/child molestation case, as prosecutors cannot charge everyone. If you are falsely accused, however, there are a number of things that you should do -- and not do. I will deal with those things in this post. After you get over the first wave of shock and anger of being falsely accused, you probably just are confused and want this nightmare to go away. You have to understand, however, that the police and the local prosecutors really are not interested in whether or not you actually did the things of which you are accused. That's right; they are not interested. They already have decided you are guilty, and their mission is to spin everything that they find into a way to get you thrown into prison for the rest of your life. It does not matter if the accusations are a lie. Cops and prosecutors lie all the time and the honest people in that business often are intimidated and threatened by the bad guys. You are going to be dealing with people who don't care if you are innocent or guilty; they already have decided you are guilty, and they don't like to be confused with facts. So, let us assume that you are accused. What do you do. What do you NOT do? Don't Talk to the Police The first thing that you DO NOT do is talk to the police without an attorney present. If you wish to have an expert tell you why, just watch this video by a law school professor telling people NOT to talk to the police. Yes, you reply, but the police will listen. They will hear your story and then they will realize that the charges are ridiculous and the whole thing will go away. Right. It is not going to happen. If you sit down with the police, they are not going to try to find out what occurred; no, they are going to try to find a way to twist your statements into an admission of guilt. No matter how much they tell you that they only are trying to help, it is a lie. As Tonya Craft has told me more than once, charges of child molestation and rape are very different than, say, charges that you robbed a convenience store. Regarding the latter, you can present evidence that you were not there or that the eyewitness has engaged in mistaken identity. (Granted, cops try to find ways to work around alibis in these kinds of cases, too, but if you can prove you were not there, you have a strong case for innocence.) In charges of child molestation or rape, however, alibis simply don't matter. For example, "judge" brian outhouse actually claimed in court that prosecutors had demonstrated that Tonya Craft molested the daughter of Sandra Lamb at her home -- before she even bought the home and moved into it. Logically, there was no way that Ms. Craft could have been at that place when prosecutors said she was (and entered no evidence at all to show she had been there before she bought the house), but it did not matter. Why? House and the prosecutors already were of the mindset that they were going to rig a conviction, and had no interest in evidence. That is common in such cases. We have seen it not only in the Craft case, but also all of the other cases covered on this blog, including the one against Michael Rasmussen. Look what happened when Rasmussen agreed to talk to detectives Young Austin and Kim Selkirk. They wrote down a bunch of notes and claimed that he had "confessed" to everything they had claimed. Given that Selkirk and Austin did not record this supposed momentous "confession" and given that Selkirk's notes conflicted with the state's own "evidence," it is not hard to conclude that Austin and Selkirk are lying. A friend of mine who was a police officer in Florida for many years told me that all too often, cops reach conclusions first and then try to find "evidence" that fits their theories. A good investigator, he told me, tries to let the evidence lead to a conclusion, not the other way around. Yet, cops also are under pressure to charge people, to close cases, and to help prosecutors get convictions. The "win at all costs" combined with the fact that the ONLY "evidence" needed in many rape and child molestation cases is an accusation. For example, it was painfully clear in the Duke Lacrosse Case that (1) Crystal Mangum was not raped, and (2) that the three lacrosse players could not have been the "rapists," anyway. Yet, the charges stayed live for a year even though they had thoroughly been debunked by the attorneys and by outside experts who saw the "evidence" for what it was: a sham. But because of political considerations and because of the feminist ideologies driving the charges, the case very well could have gone to trial and there very well could have been a conviction. It is very rare in these kinds of cases that police and prosecutors will look at evidence that does not fit a profile that says you are guilty. That is just the way it is. Don't talk to the police; they only will use your words against you. Don't Assume the People in the System will be Fair Americans like to believe that this is a country where fairness and justice reign. That is nonsense, but most people don't discover just how bad things are until they are charged with something they did not do. The American courts will go overboard to convict the innocent, and once there is a conviction, it is almost impossible to have it overturned, as the courts love "finality." As I noted in a previous post, the immunity that government players have in the justice system also provides perverse incentives for them to lie. After all, prosecutors don't get raises and promotions for "seeking justice." They get raises and promotions