Monday, March 31, 2008

Reflections on the Duke Reply

Duke has filed its reply brief in its longshot demand that the court impose sanctions against attorneys representing the unindicted players and terminate the Duke Lawsuit website. Upon review, Powerline was puzzled by the University’s legal strategy:

Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days . . . I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client’s interest to become a laughingstock.

Duke’s lawyers, among whom are Clinton administration stalwarts Jamie Gorelick and Seth Waxman, apparently have no such qualms. They seek an order declaring, among other things, that the plaintiffs’ website violates local rules against extrajudicial attorney statements. Duke acknowledges that the material on the website either quotes or closely paraphrases the allegations contained in the plaintiffs’ complaint. Duke also concedes that the material thus falls within the safe harbor provided by the local rules for attorney comments that convey information in a public record. However, Duke takes the position that the statements nonetheless violate the local rules because they are “incendiary.”

Duke has no basis for reading into the local rule an exception for incendiary statements (or, in this case, statements it simply doesn’t like). Moreover, such an exception likely would be unconstitutionally vague.

At one time, it might have been surprising for a highly-rated university to push for unconstitutional restrictions on free expression. But not anymore and certainly not in the case of an institution like Duke.


As was the case in its initial filing, the Duke brief is notable for what it does not contain: the Duke filing does concede that “there is little precedent” for the brief’s argument, but in fact the reply provides no citation to any specific cases in which a court had constitutionally imposed sanctions against an attorney for a website or a press conference announcing the filing of a lawsuit. It’s difficult in any instance to get a court to impose sanctions. But it’s next to impossible when the party can’t even come up with one precedent to justify its demand.

The Duke position was a weak one from the start: the University’s claim, again, was that the press conference announcing the lawsuit and the Duke Lawsuit website violates Rule 3.6 of the North Carolina ethics code (which governs pre-trial publicity). That rule explicitly allows attorneys to comment on briefs and other court actions. It also includes a safe-harbor provision, which allows lawyers to address (such as, to take the most recent permutation, former New York Times and current SI columnist Selena Roberts accusing the plaintiffs of “irrefutable evidence of misogyny and race baiting”) unfavorable publicity not initiated by their clients. Finally, the rule’s provisions are not applicable to non-attorneys.

Duke’s demand to shutter the Duke Lawsuit website was particularly odd given that the University has its own website, filled with links to prejudicial statements about the lacrosse players. To take one example, here are a few excerpts from a party to the case, President Richard Brodhead, in his April 5, 2006 remarks:

We can’t be surprised at the outpouring of outrage [The “outrage,” at that point, had included “castrate” signs and “wanted” posters.] . . .

This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. [A University president linking the plaintiffs to the legacy of racism could be considered a highly inflammatory statement.] . . .

The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. [Brodhead never has explained how “an attitude of arrogant inconsiderateness” could be reflected in an alleged event.] . . .

Quite separate from the criminal allegations, there have been reports of persistent problems involving the men’s lacrosse team, including racist language. [Neither Brodhead nor anyone at Duke has ever revealed what these “reports . . . including racist language” entailed. The Coleman Committee found no evidence to substantiate the president’s assertion, which he presented as an unequivocal fact.]


Certainly those remarks—which Brodhead has never retracted, and for which he has never issued an apology—are far more “incendiary” about parties to the case than anything on the Duke Lawsuit website.

The University’s reply, however, deems acceptable the Duke website that links to these remarks, since “the Duke webpage cited by Plaintiffs is an archival site that has not posted any new information since May 2007.” If that argument sounds familiar, it should: it’s essentially the rationalization that Mike Nifong made for his pre-primary publicity spree. Because he hadn’t officially charged anyone, Nifong mused, Rule 3.6 didn’t apply to his public remarks. The DHC panel emphatically rejected his claims. That ruling, of course, isn’t binding on a federal court. But since Duke’s original brief explicitly cited North Carolina precedent, it’s hard to see how the University’s attorneys expect the court to simply ignore the Nifong finding.

The Duke Lawsuit website has links to other sites, including DIW. This setup also drew criticism from the Duke attorneys: because the lawsuit site has “links to community blogs critical of the Duke Defendants,” the lacrosse players’ attorneys have “responsibility for [the blogs’] content.”

The idea that linking to a blog implies responsibility for all of a blog’s contents represents a fundamental misunderstanding of how the blogosphere functions. It’s also worth examining the Duke reply’s claims about “community blog” DIW as “critical of the Duke Defendants.”

