Search terms Duke University lacrosse Richard Brodhead Steel hoax Anil Potti
FC note: It is beyond my comprehension that the Chronicle does not report on this in its Friday edition. Even more so, because from the moment that a Loyal Reader first tipped FC about the federal court's rulings, FC sent the Chronicle editors e-mail advisories of the unfolding story. The news editor acknowledged the first by asking for more details.
This spoon-feeding continued through-out the evening, and included the full text of the judge's orders as soon as each was sent to Fact Checker. The e-mail with the most important text was at 7:20 PM -- more than enough time for today's edition (as coverage of the rap singer at a later hour proves).
This is a disgrace; the newspaper's editors -- who on the March anniversary of the start of the hoax offered extensive coverage of the fine journalistic work of their predecessors -- owe readers an explanation.
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.
Other defendants and witnesses will also be compelled to testify. The court order was not one-sided. The judge tossed out some claims of the plaintiffs, who were members of the lacrosse team but not among the three players indicted on false charges of rape. The three were later declared "innocent" by the state Attorney General.
This is a major turn of events; the university has fought a multi-million dollar legal battle to prevent potentially explosive and personally damaging testimony from Brodhead and Steel, and late Thursday evening, in a statement, said it would "aggressively" defend itself on appeal. The Duke statement was institutional, with no reference to the President or former board Chair.
The statement also admitted unspecified "mistakes" in handling the lacrosse case -- but contended these did not lead to legal liability for the university because they principally involved disgraced and disbarred prosecutor Mike Nifong.
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.
The players refused the offer, which Duke said it made to save everyone the burden of continued legal battle.
Duke will now face an uphill struggle. 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 substantial 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.
Some quotes from posts:
"There was no chance that Judge Beaty would allow all the claims to go forward, since the plaintiff's attorneys were very expansive in their charges. The plaintiffs alleged everything possible in the hope some would stick."
"Look at the big picture-- the major goal has been to get at the truth. These rulings by Judge Beaty advance that cause by ordering depositions by all the major conspirators."
✔✔✔✔✔ 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 any changes in their testimony. Indeed, they can be used against any witness to challenge a different version of events.
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. (Hundreds and hundreds of pages long, we have not completed an analysis of the Evans and Carrington decisions, described later in this FC report.)
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 alleged 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 appropriate, 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." No such privilege (modeled after the husband-wife and priest-penitent privilege of avoiding the need to testify) exists.
✔✔✔✔✔ 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 too. Duke has been adamant that all its promotional materials, websites calogues and other printed material designed for students do not amount to a contract, and thus is not enforceable. We do not know what nuances the court may have found, but the general rule in North Carolina is these materials are not part of a contract.
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.
Thank you for reading Fact Checker. And thank God for the strength and endurance of the lacrosse players and their families.