Folks, Here’s a 1, 2, 3 post.
1 – Part of the discovery motion filed Aug. 25 in NC Superior Court by attorneys representing three Duke students whom Duke’s President, Richard H. Brodhead, wants to see put on trial for gang-rape and other felonies.
2 – A JinC reader’s comment on that part of the discovery motion.
3 – Some expert commentary by two friends regarding 1 and 2.
John
_____________________________________________
1 - From the motion:
On May 26, 2006, Durham Police Department Major S. Mihalch sent a memo to DPD personnel involved in the investigation of these cases directing them "to print and produce to Major L. Russ all email messages sent to or received by you from March 13, 2006 to the present which relate in any way to: the disturbance reported as occurring at 610 N. Buchanan Blvd. on or about March 13, 2006, and the rape reported at 3457 Hillsborough Road on or about the same date." The memo gave its recipients a response deadline of June 5, 2006, and went on to threaten disciplinary action for noncompliance. The memo also required anyone who did not provide copies of e-mails to certify they had not, in fact, sent or received any such e-mails.2 – The JinC Anonymous reader’s comment:
This is a layup question John!3 – Even a tech dummy like me knows Anon’s comments put important questions “out there.”
If Mihalch wanted to find any emails exchanged within DPD he only had to go to the person in the IT department that backups up their email system each day.
This person may be referred to as the "custodian" of the data files. Mihalch would ask the custodian to retrieve all the email sent or received within the specified period by any employee. (If you recall, Duke's email custodian was ordered to produce relevant emails in this fashion).
This is expressly permitted since virtually all organizations have email policies that state emails exchanged on the org's email system aren't subject to privacy rules. To cull the list of emails down to those of interest, you could search the contents for such key words as "rape, 'ho, Duke, lacrosse, hooligan, frame, hoax, hide, lie, stonewall, Nifong, Blinco's, etc".
If the email was exchanged solely to and from an independent mail service such as Hotmail, DPD would be entirely dependent upon the integrity of their employees to produce copies of such emails. Most likely, incriminating emails would be deleted.
Deleted emails from a service like Hotmail can be retrieved with a court order for a very short period. After that you are out of luck.
What are the odds that one of the purposes of Mihalch's directive was to "remind" the key players at DPD that they should delete any incriminating emails from their personal accounts?
Shouldn't the defense ask for a Court Order directing the DPD custodian to turn over copies of the emails rather than depend on what may be produced voluntarily?
But I don’t know enough to make an informed comment on what Anon. said.
So I called a friend who’s an expert in tech areas relevant to Anon’s comment.
He read 1 and 2.
He then said something very close to this:
Anon. is right in almost every respect.My tech friend ended with: “Get the word out there. You never know who knows what and how it could help.”
A “Hey, folks, send me everything by next week” corporate email is often really a “For God’s sake, everyone, check and delete as necessary” message that doesn’t fool anyone. Courts now recognize such emails and “frown on them.”
My friend cautioned he wasn’t saying “For God’s sake, everyone…” was the message intended by DPD Major S. Mihalch, but he said Mihalch's email raises lots of questions.
He noted that what Anon. was suggesting in the Duke lacrosse case has happened in many other cases where an organization doesn’t want the courts and public to know what it did. Enron was one of many example cases he cited where a “For God’s sake…” email had been used.
He cited others and added: “Your readers can tell you about many more Enron-like cases.”
He said Anon. “had it right” when he said Mihalch had only to contact his own IT people if all he wanted were relevant emails.
“Ask yourself, John, why Mihalch didn’t do that.”
He also said most attorneys litigating in areas where email deletion was a possibility “were on to that, and I’m sure those kids’ attorneys are.”
He had one difference with Anon.
My friend said he was “almost 100% sure” any deleted emails could be retrieved."Google, Yahoo, they all save emails. It may take a court order and some ‘digging,” but almost any ‘deleted’ email can be retrieved.”
I did further checking with a second friend who, while not as expert in tech matters as my first friend, has considerable experience working with law enforcement agencies.
After reading 1 and 2, my second friend didn’t contradict anything Anon reader and my first friend said, but he cautioned we should allow that perhaps Major Mihalch is, like me, a tech dummy; and his email may represent what he thought was the best way to make a good faith effort to gather the case emails.