There certainly are those whose conduct DIW has consistently criticized—Wahneema Lubiano, for instance; or William Chafe; or Mark Anthony (“thugniggaintellectual”) Neal; or Charlie (“McCarthy-lite”) Piot. None of these figures, however, are defendants in the lawsuit. The “Duke Defendants” are the University, Duke Hospital, Brodhead, Peter Lange, Larry Moneta, Tallman Trask, John Burness, Sue Wasiolek, Matthew Drummond, Robert Dean, Kate Hendricks, Aaron Graves, Theresa Arico, and Tara Levicy.

Of that group, I’ve never said anything critical—indeed, have never said anything much at all—about Drummond, Dean, Hendricks, or Graves. The blog has generally praised the efforts of Peter Lange, and had good things to say about Tallman Trask’s remarks in the March 30, 2006 Academic Council meeting. On several occasions, I thanked John Burness for his assistance in responding to my inquiries; and rarely, if ever, criticized his performance. DIW has, of course, criticized Brodhead, and sometimes sharply so—for among other things his refusal to enforce the terms of the Faculty Handbook, and for his inconsistency in demanding due process for all Duke students, not just those in politically correct cases. But the blog has also praised the president (as in his Law School apology or in his January request that Reade Seligmann and Collin Finnerty return to school). And while DIW has been consistently critical of the performances of Tara Levicy and Larry Moneta, I’m unaware of any publication about the case that has reviewed the record of either figure positively.

The Duke reply’s description of the blog, therefore, is incomplete at best and inaccurate at worst—perhaps explaining why DIW received praise in, among other publications, New York, cnnsi, Slate, Volokh Conspiracy, the Wall Street Journal, the Chicago Sports Review, the New York Sun, New Criterion, and the Worcester Telegram. This issue is a comparatively minor one in the overall filing, but it gives a sense of just how far the Duke attorneys needed to stretch the facts to make their case.

Given the high quality of Duke’s counsel, what motived the filing? A DIW commenter offered this analysis, which seems to me astute:

As a litigator, my reaction to Duke’s motion is somewhat different from many on the blogs. I give the Duke lawyers plenty of credit (I learned long ago that underestimating or dismissing opposing counsel’s apparent “silly” motion strategies is potentially case killing). The Duke lawyers are smart as hell and must have thought very carefully before filing this motion. My intuitive sense of their true objective: to feel out the judge for receptiveness to limiting discovery. The “close the website” motion will provide both sides some insight into whether the assigned judge will be pro-protective order, or pro-open, public access.

A protective order under Rule 26 of the Federal Rules of Civil Procedure allows a party opposing disclosure of documents, information, or testimony to move for an order, after showing “good cause”, that the subject information should not properly be within the public documents realm.

It is normally an onerous burden to carry, but it is also judge-specific. Moreover, a judge has very wide discretion in ruling on discovery motions, and such rulings are rarely overturned on appeal.

The defendants have placed front and center the judge’s inclinations in this regard. Viewed through this lens, the motion is very smart litigation strategy. If the judge summarily rejects the motion, then I wouldn’t be surprised to see the Duke defendants aggressively seeking a settlement. If the motion is granted, the Duke defendants have some hope that they can move forward with a reasonable likelihood of success in obtaining a protective order that would prevent damaging documents and deposition testimony from being made public.

In either case, and if I am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations.

To paraphrase former Supreme Court Justice Louis Brandeis, “Sunlight is the best disinfectant.” Given their record over the past two years, it’s easy to understand why some of the Duke Defendants would prefer to remain in the shade.

42 comments:

Gary Packwood said...

It is possible of course that Duke has a grand strategy however I suspect their motivation is much simpler.

Duke is banking that we are all going to forget about the Duke lacrosse frame if all remaining reminders of the events during the Spring of 2006 are systematically erased.

They just want to make it to all go away.

How many parents have heard that one?

Debrah said...

I also agree with the analysis of the DIW commenter.

When reading it for the first time I recall thinking how very ominous and foreboding the whole scenario is.

The events of the last two years with Duke, the lacrosse team, the city officials of Durham, and everyone else on the periphery would make an intricately tawdry soap opera.

It just never ends!

mac said...

It may be that the motion is meant to "feel out the judge."

It could be, also, that they're doing what Nifong's attorney did in the face of overwhelming evidence; using everything at their disposal, since they have no powder.

When you have no powder with which to propel projectiles, heaving any part of the kitchen sink will have to do.

This may be just a part of the kitchen sink.
We'll see.