for winning. Chris Arnt believed that he could ride a conviction against Tonya Craft to much higher political office. Despite the fact that he lied in court, suborned perjury, and broke the law with impunity, he still is employed as a prosecutor, going after other people who allegedly have broken the law. In other words, Arnt paid no legal price for his actions. Whether or not he ever can be elected to public office after his show of dishonesty depends upon how much garbage voters in North Georgia are willing to swallow. Even though the police will accuse you of "not cooperating," you MUST invoke your Constitutional rights at this point. Trust me when I tell you that neither police nor prosecutors care about your rights and will violate them with impunity if they think they can get away with it. You have to be responsible to protect yourself, and that means invoking your rights. Don't talk to the police, period. In Part II, I will write about choosing an attorney. In Part III, I will point out resources you can use to help defend yourself. NOTE: Good news from North Carolina. A federal judge has ruled that the lawsuits filed by various Duke lacrosse players against Duke University, Durham, and Mike Nifong can proceed. If Duke and Durham lose on appeal, I suspect that the defendants will settle quickly with the plaintiffs. Posted by William L. Anderson at 10:52 PM |
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| abb | Apr 1 2011, 03:41 AM Post #4 |
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http://durhamwonderland.blogspot.com/2011/03/beaty-decision-evans-lawsuit-key_31.html Thursday, March 31, 2011 Beaty Decision (Evans Lawsuit): Key Passages (Updated) Seligmann attorney Richard Emery: "The opinion is what I would call, overall, a ringing success for the boys . . . We’re glad that we’re moving ahead with the case.” Duke spokesperson Michael Schoenfeld commented, "The few claims remaining are substantially narrowed, as we had hoped." Somehow, I doubt that Duke "hoped" that at this stage of the game, the university, Pres. Brodhead, Bob Steel, Tara Levicy, Dean Sue Wasiolek, and Duke Health would remain as defendants, and thus be subject to depositions and discovery. The university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta. I will have more on the unindicted players' suit tomorrow. -------- Key passages: Beaty complains about the filing’s length, but then adds a strong conclusion: “The Court is also compelled to note that the allegations in the Second Amended Complaint that are going forward, particularly as to Counts 1-3, set out allegations of significant abuses of government power. Indeed, the intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of “unreasonable” search and seizure that the Fourth Amendment was designed to protect against, and would violate the most fundamental concepts of due process. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).’” . . . Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution." [emphasis added] Counts 8-12—conspiracy under § 1985—dismissed Beaty holds that the counts could apply only if the lacrosse players were a protected class, which they are not (in other words, municipalities can’t be held liable under § 1985 for deciding to go after white males) Count 13: conspiracy to commit malicious prosecution Very high standard, but enough to go forward at this stage: “Defendant Nifong enjoys absolute prosecutorial immunity for the decision to prosecute, but that immunity does not extend to investigatory acts by Defendants Nifong and Wilson, particularly the creation of false and misleading evidence during the investigation.” [emphasis added] Count 15: emotional distress—dismissed Very high standard under North Carolina law, yet “Plaintiffs do not include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs individually.” Counts 18-22: negligence claims against Durham, DNA Security Beaty dismissed the claims against DNA Security, noting that the company had no specific obligation to the lacrosse players. (Its “client”—to use Brian Meehan’s term—was Durham.) He allowed the claims against the city to proceed, but strongly hinted he would dismiss them at summary judgment. Count 4—false public statements--upheld Beaty: must move beyond reputational harm; “Plaintiffs contend that they have stated a claim because the false public statements made by governmental officials in this case were intended to inflame the grand jury pool and result in indictments against Plaintiffs.” “Plaintiffs have alleged that each of the named Defendants made deliberately false public statements in connection with the alleged falsification of evidence that was used to subject them to indictment and arrest. In addition, this right was clearly established well before the conduct alleged in the present case, and a reasonable official would have known that it violated clearly established constitutional rights to deliberately make false public statements regarding a citizen in connection with an unlawful arrest of that citizen.” Count 5: city liability because of poor policies, insufficient supervision—upheld in part “The Court concludes that Plaintiffs have alleged that the City had a policy of targeting Duke students that led to multiple constitutional violations against Duke students, particularly by Gottlieb, and that the City through its final policymaking officials nevertheless continued the policy and ratified and condoned those violations. Plaintiffs have stated a plausible claim that this condoning of constitutional violations in the enforcement of the policy led to the constitutional violations and injuries” Nifong, however, is a different story: “the City could not have delegated its policymaking authority to Nifong, and the claims against Nifong in his “official capacity” are claims against the State, not the City. In light of this conclusion, the City cannot be liable under § 1983 for “official capacity” claims against Defendant Nifong or for alleged conduct by Nifong as a “policymaker.’” Essentially holding that what Durham did was against the law, but the city cannot be held liable for it.