Lawsuit Breakdown: Duke's Treatment of Matthew Wilson

[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.]

Matthew Wilson was cited for Driving While Impaired in Chapel Hill in May of 2006, six days after David Evans was indicted. He accepted responsibility for his mistake and entered a guilty plea at his first court appearance. He sought counseling from Duke's Counseling And Psychological Services (CAPS), but was told that because he was not enrolled in the summer session, he was not eligible.

Matthew's DWI was discovered by Duke University when it became front page news and even national news after a reporter cross-referenced new court files against the CrimeStoppers Wanted poster. Ekstrand then notes that "Duke University unilaterally suspended Matthew from the lacrosse team indefinitely and made multiple public statements to representatives of the press to ensure the University's disciplinary action against Matthew was widely known" (p. 219). Next, "Defendant Bryan told Matthew and his father that he was referring Matthew to a Judicial Board hearing, in which he expressly stated that Matthew would be suspended for two semesters. Defendant Bryan falsely stated - repeatedly - that it was "the policy" to suspend for two semesters all students who are charged with Matthew's offense" (p. 219). Ekstrand also notes that it is also false that Bryan's office suspended for two semesters every student cited with that charge.

Fearing for the publicity generated by Matthew's citation and Duke's public announcements, Matthew's parents "asked Defendants Moneta and Bryan to allow Matthew to transfer in lieu of a judicial affairs hearing. Moneta and Bryan both claimed that there was a 'policy' forbidding that; he could transfer but not as a student in good standing" (p. 220). Ekstrand asserts that there neither was such a policy nor a precedent, as many students in the same position had been allowed to transfer in good standing.

From Ekstrand's account, both Moneta and Bryan had already determined the sentence and delivered it repeatedly to Wilson's family before there was ever a hearing. Moneta told Matthew's father that "he and Bryan had no choice 'because he's a lacrosse player,' rhetorically asking, "What would we say to people if we didn't suspend him?" (p. 220). Especially extraordinary is that Bryan "claimed that he had picked a sympathetic group who would look favorably on Matthew's extraordinary efforts in the summer" (p. 220), an odd offering of comfort considering Bryan had already determined the sentence. It becomes even more peculiar consolation noting that the panel hearing "was filled with questions - not about the driving incident - but about the events of March 13th-14th at the 610 Buchanan house" (p. 220).

Eventually, by the Appeals Board, the two semester suspension was modified to suspension for the summer session. However, "neither body addressed the fact that the Student Code of Conduct clearly does not authorize the Undergraduate Judicial Board to subject students to disciplinary proceedings for conduct that occurs off-campus, out of county, while not enrolled, and not even eligible for a 30 minute CAPS appointment" (p. 221).

Thus, if Ekstrand is correct, violating precedent and citing policy that did not exist, Bryan and Moneta prevented Matthew from transferring in good standing in order that, with no disciplinary authority, they could subject Matthew to a hearing to determine punishment after punishment had already been determined according to policies that do not exist, and then used this hearing to interrogate Matthew about the party at 610 Buchanan in spite of Duke University's public assertions that it cannot conduct its own investigations for fear of "witness tampering." All of this at a time long after DNA had already cleared every member of the team and long after it had become extremely obvious to anyone paying the slightest attention that three honorable and demonstrably innocent Duke students were being subjected to extraordinary violations of their constitutional rights.

Duke Students for an Ethical Duke agrees with KC Johnson that this is one of the more disturbing parts of the entire lawsuit. We intend to discuss advocating at least the temporary replacement of the administrators involved until student confidence can be restored in the Duke administration in these essential positions that require the utmost integrity and trust.

Lawsuit Breakdown: Q&A between DSEDuke and KC Johnson

[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 questions were answered by KC Johnson, co-author of Until Proven Innocent and author of the Durham in Wonderland blog on 12/28/07.

1) How long do you expect these civil lawsuits to drag on? How would you project the timeline for each phase?

These could go on for some time. Take a look at the lawsuits filed by the three falsely accused players: none of the defendants has even filed a response yet, and yesterday Patrick Baker was granted another month (till mid-Feb.) to respond. So it could well be several months before the initial paperwork is complete.

All of the defendants, I suspect, will file motions to dismiss the suit. Assuming that (for most, anyway) this motion isn’t granted, the next step would be depositions and discovery, which would take another several months, at least.

2) The Ekstrand Lawsuit named nearly every top administrator at Duke. How do you think this lawsuit and ones to follow will affect those administrators’ abilities to perform in their duties until these matters are resolved, and what will it mean for Duke?

The lawsuit clearly isn’t good news for Duke: I can’t imagine there’s any university in the country that would like to be sued. And, of course, the lawsuit is just one of many—the Dowd suit, the three players’ suit, the Pressler suit—that Duke has either faced or settled before the lawsuits were filed.