Judge Rufus Peckham said...

A little late to be worrying about your good name being tarnished, wouldn't you say, Duke? I mean after being so understanding and all when hysterical protestors were calling for the castration of innocent young men. To paraphrase one of the most respected judges in America, Judge Posner of the 7th Circuit, you are the gratuitous author of your own disappointment.

Anonymous said...

once again Pamala Bernard as the senior duke legal person, has given GUIDANCE to courts systems in places like venezuela and rhodesia on how to SILENCE criticism...

what a wonderful example of legal multiculturalism that might be cited by the AAS program of how the the USA can adopt the legal measures of collective societies...

the point in all this is to "follow" the direction allegedly of "salesman steele" the former wall street brokers man, who was to busy to be bothered with all the front page news Duke was making

since hes a HIGH bush employee maybe he hopes he has influence in the legal system as well...

in a sense salesman always think theyre right about everything...

inman said...

I find the failures of Duke University's administration and of the '88 to accept responsibility for their actions in abetting the judicial railroading of three demonstrably innocent students to be abhorent beyond the pale. Broadhead, Moneta, Aleva, and the '88 are singularly despicable and deserve the calumny of generations to come.

Steel and others on the Board of Trustees are equally deserving of animus.

Thoughtful people will perhaps show critical and caustic disdain in appropriate settings...social or otherwise. I for one look forward to the opportunity of reminding the children of these icons of society that they have a quite soiled past -- perhaps in annual meetings of those whose families who founded this country.

I have a long memory and will note with certain resolve the possible connection of those with this travesty of justice.

For example, upon introduction to one of Bob Steel's daughters and upon learning of that connection, I could inquire in un-hushed tones: "What is it like having a father who has no sense of honor?"

That could be interesting.

In any event, hell surely must have a special place for these people.

Thomas S. Inman '74

Anonymous said...

I would hope that this case is pulled into the light . . . it would be a wonderful thing for academia as well as the rights of all . . . others, as the English Department would say.

AF said...

This issue is a comparatively minor one in the overall filing, but it gives a sense of just how far the Duke attorneys needed to stretch the facts to make their case.

Desperate times call for desperate measures. The Duke lawyers may border on genius but even a genius can have a hard time covering up sheer stupidity. In order for them to have any hope at all, they must be able to suppress the facts (and not just a few). The old adage "open mouth, insert foot" truly exists in this case.

How can the university administration possibly gloss over it's FERPA violations. As a teacher, I am constantly reminded that I cannot even think about identifying a student without checking for the appropriate FERPA paperwork on file.

It would appear that Coach K's chickens came home to roost as well. His notable silence during the Hoax debacle did not go unnoticed. Since the men's basketball reportedly holds the Duke title for stripper parties, his silence may have been understandable. Get your house in order Mike. It really would have helped the administration's case if you had won the tournament. Short term memory might have kicked in and helped with donations!!

The anonymous commenter makes several good points. The Duke lawyers are adept at covering their own assets and inadequacies as well as their clients. Gorelick proved that a few years ago. She is not one to let the facts get in the way if she can chase them into obscurity.

Alas, another week in Wonderland.

Anonymous said...

The quoted comment about the motivations of the Duke defendants obviously comes from a very experienced lawyer.

The less that goes into the public domain, the longer that Duke can afford to draw things out. The longer thngs are drawn out, the greater the temptation for the plaintiffs to settle on terms that are not too painful to Duke.

Whether or not your commenter has divined the true motives for the current Duke motions, I think that we can be quite confident that Duke will delay, again delay, and always delay as part of its settlement strategy. I simply cannot believe that Duke will ever allow this case to go to trial, where everything will be in the public record.

Jeff M

No justice, no peace said...

The fact that Bob Steel has some potential authorship in the sweeping changes being proposed by Treasury Secretary Paulson regarding our financial regulatory system should be of great concern.

Mr. Steel now has a record which indicates substantial and continued disregard for process. Simply put, consolidating power in any institution where he is a leader is a very bad idea.

The point isn't that the system does or does not need adjusting.

People should be judged by what they do (or have done) and not what they say.

Anonymous said...

It seems to me that the DIW commentor/trial attorney is spot on in his analysis. A quick google of Judge Beaty and Duke shows that he recently dismissed 3 post trial motions on appeal in a sexual harrasment suit filed by a former student (Mercer), and upheld a $2M judgment against the University.

"In its motion, Duke had asked Beaty to reverse the court's October decision, mandate a new trial or reduce the amount of the $2 million in punitive damages.

