Saturday, December 22, 2007

Lawsuit Breakdown: Jurisdiction Part 2

[The series Lawsuit Breakdown will attempt to highlight the main points of the lawsuit filed on 12/18/07 by attorneys for Ryan McFayden, Matt Wilson and Breck Archer with a focus on Duke University's involvement in the scandal.]

Follow-up on Lawsuit Breakdown: Jurisdiction in the Rape Claim Investigation

It has become clear that the matter of jurisdiction deserves another post. As a reminder, here are the two main points on this issue:

1. The Duke University Police Department had Jurisdiction
2. ALL of the defendants conspired to publicly and privately conceal the fact of the Duke Police Department's "jurisdictional obligation" (p. 4)

1. Jurisdiction
It appears more and more that the matter of jurisdiction is more or less incontestable. As the lawsuit convincingly demonstrates, not only was there an established protocol as well as precedent designating this rape investigation under the jurisdiction of Duke Police rather than the Durham Police, but this rape investigation was transfered from the Durham Police to the Duke Police: "pursuant to the Durham Police Departments [sic] written protocol, General Order No. 1006 R-1, a transfer of the investigation to the Duke Police Department was initiated [...] immediately a cadre of Duke Police officers and supervisors descended upon the E.D. in response" (p. 94) where they were briefed on the bizarreness of Mangum's behavior, the inconsistencies of her stories, and the "specious circumstances surrounding her rape claim" (p. 94).

That the investigation belonged to the DUPD seems established.

2. Conspiracy
It gets worse. A lot worse.

We may revisit this section to add more commentary, but many of these excerpts from the complaint speak for themselves. What Ekstrand is alleging implies that Bob Steel and high level administrators were issuing commands to suppress exculpatory evidence and manufacture fraudulent evidence in order to conceal Duke's involvement in the affair, both publicly and privately, as well as its jurisdictional authority.

"Duke Police Supervisors, Duke Officials, and Durham Police Supervisors would overrule their investigators’ decision to wind up the investigation, and, instead, agree to put Mangum’s false claims into the hands of a known rogue officer, who they knew had a documented, alarming pattern and practice of abusing Duke students, falsifying testimony and fabricating evidence to
close holes in his many baseless prosecutions of Duke students on misdemeanor charges" (p. 113).

"Defendant Robert K. Steel, Chairman of the Executive Committee of the Duke University Board of Trustees, through the CMT and/or Duke Police Supervising Defendants understood, agreed, and conspired to direct the Duke Police officers and investigators to (1) cease all participation in the investigation, (2) conceal evidence of their prior role in the investigation and evidence of their authority to intervene and control the investigation, and (3) fabricate false and misleading 'witness' statements calculated to conceal their personal observations of Mangum’s bizarre behavior" (p. 141).

"On or about March 27, 2006, in response to a request for Duke Police Officers’ statements from Nifong’s assistant, Sheila Eason, Duke Police Supervising Defendants directed the Duke Police Officers who interacted with Mangum at DUMC to violate protocol and standing General Orders by not writing a standard incident report or operations report on the forms prescribed for that purpose. Instead, the Officers were directed to write what can only be characterized as 'bystander witness statements' that conceal the exculpatory evidence they derived from their interactions with Mangum" (p. 146).

Ekstrand goes on to explain the suspiciously uniform nature of these "bystander witness statements."

As we have known for some time, the Bowen/Chambers report (evaluating the administration's initial response) justified the Duke administration's slow response to the allegations by pointing to a report by Duke Officer Christopher Day which suggested Mangum was not credible. When the existence of Officer Day's report was revealed, Ekstrand says, the media began asking "a barrage of questions about...why he was involved in the investigation" (p. 98) being a Duke Policeman.

"Duke Police and Durham Police agreed to misrepresent what transpired on the loading dock of the E.D. and told reporters that Officer Day was 'eavesdropping' on Durham Police conversations, and had no place in the investigation" (p. 98)

Day's report, however, "contained a synopsis of much of the exculpatory evidence gathered by Durham Police and Duke Police on March 14th, and concluded that the felony investigation had been closed. Because everything in Day's report was already approved by the command and was at odds with the directive to conceal exculpatory material, Day was directed to write a 'Continuation' report" (p. 150) which "deliberately impeaches his own contemporaneously written synthesis of the reports he received in the transition briefing at the E.D. in the early morning hours of March 14, 2006" (p. 150). By impeaching his own report, Day was forced to discredit the evidentiary and exculpatory value of his report.

There are three Duke Police Officers that the complaint lists as individuals who were forced to commit these frauds: Officers Mazurek, Falcon, and Day. Officers Mazurek and Falcon have since obtained employment elsewhere. Ekstrand's explanation of this fact implying they were each "free to report any exculpatory information" (p. 149) seems to imply that much of Ekstrand's substantiation for these accusations of conspiracy against Duke Officials and Duke Police defendants may be coming from these very officers. If such is the case, their testimony could prove devastating.

Wait until we get into Ekstrand's allegations of Duke administrators' efforts to "force waivers of the plaintiff's fifth and sixth amendment rights" (p. 155).

Stuart Taylor wasn't messing around when he predicted this case was going to get "uglier and uglier and uglier" at our Nov. 2nd event. Whether or not these allegations are successfully contested, the whole affair got quite a bit uglier on Dec. 18 with the filing of this complaint.

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