Nifong's Options Running Out

The Plaintiff's attorneys wasted little time in filing a response to Nifong's January 15 terse motion for dismissal with this filing of January 29.

First, Nifong asserts that the Amended Complaint fails to state a claim against him upon which relief can be granted. See Motion, ¶ A. However, the Consolidated Opposition summarizes the detailed allegations against Nifong and the other Defendants—including Nifong’s involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees. See Consol. Opp. to Defs.’ Mots. To Dismiss the First Am. Compl. (Docket No. 51) (“Consol. Opp.”), at 2-17 (summarizing allegations against Nifong and other Defendants). As the Consolidated Opposition explains, these allegations satisfy the elements of the federal civil rights violations and state-law torts alleged against each of the Defendants, including Nifong. 1

Second, Nifong argues that he has absolute immunity from these claims because, he contends, all of the actions alleged in the Amended Complaint “were done in his role as District Attorney.” Motion, ¶ C. However, Plaintiffs’ Consolidated Opposition explains the relevant standards relating to absolute prosecutorial immunity and makes clear that, contrary to Nifong’s argument, the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. See Consol. Opp. at 23-26. Rather, courts apply a “‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal citations omitted); Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 230 (4th Cir. 1997) (“[T]he scope of absolute prosecutorial immunity has been narrowly drawn.”).

Noting a recent Supreme Court decision they stated,

The Supreme Court’s decision earlier this week in Van de Kamp v. Goldstein, ___ S. Ct. ___, No. 07-854, 2009 WL 160430 (Jan. 26, 2009), reaffirms this functional immunity analysis and reconfirms that Nifong is not entitled to absolute immunity for his investigative misconduct and public statements. Van de Kamp involved claims that supervisory-level prosecutors had failed to properly train and supervise lower-level prosecutors to disclose impeachment material in their criminal trials, and to create a database of information relating to trial informants. As the Court explained, the allegations in Van de Kamp addressed an entirely different situation from a prosecutor’s “investigative . . . tasks,” “advice to police during a criminal investigation,” or “statements to the press,” to which “absolute immunity does not apply”:

The Court made clear [in Imbler] that absolute
immunity may not apply when a prosecutor is not acting as
“an officer of the court,” but is instead engaged in other tasks,
say, investigative or administrative tasks. To decide whether
absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of the
“functional” considerations discussed above. . . .
. . . .
In the years since Imbler, we have held that absolute
immunity applies when a prosecutor prepares to initiate a
judicial proceeding, or appears in court to present evidence in
support of a search warrant application. We have held that
absolute immunity does not apply when a prosecutor gives
advice to police during a criminal investigation, when the
prosecutor makes statements to the press, or when a
prosecutor acts as a complaining witness in support of a
warrant application. This case, unlike these earlier cases,
requires us to consider how immunity applies where a
prosecutor is engaged in certain administrative activities.

See
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT MICHAEL B. NIFONG’S MOTION TO DISMISS

As for what's next for the disgraced, disbarred, and former DA Nifong may we suggest the fetal position sucking his thumb.

Also see LieStoppers Forum for discussion of Motion

Hat Tip: sdsgo, Tidbits, and Quasi

Nifong's Absolute Immunity Defense takes another Hit

The Ides of March have come two months early for the Disgraced, Disbarred, and Former DA Nifong. Last week KC pointed out in his post Setback for Durham? a recent US Supreme Court decision.

"On Wednesday, the Supreme Court handed down a ruling that could weaken the Durham defendants’ efforts to use a claim of qualified immunity to avoid liability. Given that this claim formed a central element of Durham’s pleadings, the setback could be a formidable one indeed."

It just got worse today for Durham's self proclaimed greatest ex-attorney as the US Supreme Court in a 9-0 decision, VAN DE KAMP ET AL. v. GOLDSTEIN, re-affirmed,

“that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application.” Court Syllabus

It also clarified the distinctions of what are administrative functions allowable and made the line very clear on what are permissible actions.

“The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. “ Court Syllabus

In the Duke Lacrosse Frame/Hoax DA Nifong repeatedly cross the line of DA as Police Investigator I/C as he ordered DPD Officers Gottlieb and Himan to perform specific police actions like the infamous 4 April Line-up.

Nifong in his Jan 15 Motion to Dismiss claimed.

All actions of Michael B. Nifong referenced in the Amended Complaint were done in his role as District Attorney and as such are entitled to absolute immunity. Nifong Response

Hat Tips: Tidbits, sdsgo

Nifong begs "absolute immunity"

Ray Gronberg of the Durham Herald-Sun is reporting,

DURHAM -- Former District Attorney Mike Nifong on Thursday asked a federal judge to dismiss the civil-rights lawsuit three former Duke University lacrosse players falsely accused of rape have filed against him and other officials.