Beaty denied all three requests. "The Court concludes that the weight of the evidence supports the jury's verdict and that the actions taken against Plaintiff were motivated because of her gender and that Defendant's officials were actually aware of and deliberately indifferent to Plaintiff's claim that [then-head football coach Fred Goldsmith] was discriminating against her because of her gender," Beaty wrote. "Moreover, the Court finds that there is no reason to believe that the jury's verdict was tainted or motivated by passion, sympathy or prejudice, rather than by objective considerations."

Anonymous said...

In this I am not surprised.

Many months ago I predicted that the there would be litigation against the medical center and it remains to me this part of the overall suit that is the strongest.

Even if Duke can somehow indemnify their president, Board, etc, there is no defense against the medical malpractice in the examination, documentation, and reporting of the medical record.

Duke will absolutely, positively settle and likely as soon as their motion is dismissed.

Just sayin'.

MeTooThen

jim2 said...

OT - here's another rebuttal entry to SANE nurse-in-training Tara Levicy's spiel that women never lie about rape:

http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=550509&in_page_id=1770

Anonymous said...

I am hoping and praying that at least some of the plaintiffs will have the courage and the strength to resist the temptation to settle and take this case to trial. No trial, no changes, no accountability, no justice. Steve C.

Anonymous said...

What is the deal with the Medical Center? Ain't these the folks who provided the rape kit-hired the Doctor who collected the swabs, etc from Crystal?? The same rape kit that showed no Team DNA per the SBI Lab. What is the beef??? Duke won't settle and all of our dreams will be realized when this case goes to Court.

W. R. Chambers said...

Anyone else find Duke's motion ironic?

Anonymous said...

When is the next round of hearings?

mac said...

I am wondering: how many of the current defendants have conjoining counsel?

Who is defending Tara Levicy, or is she ignoring the suit?

The same question is worth asking re. the other defendants in the case.

qa said...

I agree with MeTooThen that discovery may potentially expose failures at DUMC alone that would be very costly to it.

However, I sincerely hope that the plaintiffs here very firmly resist any settlement with Duke before discovery.

To me the question facing Duke is not the value of the plaintiffs' actual civil injuries but, rather the value to Duke of Discovery-Avoidance.

I estimate that the potential cost to Duke of discovery is enormous. Conversely, Discovery-Avoidance is, to borrow from the MasterCard Ad, priceless.

I believe that full discovery in the issues disputed here would be so damaging to Duke that they should be prepared to put out a sizable proportion of their endowment to avoid it.

The legal battleground should be one of wills:

The will of the plaintiffs to hold-out for discovery and the will of Duke to resist it.

If they appraise realistically the potential damage to Duke its advisors should already know that Discovery-Avoidance is worth billions of dollars to Duke.

Sid said...

What is a plausible exit strategy for Duke?

Honestly, can anyone come up with even a working idea of how Duke University and DUMC began to construct an exit from this self-made mess?

I suggest that firing the gang of 88 is out of the question. Tenure and its sacred place in higher education.

Brodhead will leave quietly amid other bigger headlines.... probable?

A new committee to explore ways to improve the system's collaborative synergies while coordinating with the various administrative and faculty-based teams in a proactive dynamic to ensure future student incidents are handle differently... surely?

Throw lots of money at window dressing... undoubtedly?

But real accountability for crimes and imcompetence... improbable?

That is what is so infuriating if you look too hard at this ordeal. The young men paid and are paying a price for harm caused by individuals who will never be held accountable. Duke has to come up with a plan that costs enough to dampen the fires, but does not cause it to take actual action.

Anonymous said...

Duke agrees that the press release issued on Feb 21st falls under the safe harbor provisions, however they claim that the complaint which is now part of the public record is "incendiary". Of course the respondents reply with the legal reasons why Duke is wrong, but the simple truth must cut hard and deep:

" The excerted passages simply summarize in plain, straightforward language the wrongful conduct by Duke that is alleged in the Complaint to have caused Plantiffs great injury and have given rise to their claims. Indeed we are hard pressed to see how we might edit the staements to make them less embarrassing to Duke. The simple reality is that the intentional torts pleaded in the complaint -- e.g. fraud,abuse of process, intentional infliction of emotional distress, obstruction of public justice --cannot be alleged in terms that the Duke and Durham defendants will find pleasing, as demonstrated by the similar allegations contained in the two comlaints previously filed in this court by six other members of the 2006 Lacrosse team. If Duke had not so callously and deliberately violated its contractual and legal duties to its innocent students, it would not now be facing these historically unprecedented legal actions by what effectively amounts to its entire lacrosse team."

