Sunday, March 02, 2008

Duke’s Motion a Stumble

I’ve posted twice concerning a motion filed Feb. 28 in federal court by the Duke defendants in the 38 suit. The issues the defendants raised and their requests to the court are outlined here where you'll also find a link to the motion. This post links to the plaintiff’s statement they’ll respond promptly to what they call an “utterly meritless” motion.

More information and commentary is at this Listoppers Forum thread as well as at Liestoppers here and here, KC Johnson here and here, and the thread of this JinC post.

A lot has already been covered by other bloggers and commenters. So I’ll try to keep my comments brief and concerned with selected matters I’ve not seen mentioned elsewhere.

But before getting to that, I want to say I agree with the following two comments I pulled off the LS Forum thread. This first one:

LAXMAN on 2/29 @ 4:50 PM

Attorneys involved in case are subject to the Rules of Professional Conduct enacted by their Bar as well as the Court in which they may appear . Attorneys must abide by NC Rules of Professional Conduct even if the matter is in Federal Court.
and this second one:
Observer on 2/29 @ 5:39 PM

I concur with LAXMAN, and welcome LAXMAN. However, the rules prohibiting extrajudicial statements are much stronger and more likely to be enforced for prosecutors in criminal cases when the defendant faces the possibility of incarceration. It is understood that the rules cannot be used to forbid all communication about the case. For example, there is no prohibition on the dissemination of public documents, like the Complaint. So, the judge may restrict somewhat the material that may be posted on the website, but I will be very surprised if the judge chooses to close the website entirely.

Duke argues that because the Complaint uses "incendiary" language, the Plaintiffs should not be allowed to "hide" behind the fact it is a public document in posting such prejudicial material on the web. Further, Duke claims that because they cannot monitor the website 24/7 for inappropriate, prejudicial remarks, the website should be closed. My instincts, which could be wrong, is that these arguments will not prevail. To prohibit the website altogether is an undue burden on free speech.

And, yes, this is rich irony indeed.
I don't believe a federal court will move to shut down completely. The Duke motion anticipates that when it says just before its Conclusion:
If, as it appears, the pleadings, discovery and other facts and developments in this case are to be the topic of discussion on, and the subject of scheduled press conferences, press releases and attorney-initiated or publicist-initiated media contacts, then the Duke Defendants need this Court’s direction and guidance as to whether there are any limits on such attorney-initiated media contact and the appropriate responses by the Duke Defendants to these contacts.
On another matter, I think it's significant the motion was filed a week after Duke alleges the violations of ethics and court rules occurred. The motion is brief; it looks to be something a few attorneys could turn out in a matter of hours.

Why, then, did Duke wait a week before filing this motion, when it could easily have filed it by Feb. 25?

I'm guessing there was a good deal of discussion - possibly even intense disagreement - concerning this motion.

For example, I can easily see someone(s) urging Duke that if the motion was to be filed at all, that it not repeatedly make the harsh and very, very questionable claim that Charles Cooper was a principal in actions which violated NC's State Bar's code of ethics.

Why not file something saying that as Duke reads the relevant court rule, Cooper's press conference,, and the press release go counter to the court's intention; and in clear, simple language ask the court to rule on the question?

What sense does it make to charge one of the nation's most respected attorneys with ethics violations when it's very likely he did not violate ethics?

How and why did Duke decide to do that?

This motion won't be heard before Judge Ron ("I'm Mike's friend.")Stephens.

A federal judge is very likely to recoil from Duke's sliming of Cooper.

IMO - The motion is a stumble.

It reads like something Nifong would’ve written, with help from Sgt. Gottlieb.


Anonymous said...

The request that the web site be shut down due to the plaintiff's inability to monitor its content for violations of the N C rules of professional conduct is a rookie first year Constitutional law caliber error involving First Amendment issues. Closing the web site would be a prior restraint that is forbidden by large volumes of case law. When I say first year Constitutional law I am talking undergraduate here. Looks like Ms. Gorelick is up to her usual level of competence.

Anonymous said...

Thanks John

All I've seen addressing "prior restraint" has always been directed at the media. I am in no way an expert on this topic though!

Who controls what is placed on the web site?

If Bork is contracting with Cooper, does that create a different situation?

Just asking hoping the answers would keep dukelawsuit running. Sorta the devil's advocate here!


Danvers said...

I would believe that the "contracting parties" in this are likly to be Bork and the Plaintiffs; not Bork and Cooper.

In this way, they would be no more in violation of the NC rules of professional conduct than Duke and its own Lacross website would be.

IANAL, but this motion really seems to be puerile. Hopefully the NC Federal judges are of a higher calibre (they could hardly be of a lower - surely?), less biased than the Durham judges, and will treat it with the contempt it deserves.

Anonymous said...

One of the first things I noticed about the lawsuit website was that there is no opportunity to comment. That limits it to an information site, not a "discussion site."

There may have been a good reason to file the motion, but no matter what that is, Duke looks bad.

Anonymous said...


This motion is going nowhere.

To even be considered, there must be some direct link between the website to plantiff's attorneys. I didn't see any evidence submitted to support such a proposition. The judge can only rule on the evidence submitted.

Even if such a link where to be shown, plaintiffs have a gold mine of false accusations and hate speech against the players delivered by Duke's G88 and Durham's own N&O. Countering such public bias is obviously allowed.

W.R. Chambers suggested an alternate reason for the filing: measuring the attitude of the judge relative to disclosure.

However, it doesn't take a filing to measure the judge's inclination on disclosure. It simply requires a review of his previous cases. Because it took over a week to file, I suspect there is a some doubt on the probability of success.

This appears to be an attempt (a feeble one) to justify their billing. Nothing more. When the judge rules against the defense, the attorneys can say they tried.


Anonymous said...

This is quite possibly leading up to an attempt to ask for a gag order on everybody.

That will keep the depositions and whatever is revealed in them out of the public forum.

If a settlement is reached before a public trial, the public will therefore learn nothing of what was
testified to by the parties.

And hence, hopes for reform of Durham, Duke, and NC, will be greatly vitiated.

It's another desperate attempt to keep the public from getting to the truth.

It should have only a small chance at law. But as Roy Cohn said, "I won't want to know what the law is; I want to know who the judge is."