Monday, July 07, 2008

A clanger in the Addison Motion to Dismiss

In response to a suit brought by attorney Bob Ekstrand on behalf of three unindicted Duke lacrosse players, attorney James Maxwell last week filed a Motion to Dismiss on behalf of four members of the Durham Police Department: Sgt. David Addison, two other officers and an unsworn employee.

As you read Maxwell’s motion you come on page 22, line 8 to the following:

The Court there held that such allegations do not “allege a
deprivation of any right guaranteed under the Due Process Clause of the Fourteenth Amendment” where the Plaintiff had not been subjected to trial. In this instance, none of these Defendants were even subjected to arrest or indictment and after March 21 (one week after the alleged events had occurred), none of these Plaintiffs were even considered a part of he (sic) ongoing investigation.(emphasis in original)
In Maxwell’s sentence beginning “In this instance, …” he surely didn’t mean to say “these Defendants.” They’re Plaintiffs. Maxwell gets that right in the sentence's final clause.

I don’t see his mistake as a big deal.

But Maxwell really drops a clanger when he says:
”after March 21 (one week after the alleged events had occurred), none of these Plaintiffs were even considered a part of he (sic) ongoing investigation.”(emphasis mine)
If none of the Plaintiffs were considered a part of the “ongoing investigation” after March 21, why did DPD’s principal Duke lacrosse case investigators on March 23 request the Plaintiffs be court ordered to submit to police DNA testing and photographing?

Weren't the Plaintiffs termed "suspects" in the papers requesting the NTO?

Why did Durham’s then Assistant DA David Saacks (now DA) agree on March 23 to ask the court to issue the NTO?

And why did Judge Stephens sign the NTO papers that day?

A sharp attorney like Bob Ekstrand is going to pounce on Maxwell’s statement. I'll be very interested to read Ekstrand's response.

What do you think Judge Beaty will think when he reads Maxwell’s clanger?

Finally, I wonder whether Maxwell’s mistake was an unintentional disclosure of what he thinks may be true: on or about March 21 and thereafter, the Plaintiffs were not really suspects in an “ongoing investigation;” they were pawns in a developing frame-up attempt.

KC Johnson posted on the Addison and other Motions to Dismiss.

I’ve had my say. It’s your turn.

Hat tip: Walter Abbott


Anonymous said...

It does make one wonder about the quality of the attorneys hired by Addison and others in this case. One would think that Addison and his compatriots would:
1. hope that their attorneys would know the difference between defendants and plaintiffs
2. have attorneys who would hire someone to proofread what they submitted for spelling errors or at the very least employ spell check since they (unlike me who quite often dashes something off and forgets to proofread for spelling and grammatical errors) are charging their clients big bucks for what one would hope would be top quality professional services
3. once again have attorneys who would have taken a logic course so as to see the fallacies in the arguments that they presented in their responses.

However, given that this is Durham in wonderland, I suppose that they figure that the judge is in their pocket and so any response, no matter how illogical, how poorly spelled, or even incorrectly worded will still fly.

Anonymous said...

Hi John,

Great catch.

This kind of post is one of the reasons I come here every day.

Duke 85

bill anderson said...

That filing is so dishonest that one wonders if the attorney is in need of being disciplined or even disbarred. First, Addison made his statements AFTER March 21, and the NTO came after that as well, something you pointed out.

The very point of the NTO was that ALL of the white lacrosse players were official suspects, something that is true on its face. One cannot get a court order to take DNA from someone WHO IS NOT A SUSPECT.

When the defense makes statements such as we have seen, and those are filed as official documents, then we have an attorney who knowingly is filing false information. However, why should we be surprised if the attorneys for the defense are lying? After all, they are representing defendants who lied from the first day and still are lying.

Anonymous said...

You hit a gusher, John.