The question, of course, is whether the Trustees and administration have engaged in any critical self-reflection as to what exactly the University did wrong in this affair, and what improvements can be made to ensure that such errors don’t recur in the future. In this respect, the litigation could represent an opportunity for the University to move forward.

We haven’t seen many signs of this process to date, but I continue to hold out hope.

3) The lacrosse season was cancelled because of the gravity of the allegations in question. Should someone like Dean Bryan, to name one, whose ability to perform his job depends upon his moral high ground, step down and be temporarily replaced until these matters are resolved?

Yes.

The single most troubling item in the Ekstrand suit is the claim that the Bryan prosecution of Matt Wilson involved asking Wilson questions about the party—which, by Duke’s own standards, would have constituted the University obstructing justice. (Recall that throughout 2006, Brodhead repeatedly contended that any University inquiry would have opened up the school to obstruction of justice, and therefore Duke had no choice but to both defer to Nifong and remain silent about Nifong’s procedural abuses.)

In combination with the highly damning revelations in the Elliot Wolf series about Bryan, it seems to me that the dean should be reassigned until the questions about his performance have been answered.

[Note: one of our sources has asserted that the majority of the complaints Wolf has with the trend of judicial policy regard policies enacted by Bryan's predecessor, Kacie Wallace. In fairness to Bryan, we will try to look into this matter]

4) Did Brodhead’s condemnation of “ill-judged” statements from the faculty in his apology surprise you given his own conduct? Do you believe his own failings and resulting vulnerability (and those of other administrators) have played a significant role in Duke’s continuing unwillingness to condemn or address faculty behavior?

It did surprise me, in large part because in early 2007, he thrice issued public statements that interpreted the highest-profile of these “ill-judged and divisive” statements—that of the Group of 88—in a more benign fashion than that offered by many Group members. So his remarks represented a radical—and welcome—change of perspective.

As for why the administration has been so unwilling to address the inappropriate behavior of some professors, I suspect it’s a combination of two things. First, a fear of litigation—that any rebuke or disciplinary action would also constitute an admission of wrongdoing (essentially the same reason why Durham shut down the Whichard Committee to investigate the DPD). Second a fear of the Group of 88, who, as we’ve seen with their responses to Steve Baldwin and to the Ec professors, are more than willing, loudly and publicly, to brand as racists or sexists anyone who stands in their way. In today’s politically correct academic structure, any administrator (not just at Duke) fears few things more than being called a racist or a sexist by faculty “activists.”

5) You have said you believe the feds aren’t merely stalling but will never actually get involved. Regardless, how much of a setback will that be to a state investigation by Roy Cooper, and could there still be criminal charges against Duke employees or officials? If so, who would be prominent targets? Will they wait out the civil suits?

6) It is difficult to justify the feds’ unwillingness to investigate. Is it possible to appeal their decision? Are there any other recourses to get federal help in the investigation?

(Take 5 & 6 together). It’s not possible to appeal—except for to the AG’s boss, and somehow I doubt George W. Bush is going to intervene. The lack of federal intervention is very troubling; this is a case in which, from all appearances, a prosecutor, an investigator, at least one police officer, and a SANE nurse-in-training conspired over a months-long period to manufacture evidence that could send three innocent people to jail. It’s hard to imagine a more serious type of misconduct from criminal justice officials.

As to a state inquiry: as we’ve learned over the past year, the state’s powers in NC are very limited. Since the state doesn’t have authority to empanel investigative grand juries, it appears unlikely there will be any criminal investigation at all.

7) It is hard to imagine all of the Duke administrators and officials named in the suit retaining their positions through these civil actions if many of these allegations are demonstrated to be true. It is also difficult to imagine all of them being promptly dismissed. How would you evaluate each administrator’s chances of survival, and what factors will go into the decisions for each official from the following list?

Richard Brodhead, Peter Lange, Tallman Trask, Larry Moneta, Stephen Bryan, Suzanne Wasiolek, Kemel Dawkins, and Matthew Drummond.

It’s hard to me to imagine Bryan lasting. But, then again, it was hard for me to imagine Duke first hiring and then reappointing Larry Moneta—and yet the University did so.

8) In terms of a basis for civil action, you mention the case against DNASI and Meehan as a weak argument in the case. On a factual basis, what do you see as the weaker points of the suit? Where do you think Ekstrand might have overreached, or do you suspect he can confidently substantiate each of his accusations?

I don’t see any case against Peter Lange, who strikes me as someone who has repeatedly tried to do the right thing over the past 20 months.

The tactic in any lawsuit, however, is to be ambitious in initial filings.