< Count 6: supervisory liability—upheld “Under the Fourth Circuit’s decision in Shaw, it was clearly established that an official violated the Constitution if, in deliberate indifference to the constitutional rights of citizens, the official knew of his subordinate’s constitutional violations and failed to act.” But plaintiffs must “pinpoint” what each defendant knew, when he knew it, and what he did about it. Counts 1-3: alicious prosecution, concealment of evidence, and fabrication of false evidence—upheld City had argued for dismissal based on grand jury indictment—Beaty says no The D.C. Circuit recently concluded that in a civil case for malicious or retaliatory prosecution, a grand jury indictment is only prima facie evidence of probable cause that may be rebutted by evidence that the indictment was “produced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Moore v. Hartman, 571 F.3d 62, 69 (D.C. Cir. 2009). The Fourth Circuit has likewise recognized that when police officers effect a “seizure” by arresting an individual pursuant to an arrest warrant, the officers are liable under the Fourth Amendment if the officers “intentionally lie in warrant affidavits, or recklessly include or exclude material information known to them.” Miller, 475 F.3d at 630. the Fourth Circuit has also recognized that even when a probable cause determination has been made by a neutral third party, “an officer who intentionally or recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution unless the untainted facts themselves provide probable cause.” Miller, 475 F.3d at 630-31. Defendants’ response: “This analysis includes extensive parsing of pieces of the Second Amended Complaint, as well as contentions by the Defendants blaming one another for any alleged violation here.” Such a matter can’t be covered in a motion to dismiss. Plaintiffs can meet the standards set out above, specifically by alleging that Plaintiffs were arrested pursuant to an indictment that was obtained by the intentional or reckless creation of false or misleading evidence used before the grand jury that was necessary to a finding of probable cause, or the deliberate or reckless omission of material information that officials knew would negate probable cause.” 14th amendment claims regarding false arrest generally held to high standard, but “the Fourth Circuit has also held that individuals possess a Fourteenth Amendment Due Process right not to be deprived of liberty as a result of the deliberate fabrication of evidence by a government officer acting in an investigating capacity.” Absolute immunity for grand jury testimony, but “the Fourth Circuit has held that even though an officer cannot be held liable for his testimony in a legal proceeding, this immunity does not extend to the “initial act of fabrication,” and would not protect an officer who allegedly fabricated a police report where the report was later used at trial.” Nifong and Wilson claimed absolute prosecutorial immunity, but “the Supreme Court [in Buckley v. Fitzsimmons] ultimately concluded that the prosecutor was not entitled to absolute immunity for his investigative work, including his alleged efforts to fabricate evidence prior to initiation of judicial proceedings.” And “based on the allegations . . . Nifong was acting far outside his prosecutorial role and was instead assuming an investigatory role in this matter, going so far as to assume supervision of an investigation that had just begun.” Counts require demonstration of individual actors committing specific acts that violated the plaintiffs’ constitutional rights—clear in the case of Nifong, Gottlieb, Himan, shakier in the case of Meehan, Wilson, but still enough to move forward. Posted by KC Johnson at 8:57 PM |
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| abb | Apr 1 2011, 03:47 AM Post #5 |
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http://www.dukechronicle.com/article/blue-devils-battle-top-ranked-syracuse Blue Devils to battle top-ranked Syracuse Caroline Rodriguez/The Chronicle Zach Howell will look to avenge the Blue Devils’ 2009 NCAA semifinal defeat at the hands of the Orange. By Shiva Kothari [4] April 1, 2011 This Sunday’s game between Duke and Syracuse features two traditional powerhouse lacrosse programs: The winners of the past three national championships and two of the top three teams in the country. To top it off, both teams enter the game with seven-game winning streaks. The No. 3 Blue Devils (8-2) haven’t lost in more than a month, while the No. 1 Orange (7-0) have yet to lose a game at all this season. It’s fitting that such a showdown would take place in one of the nation’s largest arenas: New Meadowlands Stadium, the 82,500-seat home of the NFL’s New York Giants and Jets in Secaucus, N.J. The game takes place as part of the Big City Classic, which features a triple-header involving four of the nation’s top-six teams. Leading up to the game, head coach