The three-page dismissal motion filed by Nifong lawyer James Craven III contends the former prosecutor is entitled to "absolute immunity" from civil claims under that doctrine that says government officials can't be sued for their official actions.

The motion was Nifong's belated answer to a lawsuit filed more than a year ago by former players David Evans, Collin Finnerty and Reade Seligmann... Herald-Sun

See Motion

Nifong Loses Again in Bankruptcy Decision

Federal Judge upholds Nifong bankruptcy ruling

WRAL TV is reporting that the disgraced, disbarred, disheveled, and former Durham DA Nifong has lost in his bid to hide behind bankruptcy to avoid civil lawsuits.

Greensboro, N.C. — A U.S. District Court judge has agreed with a bankruptcy judge's ruling that a civil rights lawsuit against Duke lacrosse prosecutor Mike Nifong can move forward.

The former Durham County district attorney filed for bankruptcy in January, which temporarily protected him from the civil litigation brought by the three Duke University lacrosse players prosecuted on charges of rape, sexual assault and kidnapping.

Following a bankruptcy hearing in February, U.S. Bankruptcy Judge William L. Stocks put the bankruptcy case on hold until the civil action was resolved.

In June, Nifong appealed Stocks' ruling.

But U.S. District Judge James Beaty, in his ruling Thursday, agreed with Stocks that if the claims against Nifong result in a judgment, the matter would then be referred to bankruptcy court for further proceedings.... WRAL TV

See Judge Beaty's Ruling

Ramifications

Blog Hooligan "sdsgo" had this observation

"This was an even better ruling than expected. By taking Judge Stocks’ traditional versus non-traditional physical injury issue off the table, Judge Beaty made today’s ruling virtually appellate-proof. The appellate court would look at the physical injury issue as a question of law to be reviewed de novo, whereas Judge Beaty’s decision based on judicial economy could only be challenged for abuse of discretion. "

Hat Tip" Clowns, sdsgo

Court Filings in Ekstrand et al v Duke et al

It was a busy three days preceding Thanksgiving as thirteen separate court filings were made in McFadyen et al v. Duke et al. Justia has all of them up at their site.

McFadyen et al v. Duke University et al

Of particular note was Durham attorney Bob Ekstrand's filing in representation of McFadyen. Archer, and Wilson

PLAINTIFFS’ OPPOSITION TO THE CITY OF DURHAM’S MOTION FOR PARTIAL SUMMARY JUDGMENT(GOVERNMENTAL IMMUNITY)

On the LieStopper's Forum Quasimodo led the discussion

The City’s Motion seeks partial summary judgment on all of Plaintiffs’ “state law tort claims” against the City on the grounds that they are barred by governmental immunity.

Quasi pointed out that however governmental immunity does not bar Plaintiffs’ claims because;

1) Of the existing City insurance they revealed in their motion and the possibility they have others.

2) The City's probability of participation in a North Carolina League of Municipalities local government insurance pool that they failed to reveal.

3)The City Council created a "Immunity waiver Fund" and adopted resolutions that the fund created constitutes a waiver of governmental immunity.

Further that without discovery how could the City of Durham's dubious claims claims be verified.

Clearly the City of Durham's motion was premature and left out important data for the Court.

Hat Tip: Quasi, sdsgo

Blue Thanksgiving for Durham & Duke as Legal Woes Continue!

This was not the week to be thankful at Durham's City Hall nor at Duke University as trouble in their defense of the Duke Lacrosse Lawsuits continues to surface.

First was the reply by the plaintiffs to the City of Durham

PLAINTIFFS’ BRIEF OPPOSING THE CITY OF DURHAM’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

This motion by the brilliant legal team under the guidance of Sullivan, Rudolf, Scheck, and Emery eviscerates the City of Durham's ridiculous proposition that somehow the City is not fully financially responsible for their actions because;

"The City of Durham argues, based upon a particular sentence in its insurance Policies, that it does not have insurance coverage for Plaintiffs’ state-law claims and, thus, is entitled to governmental immunity."

It states that the City needs to re-read their policy again and challenges the legal assumptions with an overwhelming amount of case history in North Carolina.

In addition the motion points out how much work the legal defense team has put into the defense of what they are now claiming has immunity

"C. The City Spends Its Retained Limit and Triggers Its Excess Policies

According to published reports, the City Defendants have generated more than $1.2 million in legal bills in this and two other cases. See Davant Rule 56(f) Aff. ¶ 4.

This legal work included the drafting and submission of more than 300 pages of briefing (out of 887 pages to date) devoted exclusively to the state-law claims in the three cases.