Thank you to both friends
And thank you, Anon reader
Folks, JinC Regulars know I’m out of my depth on this one but many of you are not.
Your comments are welcome and will, I’m sure, be read by people who are tech and/or legal knowledgeable.
What’s more, many of you are in touch with bloggers and others who can knowledgeably pursue this matter. You’ll alert and inform them.
Thank you.
Justice will continue to be a struggle but day-by-day we make progress.
John
24 comments:
Shouldn't more attention be focused on the apparent failure of Nifong to turn over all discovery to the defense attorneys? Have the judges been complicit? Where is the legal outrage? Where is the FBI? Where is the U.S. Justice Department? What does Mark Levin think of this?
I have a different take - Major S. Mihalch simply wrote a CYA (Cover your as_) note. He "did" his job and provided cover for himself.
Anon "Shouldn't more attention ..."
In my opinion:
Yes, to your first question.
To the second: I don't know but I bet the def. attorneys would howl if they were.
Where is the legal outrage? Yes, where is it?
Where is the FBI and U.S. Justice Dept.? Some attorneys, not directly connected with the defense, tell me the feds may yet get involved.
To wts,
Perhaps and perhaps not. The matter needs to be examined.
Thank you both.
John
John,
I was the "anon" that stimulated your email thread today. The great thing about the service you and the other key Duke hoax bloggers do is that is that you don't take everything verbatim and you probe deeper than you need to in order to ferret out the truth. Your IT expert may very well know more than I do about retrieving deleted emails. I use an email service provided through "Go Daddy" for personal emails. Here is what they say on their website about deleted emails subject to subpoena "Go Daddy's e-mail servers do not retain deleted or sent e-mail. However, deleted e-mail may be recoverable from back-up servers for a period of up to thirty (30) days."
To stress again, "tempus fugit"; the Hoax defense team needs to obtain a Court Order to require the DPD "custodian" turn over all relevant emails AND the key DPD personnel need to provide a list of each and every personal email account they use so those emails can be retrieved before the clock runs out.
John, thanks again for your excellent work. The previous poster makes an important point on the e-mails. Shouldn't the defense attorneys plan their course of action on the possibility they are dealing with a corrupt police department and prosecuting attorney — in other words, don't leave anything to chance. Move immediately on getting the e-mails or they be missing forever.
John,
I enjoy reading your blog, but when you make statements to the effect that President Brodhead wants to see Evans, Seligman, and Finnerty put on trial for gang rape and other felonies, you start to lose some of your credibility. If you want your readers to take you seriously, you should try to be more careful with your comments.
John, re: your question on Liestoppers...I am honored and humbled to be called "Poet" by one of the finest field generals in this fray. I wish the other "Poet" at Duke wpould read the speech of Ulysses in Troilus and Cressida, "
"Then everything includes itself in power,
Power into will, will into appetite;
And appetite, a universal wolf,
So doubly seconded with will and power,
Must make perforce a universal prey,
And last eat up itself."
Bon appetit, Mr. Nifong.
John,
11:30 PM Anon wrote: “…, you start to lose some of your credibility.”
Please ignore Brodhead's statements and keep the pressure on the Duke Admin. The man is inept and a true coward. With friends like him, who needs enemies!
WB
Raleigh
To 11:30 PM anon: I've heard it said that airline captains receive the salaries they do, NOT for those trouble free flights through the friendly skies, but for those white knuckle moments when an engine fails or the landing gear won't come down.
At the first sign of turbulence, Brodhead collapsed in the cabin and left the landing to those with the loudest voices.
Whether he "wants" a trial is a moot point; he is absolutely part of the reason we have one.
I find it amusing that so many people who post on this blog think that President Brodhead has some kind of duty to speak out on behalf of the lacrosse players. Brodhead has stated again and again that it is important for everyone to remember that the lacrosse players are innocent until proven guilty. He basically thinks we should allow the justice system to perform its proper function, uncover the facts, and find the truth. His take on this is absolutely correct, and as we have seen over the past several months, the justice system has been uncovering the facts and finding the truth.
