Saturday, January 12, 2008

Lawsuit Breakdown: University's Effort to Force Waivers of 5th and 6th Ammendment Rights

[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.]

Ekstrand alleges that after the failure of the plan to orchestrate the mass interrogations without council in which Duke Officials endeavored to deliver the lacrosse team into the trap set by Durham Police, Executive Vice President Tallman Trask then "immediately demanded meetings with team members for the purpose of forcing them to effectively waiver their First, Fifth, Sixth, and Fourteenth Amendment rights" (p. 155). In the meeting, attended by Trask and other Duke Administrators as well, Trask demanded, "'tell us what happened'" (p. 156). After the team members declined as they had been advised to do by their legal counsel, Trask falsely told them that the conversation was protected from disclosure by a student-educator privilege that does not exist.

Ekstrand then explains that, "fearing their status as students was in jeopardy" (p. 156), the students were compelled to tell Trask what happened and emphatically denied the allegations. By demanding the full story, Trask and other administrators were leveraging the University's disciplinary power over the lacrosse players "to coerce what was effectively the waiver of their asserted First, Fifth, and Fourteenth amendment rights" (p. 156). Moreover, Trask and the other CMT members also intentionally "subverted their right to counsel by insisting the team members speak in the absence of counsel" (p. 156).

As we already know, soon after falsely telling the students the discussion was protected, Trask, Brodhead and several other administrators were brought in (to avoid subpoena) to testify to Durham Police about their discussions with the players, as the lawsuit mentions. To our knowledge, they all brought lawyers with them.

8 comments:

Gary Packwood said...

....Ekstrand alleges that after the failure of the plan to orchestrate the mass interrogations without council in which Duke Officials endeavored to deliver the lacrosse team into the trap set by Durham Police, Executive Vice President Tallman Trask then "immediately demanded meetings with team members for the purpose of forcing them to effectively waiver their First, Fifth, Sixth, and Fourteenth Amendment rights" (p. 155).
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There are those who argue that a private sector university unlike a public sector university is not bound by strict adherence to the First, Fifth, Sixth, and Fourteenth Amendment rights of the Constitution of the United States but is instead bound by their own private charter and by-laws.

A parallel universe as it were.

In my view Kim Curtis was clearly functioning in what she believed was a parallel universe when she began to assign grades for students who did not conform to her view of the Duke University universe.

The Internal Revenue Service of the US Department of the Treasury most certainly does not provide tax exempt status for the endowment fund and real property of an institution operating as a parallel universe to the community at large.

The 'parallel universe' model whereby only the nobility and the clergy could attend universities pretty much came to an end with what we now refer to as the Renaissance period of history back in the 15th and 16th Century.

What is the difference between a private and public university in the 21st Century and what type of faculty orientation is provided for new Duke faculty and continuing education for existing faculty about these differences?

Anonymous said...

The "private sector university" argument was the excuse Assistant US Attorney Ben White used to me back in October 2006. I had filed a complaint with the DOJ concerning Duke's forced shutdown of a voter registration drive at a football game.

Walter Abbott

Texas Mom said...

Since "private" universities accept federal funds, perhaps Congress needs to address this issue- since the DOJ WILL NOT.

Haven't read it yet, but the Nov. 12, 2007 issue of Forbes has an article on college costs- "Economics 101-Colleges aren't good at getting costs under control. Why bother, when Uncle Sam's checkbook is always open." by Alex Davidson

Gary Packwood said...

Walter Abbott 6:23::01/13/2008 said...

...The "private sector university" argument was the excuse Assistant US Attorney Ben White used to me back in October 2006. I had filed a complaint with the DOJ concerning Duke's forced shutdown of a voter registration drive at a football game.
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I'm guessing that Assistant US Attorney Ben White was saying that the juice was not worth the squeeze...with the juice being what would be accomplished after discovery.

With these new complaints being filed in Federal court I would imagine that the juice would be well worth the squeeze however I have difficulty understanding how anyone benefits from a public trial except for the lacrosse team members, of course.

Duke needs to agree on a settlement amount, re-train their faculty and staff and make substantive changes in their governance and management structure.

I just don't see how a public trial would accomplish anything except bring harm to all private universities in the USA.

With respect to Durham, I have no idea if any juice is worth the squeeze.
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GP

Ethical Duke said...

Walter Abbott,

Please email us at dsfeduke@gmail.com if you would like to share more of that story.

-Duke Students for an Ethical Duke

Anonymous said...

If Gottleib and Levicy conspired to produce false eveidence - where and what is the FALSE EVIDENCE??? The only evidence that Levicy is part with Dr Manly is the rape kit material, swabs, etc collecrion and QA checklist - SBI found no team DNA on the materials,

Carolyn said...

I would like to have another question put to Professor Johnson, if possible. Is Duke's counsel liable for the acts of its client in harming Duke students?

For instance, a therapist is held liable if it discovers one of its patients is about to harm someone and the therapist does nothing to either stop the patient or warn the potential victim. In Duke's case, counsel had to have seen that the players' lives were clearly endangered by the New Black Panthers trying to stir up a lynch mob atmosphere on campus - yet it is telling that when Brodhead stopped the NBP from appearing on campus, he did not do because of 'advice from counsel' but instead because of public outcry (in effect, his lawyers said nothing). Brodhead also didn't cite 'advice from counsel' when he brushed aside Coach Pressler's fears about Nartey's frightening emails. And there doesn't appear to have been any legal noise at all when Duke continued to hire a professor who'd been found guilty of maliciously harming her students through the grade system. In other words, though it was clear Duke was harming its students repeatedly over a nearly 2 year span of time, there's no indication Duke's counsel ever made any move to stop it, let alone warn the potential victims.

Well, couldn't Duke's counsel be held liable for that?

Ethical Duke said...

Responding to anonymous 9:46AM Jan 14:

The evidence that Tara Levicy was allegedly involved in fabricating consisted of documents and medical reports, not to mention her testimony. It did not consist of tampering with the actual rape kit. It is believed that Gottlieb cooperated with Levicy in these efforts.