And to Duke's point that Mr. Henkelman is a conduit for the Plantiff's attorneys:

" We deny any such act of ventriloquism; neither Mr. Cooper nor any other lawyer representing plantiffs put any words in Mr. Henkleman's mouth, either directly or indirectly. And the proof is in Mr. Henkelman's remarks, which Duke itself describes as personal "details about the damages he, his son,and the other Plantiffs suffered." Duke BR11. See Duke MOT, Exh6 at 6-8 (transcript press conference). Duke accuses Mr. Henkelman of speaking "in a manner calculated to engender sympathy," Duke BR. 12 , but no claculation or artifice is necessary to render sympathetic the prolonged anguish of a parent who has been forced to watch helplessly as his innocent child was falsely condemned by officials, professors, and students of the very institution that agreed to educate and care for them. Yes, Mr. Henkelman's words were indeed poignant and moving, and it is not surprising that Duke cringes with embarrassment to hear them, but it is hardly a reason to silence him."

Duke's complaint allows the respondents to add even more "incendiary" comment regarding Duke's behavior to the public record. I still don't see how this is a very calculated or smart move on Duke's part. Maybe someone in Duke's legal community would care to comment...anonymously of course.

af said...

Why do those brash, young LAX players believe they have the right to sue a great university and hire attorneys who lob such incendiary remarks at the supportive administration? Don't they realize that that strategy has already been taken?

Copycats, copycats.

Next thing you know, those attorneys will be carrying around "Chastize" signs or such. They might say that whatever the university did might be bad enough...they might recommend a hydraulic fluid enema for the administration, board, SANE staff...

Gee, the absolute nerve of those attorneys. They really do need to come up with something original. Next thing we'll see is them trying to railroad the administration by hiding the facts and attacking the board, administration, and those outstandingly fair and honest 88 totally caring and compassionate perfessers.

Debrah said...

The H-S website is full of Durham homicides on the police blotter.

When is someone going to rise up in that place and say ENOUGH! ?


H-S letters:

A deadly mistake

Once again I am reminded why we left Durham four years ago. You have someone who is at a crossroads in life and a probation officer doesn't reach out. All the other scandals were just a black eye for the city. This one possibly cost two people their lives.

KEN BEAVER
Cary
April 1, 2008


Homicide déjà vu

In 1985, a white female grad student was abducted at knifepoint from UNC's Morehead Planetarium parking lot on an August evening by a young black kid of high-school age from Hillsborough. He was soon captured in Tennessee and, in exchange for revealing where he'd hidden her body, then-DA Carl Fox agreed not to seek the death penalty.

It turned out the young fellow had been doing this for some time -- accosting unaccompanied women in parking lots at knifepoint, taking them elsewhere and robbing and raping them. He had been investigated for these incidents and had been told to report to the cops or to a court but -- here's my point -- through clerical error had not been removed from the streets. Town and campus sadly understood that, had the error not occurred, the UNC student would have lived to enjoy the promise of her future.

In the Eve Carson case, we have read that Demario James Atwater was the beneficiary of just such a clerical error, and as a result UNC has now lost another young female student.

Can such costly errors in the judicial or police departments be excused? Do these incompetent paper-shufflers feel any sense of responsibility? Will our self-serving politicians ever wake up to their oversight obligations? Will those responsible for public safety ever actually safeguard the public? Could public outrage finally end these bureaucratic failures?

WILLIAM E. KIRK
Chapel Hill
April 1, 2008

Anonymous said...

Over the course of a case, unless one party's lawyer is a howling mad dog who can be safely and openly disdained, most judges knowingly or unknowingly seek some "balance" in their rulings, letting each side win some and lose some.

The scumbag filth that represent Duke, are banking on letting the plaintiffs win this round, in order to increase the odds that the judge, in a misguided attempt at "balance", will grant some later motion to seal, suppress, or otherwise muzzle any and all forms of public truth-telling about exactly what Duke did, and exactly how rotten the Duke defendants and their lawyers are.

Gary Packwood said...

Sid 3/31/08::10:28 PM said...

...A new committee to explore ways to improve the system's collaborative synergies while coordinating with the various administrative and faculty-based teams in a proactive dynamic to ensure future student incidents are handle differently... surely?
::
That's it! You innovator you! The near perfect sentence that will bring this mess to a close.

