Sunday, September 16, 2007

N&O’s 9/15 Suit “recap:” My take (Con’t)

This continues N&O’s 9/15 Suit “recap:” My take which was posted yesterday. If you’ve already read yestersay's post, you may want to skip down to below the double star line.

I pick up there from where I left off yesterday with, as yesterday, the N&O reporting in italics and my comments in plain.

The Raleigh N&O’s Sept. 15 Durham News section contains a story:

Lawsuit threat revives lacrosse questions
The story is described as a “recap” of recent events “on the lacrosse case front.”

I want to “walk” through the story with you. The story text is in italics; my comments are in plain.

About half way through the story, I’ll stop commenting. Tomorrow I’ll comment on the rest of the story. But I’ve included the whole story in this post for your reference.

I think N&O reporter Matt Dees has done a good job reporting a story that includes a lot of material dealing with some very complex issues.

I look forward to your comments. I’m betting some of you will point out things neither Dees nor I mention. We should wind up with a thread that “adds to the story.”

Now let’s begin: ----

Lawyers for the three former Duke lacrosse players once accused of rape have given the city until early next month to either pony up $30 million or face a federal civil lawsuit, according to sources with knowledge of the negotiations who requested anonymity.
Anonymous sources. So much for N&O reporter Joe Neff’s claims May 22 at the National Press Club that the N&O has a policy against the use of anonymous sources and never used a single anonymous or unnamed source (Is there a difference?) during all its Duke lacrosse reporting up to that date.
Attorneys Barry Scheck and Brendan Sullivan Jr. told city leaders in a meeting last week that it was a take-it-or-leave-it offer, though many legal experts say few things in civil litigation aren't subject to negotiation.

The settlement also would require the city to create an independent commission to review complaints about police involvement in the case and push state leaders to enact other reforms, such as mandatory videotaping of identification procedures.

The settlement demands were widely reported last Friday, initially attributed to unnamed sources familiar with the negotiations between the city and the players' lawyers. City officials have refused to confirm the reports, but they have not disputed any of the details.

If no settlement is reached, lawyers for former players Dave Evans, Collin Finnerty and Reade Seligmann indicated they would sue under a federal statute claiming that the city violated their clients' constitutional rights by bringing rape charges later deemed unfounded.
Attorneys not involved in the possible suits (I’m not an attorney) say the suits will almost certainly be based not just on what was done to bring the charges, but on what has been done subsequently to cover-up the attempted framing of the players.

The attorneys all stress the city has never officially acknowledged that what’s been done was wrong. It’s thereby, according to the attorneys, continued a “pattern and practice” of “abuse of process” which began in March 2006 and continues at present. That will make it more liable if suits are brought.
The city is regarded as vulnerable to the lawsuit in three key areas:

* The April 4, 2006, photo-identification procedure, conducted in violation of city policies, which led to indictments in the case.

* Discrepancies between hand-written notes taken by police Investigator Benjamin Himan and typewritten notes submitted months later by Sgt. Mark Gottlieb. Gottlieb wrote in July 2006 that accuser Crystal Gail Mangum on March 16 had described three people who fit the characteristics of the three indicted players. Himan's notes, written the day of the March meeting with Mangum, had offered three very different descriptions.

* A CrimeStoppers poster released by police shortly after the initial rape allegations. It said a woman "was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community."
Two important points here:

1) Durham City maintains CrimeStoppers is an independent organization for whose actions it bears no responsibility, and that the police release of the poster was not DPD approved.

Those claims will surely be disputed by the players’ attorneys.

What is indisputable and a key area of the city’s vulnerability are the actions of DPD Cpl. David Addison who, between March 24 and 28, repeatedly told the public about a “horrific crime,” “really, really strong evidence,” and “a wall of silence.” All lies. None were ever disputed by Addison’s DPD supervisors or city manager Patrick Baker. (Durham has a city council –city manager form of government. Therefore, Baker is the city’s highest executive officer.)

2) Attorneys tell me the city is also very vulnerable because of what they say the courts refer to as “the reasonable, trained officer” standard against which the actions and inactions of certain Durham police officers will be judged as well as what, if anything, their supervisors did when they learned of the officers’ actions and inactions.

As it's been explained to me, how a court and possibly a jury will look at what
“ reasonable, trained officers” should be expected to do ought to be a major area of concern for both the individual police involved and for city leaders.

In terms of the city’s vulnerability – really liability – in this area, every attorney I’ve talked to has said Durham Police chief Chalmers’ report saying the police did nothing wrong in the Duke lacrosse “investigation” and Baker’s signoff on it, put the city squarely on record as saying it was satisfied DPD’s officers acted as the city expects “reasonable, trained officers” to act.