Yet, the Assistant City Attorney supervising these cases told the Durham Herald-Sun that the City was responsible only for the first $500,000 of the City Defendants’ legal bills, and that the City’s insurer was reimbursing the City for all amounts over $500,000. See id. The City has paid “$729,350 of [the legal bills], but the city is in line to get $229,350 of that back from the American International Group.” Id. “AIG will pay for the city’s defense until the bill hits Durham’s $5 million coverage limit, Assistant City Attorney Kim Grantham said.” Id. The City did not distinguish between state and federal claims in describing its insurance coverage, and instead indicated that the first $500,000 of defense costs had triggered insurance coverage "

11 Million in Legal Fees Spent by Duke University

On the second front Duke University filed a lawsuit against National Union Insurance which is a wholly own subsidiary of AIG. They seek money to pay for legal fees already spent.

The News Observer reported;

Duke sues insurer over lacrosse settlement

Duke University is suing its insurance company for refusing to pay any of the settlement costs for the Duke Lacrosse case.

In federal court papers filed Monday, Duke is seeking financial relief from National Union Fire Insurance Co. of Pittsburgh, an affiliate of insurance giant AIG… N&O

The Durham Herald-Sun using private sources explained further the magnitude of Duke’s problem.

"Sources close to the case say National Union is refusing to pay because it believes its policy is capped at $5 million for legal expenses and Duke has submitted legal bills -- alone -- of about $11 million to date, and that Duke refuses to accept the $5 million cap"

Looking back

LieStoppers wish Reade, Collin, Dave and their Families a Happy Thanksgiving.

We hope it gives them some degree of comfort to watch the City of Durham and Duke University worry about how they are going to pay these legal fees. They left those three families alone to struggle with their legal defense bills for a crime which they knew never happened.

Karma can indeed be sweet!

"Oh what a tangled web we weave,When first we practise to deceive!"
Sir Walter Scott

Review of the Last Dance for Grace: The Crystal Mangum Story

"Crock!"

It was true then on March 20, 2006 and it is still true now.

Investigator Benjamin Himan's notes of his phone conversation with Kim Pittman on March 20, 2006:

"3/20/06 1010HRS - CONTACTED KIM PITMAN REFERENCE THIS CASE. SHE STATED THAT SHE DID DANCE AT 610 NORTH BUCHANAN, I ASKED HER IF SHE KNEW ANYTHING ABOUT WHY I WAS CALLING. SHE STATED THAT SHE WAS TOLD THAT SHE WOULD BE GETTING A CALL FORM THE POLICE ABOUT AN INCIDENT THAT TOOK PLACE. SHE STATED THAT SHE HEARD THAT MS. MANGUM WAS SEXUALLY ASSAULTED, WHICH SHE STATED WAS A "CROCK" AND SHE STATED THAT SHE WAS WITH HER THE WHOLE TIME UNTIL SHE LEFT. AND THE ONLY TIME SHE WAS ALONE WAS WHEN SHE WOULD NOT LEAVE AND THAT TIME PERIOD WAS LESS THAN FIVE MINUTES. WE MADE AN APPOINTMENT FOR HER TO MEET ME AT STATION 2 AND HER TO GIVE ME A STATEMENT REGARDING THE INCIDENT."

Crystal Gail Mangum continues her prevaricating ways in the latest version of "Fantastic Lies."

We cannot recommend reading this book to anyone but the most ardent of the "Something Happened Crowd" because only they would be able to discount the overwhelming amount of exculpatory DNA, medical evidence, and the conclusion of the NC Special Prosecutors, NC State Bar, and even the admission of the former disgraced, disbarred DA Nifong that no sexual assault happened.

Crystal's handler, Vince Clark told reporters outside of the "In the Know" bookstore that they have spent $100,000 on Crystal and had hope to recover their costs. He admitted they would have to sell 50,000 copies to break even and they will only print the book on an order by order basis.

It was an heated exchange between the local press and Clark who had earlier claimed that no one wanted to hear Crystal's side of the story. Reporters angrily denied that claim and told Clark they tried numerous times to interview Crystal and were refused. In what has become a Vince Clark specialty, offering no specifics, he said he had talked with their bosses and they declined, but he refused to name anyone.

Phil Seligmann releases Statement

Phil Seligmann, father of former Duke lacrosse player Reade Seligmann, responds to a statement made by Crystal Mangum, who said Thursday she is "still claiming that a sexual assault happened," at a March 2006 party, even though the North Carolina attorney general found otherwise

It is now beyond dispute that Reade Seligmann is innocent and was the victim of demonstrably false accusations by Crystal Mangum. The attorney general of North Carolina dismissed Ms. Mangum's case, finding that Reade was innocent. The former lead detective for the Durham Police Department testified under oath that Crystal Mangum 'was not telling the truth about anything.' Electronic records, including cellular telephone calls and ATM photographs, proved Reade Seligmann was not even present when Ms. Mangum claimed the assault occurred. The forensic DNA findings revealed between five and nine different male profiles in and on Ms. Mangum – none of which matched any person on the Duke men's lacrosse team. Ms. Mangum showed no injuries consistent with the beating and sexual assault that she claimed had occurred.