Just add ...student incidents are handled differently and in concert with our deep commitment to diversity.

Got to do the diversity 'thang.

Surely?
::
GP

Anonymous said...

Sid said: "I suggest that firing the gang of 88 is out of the question. Tenure and its sacred place in higher education."

Do you truly believe it is tenure? Tenure is just a cover. The gang of 88 are protected. Affirmative Action is how they got hired and is their ticket to staying on the payroll. They have learned that doing worse than nothing still won't get them fired. There is no accountability.

Anonymous said...

1:23 I don't believe your viewpoint for a second. is this the start of the explanation when these guys lose their law suit?

Anonymous said...

10:27 Like what kind of failures at DUMC? Please give an example. The job was to do a RAPE KIT and the doctor did it and no team DNA was on the swabs or materials. I know this always comes as a surprise but it was SBIs job to analyaze the stuff and make a judgement.

Anonymous said...

Is Piot a Communist?

mb said...

Gary P,

Correct you are - we must put the word "diversity" in there somewhere! Your suggestion using the phrase "deep commitment to diversity" is pure genius.

Anonymous said...

If it's any solace as in "what goes around comes around," Duke lost two coveted basketball recruits due to aggressive "rape case revelations" to Oregon high school phenom Love, and both Lopez brothers from Arizona (starters at UCLA and Stanford). You can bet coach "K" will lose others over time. The "anti jock" element on the Duke faculty can be quite a telling factor.

Anonymous said...

We need to commemorate Sunday, April 6th, the 2nd Anniversary of the Ad of 88. Suggestions?

RRH

Anonymous said...

"We need to commemorate Sunday, April 6th, the 2nd Anniversary of the Ad of 88. Suggestions?"

How about a full-page Chronicle ad titled: "This is what an academic disaster sounds like." With KC's permission, include excerpts from his posts, and from his and Taylor's book.

Duke Prof

qa said...

Response to Anonymous at 4/1/08 9.17 PM:

“Like what kind of failures at DUMC? Please give an example.”

Off the top of my head, here are some examples:

1. Performance of a diagnostic/Forensic procedure by an unsupervised trainee [Dr. Manly];

2. Written report of a diagnostic/Forensic procedure performed by an unsupervised trainee not endorsed in writing by trainee’s designated supervisor.

3. Apparent failure to designate a supervisor who does have the Clinical Privilege to independently perform the diagnostic/Forensic procedure.

4. Failure to promptly complete and file SAER Report Form. Instead, the filling-out of this Form was spread-out over 22 days, during which revisions and annotations were added. These revisions and annotations were characterized as falsifications in the McFadyan et al. Complaint.

5. Possible harmful Hospital Accreditation consequences for failed oversight of trainees in this case.

6. Possible expensive 3rd Party Health Insurance consequences, if DUMC’s failed oversight of trainees in this case is discovered to be internally widespread - a not unlikely possibility.

7. Failure, not only to promptly rein-in and correct Nurse Levicy’s misrepresentations and report-preparation malfeasance, but affirmatively supporting them [Nurse Arrico].

Debrah said...

RRH--

The only suggestion that makes sense is to go directly to the proverbial "horse's mouth" for release.

On Sunday, every participant on the blogs should show up at the N&O website....under the "Editors' Blog".

Regardless of the present subject matter being discussed, just begin recollection of their publication of the "vigilante" poster and their disregard for due process.

We all saw how effective commenters were by showing up for their previous posts.

Make no mistake: All of the editors read the blogs and the publisher as well.

They need to be reminded of the enormously destructive effect their biases had on the proceedings.

Just urge everyone to comment on this infamous anniversary at their website on Sunday......and do so en masse.

qa said...

Further response to Anonymous at 4/1/08 9.17 PM:
In addition to your question re my 10:27 [my answer timed at 11.17 AM], you commented:

“The job was to do a RAPE KIT and the doctor did it and no team DNA was on the swabs or materials. I know this always comes as a surprise but it was SBIs job to analyaze the stuff and make a judgement.”

