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Duke lacrosse

The academic writer and blogger, co-author with Stuart Taylor Jr. of Until Proven Innocent, has long been a thorn in the Duke administration’s side over its conduct in the lacrosse case. The university has been fighting in court to force Johnson to hand over emails and correspondence that it says it needs to defend other litigation, and some of its informational demands have been very broad indeed. Too broad? [Johnson, Durham-in-Wonderland]

Update March 6, that was fast: Duke backs down.

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The author, reporter, and legal commentator has just posted a nicely designed online archive of his work, often linked in this space.

January 3 roundup

by Walter Olson on January 3, 2012

  • Popehat’s Ken to the rescue after Maine lawyer/lawmaker assists naturopath in bullying critical blogger [Popehat]
  • Newt’s “patriotism made me stray” among highlights of the year in blame-shifting [Jacob Sullum]
  • Nifong sidekick, now in a spot of legal bother himself, hits back with lawsuit [K C Johnson, Durham in Wonderland]
  • Shareholder action: “Delaware approves $285 Million in Plaintiffs’ Lawyers’ Fees” [Bainbridge, WSJ Deal Journal, WSJ Law Blog]
  • “Even one death is too many — WE MUST BAN NETI POTS!” [NYDN via Christopher Tozzo]
  • Debatable premise of Joe Nocera analysis on Stephen Glass case: bar admission turn-down = “rest of his life … destroyed” [NYT, Howard Wasserman/Prawfs, earlier]
  • Who says Connecticut never reforms liability? Towns won protection last year from some recreation-land tort exposure [CFPA, earlier here, here]

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Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.

*** END QUOTE ***

If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

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Hiring strippers at Duke

by Walter Olson on February 12, 2008

The lacrosse players’ problem was that they just didn’t do it the right way (Stuart Taylor, Jr., “The University Has No Clothes”, National Journal, Feb. 11)(will rotate off free site).

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Nifong/Lacrosse update

by David Nieporent on September 7, 2007

Former Durham prosecutor Mike Nifong, railroader of the Duke Lacrosse 3, was found guilty of contempt of court and sentenced to one day in jail; this punishment is for lying to the trial court about the existence of DNA evidence. He reported to jail today to serve his sentence. He has already been disbarred, of course.

Next to come is the players’ civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong. The players are attempting to negotiate a settlement before filing their suit; they’re reportedly seeking $30 million, plus changes to the legal process to allegedly prevent the district attorney from hijacking a police investigation the way Nifong did. They intend to file suit within a month if the city doesn’t settle. (AP, Herald-Sun)

And then there’s this little tidbit:

Durham’s Police Department, which helped Nifong secure the indictments, has also come under criticism. A special committee probing police handling of the case stopped working last month, however, because the city’s liability insurance provider warned that the committee’s conclusions could provide material for lawsuits.

At this point, if we were Bizarro-Overlawyered I’d be rambling about “Profits over People” or something, but since we’re not, I’ll just point out that it simply demonstrates the perverse incentives of the legal system and its unbounded discovery rules. As long as everything you put on paper can be used against you — even in hindsight — then the incentive is not to put it on paper. (Of course, I’m not suggesting that the specific wrongdoing in Durham was only obvious in hindsight; people like K.C. Johnson figured it out right away. But the incentives are the same in every case.)

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“Until Proven Innocent”

by Walter Olson on September 5, 2007

The much awaited new book on the Duke lacrosse rape case is now out; authors Stuart Taylor, Jr. and K.C. Johnson need no introduction to readers of this site. More: Instapundit, Jeralyn Merritt, Abigail Thernstrom in WSJ.

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Amber Taylor points us to this AP article:

A female airman says she faces a court-martial next month because she refused to testify against three male airmen she accused of rape.

The woman is charged with one count of committing indecent acts and one count of consuming alcohol as a minor. The defense says the charges involve the same men she accused of raping her.

The woman dropped the charges after feeling “pressured”; the men agreed to nonjudicial punishments in exchange for immunity and their testimony against the woman. If the story is true (and that’s a big if: the only substantive comment in the coverage is from the defense attorneys, as the prosecutors are forbidden from commenting in detail while the case is pending), it is certainly something shocking: you’d expect that sort of thing in remote parts of Pakistan, not in the armed forces. Of course, as the Duke Lacrosse case showed, there are many other scenarios where a woman could allege rape, back down from her allegation, and legitimately be charged with wrongdoing. Court-martial is scheduled for September 24.