"Ms. Mangum's 'manuscript' is simply a pathetic attempt to further her need to remain in the public eye at the expense of demonstrably innocent individuals. Her incoherent passages are not based on facts, but are quite simply false ramblings. She ignores all of the verifiable facts of the case. The individuals associated with her publication of this 'manuscript' are seeking to advance themselves by associating with a woman who has a dubious past.

"No crime of any kind took place involving Ms. Mangum or any member of the Duke men's lacrosse team.

"We are presently evaluating all available legal options. If Ms. Mangum and those associated with her continue to slander Reade, we will have no choice and will not hesitate to utilize those options." WRAL-TV

“What is the truth, Crystal?”

The Bizzarro Case of Crystal Mangum continued this morning with a Press Conference held at the "In the Know" bookstore which is owned by Bruce Bridges and the founder of the local Durham chapter of the New Black Panther Party.

Crystal was there to publicized her book;

The Last Dance for Grace
The Crystal Mangum Story

WRAL has posted excerpts
The Last Dance for Grace

So what did we learn? Crystal was a victim according to Vince Clark, her handler. Declining repeatedly to answer specifics and admitting the case was over she nevertheless proceeded to say she was assaulted at 610 N. Buchanan.

Vince Clark stated that they have the swabs and underwear Crystal was wearing but refused to retest those items for DNA. He did not say they were already tested twice and discovered numerous non Lax DNA in and around her hindquarters while finding no Lax DNA.

So despite the findings of the NC State AG, the work of the NC State Bar, and even the admission by the former DA Nifong that no sexual assault occurred Mangum continues to persist in her false accusation.

We will be reviewing her book for specifics allegations and comparing those to the files of depositions, testimony, and summary of conclusions by the NC AG Cooper.

We call upon the State of North Carolina to file charges against this false accuser.

Crystal's Quote of the Day

"I'm not just someone who tried to frame innocent Duke students"

See WRAL TV Video

Mangum's Statement

Motion Filed: Durham's Parade of Horrors

On October 6th, Robert Ekstrand filed a response to the various motions to dismiss (MTD) submitted by defendants in the Archer, McFadyen and Wilson civil case. It is 571 pages long.

Following is just the tip of the iceberg.... Durham's Parade of Horrors

LieStoppers is in the process of converting the filing from .pdf to word and will be posting for discussion on our blog.

See LieStooppers Forum

From Ekstrand's response to the City of Durham's MTD:

STATEMENT OF THE FACTS

The CITY OF DURHAM (the “City”) is a municipal corporation formed under the laws of the State of North Carolina. The City is believed to have waived its immunity from civil liability pursuant to N.C.G.S. § 160A-485 by, among other things, procuring a liability insurance policy or participating in a municipal risk-pooling scheme. The City of Durham operates the Durham Police Department, which shares law enforcement authority in the City of Durham with the Duke University Police Department, pursuant to a statutory grant of authority and an agreement between the City of Durham and Duke University. AC ¶ 58.

The City of Durham and its employees played a critical role in the grave miscarriage of justice that became known as the “Duke Lacrosse Rape Case.” The allegations involving the City and its employees are detailed throughout Plaintiffs’ Amended Complaint; however, the most significant allegations with respect to the City relate to its Zero-Tolerance for Duke Students Policy (“Zero-Tolerance”). The City is not alone in pursuing the policy, and Plaintiffs have pointed directly to their collaborator: Duke University itself. Pursuant to Duke-Durham Zero-Tolerance Policy, virtually every clearly established constitutional protection was lifted in police interactions with Duke Students. Specifically, Zero-Tolerance meant:

• Durham Police and Duke Police abused the power to enforce, disproportionately and unconstitutionally, the criminal laws against Duke Students. A.C. ¶¶ 111, 115.

• Duke students were charged and incarcerated for “alleged” criminal violations of the local ordinance called “Noise. Generally” or the open container ordinance banning open containers on sidewalks adjacent to homes which are not enforced against “permanent residents.” AC ¶ 108.

• Police ignored the Warrant requirement if the home to be searched was leased by a Duke Student. AC ¶¶ 116-128.

• Police ignored the probable cause requirement for the seizure of any person if the person to be seized was a Duke student. AC ¶ 113.

• Police fabrication of evidence (offered directly by police officers in courts of law to make baseless charges brought against Duke Students stick.) AC ¶175.

• The use of police power, generally, to intimidate, threaten, and coerce the out of state students into leaving the homes they leased in the Trinity Park neighborhood off of their University’s East Campus. AC ¶¶ 113-15.