I believe your comment also deserves a response:

“Doing a RAPEKIT” includes not only DNA and other sampling, but also Medical History and Physical Examination reporting. The Rape Kit, obtained on March, 14th 2006, was one of the jobs Dr. Manly did; and, after the suppressed results of its analysis eventually became public, her Rape-Kit samples, among other findings, lead to the N.C. Attorney General’s declaration, on April 11th, 2007, more than a year later, that the students had been fraudulently accused, and that they were innocent.
The DNA samples were ultimately key to students’ exoneration.
Meanwhile, unfortunately, the Rape Kit History and Physical Examination Report [SAER] had been falsified by Nurse Levicy, signed-off by Dr. Manly, and backed-up by Nurse Arrico.
It was this falsified report and the misrepresentations, by Nurse Levicy, of the Rape Kit findings that gave the rape-accusations the wings the conspirators needed to continue their frame-up for more than a year.
As a SANE, Nurse Levicy, by any plausible professional standard, was, and probably still is, a pathetically inexperienced amateur. Unfortunately, her unwarranted self-assurance, together with their own misguided zealotry, persuaded her supervisors, and others, to allow her to pose, under the mantle of DUMC, as an authority on matters for which she was unqualified.
Without DUMC’s failure of trainee-supervision the hoax may have been nipped-in-the-bud. Instead, Levicy was an integral part of a tragic fiasco.

Anonymous said...

After meeting with Nifong, Wade Smith, himself, said "Nothing was stopping Nifong." She still has a Professional license issued by the Board of Nursing in NH and an inactive one in NC.

Anonymous said...

Dr Manly, had four years in medical school, two years as an intern and four years as a Resident, is hardky a trainee - she completed her Residency three months late. The Doctor who was Head of the ED was her Supervisor. Duke has full policy and proceedures on any event. Any Physician is authorized to do a Rape Kit. #4 is an allegation, not proven and none of the lawyers at the Bar Hearing made note of this or challanged this report when Levicy was under oath.
5-6- Nothing has materialized in loss of accrediation or insurance two years later and 7 is part of a myth.

qa said...

Response to Anonymous 4/4/08 8:20 AM
I assume that your post is in response to mine, of 4/3/08 at 11:17 AM, which in turn was a response to a request by an “Anonymous” [you?] for an example of “failures at DUMC”.
Your post addresses my items #1 -7:
“ Dr Manly, had four years in medical school, two years as an intern and four years as a Resident, is hardky a trainee - she completed her Residency three months late. The Doctor who was Head of the ED was her Supervisor. Duke has full policy and proceedures on any event. Any Physician is authorized to do a Rape Kit. #4 is an allegation, not proven and none of the lawyers at the Bar Hearing made note of this or challanged this report when Levicy was under oath.”

i. Of course, you are quite correct in the part of your statement indicating that Duke has relevant policy and procedure documents, among other documents:
A Duke document relevant here is its “GME Trainee Manual 2006."
If you turn to page58, under the heading “SUPERVISION...A. DEFINITIONS:” you will find the distinctions between an Attending Physician and a Trainee. Under the latter heading it reads:
"Trainee: A physician who participates in an approved graduate medical education (GME) program. The term includes interns, residents, and fellows in GME programs approved by the Duke Institutional Committee on Graduate Medical Education. (A medical student is never considered a graduate medical trainee.)"
This definition is not peculiar to Duke but is the nationally applied definition; everyone knowledgeable in these matters knows that.
In March, 2006 Julie Manly M.D. was a resident in the Duke GME 3-year Program in Emergency Medicine, graduating from it in the summer of 2006. In March, 2006, therefore she was, by definition, a Trainee.
You will also see that her time spent as a medical student is not relevant to the issue of whether she was a Trainee in March, 2006.
If you continue reading the manual, you will find on the same page, spilling-over to page 59, that:
"The management of each patient's care (including patients under the care of participants in professional graduate medical education programs) is the responsibility of a member of the medical staff with appropriate clinical privileges. Therefore, the medical staff assures that each participant in a professional graduate medical education program is supervised in his/her patient care responsibilities by a member of the medical staff who has been granted clinical privileges through the medical staff process."
Later, on the same page the Manual makes clear the attending physician supervisor is expected to
“Review and co-sign the history and physical within 24 hours”, and , on page 60, that: “ The attending physician supervisor must be designated and available to all sites of training...”
I hope that you now realize your belief that Dr. Manly was hardly a trainee was mistaken. There is a great big world of medical practice regulation out there, for our benefit as consumers of medical services.

ii. You went on to state that:
"The Doctor who was Head of the ED was her Supervisor". That could be true in a given case, but not because that doctor was the Head. The supervisor must be specifically designated in each case and it would be impracticable for the Head to supervise all residents, around the clock.