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An article in the new American Journalism Review (Rachel Smolkin, “Justice Delayed”, Aug./Sept.) lays out at length the sins of the media in covering the allegations of prosecutor Mike Nifong in the Duke lacrosse case. Leading offenders such as the Durham Herald-Sun, New York Times and TV’s Nancy Grace all come in for their share of reproach, but of note also is this on Wendy Murphy, feminist lawprof and frequent broadcast commentator on the case:

One prominent guest on Grace’s show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, “Look, I think the real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”

Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on “CNN Live Today” on May 3, 2006, she posited, “I’d even go so far as to say I bet one or more of the players was, you know, molested or something as a child.” On June 5, 2006, MSNBC’s Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: “Hitler never beat his wife either. So what?” She later added: “I never, ever met a false rape claim, by the way. My own statistics speak to the truth.”

Asked to evaluate her commentary, Murphy said in an interview: “Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that’s never my style.” She notes that she’s invited on cable shows to argue for a particular side. “You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I’m assigned,” she says. “So of course it’s going to sound like I’m arguing in favor of ‘guilty.’ That’s the opposite of what the defense pundit is doing, which is arguing that they’re innocent.”

The last passage prompts Mark Obbie at LawBeat (Jul. 18) to reflect: “Has there ever been a clearer argument for the utter show-biz meaninglessness of such ‘debate’ shows?”

On a different note, the much-anticipated book on the controversy by Stuart Taylor, Jr. and K.C. Johnson, “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case”, is due out a month from now and is already selling well on Amazon. More: John Steele Gordon, “Racial Role Reversal”, WSJ/OpinionJournal.com, Jun. 20.

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So claims Joshua Marquis, vice president of the National District Attorneys Association, commenting on the Nifong-Duke lacrosse case. (Adam Liptak, “Prosecutor Becomes Prosecuted”, New York Times, Jun. 24). The reaction of Washington-based writer Carey Roberts: “Not by a long shot,” as witness a list with familiar names on it like Wenatchee, Wash. and the Scheck/Neufeld Innocence Project, as well as investigations by the Pittsburgh Post-Gazette and Chicago Tribune, and more. (“The Nifong case – how rare?”, Washington Times, Jul. 29).

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The Duke lacrosse prosecutor acted as a “minister of injustice”, said State Bar prosecutor Douglas Brocker. The disciplinary committee wound up agreeing unanimously on nearly every element of the ethics charges against Nifong, who’s agreed to quit as Durham prosecutor. (Aaron Beard, “N.C. Panel Disbars Duke Prosecutor”, AP/Chattanooga Times Free Press, Jun. 16; “Nifong stripped of law license”, Sports Network, Jun. 17). We’ve covered the case extensively from early on; K.C. Johnson at Durham in Wonderland, who’s led the blog charge on the issue, notes that the New York Times’s Duff Wilson is still slanting his coverage of the case (Jun. 16).

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June 14 roundup

by Walter Olson on June 14, 2007

  • Encouraging kids’ adoption is a great thing to do, but there are right and wrong ways of going about it [U.K. Daily Mail]

  • Defensive medical testing: “Every day I work as a doctor, I must choose between committing malpractice and committing insurance fraud.” [Dr. Paula Hartzell in Medical Economics]

  • After serving 2+ years for consensual sex with fellow teen, Genarlow Wilson (Feb. 8, Mar. 6) may walk free, or maybe not [CNN; views of some Andrew Sullivan readers]

  • “We need to eliminate nuisance lawsuits through ‘loser-pays’ provisions.” [candidate Giuliani @ NRO]

  • Boston Herald (May 11, etc.) pays $3.4 million to local judge to settle libel verdict [Globe]

  • Blind squirrel finds acorn dept.: American Prospect weblog promotes a good idea, abolishing peremptory challenges [Tapped; more]

  • Disciplinary hearing begins against Duke DA Nifong [ABCNews.com]; you’d think lacrosse player’s out-of-town alibi might have raised a red flag [K. C. Johnson via Cernovich]

  • Another flap, this time from Oklahoma, about a doc who vows to turn away malpractice-suit advocates as patients [Enid News & Eagle via KevinMD]

  • No shock, Sherlock: mud-slinging, money-flinging found to be big problems in state high court races [AP]

  • In that curious saga of Madison County, Ill.’s oft-suing Peach family (earlier posts here and here) Armettia Peach has settled her leaky-roof case against Granite City [M. C. Record]

  • New York “plastic surgery addict” loses case claiming doctor should have counseled her against going under the knife so often [six years ago on Overlawyered]

