Thursday, January 01, 2009

Attorney Spilbor Proves Duke's Trustees Knew

(Readers Note: Duke's trustees look to 2009 knowing they'll be defending themselves against multiple lawsuits.

The lawsuits are the predictable result of the trustee's disgraceful actions and inactions in the face of the slandering, libeling and attempted frame-up of innocent Duke students by a false accuser, a rogue prosecutor and others who had as their principal enablers President Brodhead, "Dick's senior team," and the trustees themselves.

Duke's seeking to have the suits dismissed. It's also offered two other lines of defense that can be summerized as : 1) It was all Nifong's fault; and 2) Who could have known?

I'll defer comment for now on #1.

Regarding # 2, I encourage you to take some time and read the post below - Attorney Spilbor Knew: So Did Duke - published Nov. 18, 2007.

After reading it, including the extensive excerpts from Attorney Jonna Spilbor's Apr. 14, 2006 Findlaw column published on the Internet and based only on publicly available information, a reasonable person will wonder how any Duke trustee can use the "Who could have known?" excuse.

I've checked all the post's links today and they work.


Duke President Richard Brodhead and his supporters use Duke Hoax myths to excuse the University's bungled and shameful "throw them under the bus" response to Crystal Mangum's and Mike Nifong's lies and the prejudices of many of its faculty.

The myth they most frequently use goes something like this:

It was a really, really confusing time. The facts kept changing. The issues were so complex. Who could have known?
But the truth is very many people knew within a few days or weeks that what the Raleigh News & Observer said on March 25, 2006 about a young mother’s “ordeal” the N&O claimed ended in “sexual violence” was “a crock,” and very possibly part of something much worse.

I’ve posted before on a few of those people. Remember, for instance, citizen journalist McClancy, blogger Barber, and columnist Sowell?

Today I want to recognize attorney and FOX News consultant Jonna Spilbor for what she posted at Findlaw on April 14, 2006; and for what it helps us understand about Duke University's Hoax response then and now.

April 14 was four days after the public announcement the first DNA testing had come back negative, and three days before Collin Finnerty's and Reade Seligmann's fraudulent indictments.

What follows are excerpts from Spilbor’s April 14 posting ( “The rape that never was” ) after which I comment below the star line.

Spilbor excerpts:

From the beginning, attorneys for several team members were clear: "They didn't do it."

It was a gutsy defense -- especially since, at such an early stage in the investigation, the only evidence supporting it was their clients' wholesale denial of the accuser's account.

A safer strategy might have been for the attorneys to wait to see how things played out, and consider whether to argue, instead, that the evidence indicated the victim had consented.

But when the DNA tests came back, the attorneys were vindicated. . . .

Yet the Durham, North Carolina District Attorney, Mike Nifong, has vowed not to drop the case.

In this column, I will explain why he's wrong: In the absence of DNA, he should, indeed, drop the case - both because the evidence strongly indicates the players' innocence, and because it means he will never be able to prove their guilt.

Is "Conclusive Evidence" of Guilt Also, If Reversed, Conclusive as to Innocence?

The D.A.'s written request for a court order to obtain those forty-six DNA samples stated that DNA testing would provide "conclusive evidence" as to which three lacrosse players allegedly assaulted the accuser.

This phrasing poses a compelling question: If DNA can be considered convincing evidence of guilt in sex crimes, as the DA himself argues, shouldn't the absence of DNA evidence provide equally convincing proof of innocence?

D.A. Nifong argues, instead, that the lack of DNA "doesn't mean nothing happened. It just means nothing was left behind." He has pointed out, in addition, that rape prosecutions can go forward - and convictions can result - without DNA evidence. According to Nifong, in 75 to 80 percent of all sexual assault cases, there is no DNA to analyze.

But those cases aren't like this one - for several reasons.

Why, In This Case In Particular, the Absence of DNA Indicates Innocence

Often, women do not report sex crimes for days or weeks - washing much, or all, of the DNA evidence down the drain long before police and prosecutors can collect it. But not in this case. Here, the victim submitted to a "rape kit" examination only hours after what she said was the time of the alleged attack.

