A concise version of the lawsuit filed by Bob Ekstrand on behalf of Ryan McFadyen, Matt Wilson, and Breck Archer as it pertains to Duke's involvement in the affair.

Tuesday, January 15, 2008

The Defendants

The Duke University defendants identified in the lawsuit are grouped as follows:

A. Duke University Defendants
__1. Duke Police Defendants
____a. Duke Police Supervising Defendants
____b. Duke Police Investigator Defendants
__2. Duke Officials Defendants
____a. Crisis Management Team Defendants
____b. Duke Administrator Defendants
__3. Duke SANE Defendants

1. Duke Police Defendants
The inclusion of the Duke Police in the lawsuit comes as quite a surprise to a number of us that have followed the affair as they have not been given much notice. However the lawsuit's allegations regarding the matter of jurisdiction - that Duke Police and not Durham Police in fact had jurisdiction as the site of the alleged rape was Duke property - in this affair constitute an intriguing matter that has been widely unnoticed and overlooked. Then again perhaps the lawsuit explains why we haven't heard much about this issue of jurisdiction:
"The fact of Duke Police Department’s jurisdictional obligation to investigate Mangum’s false accusations was kept secret through another overarching conspiracy among all Defendants to publicly and privately conceal it" (p. 4).
The lawsuit names several individuals within the DuPD as defendants grouped as supervising defendants and investigator defendants.

2. Duke Officials Defendants
__a. Crisis Management Team (CMT) Defendants
The lawsuit explains that "the CMT was formed to direct the University’s conduct in the investigation of Mangum’s false allegations" (p. 13). Each of the members, listed below, are listed as individual defendants in the lawsuit.
Crisis Management Team:
Robert K. Steel, Chairman of the Executive Committee of the Duke University Board of Trustees; Richard Brodhead, President; Peter Lange, Provost; Tallman Trask, Executive Vice President; John Burness, Senior Vice President for Public Affairs & Government Relations; Larry Moneta, Vice President for Student Affairs; Victor J. Dzau, Chancellor for Health Affairs, and President and Chief Executive Officer of Duke University Health Systems, Inc.; and Allison Halton, University Secretary.

__b. Duke Administrator Defendants
The Duke Administrator Defendants are Duke administrators not member to the Crisis Management Team, and are listed below.

Kemel Dawkins, Vice President for Campus Services; Suzanne Wasiolek, Assistant Vice President for Student Affairs and Dean of Students; Stephen Bryan, Associate
Dean of Students and Director of Judicial Affairs; and Matthew Drummondd, Senior Manager IT in Auxiliary Services and Head of the University’s Duke Card Office.

3. Duke SANE Defendants
The complainant in the false rape claim, Crystal Mangum, was examined by Sexual Assault Nurse Examiner (SANE) nurses at the Duke University Medical Center.

The Duke SANE Defendants are listed below.

Duke University Health Systems Inc. (DUHS); Private Diagnostic Clinic, PLLC (PDC), Julie Manly M.D., member of the DUHS House Staff, a physician member of the PDC, and an affiliated physician at Duke University; Theresa Arico R.N., clinical nurse on DUHS’s staff; and Tara Levicy R.N., SANE-in-Training.

Jurisdiction in the Rape Claim Investigation

The revelation in what we will call the Ekstrand lawsuit, henceforth, that the investigation of Crystal Mangum's false rape claims was not within the jurisdiction of the Durham Police Department, but instead the Duke University Police Department seems to be an enormous one, and the implications of this revelation are extensive indeed. The assertions made regarding jurisdiction (not yet referring to the alleged conspiracies, mind you) seem to be easily verifiable, and it will be interesting to see if the defense challenges them.