• Perhaps the Policy’s most characteristic feature since its inception has been the Police Department’s purposeful violation of the constitutional prohibition upon stigmatization in connection with any deprivation of rights, particularly a seizure or search, AC ¶¶ 120-21.

Zero-Tolerance was a moving force behind the conspiracy to convict the Plaintiffs that is documented in the Amended Complaint. And perhaps the most disturbing fact alleged in the Amended Complaint is the fact that all of the acts alleged is that, from the beginning of the “investigation,” Duke and Durham had no evidence of a sexual assault, and they certainly had no evidence that Plaintiffs or their teammates had anything to do with one. A.C.§§VI- XL. They had nothing. AC ¶¶ 52, 57-68, 69-79. Recall Nifong’s assessment of the investigation: “You know, we’re f****d,” (AC ¶ 593) or Himan’s reaction to the decision to proceed to indictment in April, “with what?” AC ¶816. And from there nothing emerged but a parade of horrors:

• Fraudulent investigation: Durham Police oversaw an investigation that it should never have had in the first place: the allegations of rape occurring at 610 N. Buchanan. AC § XVIII (discussion on jurisdiction). Durham Sergeant Mark D. Gottlieb seized control of this case as soon as he could, not surprising given his particular interest and history of abusing Duke Students. AC ¶ 171. The investigation was a sham, laden with conspiracies. Defendant knew all of this and “turned a blind eye;” this failure to intervene ratified all of the bad acts. AC §IV(F).

• Retaliation – Public Stigmatization: Defendant engaged in numerous egregious acts of retaliation for Plaintiffs’ exercise of constitutional rights, including searches and seizures based on lies and fabricated allegations. AC § XIV(C). Defendant did not do all of this quietly either, but rather launched a national media campaign resulting in the vilification of Plaintiffs and enduring public stigmatization.

• Multiple conspiracies: Defendant was a primary actor in several conspiracies throughout this case, the most outstanding include: the NTID order, the search warrant abuse, the Photo ID sham, the DNA Cover-Up, the SANE fabrications. See AC § § XIII-XXV, XXIX-XXX, XXXIV. Much of this was engineered through Joint-Command Meetings between Duke and Defendant. AC § XXVI.

This is not the way cities and universities react to patently false accusations, particularly when they are recanted as soon as the accuser is removed from the commitment proceedings in which she made them. The arrogance of the City’s policymakers, leaders, administrators, police officers, and employees (and all of their counterparts at Duke) that played out over the course of thirteen months did not just appear on March 14, 2006. It was not the natural consequence of a false allegation made by a drug-addled woman who, at the time, was in the midst of an apparent psychotic break, in police custody, and in the process of being involuntarily committed. It was the product of a well-worn policy and custom of police to deprive “temporary residents” of their constitutional rights in all encounters with law enforcement. So ingrained was Zero Tolerance in the police apparatus that, six months into the “fiasco,” when news reports unmistakably documented Sgt. Gottlieb’s miserable record of deliberate, inhumane violations of Duke students’ rights, the Durham Police Department’s Internal Affairs Chief reflexively held a press conference to say that Sgt. Gottlieb was following his “orders.” AC ¶ 181. This was true, he said, when Gottlieb raided “temporary residents” homes without a warrant, arrested and charged “temporary residents” students with no evidence of a crime, and maintained a record of arresting roughly seven “temporary residents” students for every “permanent resident.” AC § IV.

$1,245,591.37 and counting

$1,245,591.37 is the bill that the attorneys representing the City of Durham have submitted for their time and expenses in the three lawsuits over the Duke Lacrosse Hoax/Frame. SO FAR!

Kimberly Grantham, assistant city attorney, said the city has sought $229,350 in reimbursements from the American International Group, the company that owns the insurer the city was under contract with in 2006 when the Duke lacrosse case started.

Under the insurance contract, the city was responsible for the first $500,000 and then the insurer would pick up the next $5 million.

Grantham said Tuesday that all five firms -- Faison & Gillespie, Poyner & Spruill; Kennon Carver Belo Craig & McKee; Maxwell Freeman & Bowman and Troutman Sanders -- are providing their services at below-market rate. N & O

While Asst City Attorney Grantham was assuring the citizens of Durham they were on the hook for "only" $500,000, questions were raised immediately about the accuracy of that claim. Is the Office of the City Attorney advising the City Council about the potential financial risks in their strategy or is it passing out advice they want to hear?

See LieStopper's Forum for discussion

Hat Tip: Walt-in-Durham

Plaintiffs attorneys reply to Nifong's appeal

The attorneys for the three former Duke University Lacrosse players file a brief in response to Nifong's appeal to overturn the Bankruptcy Judge's decision which disallowed his attempt to escape the civil lawsuit against him by filing bankruptcy.