Often, rape is accomplished by fear, not force. But in this case, the crime alleged was brutal and barbaric. The accuser said, for instance, that her acrylic fingernails were torn off as she tried to defend herself.

And often, an attacker will use a condom precisely to destroy the chance that he will be caught via DNA.

But here, the alleged victim made no mention of any of her attackers using a condom. (Also, while a condom might prevent organic DNA from being deposited on or around the accuser, it would have left its own trace evidence, especially if coated with spermicide. Here, it appears that no such evidence was found.)

For all these reasons, it seems very unlikely that if the attack alleged occurred, none of the attackers' DNA would have been collected from the accused's body or clothing - or from underneath her fingernails.

D.A. Nifong has pointed out that the accusers' clothing could have protected them - but their hands, face, and necks likely remained exposed. What is the chance that the accuser would not have made contact with any of their hands, faces or necks if a brutal attack truly occurred?

Another Problem with the Prosecution: Apparent Failure to Identify the Alleged Attackers

Of course, the D.A. is technically correct that a rape prosecution may proceed upon an accuser's word alone. Indeed, sex assault cases often boil down to an accuser's word against that of the accused.

But there's a second problem here, besides the lack of DNA evidence: It appears - from news reports, and from the testing of all forty-six white players - that the accuser is unable to identify her alleged attackers. (It also appears that the other stripper who attended the event did not witness the alleged attack - for the prosecution has not cited any witness in its favor besides the accuser herself.)

The accuser's inability to identify any one of her three alleged attackers is very strange.

Reports indicate that she arrived at the party, was paid in part for her anticipated services, and may have performed, at least for a short while. It seems that she should have had ample opportunity to eyeball many of the guests before the alleged attack, including the three who allegedly committed it.

Also, even if the three attackers were initially lost in a sea of forty-plus faces, shouldn't she have seen them during the attack itself - said to have occurred in a room no bigger than a closet? . . .

Spilbor's entire Findlaw post is here. See also this post: Duke Lacrosse: A good attorney and a lousy DA. (6/8/06)



Spilbor is an intelligent, able and experienced attorney. Duke University had access to a great many such attorneys.

How is it possible then, that President Brodhead, Duke's trustees and "Dick's senior team" didn't know and understand everything Spilbor posted on April 14, 2006?

Duke knew, didn't it?

Yet as late as mid-December 2006, Brodhead had still said nothing critical of Nifong and was supporting Nifong's scheme to put the three obviously innocent Duke students on trial.

Spilbor's post makes glaringly obvious the failure of Duke's leaders - trustees, administrators, faculty with few exceptions - to act responsibly in the face of obvious lies and threats against its students.

Does anyone doubt that as we learn more about the Hoax case, it will get uglier and Dukier?

Given that, it's easy to understand why Duke's BOT chair, former Wall Street whiz Robert Steel, keeps urging us to buy into MoveOn.Duke.

There's more I could say but I want to give you a chance after I end with: Congratulations, Jonna Spilbor.


Anonymous said...

Kudos also to LA defense attorney Mark Geragos, who on Larry King live on April 10, 2006--a week before the first indictments--called this case for what it was :

GERAGOS: Give it up, game over, this case is toast, the only reason the D.A. is still trying to hold on to this thing he has 50 hours worth of interviews he's done nationally he's been out there condemning these guys, investing in something and stirring it up.

It's a joke. He should walk away from this before it becomes a bigger spectacle.

FULGINITI: Such a true believer.

GERAGOS: What more do you need. They have pictures and a timeline, they have DNA that says it's not there. The defense lawyers tell you there's not any DNA. They know the fact the women lied through their teeth. Why is this an issue? This is a reject.


GERAGOS: The opposite -- I think the idea that they suspended this lacrosse program, that the coach was forced to resign and these three students were presumed guilty, I think it's outrageous. I don't know why anybody would want to go to a school where the president took that kind of outrageous action, as opposed to getting to the bottom to of this. What happens -- you know, what if it turns out that this is a false allegation? What do you do with the coach? What do you do with the program? What do you do with the three students? Who do you go at that point to say, hey, I'm sorry, we just destroyed all your lives?