The lawsuit seems to make two key points regarding the matter of jurisdiction:

1. The Duke University Police Department had Jurisdiction
2. ALL of the defendants conspired to publicly and privately conceal the fact of the Duke Police Department's "jurisdictional obligation" (p. 4)

1. Jurisdiction
The former point seems easily provable, and the suit appears to do so citing both legislation and precedent. The suit explains that "the Duke Police Department had original, primary, and continuing authority to investigate Crystal Mangum's false accusations from March 14, 2006 through January 12, 2007" (p. 33). The grounds for this authority are that the residence at 610 N. Buchanan, the site of the alleged rape which had been purchased by Duke University roughly two weeks prior to the alleged incident, was property of Duke University. In accordance with North Carolina state law enacted in 2003 and amended in 2004, the Duke police have and did have "primary jurisdiction over all properties owned or controlled by Duke University, regardless of location" (p. 36).

Not only does the suit establish the legal authority of the Duke Police Department, but Ekstrand further demonstrates that "Durham and Duke Police Departments had an established practice of strictly dividing cases according to the jurisdiction allocation agreement" (p. 37). The DUPD "was required to-and did- initiate and conclude investigations" (p. 37) of crimes alleged on Duke property regardless of location and regardless of the severity of the reported crimes including sexual assault and rape. The Duke Police handled reports of 22 forcible sex offenses and rapes between 2003 and 2005. Assaults alleged to have occurred everywhere from 2100 DUMC North Hospital in 2005 to Koehane dormitory and 2017 Yearby Street in April and July of 2006, respectively, both after the false rape claims of Mangum, were handled entirely by Duke Police. Similarly, in September of 2006 the Duke Police handled a report of Breaking or Entering of a Motor Vehicle and Injury to Personal Property reported at 704 N. Buchanan Blvd, a residence that became Duke property in the very same transaction in which Duke acquired 610 N. Buchanan, the site of the alleged rape.

The essence of this first point, the matter of jurisdiction, is that the Duke University Police Department serves as an agency for its own jurisdiction (Duke owned property) in every way that the Durham Police Department serves its jurisdiction, the City of Durham. The fact that the Duke Police had jurisdiction in this matter poses a number of problems for Duke, the first being that Duke is therefore likely responsible for the conduct of Durham police. The second problem is that it means the entire time, from March 14, 2006 to January 12, 2007, the Duke police and indeed Duke had the power to put an end to the extraordinary abuses of the police investigation. Moreover, this revelation puts the lie to every statement Dick Brodhead and other university agents made claiming there was nothing they could do.

All of this looks much worse for Duke in light of the second point, the allegations of conspiracy to conceal jurisdiction.

2. Conspiracy
"After Mangum’s allegations became a national media story, the Duke University Defendants and Durham Police Defendants conspired, agreed, and understood that the Duke Police Department would abandon its investigation of Mangum’s false claims, and cede the investigation to Sgt. Mark D. Gottlieb, a known rogue officer, who, upon information and belief, only weeks before, was taken off the patrol beat due to his abusive tactics with Duke students" (p. 33)
The lawsuit alleges that in particular Bob Steel, Chairman of the Board of Trustees, Brodhead, and the rest of the Crisis Management Team "directed the Duke Police Department not to intervene" (p. 42). Moreover, the lawsuit alleges that:
"Duke University Defendants, Ex-District Attorney Michael B. Nifong, and the City of Durham Defendants colluded to conceal from the public the fact that the Duke Police Department had the authority and obligation to initiate and conclude an investigation of Mangum’s false claims" (p. 33-34).
Contrast these two allegations with the following internationally publicized address from Duke President Richard Brodhead:

“To determine responsibility, we need to learn the full truth as quickly as possible. While I have urged and while I continue to urge everyone to cooperate with this inquiry to the fullest. Unavoidably, we have to look to the Durham Police to take the lead in the investigation. Duke doesn’t have the power to compel testimony from citizens of this city, and Duke lacks access to warrants, DNA records, and other confidential information. I have confidence in the authorities to find the truth and I have confidence that the authorities will take whatever legal steps are necessary in the best interests of this community.” (we should have a video clip of this within a few days)
For well over a year, this line of argument has been integral to the Duke administration's defense: that there was nothing it could do. If the allegations in this lawsuit are true, that would be a rather indefensible position, and moreover it would prove to be a rather malicious lie. If true, these allegations will prove that Brodhead, Steel, and the CMT were not merely guilty of failing to stand up for their students but directly responsible for putting the matter into the hands of a known corrupt investigator, Gottleib, who had a history of wildly and even violently abusing Duke students - a history readily familiar to those on the Crisis Management Team.

Jurisdiction Part 2

It has become clear that the matter of jurisdiction deserves another post. As a reminder, here are the two main points on this issue:

1. The Duke University Police Department had Jurisdiction
2. ALL of the defendants conspired to publicly and privately conceal the fact of the Duke Police Department's "jurisdictional obligation" (p. 4)

1. Jurisdiction
It appears more and more that the matter of jurisdiction is more or less incontestable. As the lawsuit convincingly demonstrates, not only was there an established protocol as well as precedent designating this rape investigation under the jurisdiction of Duke Police rather than the Durham Police, but this rape investigation was transfered from the Durham Police to the Duke Police: "pursuant to the Durham Police Departments [sic] written protocol, General Order No. 1006 R-1, a transfer of the investigation to the Duke Police Department was initiated [...] immediately a cadre of Duke Police officers and supervisors descended upon the E.D. in response" (p. 94) where they were briefed on the bizarreness of Mangum's behavior, the inconsistencies of her stories, and the "specious circumstances surrounding her rape claim" (p. 94).

That the investigation belonged to the DUPD seems established.

2. Conspiracy
It gets worse. A lot worse.

We may revisit this section to add more commentary, but many of these excerpts from the complaint speak for themselves. What Ekstrand is alleging implies that Bob Steel and high level administrators were issuing commands to suppress exculpatory evidence and manufacture fraudulent evidence in order to conceal Duke's involvement in the affair, both publicly and privately, as well as its jurisdictional authority.

"Duke Police Supervisors, Duke Officials, and Durham Police Supervisors would overrule their investigators’ decision to wind up the investigation, and, instead, agree to put Mangum’s false claims into the hands of a known rogue officer, who they knew had a documented, alarming pattern and practice of abusing Duke students, falsifying testimony and fabricating evidence to
close holes in his many baseless prosecutions of Duke students on misdemeanor charges" (p. 113).

"Defendant Robert K. Steel, Chairman of the Executive Committee of the Duke University Board of Trustees, through the CMT and/or Duke Police Supervising Defendants understood, agreed, and conspired to direct the Duke Police officers and investigators to (1) cease all participation in the investigation, (2) conceal evidence of their prior role in the investigation and evidence of their authority to intervene and control the investigation, and (3) fabricate false and misleading 'witness' statements calculated to conceal their personal observations of Mangum’s bizarre behavior" (p. 141).

"On or about March 27, 2006, in response to a request for Duke Police Officers’ statements from Nifong’s assistant, Sheila Eason, Duke Police Supervising Defendants directed the Duke Police Officers who interacted with Mangum at DUMC to violate protocol and standing General Orders by not writing a standard incident report or operations report on the forms prescribed for that purpose. Instead, the Officers were directed to write what can only be characterized as 'bystander witness statements' that conceal the exculpatory evidence they derived from their interactions with Mangum" (p. 146).

Ekstrand goes on to explain the suspiciously uniform nature of these "bystander witness statements."

As we have known for some time, the Bowen/Chambers report (evaluating the administration's initial response) justified the Duke administration's slow response to the allegations by pointing to a report by Duke Officer Christopher Day which suggested Mangum was not credible. When the existence of Officer Day's report was revealed, Ekstrand says, the media began asking "a barrage of questions about...why he was involved in the investigation" (p. 98) being a Duke Policeman.