John Danowski said he is encouraged by the way his team is practicing and is looking at this game as a measuring stick. “There has been a tremendous focus in practice and guys have worked really hard,” Danowski said. “For this game, we just want to go in and play. Let our guys run out there against the best in the country and see how we measure up.” The Orange have proven to be the best in the country so far in this young season, and their defense is peaking just as they prepare to face the third-highest-scoring offense in college lacrosse. Syracuse has allowed a total of only 10 goals in its past two games, and those contests haven’t been played against easy competition. Syracuse defeated No. 7 Villanova 5-4 and emerged victorious from a thrilling 5-4 double-overtime game against No. 9 John Hopkins. Leading the Duke attack against this formidable defensive unit are senior Zach Howell, who leads the team with 33 points and freshman Jordan Wolf, who sits one spot behind Howell with 28 points. Wolf has been especially hot lately, with 10 points in his last two games, including seven points against Georgetown in the Blue Devils’ thrilling come-from-behind victory two games ago. To compete against the game plan against the feisty Orange defense, Howell stressed the importance of being prepared for Syracuse’s aggressiveness. “They like to press out, they are an aggressive team and so everyone on the field needs to be ready,” Howell said. “[We cannot be] nervous and anxious when they start doing that to us.” Duke will have extra motivation in this game, since the last meeting between these two teams took place in the semifinals of the 2009 National Championships, where Syracuse destroyed the Blue Devils 17-7 to end Duke’s title hopes. “Personally, I try to improve on last games, not really thinking about that [2009] Syracuse game in particular,” Howell said. “But it is in the back of my mind how badly they beat us.” If the Blue Devils knock off the Orange on Sunday and earn a chance to steal their No. 1 ranking, revenge will be sweet indeed. |
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| abb | Apr 1 2011, 03:51 AM Post #6 |
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http://dukefactchecker.blogspot.com/2011/03/duke-issues-statement-on-lacrosse.html Thursday, March 31, 2011 Duke admits "mistakes" in lacrosse case, pledges to continue fight lawsuit "aggressively." This apparently refers to the McFadyen lawsuit. “This lawsuit is another unfortunate result of the misdeeds of former Durham County prosecutor, Mike Nifong, and the Durham police. However, this suit is misdirected against the university. Duke University reasonably relied on the statements of a prosecutor whose path of destruction could be stopped only by the North Carolina Attorney General. “Duke made some mistakes when the allegations first surfaced in the spring of 2006. The cause of any harm felt by the players, however, clearly lies with parties other than Duke. Nevertheless, to avoid putting the entire community through destructive litigation, the university offered many months ago to reimburse the attorneys' fees and other out-of-pocket expenses of the players whose lives were disrupted but who were not indicted. We were and remain disappointed those offers were not accepted. We will aggressively defend the university in this matter.” Check with Fact Checker very late tonight or tomorrow morning. Posted by To reach Fact Checker at 6:28 PM |
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| abb | Apr 1 2011, 03:52 AM Post #7 |
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http://dukefactchecker.blogspot.com/2011/03/brodhead-steel-under-court-order-to.html Thursday, March 31, 2011 Brodhead, Steel face court order to testify in lacrosse case!!!!!!! Search terms Duke University lacrosse Richard Brodhead Steel hoax Anil Potti ✔✔✔✔✔ ✔✔✔✔✔ ✔✔✔✔✔ A federal judge has issued an order that means President Brodhead and former Trustee chair Robert King Steel will be forced to give testimony about the lacrosse hoax. This is a major turn of events; the university has fought a multi-million dollar legal battle to prevent this, and tonight, in a statement, said it would "aggressively" defend itself on appeal. The statement also admitted unspecified "mistakes" in handling the lacrosse case -- but contended these did not lead to legal liability. And Duke revealed it tried to buy its way out of at least one of three pending lawsuits in recent months, offering to pay plaintiffs' legal fees and other out of pocket expenses, but giving them nothing for their horrendous trip through their undergraduate years. Duke will now face an uphill battle. The university can't just go in and say it doesn't like the result, so it wants another shot. It must show where a very experienced federal judge, James Beaty, made an error. Beaty was nominated to the federal bench by President Clinton in 1994, and rapidly won unanimous confirmation in the US Senate. He became chief judge of the district two years later. The President tried to advance Beaty to the 4th circuit Court of Appeals, but the late Senator Jesse Helms blocked it. Beaty's name went up time and time again -- and the seat sat vacant for 7 years before being filled by someone else. The lax players and their families -- along with supporters who have kept a very active website alive -- hailed the decision as a major victory and a step, finally, to full justice in the five year old hoax. They wondered, however, how long Duke would drag out the