Anonymous said...

Duke leaders deserve their day in court.

Anonymous said...


Ditto the remarks from Anonymous 10:37.

Many of the trustees may be only guilty of not paying attention. Unfortunately, they shouldn't have been trustees.


Anonymous said...

I would agree with Ken in Dallas. Trustees should take their jobs seriously - rather than look upon them as resume enhancing positions. Obviously, the trustees were either 1. asleep at the switch or 2. too willingly to accept without question whatever Brodhead told them. I suppose there is a third possibility - that they did try to exercise their fiduciary responsibility but were silenced (intimidated?). Anyway that it is sliced, however, they were not doing what trustees should do.

Anonymous said...

There were many warning signs that Nifong and the DPD were abusing the justice system and pursuing a case with little or no evidence.

The N&O alone published the following articles through the early summer (except for the indictments and arrests, dates provided are for the date of the article):

On April 8, the defense lawyers not only denied that denied that a sexual attack had occurred, but denied that there had been any sex at all. This statement would have precluded a defense of consensual sex. 

On April 10, the defense released pictures from the party. These pictures appeared to contradict at least some of the allegations. 

On April 11, the DNA test results were released. These tests cleared the players. 

On April 12, Crimestoppers belatedly amended their news release. These amendments eliminated the inflammatory language included in the initial release. This inflammatory language was not consistent with standard procedures. No explanation was given for why the original news release violated procedures and why a correction was delayed.

On April 14, the tape of the responding officer was released. She was described as "passed out drunk." 

On April 15, the DPD visited the players' dorm rooms. This visit appeared to violate ethics rules because the DPD knew the players had retained lawyers. 

Duke police were aware of those visits.

On April 17, Seligmann and Finnerty were indicted and arrested the following day.

On April 20, Seligmann's lawyers made public his alibi evidence. This evidence made it apparent that Seligmann almost certainly was not at the house when the alleged attack had taken place.

On April 28, it was reported that the accuser had earlier reported being the victim of a gang rape. This earlier accusation was not pursued. This revelation raised questions about the credibility of the accuser. 

On April 30, the N&O’s article raised serious questions about the DPD investigation. It noted that (1) the identification procedures used to make the identifications violated the DPD's procedures, (2) the DPD did not search the suspects rooms for two weeks, (3) the DPD did not search the alleged crime scene for two days, (4) neighbor Jason Bissey was not contacted by police, but called Himan and left a message, (5) the DPD had made no attempt to get copies of the party pictures from the defense attorneys, (6) Nifong had turned down attempts by the defense attorneys to provide him evidence, and (7) Nifong had taken control of the investigation. 

On May 2, information related to Seligmann's alibi was released. This information showed that Seligmann was not at the house at the time that the alleged raped occurred. This information clearly raised questions regarding the accuracy of at least one of the identifications. 

On May 9, a story reported that Duke police indicated that Durham police initially did not take the allegations seriously. These reports noted that the accuser had changed her story many times the night of the alleged attack.

On May 10, Patrick Baker disputed claims that the DPD did not take the accusation seriously, Baker claimed to have spoken with investigators and claimed that the claim that Crystal had claimed to have been raped by 20 men was false. Baker's statement is false.

On May 11, Moez Elmostafa was arrested on a 2 1/2 year old misdemeanor warrant. Two detectives investigating the Duke rape case arrested him after they asked if he had anything new to say regarding the Duke case.

On May 12, Nifong denied that Elmostafa's arrest was linked to the lacrosse case. Nifong confirmed that Himan and Clayton were the arresting officers. 

On May 13, the second set of DNA tests were negative.

On May 16, the defense filed a motion that claimed the "unusually close supervision of police personnel" by City Manager Patrick Baker was improper and could taint witnesses. 

On May 15, David Evans was arrested. It was disclosed that he had been tested by a former FBI polygraph expert and had passed the polygraph. 