"Duke Police and Durham Police agreed to misrepresent what transpired on the loading dock of the E.D. and told reporters that Officer Day was 'eavesdropping' on Durham Police conversations, and had no place in the investigation" (p. 98)

Day's report, however, "contained a synopsis of much of the exculpatory evidence gathered by Durham Police and Duke Police on March 14th, and concluded that the felony investigation had been closed. Because everything in Day's report was already approved by the command and was at odds with the directive to conceal exculpatory material, Day was directed to write a 'Continuation' report" (p. 150) which "deliberately impeaches his own contemporaneously written synthesis of the reports he received in the transition briefing at the E.D. in the early morning hours of March 14, 2006" (p. 150). By impeaching his own report, Day was forced to discredit the evidentiary and exculpatory value of his report.

There are three Duke Police Officers that the complaint lists as individuals who were forced to commit these frauds: Officers Mazurek, Falcon, and Day. Officers Mazurek and Falcon have since obtained employment elsewhere. Ekstrand's explanation of this fact implying they were each "free to report any exculpatory information" (p. 149) seems to imply that much of Ekstrand's substantiation for these accusations of conspiracy against Duke Officials and Duke Police defendants may be coming from these very officers. If such is the case, their testimony could prove devastating.

Conspiracy to Interrogate without Counsel

The following excerpt outlines the complaints against Duke in the conpsiracy between Duke Police Defendants, Duke Officials Defendants and Durham Police Defendants to "orchestrate the mass interrogation of uncounseled students" (p. 126).
Duke Police and Duke Officials understood and agreed to:
(1) Deliver all 47 team members to Gottlieb and Himan, at a designated location, to be interrogated by Durham Police;
(2) Create a false sense of security in the team members by minimizing the seriousness of the investigation and the charges being investigated, and encourage team members not to seek legal counsel or to reveal the planned interrogations to anyone;
(3) Provide no information to the Plaintiffs or their teammates about the nature or scope of the interrogations;
(4) The team members would not be informed that, during the interrogations, every one of them would be asked to volunteer to give their DNA and a “mug shot” photograph, or that a team of CSIs from the Durham Forensic Services Unit (“FSU”) had been mobilized for purpose of taking DNA swabs, mug shot photographs, and pictures of any scars or marks on the team members’ arms and torso.
(5) The team members would also not be advised that if they submit DNA samples and mug shot photographs voluntarily, they waive their right to a report of the results of all DNA testing and photo identification procedures as soon as they are available; and, further, that they could have that right merely by requesting a Nontestimonial (“NTID”) Order be obtained for the same purposes; and, further that, absent an NTID Order, a right to that information would not arise again unless the individual is indicted, and then only pursuant to constitutional and/or statutory discovery; and
(6) Provide a primary location and/or a satellite location(s) for isolated interrogations of individuals (p. 127) .
The Durham Police were then to report to Duke Police and Duke Officials "with information relating to their charging decisions" (p. 128). Duke Police and Duke Officials implemented the plan according to the agreement. At 7:00 pm on March 21st the players were instructed to report to the Duke Police Department at 3:00 pm the next day, leaving little time to consult significantly with counsel. They were told they were "going in to answer one or two questions" (p. 129), leaving out the plan to take DNA samples and photographs and subject the team to harsh and deceitful interrogation. Ekstrand alleges the advice given to the captains the week before by Wasiolek, the effect of which was "'you don't need a lawyer,' and "'don't tell anyone this is happening, not even your parents'" (p. 129), had been disseminated to the rest of the team. The rest of the team, however, did not know the purpose of the questioning or the severity of the allegations, and certainly not that they could all be charged as accomplices based on their presence at the party. Duke administrators, it seems, were demonstrably well aware of and acting in accordance with these intentions:
The University Officials’ agent responsible for coordinating the mass interrogation was directed to notify the Durham Police that the team members were told of the planned interrogations without sufficient time to discuss it fully with their parents (p. 130).