"Nifong admits that his bankruptcy filing was not an attempt to work out debts with creditors but a tactic to short-circuit the District Court action and obtain a discharge that would free him to avoid responsibility for his alleged wrongdoing," a motion filed on Monday in U.S. District Court states. WRAL

In contrast to Nifong's memo of 15 August where he quotes Shakespeare by invoking the memory of Shylock the Plaintiffs stuck with legal precedent and quoted the law.

Brief of Plaintiffs-Appealles

Supporting Exhibit

See LieStopper's Forum for Discussion

Response to Dismissal Motions in the Duke Lawsuit

The Duke Lawsuit web site has posted the responses to the defendants' motions to dismiss their lawsuit. This is the lawsuit brought by 38 members of the 2006 Duke Lacrosse Team and others.

Opposition to Duke University's Motion to Dismiss; Exhibits 1 and 2
Opposition to Duke SANE Defendants' Motion to Dismiss
Opposition to the City of Durham's Motion to Dismiss; Exhibit 1
Opposition to Addison's Motion to Dismiss
Opposition to Gottlieb's Motion to Dismiss
Opposition to Durham Supervisors' Motion to Dismiss
Opposition to Himan-Wilson's Motion to Dismiss
Opposition to Covington's Motion to Dismiss

A large groan was heard coming from the Duke Law School Faculty Lounge as the responses and exhibits are over 250 pages.

See DUKE LAWSUIT

See LS FORUM for discussion

Nifong invokes Shylock's memory in his appeal

Nifong's attorney, James Craven, submitted a memorandum in support of the appeal of the May 27, 2008 decision of the Bankruptcy Court which disallowed Nifong from seeking protection from the civil lawsuit. It is a bizarre rambling memo which is part history lesson, part Shakespeare, complaining that the three Duke students really weren't injured. It was mostly a sarcastic whine of why do they want a pound of flesh?

As we have demonstrated, the claims of these three creditors are not personal injury tort claims within the context of 28 U.S.C. 157(b)(2)(B) and 28 U.S.C. 157(b)(5). These creditors, certainly their counsel, have to know they will never collect so much as $35 from Mike Nifong. They must know that, yet still they come. For all the reasons set forth above, the Court should reverse the May 27, 2008 decision of the Bankruptcy Court and remand the case. Memo

Immediately the Blog Hooligans speculated that Nifong's attorney was most likely not responsible for this memo, but it was the work of the Disgraced Disbarred Former Durham DA.

See LieStoppers Forum for comment and analysis

Since Nifong has taken the literary license to invoke Shakespeare, Baldo has decided to invoke the words of Robby Benson from the movie One on One in response to Nifong's memo.

"All the way up with a red hot poker"

Plaintiffs reply to compel Defendant's cooperation

The attorneys for Reade, Collin, and Dave have filed a reply in response to the defendant's reply over the motion to compel the defendants to confer under Federal Court Procedure Rule 26(f).

PLAINTIFFS’ REPLY SUPPORTING THEIR MOTION TO COMPEL DEFENDANTS TO CONFER UNDER RULE 26(f)

Rule 26. Duty to Disclose; General Provisions Governing Discovery
Rule 26(f) basically requires that counsels discuss how they should address potential discovery issues, such as preserving discoverable information and the disclosure or discovery of electronically stored information. It is a order to meet and confer.

See Rule 26f

The defense attorneys for the various defendants including the City of Durham have delayed this conference and the Plaintiffs want the Court to demand their cooperation. LieStoppers

In the Duke Lacrosse Hoax/Frame the defendants repeatedly did not record or take notes for most of the critical meetings. When they did appear as in the case of the miraculous notes for Sergeant Gottlieb they came months later and tried to explain serious flaws in the prosecution's case. From Tara Levicy's magic towel to Sergant Gottlieb's EZ Dry Eraser Board the "investigation" was marred by the failure to document and by the hiding of exculpatory evidence.

The Plaintiff's are demanding.

For the foregoing reasons, Plaintiffs respectfully request that the Court enter an order directing Defendants to confer with Plaintiffs as required by Federal Rule of Civil Procedure 26(f). Alternatively, Plaintiffs request that the Court schedule an initial pretrial conference so that a reasonable discovery plan can be established.

See LieStoppers Forum for Discussion

Hat Tip:sdsgo

Why was Crystal's statement not taken until April 6th?

Professor KC Johnson had another brilliant post yesterday, "The Lying Game", covering the responses of the defendants in the Ekstrand lawsuit.

KC questions a stunning fact: Crystal's statement was not made until April 6th, three weeks after her accusations. How could an NTO calling for a 46 man DNA sweep be written up without a recorded statement by the accuser?

