People can sue, conduct discovery and go to trial instead of sue and settle confidentially so that Duke avoids discovery or settle before suit, so that Duke is not embarrassed by the filing of a complaint. Surely people should know that Duke can't buy silence if it's not for sale.
Duke's been fortunate.
The Dowd family brought a fantastic punitive grading case against Duke and perennial visiting Professor Kim Curtis, but then settled confidentially before discovery, much less a public trial.
The families of Collin Finnerty, Reade Seligmann and David Evans settled confidentially with Duke without even filing a complaint or obtaining an apology.
So it's up to the families of the unindicted players to pursue truth, justice and what should be the American way and, in the process, put the the ugly truth about Duke's relationship to the bogus case on public display.
Through depositions related to Mr. Nifong's ethics case, and other information, it was learned that Duke police provided certain information to Durham authorities, including lacrosse players' individual key card records for March 13 and 14, 2006, on March 31, 2006, two days after a meeting between Durham authorities and senior officials of the Duke police department and the same day that Mr. Nifong signed a subpoena seeking the information officially.
In providing this key card information without notifying the players, Duke violated FERPA and, reportedly, its own privacy rules.
There are no transcripts of North Carolina grand jury proceedings (and the North Carolina Legislature adjourned again without doing anything to rectify that deplorable situation), but this information reportedly was used to secure unwarranted indictments.
Matthew L. Drummond is Duke University's Director of The DukeCard Office.
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At a conference in New York City held on April 25, 2007, Mr. Drummond was a speaker at the"Understanding Customer Wants and Needs – Identifying Key Demographic Considerations" session.
Among other things, the session reportedly addressed how to determine the specific wants and needs of customers and how to improve sales through customer retention and loyalty.
Less than a year before (on June 2, 2006) Mr. Drummond was sending out a form letter to members of the 2005-2006 Duke University Men's Lacrosse Team that read: "Duke University has received a subpoena (copy attached) requiring us to produce certain information regarding use of your DukeCard. If you wish to object to the release of these records by the University, your attorney must file a motion to that effect. If we have not heard from you by Monday, June 12, 2006, at 9:00 am, we intend to comply with the terms of the subpoena. If you file a motion to quash or otherwise object to the subpoena please send us copies of the relevant papers at your earliest convenience."
Mr. Drummond purported to be "sincere," but he never mentioned that Duke has already disclosed information without a subpoena or affording an opportunity to object.
That's not what I call sincere.
Judge Kenneth Titus, the same judge who issued the blatantly unconstitutional gag order desired by the North Carolina NAACP without putting former Durham County, North Carolina District Attorney Michael B. Nifong to the trouble of asking for it, found that the information requested was "protected by the Family Education Rights and Privacy Act (FERPA)" and concluded as a matter of law that "[t]he request for key card information for all listed students without any showing of materiality or necessity does not rise to the level required to overcome the confidentiality of student information assured by FERPA."
That's right: Mr. Nifong had not made "any showing of materiality or necessity."
So even Judge Titus quashed the subpoenas to produce key card access information for the 47 members of the team "from 8:00 am March 13, 2006-8:00 am March 14, 2006."
Jason Trumpbour: "[T]he principle beneficiary of this bit of theater would not have been Mike Nifong. He already had indictments against three defendants and he could have subpoenaed their records with no difficulty. Nifong had no need to use the records of the other players at trial, because his position at that point in time was that they had been exculpated by the April 4 lineup. Nor would there have likely been any repercussions for him or the police for merely soliciting a violation of FERPA. The real beneficiary would seem to be Duke University because it would provide a legal fig leaf to cover its apparent violation of federal law. Worse, Nifong's apparent willingness to cover for Duke shows that Duke, through its own misconduct, had found itself entangled in Nifong's malicious prosecution to the point that its interests had started to overlap with those of Nifong."
IT'S EVEN WORSE!
Mr. Trumpbour: "[P]robably most disturbing of all, this surreptitious leak of private information occurred at a time when Duke was pretending to support the players, had encouraged them to talk to Duke officials citing a totally fictitious student/teacher privilege and had even hired a local attorney who they offered to the players in an ambiguous relationship meant to approximate that of a defense attorney. Now we see what kind of 'help' Duke was providing the players. No person truly acting in the role of defense counsel would have volunteered this information without a subpoena."
Exactly. Duke was trying to manipulate the players while appearing to help them!