However, it is not Brodhead's job to leap forward and defend the lacrosse players every time there is some twist or turn in the criminal proceedings or some perceived violation of the player's rights. That is the job of the lawyers, who are far more qualified and experienced in this area than Brodhead and who are being paid very handsomely for their efforts. While I think it is clear that the allegations in this case are false and that the lacrosse players are innocent, I also think we need to recognize that it was the lacrosse players who created this mess by holding the party, hiring the strippers, making the broomstick comment, making the racist comment about the cottom shirt, and sending the repulsive email, and that it is up to the lacrosse players to dig themselves out of it, with the assistance of their lawyers.
I also have to laugh at Joan Foster's comment that whether Brodhead wants a trial or not is a moot point, he is absolutely part of the reason we have one. First of all, we do not have a trial yet, we are only in the pre-trial stage of the proceedings, and we may never have a trial because the case may be dismissed before it ever gets to trial. However, if we do have a trial, it will not be because of Brodhead. It will be because the DA got the grand jury to indict and the lawyers who were hired to handle the defense were not able to persuade the judge to dismiss the indictments.
I think some of you guys really need to wake up and stop blaming Brodhead for a mess that was created by a group of young college students who did some nasty things they really should not have done.
The last posting might as well have come from the Duke administration, an unapologetic rebuttal to all the criticisms that have come forth from those of us who have observed this debacle outside the gothic quadrangles.
Let me tell you why many of us are so unsympathetic to any criticism hurled at Brodhead and his administration for his temerity in the face of this scandal.
Dozens of Duke students and implicitly their parents were persecuted and vilified by the community and the legal process, and left without a scintilla of University support when they became enveloped in this hoax. At least 88 faculty members turned on these students and have yet to apologize. Yes, the legal system can sort out some of this mess but at a great cost to the participants, both financial and psychic. Is this the treatment we expect for our students, from a University that lauds itself as among the finest in the land? Weren’t these particular students made scapegoats for their “off campus” behavior because the University had chosen to push the problem of underage partying off campus? If the alleged incident had occurred on West Campus, wouldn’t the Administration have intervened in the legal process from the outset?
Since John is a history buff, I have to ask this question, why does the United States government routinely intervene in legal proceedings abroad for its citizens that have scrapes with foreign legal systems? Is it because we believe fundamental fairness should always apply to our citizens?
One example comes to mind:
In 1994 Singapore reduced the caning sentence of American teenager Michael Fay convicted of spray painting cars from six strokes to four in a "gesture" to President Clinton. Noting that Clinton appealed privately for clemency and commented on the case publicly three times, the government said in a statement, "To reject his appeal totally would show an unhelpful disregard for the president and the domestic pressures on him on this issue."
If the President of the most powerful country in the world can intervene in the manner of punishment inflicted on one of its wayward citizens, shouldn’t the President of one the most influential universities in the land take a stand for justice when its students are being persecuted for baseless charges, and when the primary motivation for bringing these charges was in fact their enrollment in the University?
I have some comments in response to the last post. First, President Brodhead has not been timid in the face of the lacrosse scandal. At a time when the university was literally drowning in a torrent of negative publicity and when many people around the country thought the lacross players were guilty, Brodhead held numerous press conferences and submitted to numerous interviews with newspaper, magazine, and TV reporters, and in all of these he stated again and again that the lacrosse players were innocent until proven guilty. For you to characterize this as temerity in the face of scandal is really just complete nonsense.
Second, you complain that the lacrosse players were persecuted by the Duke community and in particular by the 88 faculty members and that they did not receive any support from the university. What kind of support were you expecting? If you think the lacrosse players were persecuted by the Duke community and the 88 faculty members, then perhaps you should direct your criticism toward them. Do you really think that Brodhead has the power to repress the First Amendment rights of those members of the Duke community who think the lacrosse players are guilty?
Third, you say that the legal system can sort out some of this mess but at a great cost to the participants both financial and psychic. I really to not understand what point you are trying to make here. The lacrosse players made some bad decisions and three of them were charged with a crime. Now they are discovering that when you are charged with a crime, you experience some serious financial and psychic pain. This has nothing to do with Brodhead. Perhaps in the future they should try to act more responsibly, in which case they will not have to go through this process.