9) Vindication or Reparations: if you accept the premise, which motive do you expect to prevail among the lacrosse families? How do you think the allegations already revealed in the Ekstrand lawsuit will affect Duke’s willingness to settle with the other families, or even the three families represented by Ekstrand?

I think that the lacrosse players have already been vindicated—except for the truest of true believers (for whom no evidence will ever sway their mind) no one any longer believes a crime occurred in this case, and there’s a widespread consensus that the administration and “activist” faculty rushed to judgment. So I don’t think they needed a lawsuit to achieve vindication.

As to Duke’s settlement strategy: I can’t imagine the University would want to allow this to go to the depositions/discovery phase. The administration’s strategy has been to “move on” with no inquiry into either its conduct or the faculty’s rush to judgment; such an approach would be impossible as long as previously unreleased material keeps dribbling out.

[by vindication we didn't mean from the crime of rape but from the notions that they are "hooligans" whether or not the rape occurred. We may ask KC about this again with the clarification and will then update his response]

10) How should student leaders at Duke respond to these revelations and allegations? What effects do you foresee, and how should student leaders mobilize to address them?

The passivity of Duke parents has surprised me. How can parents stand idly by knowing their sons or daughters could get wrapped up in—say—Stephen Bryan’s discipline system; or be the subjects of the next denunciatory ad that the remaining members of the Group of 88 throw together?

As for students: passivity implies acceptance. Students have a right to fair treatment by administrators, and the Duke Faculty Handbook (theoretically, at least) requires all Duke profs to treat all Duke students (regardless of their race, class, gender, or athletic status) with “respect” as “fellow members of the academic community.” If students don’t stand up and demand fair treatment, it’s unrealistic to expect that others will do it for them.

Lawsuit Breakdown: Conspiracy to Interrogate without Counsel

[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 excerpt outlines the complaints against Duke in the conpsiracy between Duke Police Defendants, Duke Officials Defendants and Durham Police Defendants to "orchestrate the mass interrogation of uncounseled students" (p. 126).

Duke Police and Duke Officials understood and agreed to:
(1) Deliver all 47 team members to Gottlieb and Himan, at a designated location, to be interrogated by Durham Police;
(2) Create a false sense of security in the team members by minimizing the seriousness of the investigation and the charges being investigated, and encourage team members not to seek legal counsel or to reveal the planned interrogations to anyone;
(3) Provide no information to the Plaintiffs or their teammates about the nature or scope of the interrogations;
(4) The team members would not be informed that, during the interrogations, every one of them would be asked to volunteer to give their DNA and a “mug shot” photograph, or that a team of CSIs from the Durham Forensic Services Unit (“FSU”) had been mobilized for purpose of taking DNA swabs, mug shot photographs, and pictures of any scars or marks on the team members’ arms and torso.
(5) The team members would also not be advised that if they submit DNA samples and mug shot photographs voluntarily, they waive their right to a report of the results of all DNA testing and photo identification procedures as soon as they are available; and, further, that they could have that right merely by requesting a Nontestimonial (“NTID”) Order be obtained for the same purposes; and, further that, absent an NTID Order, a right to that information would not arise again unless the individual is indicted, and then only pursuant to constitutional and/or statutory discovery; and
(6) Provide a primary location and/or a satellite location(s) for isolated interrogations of individuals (p. 127) .

The Durham Police were then to report to Duke Police and Duke Officials "with information relating to their charging decisions" (p. 128). Duke Police and Duke Officials implemented the plan according to the agreement. At 7:00 pm on March 21st the players were instructed to report to the Duke Police Department at 3:00 pm the next day, leaving little time to consult significantly with counsel. They were told they were "going in to answer one or two questions" (p. 129), leaving out the plan to take DNA samples and photographs and subject the team to harsh and deceitful interrogation. Ekstrand alleges the advice given to the captains the week before by Wasiolek, the effect of which was "'you don't need a lawyer,' and "'don't tell anyone this is happening, not even your parents'" (p. 129), had been disseminated to the rest of the team. The rest of the team, however, did not know the purpose of the questioning or the severity of the allegations, and certainly not that they could all be charged as accomplices based on their presence at the party. Duke administrators, it seems, were demonstrably well aware of and acting in accordance with these intentions:

The University Officials’ agent responsible for coordinating the mass interrogation was directed to notify the Durham Police that the team members were told of the planned interrogations without sufficient time to discuss it fully with their parents (p. 130).

The disaster that likely would have resulted from these interrogations was averted only by the exhausting overnight efforts of Bob Ekstrand and his paralegal, Stef Sparks.

Next, Ekstrand alleges a conspiracy by both Duke Officials and Durham Police to retaliate against the players for delaying the interrogation to speak with their parents and counsel before being questioned by police.

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.

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.