Suspicions are that DPD investigators Gottlieb & Himan knew they couldn't be locked into a version when they first interviewed Crystal on March 16th. She had told wildly conflicting stories starting on March 14th as she moved through police custody into Duke University Medical Center hands. Her accusations to Durham DPD Officer Shelton, Officer Sutton, and the medical staff were a constantly changing montage of accusations, recantation, varying amount of dancers, and missing money (which, at one point, she admits she may have been deposited into her bank account.) It appears that no one believed her ever-morphing stories until hours later when she fell into the arms of Sane’-Nurse-In-Training Tara Levicy ,who, of course, later infamously stated to attorneys that she never met a woman who lied about rape.

DPD Officer Shelton had rightly figured Crystal accusations out that night in the hallway of DUMC when he proclaimed loudly, "She lying!"

DPD Investigator Jones was so unimpressed by Crystal's wild tales that she had decided to close the rape file.

However DPD Sergent Mark Gottlieb entered the stage to seize the case away from Investigator Jones. The case was now the hands of a police officer who had just been transferred out of the Duke beat because of his unfair treatment of Duke students.

The Hoax began.

The question remains: when should an investigator take a statement from an accuser? The answer to that question becomes moot when the investigators record all interviews.

In the Duke Lacrosse case we have conflicting physical descriptions of her "assaulters" given by the false accuser to each investigator in the same interview on March 16th. Of course neither gave those descriptions in the first discovery. It never appeared in Himan's official department notes, but rather in a handwritten notebook pages of that interview. Sgt Gottlieb's conflicting descriptions appeared months later in a typed presentation which seem to make up for every weakness.

The reality is that less than honest Police Departments don't take a formal statements until they have worked out the conflicts in their theory of the case. The Gell case was clear warning to all NC Police Departments to keep notes. The response of Durham Investigators in this case was simply to either withhold them, not take them, or make them up.

Also this case it is alleged that Levicy modified the Sexual Assault report to suit the evidence, imaginary as it was. The magic towel appears late in the game to explain away the lack of DNA.

Is our Justice system just an adversarial GAME where truth is secondary to winning?

Until North Carolina makes it mandatory that all interviews of accusers and witnesses must be recorded, we will continue to have Hoaxes with less than honorable investigators. Like transcripts for Grand Jury proceedings we are still waiting. More importantly, JUSTICE is waiting. Until we demand change, we will allow ourselves to be in jeopardy to ideologues and corrupt law enforcement officials.

Defendants file responses in McFadyen et al v. Duke University et al

The Defendants have filed their responses. You may access them at the Justia web site along with all case documents.

Thankfully Sceptical, a loyal Blog Hooligan, has broken them down by defendant so they are easily accessible here.

Motions to Dismiss Filed 7-2-08

Review and discussion is at the LieStoppers Meeting Place

The Durham defendant's motions to dismiss follow this basic pattern, "It wasn't my fault and if it was, I have immunity." So the questions that Durham Councilman Eugene Brown asked on May 31, 2007 are still left unanswered.

One basic question is why did three Durham residents have to go to Raleigh and to the Attorney General's office to get justice?

What was in the collective DNA of some within the Durham Police Department (DPD) that denied the accused justice in our City?

Who was really in charge of investigating this case, the Durham Police or the DA?

Who was driving the train and who was stoking the coal in the fire engine to keep this hoax of an investigation going?

What was the role of the Durham Police Department in creating what the Attorney General deemed a "rush to conviction" but apparently not to justice? WRAL TV

Fireworks Ahead?

Tidbits, a dedicated Blog Hooligan, keeps us updated on the LieStoppers Forum regarding approaching legal deadlines. This should be an informative week as the day of reckoning for Durham, Duke, and the other defendants gets closer.

July 2nd

MCFADYEN et al v. DUKE UNIVERSITY et al
ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR on 04/30/08, granting 37 Joint Motion, that the Motion to reestablish deadlines in the Rule 12 briefing schedule entered on March 25, 2008, is GRANTED; The following briefing schedule shall apply to the Rule 12 Motions, Responses and Replies in this matter: Motions or Answers Due: July 2, 2008; Responses Due: no later than 90 days after the date all Defendants' Motions or Answers are filed; and Replies Due: no later than 30 days after the date Plaintiffs' Responses are filed. The Duke University Police Department and the individual Duke Police officers named as defendants in the Complaint shall be recognized as a separate Defendant-group (the "Duke Police Defendants") for purposes of the Rule 12 motion briefing and, along with the other Defendant-groups delineated in the Order dated March 25, 2008, shall have up to and including 50 pages to brief its motion to dismiss and up to and including 25 pages to brief its reply memorandum. The page limits otherwise established in the Court's ORDER entered on March 25, 2008 are retained and continue to apply to the Rule 12 briefing in this matter. (Law, Trina)

July 3rd

CARRINGTON et al v. DUKE UNIVERSITY et al
RESPONSE to 57 MOTION for Rule 26(f) Discovery Conference filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEM, INC., RICHARD BRODHEAD, PETER LANGE, LARRY MONETA, JOHN BURNESS, TALLMAN TRASK, SUZANNE WASIOLEK, MATTHEW DRUMMOND, AARON GRAVES, ROBERT DEAN, TARA LEVICY, THERESA ARICO, KATE HENDRICKS, VICTOR DZAU. Replies due by 7/3/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (GORELICK, JAMIE) Modified on 6/17/2008 to remove duplicate text (Lee, Lisa).