iii You then stated:
“Any Physician is authorized to do a Rape Kit.”
You are again mistaken.
Authorization for a physician “ to do a Rape Kit.” in any given Healthcare Organization is controlled by the Bylaws, Rules and Regulations of the Medical Staff of that entity, in this case Duke University Hospital, which are in turn subject to the standards of JCAHO.
The “clinical privilege” to perform any given diagnostic or therapeutic procedure is not automatically granted. It is granted only after formal application from a candidate for such privilege, supported by documented recommendations from senior supervisors, and can be granted only by the Governing Body of the Institution. It is a drawn-out, time-consuming process. True emergencies can be exceptions, but if a provider exceeds his/her privileges an immediate review must be instituted.
I very much doubt, under those standards, together with those of the Duke GME Manual, that Dr.Manly, then still a trainee, had the authority necessary to independently perform the procedure.

iv. Next you stated:
“#4 is an allegation, not proven and none of the lawyers at the Bar Hearing made note of this or challanged this report when Levicy was under oath ”
Levicy was not under oath at the Bar Hearing. KC addressed this canard on DIW, Saturday Jan 26 2008 in his posting: “Various Items.”
There was no need for the lawyers to challenge her report because they anticipated the AG report’s only comment on Levicy, dismissing her findings as “subjective.”
In the same KC post he also explained not only that the “Levicy was under oath” statement, but also a mischaracterization of the above AG comment on Levicy had been submitted by anonymous posters and went on to say that: “ Since both comments were demonstrably untrue, neither was cleared ”[ for posting].

v. Next you stated:

## “5-6- Nothing has materialized in loss of accrediation or insurance two years later”
I do not know that. I would not be surprised if your statement was true in sense of not materializing in the public domain.
In my knowledge and experience, failure to supervise trainees has historically been a serious national problem, especially affecting Research Medical Centers, such as, but not necessarily including, Duke. However, the present case is a disastrous consequence of a particular failure to supervise trainees at Duke. To speculate, suppose that this problem was widespread internally at Duke.
If it was, then when the present disaster became understood at Duke, it should have triggered-off corrective action, with supervisory attendings, diligently supervising, and filling-out the required attestation forms. Such a problem can be corrected prospectively but to do so retrospectively is another story.
Third-party insurers, including Medicare, have recouped millions of dollars in such cases. They can successfully demand -back money paid for medical services provided by unsupervised trainees.
That is one of the reasons why discovery would be so valuable to the public in this case, and why Discovery-Prevention, including delays, could be so important to a defendant medical center.

vi. Finally, you stated: “and 7 is part of a myth.” [My #7 referred to Nurse Levicy’s [alleged] misconduct].
Your response has a catchy ring to it; it could also be part of defence counsel’s opening statement at trial. I hope that we get there, and that the preceding discovery gets into the public domain. You should welcome that too, because if it is a myth, your comment could become one of such proportions too.
Anonymous, if you are still with me, I can tell that your patience is exhausted. Mine is too. It is too exhausting to lay-out the chapter-and-verse of well-known facts to someone who shoots before finding-out the facts. Therefore, please do not misconstrue my future failures to respond. I do not make comments I cannot back-up with facts.

mac said...

Thank God for QA!
Well said, well said!

Unfortunately, facts are never enough for Nurse Levity's trolls; they're as ubiquitous as the sand.

qa said...

To anonymous of 4/1/08 9:17 PM:

My belief that Levicy was not under oath when she was called by Nifong to testify at his Bar Hearing relied on a video posted on the internet shortly after the hearing. The video began with her direct examination and showed no oath-taking.

Pondering our exchange, I recalled the fact that I myself have always insisted, sometimes against opposition, on witnesses taking the oath, even at non-judicial internal institutional inquiries such as Peer Review Hearings, if only to impress upon all participants the solemnity of the occasion.

With that in mind I have re-searched for current video postings of Levicy’s appearance at the Bar Hearing and found a video that began with her walking over to the witness chair and taking the oath before her direct examination began. Obviously I had relied on an incomplete record for my back-up facts.

Therefore I was mistaken in asserting that she was not under oath at Nifong’s Bar Hearing, and apologize.

I continue to stand by all other statements in my 4/5/08 2:33 PM posting.

Anonymous said...

Haven been through some trial discovery myself, protective orders are common today. Once granted, all kinds of delays, tricks and evasion in providing answers and documents can be covered up. I am hoping that various important public needs will overcome the granting of one in this case. I hope the public cries out and all supporters or plaintiffs' legal reps and other advocates fight the protective order tooth and nail. Once granted, it will be a death knell to finding the truth for a very long time.