Fourth, you suggest that the lacrosse players have been made scapegoats for their off-campus behavior because the university had chosen to push the problem of underage drinking off campus. This statement is so ludicrous and self-serving that I am not sure how to respond. First, the decision to crack down on underage drinking was made before Brodhead even arrived on campus, so the decision had nothing to do with Brodhead. Second, the decision simply meant that the university was telling its students that they had to comply with the laws of North Carolina. This is hardly a draconian position by the university. If you do not like the laws of North Carolina, then maybe you should contact the legislature, but Brodhead has no power to change the law. Finally, the university did not decide to push the problem of underage drinking off campus. The university told the students they had to comply with the law, and some students responded by moving off campus, where they thought they could contine to violate the law with impunity. They were wrong, and now they are suffering the consequences for their bad judgment. Again, this has nothing to do with Brodhead.
Finally, you tried to draw a comparison between the lacrosse case and a case in Singapore 12 years ago. I see no correlation between the two cases. In the Singapore case, the young man had been tried, convicted, and sentenced, and President Clinton asked the court to reduce the sentence. In the lacrosse case, the defendants have not been tried, convicted, or sentenced. I gather that what you want is for President Brodhead to call the judge and demand that the charges be dropped because he has concluded that the lacrosse players are innocent. Are you serious? Do you really think this is how the system works? If so, I would suggest that you call the judge and demand that the case be dismissed. Then, you can report back to us and tell us what response you got from the judge.
The bottom line is that the lacrosse players are not in kindergarten anymore. They are adults, both legally and in every other sense of the word. As adults, they are accountable for their actions and they must face up to the consequences of their actions, but they should not blame their problems on Brodhead.
I agree that some of your positions are getting too extreme. Specifically, it is extremely far fetched to assert that an entire police department is corrupt based on its response to discovery requests. I am an attorney who works for the federal government. It is absolutely routine practice to handle email requests for discovery, a subpoena, or the Freedom of Information Act in the same way that the Durham Police Department handled its discovery obligation for the emails on the lacrosse case. Almost on a daily basis, I am asked to search my files for documents related to a case. Moreover, it is not uncommon to miss some documents the first time around. For most cases, my agency does not conduct an IT search for the emails, but rather relies on individual employees to turn them over. Acting in the best of faith, I have missed documents on occasion. The police officers are trying to handle many cases at the same time, so it is often difficult to do a complete, thorough search each time you get a request for documents. Nevertheless, the DPD should go back and conduct a further search and check their IT records since it now appears that some records are missing.
Second, I agree with the comments defending Brodhead. It is a lot easier to criticize with the benefit of hindsight. Even Dan Abrams, Susan Estrich, and others initially thought the charges might be valid. So did I. Did people jump to erroneous conclusions? Probably. People do that all the time. It is the human condition. Having defended Brodhead, I also believe there is something it would be appropriate for him to do. It would be ludicrous for him to try to interfere in the judicial process -an effort that would likely be unsuccessful in any event. Nevertheless, he could make a speech or lobby on behalf of Reade Seligman and ask Nifong to hear his exculpatory evidence. Seligman has some of the strongest alibi evidence I have ever seen. Nifong had an ethical obligation to listen to the exculpatory evidence earlier. This problem can still be corrected. I believe it would be approriate for Brodhead to weigh in on this issue.
Here's a modest proposal: DPD spend as much time looking for the missing emails as Gottlieb spent spent preparing his 33 page statement.
To the poster above who noted:
"Even Dan Abrams, Susan Estrich, and others initially thought the charges might be valid. So did I. Did people jump to erroneous conclusions? Probably. People do that all the time. It is the human condition."
Yes, this may all be true, however, one would hope that a President of such a supposedly presitgious entity like Duke University would not be so quick to jump to an erroneous conclusion. In fact, I submit that one should EXPECT that said individual would not prematurely jump to ANY conclusions. I submit that a President of an institute of higher learning, has a DUTY not to jump to any erroneous conclusions PUBLICLY that fly in the face of constitutional protections. In my opinion, Brodhead acted solely in his own best interest in trying to quickly distance the University from a situation he assumed was dire, and in so doing, hung three innocent individuals and their families out to dry.