“Chalmers’- Baker is a big, big problem for the city if these suits ever go to court,“ one attorney said. “ A federal judge or jury isn’t likely to see what Gottlieb did as what a “reasonable, trained officer” would do. And while Gottlieb may be held to some liability for what he did, a judge or jury is going to look at the city and say, 'You knew about what he did and you never said it wasn't OK. So you’re big-time liable, Durham.'"

Folks, I’ll pick up my commentary tomorrow. It’s your turn now.


N&O story continues: ----

If the city decides to agree to the settlement demand, the $30 million would average out to about $142 per Durham resident. The city's liability insurance covers it up to $5 million.
A couple of items:

The $5 million coverage for a city Durham’s size (pop. about 210,000) seems very low to me.

The local media haven’t reported on the amount of coverage cities of comparable size have. Nor have local media reported on how the rate Durham, with a $500, 000 deductible, pays compares to rates paid be cities of comparable size whose policies have the same deductible.

I hope a knowledgeable reader or blogger takes a look at these matters and comments or posts.

Folks, please let me know if you see anything relating to the city’s coverage and what we’re talking about here.

And now back to the N&O:
What we don't know:


City attorneys are weighing the strength of the players' case, but there are indications that the city won't settle for $30 million.
The “word on the street” is that the city has decided to fight the suits. And it's coming from people who are usually right about most things.

I have no inside information. I just know enough to flash: “caution.”

In situations such as this one, decisions are subject to change. So my attitude is wait-and-see.

It’s also important to remember that decisions regarding civil suits may soon be influenced by either a state or federal investigation or, attorneys tell me, possibly by both, looking into what is now an almost 18-month-long process that very likely involved criminal actions intended to first, frame the players, and then, cover-up the framing, something that continues to this day.

I can tell you what my response will be if the day comes when it’s absolutely certain the city will fight the suits thereby making it possible for the public to learn more of what was done: “Dear Old Durham, you’ve made my day.”
Elected city leaders say they already are feeling pressure from residents not interested in paying a high-dollar settlement.

"They think it's ridiculous," Mayor Bill Bell said.

"People have heard there was a settlement with Duke. [The players] didn't spend any time in jail, didn't go to trial and now they're giving demands that could affect people's pocketbooks as taxpayers."
It’s interesting to consider some of the things Bell is doing here.

First, he presents himself as a mayor who listens to the people. What’s more, he gives voice to what he says he hears people are saying “about a settlement with Duke.” He notes the players didn’t spend any time in jail, didn’t go on trial, etc, etc.”

What Bell’s says people in Durham are telling him is what some people here are saying.

But there are other people here speaking out and Bell isn't quoting them.

They're people outraged by what Bell, Baker and others have done and failed to do since Crystal Mangum and the Raleigh News & Observer teamed up to tell us a pack of lies. They’re folks who are asking what was going on all those months; and why didn't any of our city's leaders do anything about it except let it continue?

Do look for the answers to those questions in the N&O.

Bell’s remarks sound like those he might deliver when the endorsement committees of the Durham Committee on the Affairs of Black People , the People’s Alliance, The Independent, and Bob Ashley’s Herald Sun ask him: “Your Honor, what do you think about these suits?”

In case you’re new to Durham, the two political interests groups and the two newspapers I just mentioned all worked hard to help elect Mike Nifong last November.
That’s an easy question: VERY, VERY.
Individual police officers can be held responsible for misconduct, but a higher legal standard must be met to find an entire city liable.

Under federal law, plaintiffs would have to prove that the city exhibited a "pattern and practice" of violating people's constitutional rights or that top city leaders directly condoned the violation of the players' rights.

Some attorneys have pointed to the report issued by City Manager Patrick Baker and then-Police Chief Steven Chalmers earlier this year, which largely defended the department's handling of the case, as proof that the city signed off on police action.
ALL of the attorneys I’ve talked to have pointed to Baker-Chalmers as proof the city’s highest officials signed off on what the police did.

They also point to Deputy Chief Ron Hodge’s public statements about strong evidence of guilt and DPD’s making no notable mistakes in the last five years as further evidence that what was done to the players was part of a “pattern and practice” of violating the players' rights.

Otherwise, why wouldn't Hodge have objected to what his department did? And why would Baker have selected Hodge as a finalist for Police Chief except that Baker felt Hodge was doing a splendid job of making sure DPD followed its "pattern and prectice?"

The sttorneys say more on the matter. I’ll get to some of it in another post.
But the report did not address the discrepancy between Himan's and Gottlieb's notes or the CrimeStoppers poster.
N&O reporter Dees, who wrote a story the previous day concerning a meeting Bell and Baker had with N&O editors and reporters, is right as regards the report not addressing discrepancies between Himan’s notes written at the time of the events and Gottlieb’s “straight from memory” notes written four months later.