Having told the players not to talk to their parents or lawyers and surreptitiously provided the police with private information without notice to the players, Duke unsurprisingly was mute while Mr. Nifong perpetrated a fraud on the court in the prosecution of the indicted players and, as Mr. Trumpbour noted, apparently in Duke's interest.
Shouldn't Duke have told the court, the students and the students' lawyers the truth: that THE INFORMATION ALREADY HAD BEEN RELEASED?
How about an honor code for the Duke administration and faculty?
Mr. Trumpbour: "For those who insisted that our criticism of the Duke administration for its lack of public support for its falsely accused students was unfair because Duke was probably concerned about its students and was probably working behind the scenes to help them, guess again. For those who have insisted that speaking out against the conduct of Mike Nifong might work against the University's interests and expose it to unacceptable risks, look at the risks the administration was willing to take in order to further the interests of those working against the players."
Has Duke offered to reimburse the expense of that successful litigation or publicly apologized to anyone for its role in the charade?
Of course not.
(1) Duke had its own agenda, but still took control of the players' defense and deceived the players with a falsehood about a student/university privilege in pursuing its own investigation.
(2) Duke violated FERPA and its own privacy rules by unlawfully providing players' key card information to Durham authorities without notifying the players.
(3) Certain Durham authorities and Duke officials concocted a fraudulent scheme to cover up their unlawful actions by pretending (in effect lying) that the key card information had never been provided and causing the players to unnecessarily engage attorneys to prevent the release of information which had already been released.
Duke Dean of Students Sue Wasiolek is an attorney, and she arranged for another attorney connected to Duke (Wes Covington) to be an intermediary between the players and the police when the players needed unconflicted representation.
On March 25, 2006, Duke Executive Vice President Tallman Trask (ask him about the "student/university privilege") met with parents of players and chastised them for engaging independent counsel for their sons.
Duke's concept of in loco parentis boggles the mind.
According to Detective Himan, he met with Dean Sue in April of 2006 to discuss what she knew about the case.
What was said in that meeting?
Will Duke become the first university sued under RICO?
Mr. Trumpbour: "People, particularly lawyers, keep asking me, 'Doesn't Duke have access to legal advice?' They are puzzled at how a major university with its own legal staff and a top ten law school on campus could continuously make such horrible mistakes and seemingly lack any appreciation for what was going on in the lacrosse case. Duke does have access to plenty of legal advice. The reality is that the administration does not care. I found this out first hand. In settling with several of the players, particularly in the Dowd case, the Duke administration essentially used University resources to pay for the privilege of doing whatever it wanted. They were not mistaken about the consequences of their actions. It was never going to be any other way."
IT CAN BE ANOTHER WAY! People can sue, conduct discovery and go to trial instead of sue and settle confidentially so that Duke avoids discovery or settle before suit, so that Duke is not embarrassed by the filing of a complaint. Surely people should know that Duke can't buy silence if it's not for sale.
Mr. Trumpbour: "It is impossible to defend the administration's motives in violating FERPA as somehow a well intentioned attempt to further the cause of justice as it understood it to be at the time. If the administration had truly been committed to justice, it would have pursed it without regard to where it might take them and which side [on which]it might be found to lay. Yet, when the time came for speaking up for the due process rights of its students, the administration was silent and remained silent until late December. No, there was never any commitment by the administration to seeing justice done in the lacrosse case at least through December and certainly not in March. In the absence of such a commitment, there was only self interest and playing favorites."
Right again, Mr. Trumpbour! Now how many of the players victimized by Duke will put "seeing justice done" first.
if the wronged student-athletes need some incentive, they should read (or re-read) this email dated June 5, 2006 from Duke President Richard H. Brodhead to "Duke Undergraduate Parents":
"Since late March, I have written to you on several occasions to provide news of the men's lacrosse situation. I do so again....
"In my March 30 message, I wrote that I would gladly have spared your sons and daughters this experience, but that we intended to make this an occasion when we could all learn and improve. That spirit continues to guide me and my colleagues as we plan for the next academic year, and a number of our actions are described in today's letter. We intend to make sure that our great university takes the lesson of these times and provides our students an even stronger education."
Was President Brodhead really supportive?
Did he provide "news" of Duke's duplicity?
Did Duke's actions make it worse for the players and their families?
Have Duke and President Brodhead taken the real lessons of the Duke case instead of what President Brodhead called "the lesson of these times"?
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.