next phases of the litigation. As of this moment, Brodhead and Steel will be required to comply with a demand that they each, separately, give sworn testimony about the lacrosse hoax. They will also be compelled to submit documents that plaintiffs' lawyers request. If they refuse, they can be held in contempt of court and even jailed. The next step is called the discovery phase of the lawsuit -- aimed at further narrowing issues. It allows the plaintiffs' lawyers more latitude than they would have during the trial itself, to go into areas that obviously Brodhead and Steel would desperately want untouched. The depositions from Brodhead and Steel can be used during the trial to challenge what they later testify, if they change their story, and the depositions can be also used against other witnesses who may offer different versions. Above all, they become part of the public record and expose an administration that fumbled badly during the crisis. The order came in the McFadyen lawsuit, brought by members of the lacrosse team who were not indicted. The order was part of a legal snowstorm involving motions to dismiss and demands for summary judgment. This is all routine defense maneuvering to thin out the allegations and put more focus on the lawsuit. Indeed the judge tossed some of the counts in the plaintiffs' complaint, but let others stand. He said the lawsuit raises the specter of a very fundamental civil rights violation. With respect to university officials, the judge cited an e-mail -- the author was not revealed -- circulated among high officials "to get their stories" straight. The e-mail further said recipients should destroy the e-mail. The judge said further examination of this is needed, for this allegation raises the prospect that Brodhead, Steel and other Duke officials acted with intent to obstruct justice and deny the plaintiffs their legal remedies. The judge said a fraud claim against Brodhead and Executive Vice President Tallman Trask may have validity and the plaintiffs can pursue it. This is based upon claims the officials enticed players to talk to them about the case by promising some sort of "student-administrator privilege." Dean of Students Sue Wasiolek, an attorney, remains on the hot seat too, for allegedly counseling players not to secure their own lawyers and steering them to a lawyer hand-picked by Duke. In a surprising aspect of the judge's decision, he ruled that Duke may have violated its own stated procedures in dealing with lacrosse players, and this part of the lawsuit can go forward. Duke has been adamant that all its promotional materials, websites and paperwork with students does not amount to a contract, and thus is not enforceable. The three indicted players were not part of the McFadyen lawsuit. They reached a settlement with Duke immediately after the North Carolina state Attorney General declared them "innocent." The settlement is a secret, until recently thought to be $6 million each. But a tax lien filed against player Reade Seligmann suggests Duke paid each $18 to $20 million. Seligmann's attorney says taxes were paid four years ago and the lien will be nullified. Beyond Brodhead and Steel, there was a list of other defendants, headed by the city of Durham. Judge Beaty wrote the lawsuit -- if proven -- shows "significant abuses of government power. Indeed, the intentional or reckless use of false or misleading evidence before a magistrate judge to obtain a warrant and effect a search and seizure is exactly the type of “unreasonable” search and seizure the Fourth Amendment is designed to protect against." The judge also wrote, "there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen, in this case by allegedly making false and misleading representations and creating false and misleading evidence in order to obtain an NTO (search warrant) against all of the lacrosse team members and obtain a search warrant." ✔✔✔✔✔ The three indicted players have their own lawsuit which also was the subject of a separate ruling late Thursday afternoon from the same judge. This is called the Evans suit, after lead plaintiff David Evans. The principal defendant was the city of Durham and its police. Disgraced and disbarred former district attorney Mike Nifong was an original defendant. When he filed for bankruptcy, a routine court order let him off the hook. Thursday night, the judge ordered that Nifong once again be a full defendant. The judge allowed the three lax players to continue, rebuffing attempts by Durham to say they were going into un-chartered legal waters. But again, he thinned out the issues and let some of the defendants off the hook. The players can continue to pursue claims such as malicious prosecution, concealment of evidence and fabrication of false evidence. One of the big losses for the lax players in the Evans lawsuit was the judge's finding that their complaint was not sufficient to establish severe emotional distress on the part of their families -- and thus any damages assessed could not be boosted. Statement from the city late Thursday: "We believe the court correctly dismissed the punitive damages claims against the city and are pleased and encouraged by that favorable determination," Durham Public Affairs Director Beverly Thompson said. "The city's legal counsel look forward to studying today's decisions in greater detail and remain optimistic that the cases will ultimately be decided in favor of the city and its personnel." The players could rejoice in stirring language in their favor. Judge Beaty repeated