One of the problems I have found in the blogosphere is that there are a lot of people out there who seem to enjoy beating up on other people even when their grasp of the facts is, shall we say, less than complete. The last poster criticizes Brodhead for jumping to erroneous conclusions about the guilt of the lacrosse players and hanging them out to dry. He goes on to say that Brodhead should not have taken any position on the guilt or innocence of the players and should instead have maintained a neutral position on the case. Anyone who has been following this case carefully knows that Brodhead did not jump to any erroneous conclusions about the guilt of the lacrosse players. He simply stated that on the one hand, these are serious allegations, but on the other hand, it is important to remember that the lacrosse players are innocent until proven guilty, and we must rely on the criminal justice system to uncover the facts and find the truth. If any of you Brodhead bashers can explain to me how this constitutes jumping to erroneous conclusions about the guilt of the lacrosse players and hanging them out to dry, I would really love to hear your explanation.
Brodhead apologist: read and explain the difference in Brodhead's behavior here please.
http://durhamwonderland.blogspot.com/
Lacrosse Team Apologist:
I should note that this thread began when JIC stated that President Brodhead wants to see the LAX players tried for gang rape and other felonies, a really ludicrous statement which suggests that JIC is more interested in pandering to the more extreme and rabid of the lacrosse apologists than in finding the truth. When I pointed out the idiocy of this statement, another poster came along who tried to shift over to the position that although Brodhead does not really want to see the LAX players tried for gang rape and other felonies, he is still a bad guy because he jumped to erroneous conclusions about the guilt of the LAX players and hung them out to dry, a statement which is also false.
Now you have joined the discussion and apparently hope to cover for the other two posters by shifting to yet another position, namely, that because Brodhead wrote a letter on behalf of a Duke student on trial in Armenia, he has a duty to intervene on behalf of the LAX players, otherwise he is not being consistent in his actions. In the piece on your website, you suggest that Brodhead is not speaking out on behalf of the LAX players because he has some sort of agenda that will be furthered if they are convicted of rape. I am not sure what sort of agenda Brodhead could possibly have that would be furthered if three innocent students were convicted of rape, and you have done nothing to enlighten us on this point. I would think that Brodhead and Duke clearly would be better off if the charges against the LAX players were dismissed as soon as possible, but what do I know.
Since I am not a mind reader, I cannot tell you why President Brodhead decided to intervene on behalf of the student in Armenia but not on behalf of the LAX players, other than to say again and again that they are innocent until proven guilty, an intervention which you seem to find insufficient. However, I do see some differences between the two cases.
The student in Armenia was charged with attempting to smuggle old books out of the country. Under these circumstances, Brodhead may have found it appropriate for Duke to confirm to the Armenian authorities that the student was engaged in scholarly research and was not a smuggler. This would serve to clarify the facts for the Armenian authorities and would explain why Brodhead takes the time to describe the student’s scholarly work and his facility with languages. Since no one contends that the LAX players were engaged in scholarly research on the night of March 13, there obviously is no need for Brodhead to provide similar assurances to the authorities in Durham.
Second, I gather that the legal system in Armenia is somewhat different than the legal system in the United States because Brodhead states in his letter that the President of Armenia has the power to intervene in the proceedings against the Duke student and also has the power to release him. I am not aware of anyone who has the power to release the LAX players other than the trial judge, but since the trial judge will be fully briefed on all of the legal issues by the lawyers, who have far more background and experience in this area than Brodhead, there does not seem to be any need for Brodhead to intervene.
Finally, the case in Armenia did not contain the explosive issues of race, class, and sex that are found in the LAX case. Whether you like it or not, there are people in Durham and elsewhere who still think that the accuser was raped and that the LAX players did it. However, many of these people also think that the LAX players will not be punished because they are rich white kids from Duke. Under these circumstances, Brodhead may have decided that it would be better for everyone if he just stayed in the background and let the lawyers do their jobs so no one can say that Duke used its influence to get the LAX players off the hook. If this is what he is thinking, I do not find his position unreasonable.
so the pathetic excuse offered by the Brodhead apologists for "just staying in the background" is that it's politically expedient for white males to be hung out to dry?
Okay, I'll now respond to the individual who decided I didn't have my facts straight when I stated that Brodhead hung the three alleged perpetrators out to dry:
How does a Brodhead apologist explain that none of the three boys is allowed to be in school after the mere accusation of a criminal offense? The mere accusation of a supposed rape had all three individuals immediately suspended indefinitely -- innocent until proven guilty indeed. How does one coutenance the rush to judgment that ended in the ahem, "resignation" of the Duke LAX coach? Even not taking into account any of Brodhead's public statements, one can see what the verdict was for Brodhead.