Dees is also right that Baker-Chalmers doesn’t address the CrimeStoppers poster. For that matter, it also doesn’t mention Addison’s many false statements regarding a crime having been committed for which there was strong evidence and about which the players were “stonewalling.”

But Dees leaves it at that. Many readers may threfore conclude that by not mentioning certain matters, Baker-Chalmers helps the city in terms of the impending suits.

But that’s not so according to all the attorneys I’ve spoken to.

They say that by leaving out any mention of the Himan-Gottlieb discrepancies, the CrimeStoppers Wanted poster, and Addison’s very public and repeated lies as DPD spokesperson, Baker-Chalmers actually strengthens the victims’ already very strong claims against the city.

One attorney asked rhetorically: “What better argument could you have for those things being “pattern and practice” than Baker and Chalmers not even bothering to mention them?”

An attorney who was standing by added: “No judge or jury’s going to miss that.”

Folks, I’m going to end here.

Partly that’s because this “continued” part of the post is getting long; and partly it’s because I want to really cast some “light” on the next part of Dees’ story:
Chalmers contended that the April 4, 2006, photo procedure that led to identifications of suspects wasn't in fact a lineup, but was merely intended for Mangum to tell investigators who were potential witnesses.
I’ll be back tomorrow with a separate post on just that one sentence.

Then after that, I’ll post again concerning the last part of Dees' story.

The first part of N&O’s 9/15 Suit “recap:” My take has led to fine comment thread. I hope you read it if you haven’t already.

In a few minutes I’m going to leave a message at that thread encouraging people to “continue the conversation” on the thread of this “continued” post.

I look forward to your comments and hope you're back tomorrow.

The last part of Dees' N&O story follows.



The type of civil lawsuit threatened by the players is getting increasingly hard to win, said Luke Largess, a Charlotte attorney who handles many civil rights cases.

If the players sued for $30 million or more and won, it would be one of the largest judgments against a city for police misconduct in U.S. history.

But it's questionable whether a jury would determine their suffering was worth such a high price.

While the national media coverage exposed them to public scorn at the outset of the case, much of that same media coverage has subsequently shifted focus toward their innocence.

And some people have expressed concern that people who spend years of their lives in prison for crimes they didn't commit get much less than the players are seeking.


bill anderson said...


Good post. I agree with you wholeheartedly that Durham is vulnerable, very vulnerable. Furthermore, an actual lawsuit will bring out large numbers of "bad acts" that will make it obvious that:

1. Higher-ups knew what the DPD was doing, but did nothing to stop the police;

2. The infamous 4/4 lineup was not conducted in secret, and everyone in authority basically signed off on it;

3. No one in authority in Durham tried to slow down the police;

4. People in authority, including people in the DPD, had misgivings early on about the case, but said nothing.

Believe me, Durham is quite vulnerable, and all of this "we're not budging" bravado is just lame talk. These people are in trouble, and they know it.

Anonymous said...

John - The folk in Durham and the DPD have been held up to intense scorn over a year. I can not imagine, they care at all what outsiders think. I believe everything to know is already known. Durham has nothing to gain in settling this thing out of court.

Jim in San Diego said...

One of the great tragedies of the Duke Rape Hoax is the failure of those whose agenda is justice for all to use the Hoax as an opportunity to forge a coalition. Surely poor minorities would benefit by an alliance with wealthy white victims of injustice?

Instead, the floor was stolen by those with a different agenda. It is an agenda based on a pathological vision that everything can somehow be explained by race/gender/class conflict.

"Narratives" and "metanarratives" were substituted for verifiable facts and reasonable conclusions drawn them. What a missed opportunity.

Here are two questions of the N.C. NAACP, the Group of 88, the NCCU student body, and citizens of Durham:

First, who is the author of the following?:

-"Injustice anywhere is a threat to justice everywhere"

-"History will have to record that the greatest tragedy ...was not the strident clamor of the bad people, but the appalling silence of the good people"

-"I look to a day when people will not be judgmed by the color of their skin, but by the ocntent of their character"

Second, how is it possible the author of these wonderful words is my hero, and not yours?

Anonymous said...

John: Simply a great analysis — one of your bests. Keep up the good work and thanks for all of your efforts.

M. Simon said...

Durham is under attack front and rear.

If discovery is about patterns and practices it may be possible to look into other cases that haven't gotten as much publicity. There will be disgruntled lawyers dying to speak to Sheck and team.

There are skeletons in the closet.

Does Durham want those skeletons public?

Do they want Sheck & Co going over everything uncovered in discovery to the Feds? Or would they prefer the Feds do their own work?

Decisions, decisions.

M. Simon said...

Notable quote from Barry Scheck:

What do you think about that Mr. Fung?

Anonymous said...

Duke will give Durham the cash to settle ( behind the scenes and/or indirectly, of course). Duke does not want a civil suit against Durham since this suit will expose the actions of Duke officials who conspired, at some level, with Durham authorities to deny the lacrosse players their civil rights.