words he used in the McFayden decision: the lawsuit presented issues of "significant abuses of government power. Indeed, the intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of “unreasonable” search and seizure that the Fourth Amendment was designed to protect against, and would violate the most fundamental concepts of due process." Tonight, the lawyer for Reade, the eminent civil rights attorney Richard Emery, just about the best person you could have on your side, said: “The opinion is what I would call, overall, a ringing success for the boys.” ✔✔✔✔✔ Late tonight, we received word that the same judge apparently (this stuff is really hard to confirm when opinions are issued at the close of the business day) decided on motions in the third (and final!!) lax lawsuit. This is known as Carrington, after the lead plaintiff. We do not have the text yet. Early indications are that the judge, as expected, thinned out the plaintiffs' original complaint and number of defendants, but left the core of the lawsuit alive. Each of these lawsuits is very complicated. Multiple plaintiffs. Multiple defendants. In fact one had more than 2,000 possible combinations. The McFadyen decision is 223 pages. The Evans 96. And be advised these are not the final word; these were just on pre-trial maneuvers. The judge told attorneys for all sides that going forward, he wants less clutter. Duke has not only refused to reveal the settlements paid to the three falsely indicted lax players. It has refused repeatedly FC requests for information about its overall legal costs. We have only snippets of information. Generally speaking, legal costs are four times what they were pre-lacrosse; the best we can find out is the total is $22 million a year. It will be more difficult to trace legal fees going forward, because Duke will likely face hundreds of lawsuits and hundreds of million dollars of potential liability because of the cancer quack Dr Anil Potti. Up until now, there was no other major issue propelling costs, so the assumption was the entire increment was due to lax. We do know that one hot shot Washington defense lawyer hired by Duke -- Jamie Gorelick -- billed for $2 million in one year. Unfortunately federal law no longer mandates that the university reveal the highest professional fees that it pays; rather it must now only reveal its five biggest contractors, most often construction companies. Posted by To reach Fact Checker at 6:53 PM |
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| abb | Apr 1 2011, 03:54 AM Post #8 |
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There ain't SQUAT in The (Duke) Chronicle about the court's decision. At least as of this posting - about 4 AM, CDT. |
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| abb | Apr 1 2011, 03:57 AM Post #9 |
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http://www.newsobserver.com/2011/04/01/1096213/perdue-signs-crime-lab-law.html Published Fri, Apr 01, 2011 02:00 AM Modified Fri, Apr 01, 2011 04:03 AM Perdue signs crime lab law BY JOSEPH NEFF - Staff Writer Gov. Bev Perdue on Thursday signed into law a series of reforms aimed at restoring credibility to the State Bureau of Investigation and upgrading scientific standards at the state's crime lab. Some changes are symbolic: The lab, formerly known as the SBI Crime Laboratory, will be known as the North Carolina Crime Laboratory, to emphasize the point that its scientists work for the public and the entire criminal justice system, not just prosecutors and police. Others are substantial: The lab must meet the highest international standards, and individual scientists and analysts must be certified in their field and receive regular training and competency tests. "This will raise the competence, integrity and standards at the lab," said Christine Mumma, director of the N.C. Center on Actual Innocence. The law represents the first step by those outside the SBI at fixing problems that have erupted over the past year. A News & Observer series published in August reported widespread problems at the bureau, including some agents who bullied the vulnerable and analysts who pushed past the bounds of science to deliver results that bolstered prosecutions. An audit ordered by Attorney General Roy Cooper of the blood analysis unit pinpointed more than 200 cases tainted by analysts who misstated or withheld test results that were favorable to the defendant. Seventy-four cases have been recently identified. The audit was prompted by the case of Greg Taylor, who in February 2010 was exonerated of a 1991 murder, in large part because an SBI analyst withheld test results favorable to Taylor. An SBI agent's misconduct led in 2009 to a $3.9 million settlement with Alan Gell, a Bertie County man wrongfully put on death row. The bureau faces similar lawsuits that may result in even costlier outcomes. Mumma, who helped represent Taylor, said the new law did not address her most fundamental concern: the independence of the crime lab. New bill on oversight On Thursday, state Sen. Floyd McKissick, a Durham Democrat, introduced a bill to remove the crime lab from the SBI, which is essentially a police agency, and have it report directly to the attorney general. The attorney general oversees the SBI. "By creating an independent state forensics lab, we can better insulate this critical agency from undue outside influence, protecting the rights of innocent people while using the latest forensic advances to solve crimes," McKissick said. The law Perdue signed Thursday