Sunday, February 08, 2009

Follow-up to: Informed commentary re: Duke/Durham discovery

On this thread Steve Hoffman (Duke ’77, Parent ’10) commented in part:

You never posted [follow-up comments to Informed commentary re: Duke/Durham discovery] as you promised.
The “Informed commentary …” post contains three very informative reader comments. I didn’t say anything in response to them because the post was clear, had a topical coherence, and was long.

But, as Steve says, I promised follow-up comments and didn’t do that.

I apologize to Steve and others. I also thank Steve for his nice words about this blog and for reminding me to do what I promised.

And now I’ll do it:

From the Ex-prosecutor’s “Informed commentary …” comment:
[O]nce the depositions begin, I'll bet that all defendants, including those from Duke, will try to lay it off on each other.
and from Drew’s:
[During discovery in cases] with multiple [defendants] there's never any guarantee that you won't find yourself thrown under the bus, either by "your" counsel (who occasionally has a vested interest in defending the employer just a little bit harder), or by one of your co-respondents, who thinks they can dodge a bullet by re-aiming the gun at someone else.
I’m sure just about all of us agree with the Ex-prosecutor and Drew.

So who among the defendants is likely to throw whom under the bus?

The default answer, of course, is everyone else will throw Nifong there.

Running through President Brodhead’s public comments since December 2006 when Nifong was shown in open court to have withheld DNA evidence exculpatory for the lacrosse players, and running through Duke’s suit filings are statements that amount to: “’Throw Nifong under the bus?’ That works for us.”

But it’s not going to work for Brodhead, Duke and almost all the other defendants.

Yes, I know some reasonable people disagree.

But I think such a strategy – understood and not explicitly talked about among the defendants – will be no more effective for most of them than was Duke’s “throw the students under the bus” strategy in response to Mangum’s and Nifong’s lies, and what followed.

A "throw Nifong" strategy won’t work for almost all the defendants because it's so far from the reality of what happened.

Nifong may have asked for FERPA-protected student information.

But it was Duke’s decision to release it to him.

Weeks afterward, to cover-up the illegal information release, Nifong lied to the court and said he was seeking it.

He’s responsible for that deception.

But if was Duke’ counsel’s office which sent letters to the students and/or their parents asking for permission to release the FERPA-protected information Duke knew it had already given Nifong.

Duke’s responsible for that deception.

And on we could go with examples of actions and inactions other defendants won't be able to lay off on Nifong.

To sum up:

I’m confident we’ll have discovery and at least some portion of a trial (Mid-trial settlements are possible).

I think Ex-prosecutor and Drew are bang on about defendants finding themselves thrown under the bus by other defendants.

I see no way a “throw Nifong” strategy will, with maybe a few exceptions (Addison, Michael, & Himan come to mind), be much help to the individual defendants; and it could backfire on those who try it.

I see no way defendant organizations - Duke, Durham City/DPD and DNA Security - can successfully pass the buck to Nifong for things they did and shouldn't have done or for things they didn't do which they should have.

What do you think?

Again, thanks Steve.


Ex-prosecutor said...

I completely agree with your analysis. The Durham PD will have the best shot at Mr. Nifong, claiming that he took over and directed the investigation. However, I don't think that will get them off the hook because I don't see how the officers can argue that Mr. Nifong's involvement absolved their responsibility to recognize the students' rights.

As for the various groups of defendants, common practice in such a situation is for the higher-ups to claim blissful ignorance of actions of underlings.

Police officers are masters of deception. It's a necessity in dealing with criminals. So, I expect police records to be missing and/or doctored and officers to have failed memories as to important facts.

Anonymous said...


Glad Steve reminded you.

Great post.

Duke '85