On May 19, it was disclosed that the source of the semen was likely the accuser's boyfriend. There were no matches to any lacrosse players. 

On May 26, the defense attorneys asked for descriptions of the alleged attackers. No descriptions of the attackers were included in the 1,278 pages of discovery provided to the attorneys. 

On May 27, it was disclosed that the accuser had failed to identify any of her alleged attackers in a lineup one week after the alleged attack. This article described the March 21 lineup. It also indicated that she identified Evans on April 4 with 90% certainty if he had a mustache. Defense attorneys denied that he had a mustache. 

On June 9, it was reported that the second dancer initially characterized the accusation as a "crock." In this article, Kim described the accuser as "talking crazy." 

On June 9, defense attorneys released portions of the medical report in a filing. The medical report indicated that the accuser did not have injuries consistent with her accusation of a brutal gang rape. It also provided details of her one-on-one "dates," including a vibrator show.

On June 13, it was reported that Prof. James Coleman called for Nifong's recusal and the appointment of a special prosecutor. He criticized harshly the lineup at which the accuser picked the three defendants: "It's so wrong; it had to be done for a reason other than identification."

On June 15 and June 16, it was reported that Nifong's public statements on the case were not supported by the information contained in the discovery provided to defense attorneys. These claims were also contained in defense filings with the court. These claims raised questions about the accuracy of the information both Nifong and Addison, among others, had provided to the public. 

On June 24, it was reported that the accuser had changed her story many times in her early conversations with the DPD. She changed the number of attackers, the number of dancers and other critical details.

On July 12, it was reported that the phone records indicated that a call had been placed from the accuser’s cell phone to an escort agency during the party. This disclosure raised more questions about when an attack could have occurred.

In spite of this, Steel, Brodhead and the Board of Trustees continue to claim that they could not have known that Nifong was abusing the justice system.

Even if we were to give them the benefit of the doubt, their response remains a failure.

Assume for the moment that one could excuse all of the administration’s statements, actions and inactions through Copper’s announcement on April 11, 2007. In spite of this exceedingly charitable assumption, Duke’s current response nevertheless is utterly indefensible.

The filings in the initial criminal case, the AG’s summary report, Nifong’s disbarment hearing and Nifong’s criminal contempt hearing provide substantial evidence to support the allegation that Nifong and Durham police officers (including, at a minimum Gottlieb and Himan) deliberately framed three Duke students for a crime they knew had never occurred. Although Steel and Brodhead have offered tepid criticism of Nifong, they have never publicly criticized the many “irregularities” in the DPD faux investigation. Instead, they have endorsed the obvious fiction that Nifong—and Nifong alone—is responsible for all failures in this case.

Credible evidence strongly supports the accusation that Gottlieb and Himan obstructed justice, committed and suborned perjury, intimidated witnesses, and ignored, fabricated and withheld evidence. The complete failure of their supervisors to oversee their actions in a highly publicized case belies the explanation that “rogue” investigators led by a “rogue” DA abused their authority. Moreover, the DPD’s failure to discipline any officers for their role in this case can be seen to have validated these actions.

Duke’s continuing failure—long after the case has ended and Duke need no longer be concerned about “interfering” in a criminal case—to criticize either Durham or the DPD and to demand an honest investigation of the DPD’s actions can at best be seen as its acceptance of potentially criminal acts in a deliberate frame of its students. Even when “the facts [are no longer] changing” and Duke has had a full opportunity to consider its reaction, Duke has taken no action to defend its students’ rights.

In other words, Duke appears to have accepted that Durham police may have committed multiple felonies in a conscious attempt to injure its students. Duke cannot or will not object to these crimes. At best, this is the reality of Durham to which Steel, Brodhead and the Board of Trustees are resigned. The primary alternative—as alleged in the Ekstrand lawsuit, that Duke actively conspired in the frame—is far worse.


Anonymous said...

Thanks for reminding us that there were smart people like Geragos who called it correctly. Drop an e-mail thanks to him if you get a chance.