did not address to whom the lab reports. The joint legislative committee that drafted the law wanted to maintain unanimity on the changes it proposed, which include: Mandating that the crime lab disclose all notes, data and test results. Employees of the SBI and other law enforcement agencies who knowingly violate this could be prosecuted for obstruction of justice. Creating an independent N.C. Forensic Science Advisory Board consisting solely of scientists with expertise in fields such as DNA, chemistry, autopsies and toxicology. Removing ASCLD-LAB as the sole accrediting agency for the crime lab. The Garner-based agency, which is run by former SBI agents, has come under criticism for not detecting systemic problems in the crime lab. Cooper and the SBI have said that the lab will meet international standards this year. "Removing ASCLD-LAB's monopoly on policing the lab is quite good," said Mike Klinkosum, a Raleigh defense lawyer who also represented Taylor. "There has been an extremely cozy relationship that hasn't been good for science." joseph.neff@newsobserver.com or 919-829-4516 |
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| abb | Apr 1 2011, 04:00 AM Post #10 |
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http://www.newsobserver.com/2011/04/01/1095769/evidence-issues-again.html Published Fri, Apr 01, 2011 02:00 AM Modified Fri, Apr 01, 2011 04:45 AM Evidence issues, again Published in: Editorials Has Christopher Foye wrongly spent the last 19 years in prison? It's a question that needs to be asked and answered satisfactorily, because once again State Bureau of Investigation lab work and prosecutors' possible failure to share pertinent evidence may have been a factor in a man going to prison. Foye made a plea deal in a 1991 murder in Kinston. Bobbie Jean Morgan was found in her bedroom by her 9-year-old son, lying in a pool of blood. Her throat had been slashed. She was five months pregnant. She had an estranged husband and a boyfriend. Her sister and her sister's boyfriend, Chris Foye, were neighbors at the same apartment complex. Foye was one of three suspects, the other two being the estranged husband and the boyfriend. One of the other suspects' DNA was found in underwear in the victim's home, according to the SBI. And an SBI blood test was inconclusive regarding Foye. But two of his aunts said he'd confessed, and a footprint test was regarded by an FBI analyst as credible in showing that a footprint in the victim's home was consistent with Foye's. The SBI lab's involvement in the case has the interest of Foye's attorneys, one of whom said he'd never have let Foye make a plea deal if he'd known about the DNA findings. Those involved in the prosecution deny anything was withheld. But the case is an old one. Obviously, given the critical findings of an audit of the SBI lab that found a host of problems, including an inclination on the part of SBI agents to see themselves as allies of the prosecution and not only truth-seekers, the Foye case deserves a fresh look. And it should give pause to the state's district attorneys, who have stated through their professional association that they do not believe there are any further problems with the more than 200 cases called into question because prosecutions involved SBI lab evidence. Just recently, Durham County Superior Court Judge Orlando Hudson dismissed charges against a man who had served 12 years in prison for murder after finding that the SBI and prosecutors had withheld evidence. At the very least, the case of Chris Foye is another in need of an independent review. |
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| abb | Apr 1 2011, 04:14 AM Post #11 |
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http://www.bloomberg.com/news/2011-04-01/duke-lacrosse-players-suit-over-false-rape-claim-may-proceed-judge-says.html Duke Lacrosse Players' Suit Over False Rape Claim May Proceed, Judge Says By Edvard Pettersson and Thom Weidlich - Mar 31, 2011 Three former Duke University lacrosse players, falsely accused of rape in a case that cost a district attorney his law license, can move forward with part of their claims against the former prosecutor and the city of Durham, North Carolina, a judge ruled. U.S. District Judge James A. Beaty Jr., in a ruling today, refused to dismiss the former students’ claims that their constitutional rights were violated through malicious prosecution, concealment of evidence and fabrication of false evidence. The judge dismissed their separate conspiracy claim and their intentional infliction of emotional distress claim. “The intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of unreasonable search and seizure that the Fourth Amendment was designed to protect against,” the judge said. The players in October 2007 sued Mike Nifong, the former prosecutor, the city, police officers and lab personnel in federal court in Durham, calling the case “one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history,” according to their complaint. James Craven III, a lawyer for Nifong, and Reginald Gillespie Jr., a lawyer for the city, didn’t immediately return calls to their offices after regular business hours. Stripper’s Accusation The prosecution of players David Evans, Collin Finnerty and Reade Seligmann began with a stripper’s accusation that she was attacked after she danced at a team party in 2006. The authorities mishandled the investigation and withheld evidence that supported the athletes’ denials, the three men said in their complaint. The