Jim in San Diego said...

M. Simon has made a good point about skeletons in the closet.

The chance that this is the only case where Det Gottlieb has manufactured evidence to convict an innocent person is remote.

The chance that this is the only case where DA Niphong railroaded innocent people is remote.

The fact no one within the DA's office apparently objected to the frame suggests a wider problem.

The way that the officer who first interviewed Mangum and concluded there was no rape became the subject of an internal investigation by the Durham P.D. suggests a wider problem.

I recall anecdotal evidence some months ago from Durham that it was known throughout the PD that there had been no rape. It would be great to find out if this was true or not.

The way the Durham legal community rallied around a disbarred, disgraced DA found guilty of more than two dozen ethical violations and criminal contempt of court as he sought to convict innocent people suggests a wider problem. (Judge Osmond Smith is not part of the Durham legal community. He is an outside judge).

From here, we still have not gotten over the spectacle of two sitting Durham judges testifying how honest Mike Niphong was, AFTER he had been disbarred for more than two dozen ethical violations. Judge Marcia Morey's testimony under oath that the degree of candor an attorney owes the Court is different before trial begins than at trial is mind boggling.

Judge Morey's hugs of Mike Niphong in court, and her presence to support him as he was sent off to jail for criminal contempt of court is beyond the pale.

How typical is Durham of North Carolina?

These are the reasons in an earlier post I opined that it would be justice for the Duke victims to be paid a lot of money. But, I hoped Durham would not settle, so we can get to the bottom of these wider problems. Ironically, the real beneficiaries of an investigation are liable to be poor minorities.

Anonymous said...

Re: Jim in San Diego.

Please do not offend the good citizens of North Carolina by implying that we are all like Durhamites.

We are NOT!

But their exists, IMO, an unholy alliance between Duke ( not really a NC school, but rather a national/ international school located in NC) and their "diversity imbalanced" faculty and the NAACP-driven Durham community. They have a codependant relationship.

This is a unique dilemma. It was exactly this cooperative effort between Duke, Duham politician, and Durham police that lead to the hoax.

In other states, and other schools, you may have one of these factors, or even two, but to have all three is uncommon.For example, the infamous "Water Buffalo" incident was in PA. But no one has generalized that all PA schools are the same, or that Pa citizens approve that kind of prejudice in their universities.

Other hoaxes, framing other innocent people, are in other places.

As a North Carolinian, I would appreciate it if people understood the unique dymanics of this particular HOAX, and not generalize it to our whole state.

I would also have been prouder of NC if more of our elected politicians, both on state and national levels had responded more aggressively to the need for restraint and due process. Unfortunately, they, like many other politicians in many other states, have one eye on the ball, and the other on their reelection. That is precisely why we must have the rule of law, and those laws must be enforced regarless of race or gender.


Anonymous said...


My spelling error: "...there exists" ( Not "their)

M. Simon said...

Anon. 12:36

When NC comes up switch the subject to Illinois. LOL.

Jim in San Diego said...

To dsl at 12:36

"Please do not offend the good citizens of North Carolina by implying that we are all like Durhamites"

I apologize.

Please note I tried to ask a rhetorical question: "how typical is Durham of North Carolina". My intent was to ask a question, because I do not know. I can accept the answer, "not typical at all", because I do not know.

However, asking this rhetorical question is a mistake. It stereotypes. It implies facts from ignorance. In short, it is prejudiced.

Which is what has gotten us so far into this mess already.

So, I regret the question. It detracted from my blog.

It also provoked a lengthy reaction to the comment, and not the major idea behind the post: there is lots to learn from an investigation, and poor minorities stand to gain the most from it.

Ralph Phelan said...

Jim in San Diego:

Don't apologize.

There is at least one well-known way in which this is a North Carolina mess rather than a Durham mess - North Carolina's peculiar case management system which gives prosecutors immense power over judges' working conditions, and so gives judges reason to be unusually deferent to prosecutors.

It maw well be that the corrupting influence of this practice is strongest in Durham, but it is undeniably a corrupting influence, and it is state wide, and it hasn't been fixed yet.

And it is quite reasonable to ask whether Cooper's unwillingness to investigate the DPD or charge Crystal Mangum indicates that the toxic racial politics and/or criminal conspiracies of Durham have significant ties to the rest of the state.

kbp said...

Thanks John!

The posts combined were a great read!

I liked the many good comments that followed, a great number putting much out there to think about.

While there were some I disagreed with, it was a pleasure to see them.

One topic I saw a few times was how the $30 million is a start to work from. If that were accurate, why would the limit of time be restricted to 30 days, when a case hasn't even been filed?

Looks like that amount is set in stone the way I see it.

Thanks again John