Friday, December 21, 2007

Lawsuit Breakdown: KC Johnson Weighs In

[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.]

The following Q&A with KC Johnson was provided by Liestoppers:

What parts of the filing came as a surprise to you? Any new information you were not aware of?

To me, the single most signifiant aspect of the filing comes on pp. 217-221, discussing the treatment of Matt Wilson. Wilson, it's clear, received disproportionate punishment based on his status as a lacrosse player. More problemmatically, however, the filing alleges that in his Judicial Board inquiry, he was asked multiple questions about the party.

If Wilson was asked even one question about the party, such an act would have violated the University's stated policy, that it was not and could not investigate the case, since doing so would be tantamount to obstruction of justice. In short, if this claim is true, the University had, by its own admission, obstructed justice.

The other significant element that wasn't public information was the extent to which Duke tried (and succeeded) to make sure that McFadyen signed a FERPA waiver--which allowed the University to describe his suspension and made sure that there would be no problems in denouncing him publicly.

The conduct is particularly egregious for three reasons: (1) as the claim pointed out, other students who had sent far worse e-mails were punished less; (2) Brodhead was an English prof--presumably he was familiar with the book; (3) if the University was able to track McFadyen down to sign a FERPA waiver, why didn't the University ask him what the e-mail referenced? Of course, when the University actually got around to doing that, the suspension was lifted.

As the onion gets pealed back more, is it about as bad as you anticipated or worse based on this filing?

It's about as bad as I had expected. The filing hints at greater involvement than has been documented to date by Bob Steel--which could create a most interesting discovery process.

What is your assessment of Sam Hummel's role within this filing? Will he be added to it?

I doubt Hummel will be added. The question with him is (a) whether his supervisors knew of his activity; and (b) whether it can be proven that he did anything on Duke's time or equipment. Are there people, for instance, who could testify that they saw him creating wanted posters on a Duke copier? The creation of those posters was a direct harm to the three plaintiffs, obviously.

Could the Honorable Judge Stephens be a likely candidate for an addition to this? It has come to light he enabled some very unethical things without doing the appropriate amount of homework?

Stephens won't be added to the filing--unfortunately, incompetence isn't grounds for a civil suit. I think we see from this filing that there's a long trait of laziness in the Durham DA's office. It recalls Nifong's claim at the criminal contempt trial that he had open file discovery because that way he could be saved the problem of actually reading his own files and determining whether documents needed to be handed over to the defense.
Is any portion of the filing weak in your opinion?

It's hard to imagine the filing against Meehan or DSI surviving--they are both highly vulnerable to the three accused players, but if Meehan and DSI hadn't entered into an agreemet with Nifong to intentionally withhold exculpatory evidence, I'm not sure it would have affected the position of the three plaintiffs.

I also think the filing could have done more with the point that Duke failed to require its faculty to treat all students equally on basis of race, class, gender, or athletic status. McFadyen was in Reeve Huston's class--subjecting him to one of the most egregious acts of faculty harassment in the case.

Could this new information, if validated in a court of law lead to federal charges?

Unfortunately, no. It's clear the feds rejected becoming involved for political reasons--they had overwhelming evidence that a crime occurred. How often does the Justice Department turn down a request from a sitting AG? I can't imagine anything that will bring about a federal inquiry at this stage.
Do you feel the actions of Tara Levicy in this frame are becoming more serious than what you initially assessed?

No, but only because I always had assessed her actions as very, very serious. It's worth remembering that this case never would have reached Nifong but for two people--Levicy and Gottlieb.

The filing very cleverly positions Levicy as she should be known--the de facto accuser. Since the police had no statement from Mangum until 4-6, it was the zealot Levicy who was consistently providing the "voice" of the "victim"--and, as this filing makes clear, was constantly changing her story to fit the prosecution's needs.

The filing also gives the lie to those who have claimed that Levicy is blameless because, as a Duke employee, she was covered in the civil suit the three falsely accused players settled with Duke.

Do you think anything has been held back in an effort to combat Duke/DPD's response?

Possibly, though the filing does go to great lengths in explaining the Duke PD's role. The allegation that Duke Police officers were pressured to give incomplete pro-Mangum reports is a very, very troubling one.

One aspect of the case as a whole about which we still know little is the full extent od DPD-DukePD contact. If I were Duke's attorneys, I'd be afraid of what discovery could yield on this score.

What can we expect in the additional filings by other unindicted players?

We know that the other players are represented by some of Washington's top lawyers. If they file, then, I would expect the document to be as or more powerful than this filing.

Why was there no dollar amount attached to this filing?

To keep open the prospect of negotiations.

Anything you wouldlike to add?

I'm especially intrigued by the prominence given to Bob Steel in this filing. Steel is one of the few figures involved in the case who not only has never been deposed but who has not been recently interviewed. His only on-the-record interview (to the New Yorker, in Aug. 2006) was a disaster for Duke. (Recall he asserted that the season was cancelled because Duke had to stop the photos of the team practicing, whether this was fair or not.) His deposition, if discovery is allowed to proceed, could be very interesting.

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