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Duke recriminations

by Walter Olson on April 13, 2007

North Carolina attorney general Roy Cooper deserves credit for making it clear to all that the players were innocent and not merely unprosecutable (Stuart Taylor, Jr., “An unbelievable day”, Newsweek, Apr. 12 (web-only)). Cooper may not deserve so much credit for sparing the false accuser any public legal consequences (John Podhoretz, “Let the liar be named and shamed”, New York Post, Apr. 12). Durham DA Mike Nifong is in richly deserved trouble, of course but it would be wrong to let the press off the hook for its many sins in covering the case (Howard Kurtz, “Media Miscarriage”, Washington Post, Apr. 12; K.C. Johnson, Apr. 12 (on the New York Times’ reporting; check other entries at his blog for the sins of the Durham Herald-Sun, Newsday, etc.)). And let’s not forget the Duke faculty, or at least large portions of it (Vince Carroll, Rocky Mountain News, Apr. 12).

See these links for our extensive earlier coverage of the case.

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My bad

by David Nieporent on April 12, 2007

One of the common minor medical malpractice “tort reforms” that have been proposed in recent years is the “apology law.” That’s the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff’s attorney Eric Turkewitz endorses the bill, saying:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, the practical implication of that for doctors is clear: doctors should apologize. But he doesn’t seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize — even if those apologies are protected — to apologize for the outcome but not to admit error, claiming that this sensible advice “encourages more of the same thing that has gotten docs into trouble in the past.” But Turkewitz doesn’t mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

“I like to call it the `I’m-sorry-I-killed-your-mother’” bill, Minicucci said. “If a doctor comes out and says something like that, he shouldn’t be able to immunize himself against statements like that by couching it in an apology.”

You’ve got to love that “rarely,” in “displays of compassion are rarely useful in building such cases.” Rarely, but hey, sometimes a trial lawyer can turn compassion against the doctor. And we wouldn’t want to stop that.

Speaking of apologizing (and updating an earlier story), I’m pretty sure that Mike Nifong’s apology to the Duke lacrosse players (“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”) is not going to cut it.

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Players 3, Nifong 0

by David Nieporent on April 11, 2007

ABC News is reporting that all charges have been dropped in the Duke Lacrosse case. So how long before the civil suits are filed by the exonerated players? (I’m betting the complaints have already been drafted.) And how much will taxpayers be on the hook for?

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March 8 roundup

by Ted Frank on March 8, 2007

  • Why the tort reform movement is really a civil justice reform movement. [Point of Law; University of Dayton Law Review]
  • What to do about private securities class actions. [Wallison @ AEI]
  • Law firm sued when witness trips, dies, in courtroom accident. [Lattman]
  • Nifong responds to criticism of his handling of Duke Lacrosse case; KC Johnson not impressed.

  • Big corporations have bogus consumer fraud lawsuits, too: NutraSweet maker sues Splenda maker over “Made from sugar so it tastes like sugar.” [Legal Intelligencer]
  • The effect of a malpractice suit on a physician. [Levy via Kevin MD]
  • “Are our institutions or is our sense of justice stronger because of [the Libby] prosecution?” [Fred Thompson; WaPo oped; also many posts by Frum]

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When last we checked, the North Carolina State Bar had filed ethics charges against Durham District Attorney Mike Nifong for his handling of the Duke lacrosse rape case. (Dec. 29) After receiving an extension of time, Nifong has filed his reply to the charges. Blogger K.C. Johnson, who absolutely owns this story, has the details: here and here. The short version, according to Johnson:

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.

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K.C. Johnson has assembled the details (Feb. 19) on the CNN/Court TV commentator’s scurrilous handling of the lacrosse rape allegations. For more on Grace, see Mar. 1, 2006, as well as Legal Blog Watch, May 4, 2005, and Suz at Large, Mar. 2, 2006 (quoting Prof. Bainbridge’s pungent assessment).

The legal professoriate does not escape unscathed from Johnson’s attention, either. He is a particular critic (e.g., Jan. 21) of the televised pronouncements on the case of New England School of Law professor Wendy Murphy. And recent assertions by South Texas College of Law professor Kathleen A. Bergin on the Feminist Law Professors blog (Jan. 29, declaring the players “far from ‘innocent’” whether or not a rape is proven in court) fail to stand up to critical scrutiny, Johnson says (Feb. 18). (More: Cernovich).

P.S. And here’s the Saturday Night Live parody. Plus: Ambrogi, Bainbridge.

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