athletes claim the officials violated their rights under the Fourth Amendment, which requires probable cause to issue warrants, and the 14th Amendment, which guarantees equal protection of law. They used a law that lets people sue public officials in federal court for violating their constitutional rights. The players have asked the court for unspecified damages and for a monitor to be appointed to oversee the Durham police for 10 years. Duke is located in Durham. Nifong was running for re-election in March 2006 when the dancer, a black woman named Crystal Mangum, then 27, reported that she was raped by white team members at a party in a rented house where she went to perform. Photo Lineups The players were arrested and indicted on charges that could have sent them to prison for as long as 20 years. The arrests were based partly on photo lineups criticized by defense lawyers because they contained only pictures of team members. In March 2006, the district attorney conducted almost 100 media interviews in which he said he had “no doubt” that three members of the team had engaged in a vicious, racially motivated rape, according to the complaint. The players’ lawyers said the district attorney was using the woman’s false allegations to win the election. During a Dec. 15, 2006, court hearing, the director of the DNA lab Nifong used admitted he and the prosecutor agreed to withhold evidence that probably would show that none of the team members raped the woman. Nifong dropped the rape charges, leaving accusations of first-degree sex offense and first-degree kidnapping. ‘Rush to Accuse’ State Attorney General Roy Cooper took over the case in January 2007 and dropped the charges that April. The players were caught in a “tragic rush to accuse,” and no crime occurred, Cooper said. Nifong was removed from the practice of law in 2007 for unethical conduct in the investigation. He argued that the complaint failed to state a claim against him and that he was immune from the suit because he acted in his official capacity as a prosecutor. The city also argued it was immune from liability. The athletes’ lawyers were using “novel legal theories” to “impose on Durham taxpayers untold millions of dollars in damages for plaintiffs who were publicly exonerated and never spent a moment in jail,” its lawyers wrote in a January 2008 court filing. The city’s lawyers said Nifong worked for the state, not the city. Beaty today also upheld and dismissed various counts in two separate lawsuits filed by other members of the 2006 Duke lacrosse team. The case is Evans v. Durham, 07-00739, U.S. District Court, Middle District of North Carolina (Durham). To contact the reporters on this story: Thom Weidlich in New York at tweidlich@bloomberg.net; Edvard Pettersson in Los Angeles at epettersson@bloomberg.net To contact the editors responsible for this story: David E. Rovella at rovella@bloomberg.net |
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| abb | Apr 1 2011, 04:37 AM Post #12 |
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Since the late fall of 2006 - when we all migrated here to Liestoppers from wherever (Talk Left, Court TV, FRee Republic, etc.) - we've managed to get up, make coffee and collect anything and everything DukeLax related and post it. We have become part of one another's lives in order to see a cause through to the finish. The coffee is really good this morning. Welcome, my friends. |
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| abb | Apr 1 2011, 04:39 AM Post #13 |
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http://www.newsobserver.com/2011/04/01/1096038/durham-prosecutor-wont-fight-order.html Published Fri, Apr 01, 2011 02:00 AM Modified Fri, Apr 01, 2011 12:02 AM Durham prosecutor won't fight order From staff reports Durham District Attorney Tracey Cline has filed formal notice that she will not challenge Judge Orlando Hudson's written order that tossed out murder and sex assault charges against Derrick Allen. Hudson, in a 46-page order, said the state's prosecutors and analysts withheld key evidence in the case to get a conviction. He called their actions willful, intentional, deceptive, fraudulent, flagrant and egregious. Cline had said that she disputes parts of the 46-page order and indicated she would seek to have the judge reconsider his ruling. Hudson had said he saw no reason to change his order on the basis of what he understood Cline's objections to be. Later, Cline said she was researching to see whether Hudson still had jurisdiction. Cline's latest notice, filed Wednesday, says she is withdrawing any and all oral requests for the judge to reconsider the motion and that it is based on a lack of jurisdiction. She noted that the state has filed a formal notice of appeal with the N.C. Court of Appeals, and the case will be dealt with there |
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| Joan Foster | Apr 1 2011, 05:30 AM Post #14 |
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Yes, my friend...it's a VERY good day! And thanks to you, Abb, for being the faithful Hooligan who helps us start every day informed! Good Morning to all! |
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| abb | Apr 1 2011, 05:42 AM Post #15 |
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It is now 5:45 AM CDT and still nothing from The (Duke) Chronicle. (And for that matter, other than the AP story, nothing from the NandO.) Edited by abb, Apr 1 2011, 05:44 AM.
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3:31 AM Jul 11