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

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

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

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

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

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

Duke's Treatment of Ryan McFadyen

On April 5, 2006, the false rape case against the lacrosse team had already unraveled substantially as the impossibility of the stories Durham Police were feeding to the media were becoming clearer and clearer. However, that day Judge Stephens unsealed a warrant to search the dorm room of lacrosse player Ryan McFadyen. The warrant included an excerpt from an email that McFadyen had sent to the rest of the team containing a crude parody of a passage from the novel American Psycho, a favorite among Duke students and required reading for three Duke courses. Though Nifong, Gottlieb, and Himan agreed to add a new charge of conspiracy to commit murder to the rape allegations, it was plainly obvious that the charges were beyond absurd, and that the email was clearly a joke, especially to anyone who knows the size of an Edens dorm room (lest anyone believe McFadyen actually intended to fit an entire lacrosse team into a 160-170 sq. ft. room along with two strippers).

When the news broke, "Defendants Moneta, Bryan and Wasiolek unilaterally suspended Ryan, without notice, hearing, or inquiry" (p. 213). Ekstrand alleges that Dean Wasiolek "searched frantically for Ryan demanding that Ryan come to her office to sign a waiver of his FERPA [Family Educational Rights and Privacy Act] rights" (p. 214). Ekstrand does not specifically say whether or not McFadyen ever actually signed this waiver, but he seems to imply that Ryan did not:

"That evening, believing that Ryan had waived his rights to privacy under FERPA, Defendant Brodhead [...] provided on the record comments in which he condemned Ryan, revealed that the University had suspended him under the 'safety of the community' provisions of the student code of conduct, [...] that he would be held to answer for his 'conduct' in the University's disciplinary proceedings, and claimed that he was free to say all of these things because Ryan had signed a waiver of his FERPA rights."
If it is correct that Ryan never actually signed a waiver, and yet his "punishment" was advertised to the world in this fashion, then this is clearly abhorrent behavior from the Duke administration, and Brodhead in particular, and yet another violation of federal law. Even if Ryan signed a waiver, it is nevertheless appalling that administrators would have gone to such effort to get him to sign a waiver for the sole purpose of being able to publicly assail him on clearly absurd grounds. On top of that, it is astounding that in spite of those efforts, no effort was made to ask Ryan about the nature of the email before publicly sliming him.

In case the despicable motives of the administration were not already apparent from their handling of the McFadyen email, Ekstrand contrasts this response to a clearly harmless email with the administration's response to "an actual email threat" in Chauncey Nartey's infamous email to Coach Pressler. Sue Pressler filed a police report with the Duke Police, who did nothing, and Mike Pressler met with Moneta, who "refused to take any action on Nartey's email, or submit the matter to the Undergraduate Judicial Board" (p. 216). Nartey was also the president of a fraternity that had recently lost its charter for hazing violations. Nevertheless, Nartey was "one of five students appointed to Defendant Brodhead's Campus Culture Initiative. On top of that, "Nartey was a recipient of the 2007 William J. Griffith University Service Award" (p. 216), an award "given to graduating students 'whose contributions to the Duke and larger community have significantly impacted University life. Students who demonstrate an understanding of the responsibilities of effective university, communal and global citizenship...'" (p. 216-217).

Ryan McFadyen was pilloried by Brodhead and the Duke administration for a clearly harmless, private email while Chauncey Nartey was not only given immunity from discipline but showered with honors by the Duke administration in spite of sending and email that would obviously be perceived as a threat to Coach Pressler's daughter. Nartey even went to the trouble to look up his daughter's full name.