July 17th

EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al
June 17, 2008 ***Motions Submitted: 29 MOTION to Dismiss, 40 MOTION to Dismiss, 32 MOTION to Dismiss, 34 MOTION to Dismiss pursuant to Rule 12(b)(6) MOTION to Dismiss pursuant to Rule 12(b)(6), 30 MOTION to Dismiss, 38 MOTION to Dismiss, 42 MOTION to Dismiss, 36 MOTION to Dismiss to CHIEF JUDGE JAMES A. BEATY, JR. (Kemp, Donita) (Entered: 06/17/2008)

June 24, 2008 67 MOTION to Compel Rule 26(f) Conference by DAVID F. EVANS, COLLIN FINNERTY, READE SELIGMANN. Responses due by 7/17/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (DAVANT, CHARLES) (Entered: June 24, 2008)

Hat-Tip: Tidbits

Durham's Growing Lawsuit Deficit

The reality is settling in for Durham City Officials that the Duke Lacrosse Hoax/Frame is going to be very costly. The N & O reports,

DURHAM - The city has paid $731,680 so far in legal fees and expenses to defend itself against three civil lawsuits brought by former Duke lacrosse players.

City officials expect to be reimbursed by their insurance company for payments over $500,000, according to its policy.

The city is hoping to stave off a potentially devastating judgment that could reach into the tens of millions of dollars.

The lawsuits are now pending in federal court.

The city has cut checks to five different lawyers or firms representing the many city employees named in the lawsuits, said assistant city attorney Kimberly Grantham..... NewsObserver

According to sources, City Officials know they will eventually have to settle the Duke Lacrosse Lawsuits. Are City Leaders fully disclosing the potential damages they are facing in Federal Court? The citizens of Durham should be warned that a conflict of interest might exist. What is in the best interests of those individually named in the lawsuit might not be in the best interests of the citizens of Durham.

One thing is certain, the Durham Lawsuit Deficit will continue to grow.

King of the Road

Nifong wants his guitars

Mike Nifong filed a motion in Bankruptcy for the purchase of his three guitars.

1. On January 15, 2008, the above-referenced Debtor filed a voluntary
petition for relief under Chapter 7 of the United States Bankruptcy Code,
and Sara A. Conti was appointed to act as Trustee.

2. This Court has jurisdiction over this case pursuant to 28 U.S.C. Section
1334. Venue is proper in this district pursuant to 28 U.S.C. Section
1409(a). This is a core proceeding pursuant to 28 U.S.C. Section 157.

3. The Debtor owns, and has claimed as exempt, a Paul Reid Smith guitar, a
Fender Deluxe guitar, and a Martin guitar (“the Guitars”).

4. According to two independent appraisals of the Guitars, the higher
value of the Guitars is $3,389.00. The Trustee is of the opinion that the
value of the Guitars is approximately $3,500.00.

5. The Debtor has agreed to pay the Trustee the full appraised value of the
Guitars, $3,389.00, in consideration for the interest of the estate, and a sale
of the estate’s interest in the Guitars to the Debtor is more economically
feasible than an attempt to market and sell the Guitars to a third party.

6. The proposed settlement is fair and reasonable and in the best interest of
the estate of the Debtor.

7. On May 8, 2008, the Clerk of the Bankruptcy Court gave notice of the
Motion for Approval of Compromise and Settlement of Controversy, and
no objection to the relief requested was filed by the deadline of May 25,
2008.
BASED UPON THE FOREGOING, IT IS ORDERED, ADJUDGED AND
DECREED THAT the Motion for Approval of Compromise and Settlement of
Controversy be, and the same hereby is, allowed.

Blog Hooligan Jezebelle had this comment.

I have a vision........

Mikey sitting on a street corner, leaning against a light post, an open coffee can in front of him with a few pennies strewn across the bottom of the can....... he strums his beloved guitar softly, mewling strains from a brief medley of "Those Were the Days My Friends" into "I fought the Law and the Law Won", ending with a few bars from the late, great Roger Miller's famous "King of the Road."

He also filed an appeal against Judge William Stucks's decision to re-include him the lawsuit filed in behalf of RCD.