In response to the first of the two posters immediately above, it is a little hard for me to understand how the LAX players are being hung out to dry when they are represented by an army of lawyers, including Bob Bennett, Joe Cheshire, Kirk Osborn, and several others, all of whom have extensive background and experience in the criminal defense area and all of whom are fully capable of taking any and all actions necessary to protect their clients. If I ever get charged with a crime, I hope someone hangs me out to dry with these same lawyers.
In response to the second of the two posters immediately above (the one who sounds a little defensive), I gather that you have abandoned your position that Brodhead jumped to erroneous conclusions about the guilt of the LAX players, so it looks like maybe the light bulb is starting to go off in your head. In regard to the new points you have raised, the LAX players were indicted by a Grand Jury, and they were suspended from the university pursuant to a long-standing policy which states that any student formally charged with a crime will be suspended from the university until the charges are resolved. Brodhead did not invent this policy. Did you want him to make a special exception to the policy for cases in which the charges are made against an LAX player?
Insofar as Pressler is concerned, he unfortunately was sandbagged by the LAX players, who decided to hold a party that violated university policy and the laws of North Carolina, who hired strippers, who made loud racist comments about their nice cotton shirts, and who sent around vile and disgusting emails that talked about killing strippers and skinning them while …. do I need to say more? These guys did more damage to the reputation of Duke University in a couple of days than any other group of students has done in the entire history of the university. As a result of their shenanigans, Pressler, who was supposedly in charge of this crew, got his lunch handed to him. If you do not like this result, maybe you should go talk to the LAX players. Oh, I forget, you are an LAX team apologist, so you want to blame everything on Brodhead.
If Martin Luther King had been a leader in the Brodhead mode, he might have commented that "While segregation is outrageous, and we hope for change, ...we would not want to disrupt lunch counter accessibility or public transportation." (He could add in a "forsooth" in there as well)
Brodhead is a leadership failure who appeared rudderless and idealess throughout this ordeal.
The boys gave a party. Is it your position that this was the first and only stripper party held under the spineless regime of Brodhead? If not, again he did not address an issue until he was forced to confront it.... until it was a huge problem. That's not leadership.
The cotton shirt slur was in RESPONSE to a "Limp white d---" slur, according to the neighbor. It must fit your own agenda to omit that part. The other racial slurs are part of the stories of two convicted felons who make their living in the sex trade. One called this case a "crock" till Nifong gave her a sweet deal...and is looking to spin this story to her advantage.You choose to believe her version.
Your other source, the accuser, allows her "driver" to often oversee her minor children while she entertains in motels with a vibrator. Do we need to review her credibility in detail? Again you choose her version of the story to believe. . These fine examples of integrity and moral rectitude fit your agenda.But my, my, you are upset at the boys behavior. Such a curious double standard.
As for the McFadden E-mail, you know full well that it was a quote from a film shown and discussed in classes on Campus. Brodhead had only to ask to find that out.He didn't bother. Much easier to cave to mob pressure.
These boys and their families have suffered much. Fools like you chose to post this drivel and add to their pain.You and yours have led such unblemished lives?
Look at the poll on the Chronicle. Brodhead has no respect and deserves none.
The revelation over the past week that the DPD, specifically our friend Officer Gottlieb has targeted dozens of Duke students over the past year for abusive treatment is further evidence the Duke Administration has been asleep at the switch. Rather than only 46 families having had to hire lawyers to defend their children's rights for what are at best frivolous or petty charges, or no charges at all, it looks like the number is actually closer to 70.
KC put it best when he asked the following:
When did the Duke administration first learn of the statistical disparities revealed in the N&O article?
If the administration knew of these figures before last week, why has Duke done nothing to address the problem?
Is Duke concerned about either these statistics or Duke students' allegations of troubling behavior by Gottlieb?
What actions does President Richard Brodhead plan to take in coming days to ensure that the Durham Police are not unfairly targeting Duke students?
What assurances, if any, can Brodhead give current or future Duke parents that their children will not experience the kind of treatment that Gottlieb provided Duke students in the months before March 2006?
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