Duke's Treatment of Matthew Wilson

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

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

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

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

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

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

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

Duke's Treatment of Breck Archer

The section covering Duke's treatment of Breck Archer is concise enough that we have posted the entirety of it below. Though the incident predates the lacrosse affair, it is yet another example cited by Ekstrand of what he alleges are a long-standing dislike of and bias against the lacrosse team and lacrosse players by Dean Bryan. The section proceeds as follows from p. 221 of the lawsuit:

In the Summer of 2005, Breck Archer was called into Defendant Stephen Bryan’s office to answer to a charge that damage was done to his room during a party. The room was only technically Breck’s at the time of the party; he had not moved in, he did not have a key to it, and he was not present at the party.

Nevertheless, Bryan punished Breck with community service hours at the Duke Gardens. Breck completed the hours, notified Defendant Bryan of his completion, but did not submit a form Bryan expected to receive.

Based upon Beck’s failure to submit the form after completing all of his community service requirements, Defendant Bryan convened a Judicial Affairs panel of students and faculty hand-picked by Bryan. At the close of evidence, Defendant Bryan remained in the room with the panel for the deliberations. Upon information and belief, Bryan influenced the panel to vote to suspend Breck, in violation of the Student Code of Conduct and the Faculty Handbook.

The panel suspended Breck for the 2005 fall semester for “failure to comply.”

Upon information and belief, until Breck, no one in the history of Duke University has been suspended or otherwise separated from the University for a semester for failing to submit a form documenting work that was completed as required.

Defendant Bryan did not have a basis in the Student Code of Conduct to punish Breck for damage done at a party he did not attend, nor did Defendant Bryan have a basis in the Student Code of Conduct to suspend Breck for failing to turn in a form.

Attempts to Establish Plausiblity of Potential Frame Victims

Ekstrand explains that before indicting Reade Seligmann and Colin Finnerty, Himan and Gottlieb not only had almost no evidence on which to indict the clearly innocent players, but also had "very little evidence that either Collin or Reade were present at the party at the relevant time" (p. 249). Fearing the possibility "one or both of those young men could immediately prove that they had no opportunity" (p. 249) to commit the alleged crime, "Himan and Gottlieb colluded with Duke Police officers to compel several team members to provide the information necessary to place Collin and Reade" (p. 250) at the party. As we now know, both Colin and Reade could prove they were miles away at the time of the alleged rape, and as Nifong and the officers had feared, Reade presented his impenetrable alibi one day after being indicted, making it clear that they had just indicted one - if not two - clearly innocent people.

The alleged conspiracy took form in two parts, both on April 13, 2006. First, on the morning of April 13, "conspirators whose identities are not as yet known to the plaintiffs sent an email through Breck Archer's '' email account. The email stated, 'I am going to go to the police tomorrow to tell them everything I know'" (p. 250). It seems Ekstrand is alleging that this email was created at the request or demand of Durham Police and may well have been facilitated by cooperation from the Duke Police and other Duke entities. If Ekstrand is correct, the purpose of the email would likely have been to stir up commotion on the team's email list that might have revealed information.

Second on the evening of April 13, Duke Police officers allowed Himan and Gottlieb into the Edens dorms "where most of the sophomore team members lived" (p. 250) in an effort to "develop evidence that Seligmann and Finnerty" (p. 250) were at the party (Reade and Colin were sophomores). The officers "cornered team members in their dorms" (p. 251), but instead of asking about the party, they "only asked who was (and was not) present at the party" (p. 251).

One player targeted by Gottlieb and Himan was Michael Young, who the investigators already knew had not attended the party. Furthermore, Himan "had specifically been told by Young's attorney that he was not to speak with his client" (p. 251). When asked, Young "guessed that Collin [sic] and Reade were both at the party because he did not see them in the dorms until after midnight" (p. 251).

All of this constitutes significant misconduct by the police that was aided and later condoned and justified by the Duke Police. When news broke of this police misconduct, Police Chief Graves publicly acknowledged the Duke Police's participation, condoned the misconduct and even left out the word "alleged" when referring to the rape.

Ekstrand characterizes these actions as a conspiracy "to force the waiver of plaintiffs' and their teammates' asserted constitutional rights" (p. 249).

The Coleman Report and Dean Bryan's False Statistics

In what is one of the more surprising revelations in this lawsuit, Ekstrand's lawsuit introduces allegations that the Lacrosse Ad Hoc Review Committee's report (Coleman report), long recognized as a "stunning vindication" (link) of the lacrosse team from every accusation of significance about the lacrosse team's culture, was based on deliberately fraudulent statistics. It should be noted that the lawsuit does not fault James Coleman or others on the committee for the conclusions of the report as the suit seems to believe the committee was mislead by Director of Judicial Affairs Stephen Bryan.

The significance of this allegation cannot be underestimated. Of all the assertions of horrific misbehavior - racism, violence, misogyny and of course rape - hurled at the lacrosse players publicly and privately by both faculty and administrators, the only accusations that have held any water amounted to minor, alcohol relate
d irresponsibility and inconsiderateness. These kinds of infractions were so insignificant that the University did not even keep statistics of them until October 2004. Now it seems even those allegations were exaggerated by Duke nearly to the point of fabrication.

This section of the lawsuit is highly intriguing and seems well substantiated. It is worth reading in full to view the entirety of Ekstrand's substantiation. In summary the most incriminating assertion of fact is that Dean Bryan provided to the committee phony data from before October 2004. In October 2004, "the University began systematically recording data of incidents of all alcohol policy violations involving students" (p. 254). Furthermore, "it was Bryan's arbitrary enforcement of the alcohol policy that prompted the Campus Committee's 2004 Initiative" (p. 254). Yet inexplicably "Bryan concealed the existence" (p. 255) of the data collected systematically after October 2004 and "provided the Committee with unreliable and grossly misleading data sets [from before Oct. 2004] in order to induce the Committee to conclude that the lacrosse team members' conduct was out of step with that of comparison groups" (p. 255).

As brief examples of their absurdity, Bryan's statistics, as reported by the Ad Hoc Committee, held lacrosse players accountable for "50% of noise violations and 33% of open container violations" (p. 256) based on single instances of such violations by lacrosse players. If the idea that there were fewer than 5 such violations combined by Duke students in any significant time frame isn't in itself preposterous, Ekstrand notes that the University was well aware of a well publicized incident in the fall of 2006 where 7 students were given 7 noise violations and 7 open container violations in one night alone.

The report was slanted by absurd statistics to begin with, but even more relevant is the overtly slanted way in which the report has been used by administrators. Though Ekstrand does not mention it in the lawsuit, Brodhead, speaking of the report on June 5, asserted, “though it did not confirm the worst allegations against this team, [it] documents a history of irresponsible conduct that this university cannot allow to continue” (Until Proven Innocent p. 237).

Perhaps most telling of all is that the report, which was scheduled ("forced," claims Ekstrand) to present one day before the primary election for Nifong, was given to Nifong in advance but not to the players or their counsel: "Defendant Burness delivered an advance copy of the Ad Hoc Committee Report to the City of Durham Defendants so they could prepare statements for the press conferences. Burness did not send a copy of the Ad Hoc Report - in advance or after its release - to the Plaintiffs, their teammates or their counsel" (p. 260). An oversight? Perhaps. The problem for Burness and the rest of the Duke Administration is that it fits into a rather telling pattern of efforts by Duke not only to aid Nifong in his attempts to railroad Duke Students, but to assist in his reelection. These efforts by the Duke Administration are continued in shocking fashion before the general election in the fall of 2006, explained in the next segment of Lawsuit Breakdown.

"The myth of the Plaintiffs and their teammates as out-of-control, aberrant, abusers of alcohol, with a history of 'deplorable' behavior persists up to the present day" (p. 260), incited and continuously perpetuated by Brodhead and other Duke administrators and faculty.