More Denial at Duke

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

So now, Duke University wants to keep certain people from saying certain things about the disproven rape allegations against the school’s lacrosse players. Now that lawsuits accuse Duke of having helped inflame campus sentiment against the team, this is a good time to be quiet about the whole thing, it seems.

Well, that is a turn of events.

This is the same school where faculty and students loudly demanded jailing — and worse — for the young men; where administrators canceled the team’s season and fired the coach to try to quell the mob. That same school is now trying to punish players’ lawyers for inviting the press to write about what the school allegedly did wrong.

In response to a suit filed by 38 current and former lacrosse players at Duke, lawyers for the university accuse the players’ attorneys of ethics violations in speaking publicly about their case.

They want a judge to shut down dukelawsuit.com, set up by Robert Bork Jr., a public relations consultant hired by players’ lawyers and the son of the former Supreme Court nominee. The site offers court filings, press releases and video about the case against the school, the city of Durham, North Carolina, and a host of individuals from each.

Duke says the plaintiffs’ lawyers set up the site, with its “incendiary” language and “prejudicial” rendition of events, to sway public opinion.

Well, yeah.

The ethics rule says that except in the courtroom or in legal briefs, litigating lawyers aren’t supposed to go much beyond the record if what they say “will be disseminated by means of public communication” and has “a substantial likelihood of materially prejudicing” the case.

When you call a news conference at the National Press Club, issue press releases and set up a Web site, as the players’ lawyers did, aided by the PR man they hired, you aren’t only suspecting your story might be disseminated widely. You are trying to ensure it will be.

Too bad no one shut down then-district attorney Michael Nifong as he inflamed public emotions two years ago by declaring the players “hooligans” and the rape an absolute fact while he withheld evidence of their innocence.

Eventually, Nifong was disbarred for violating that same rule and a long list of others. That happened only after he dragged the wrongly accused, the team, the school and the community through a wrenching episode played out in sensational detail by the national press.

Perhaps you heard about that rape allegation. A black stripper hired to perform at a spring party of lacrosse players claimed three or five of them, or maybe 20, had raped her, all of them white.

Exploiting class, race and gender divisions, Nifong won indictments against three players and then won re-election, only to see the cases dismissed and the accused declared innocent once an honest prosecutor reviewed the evidence.

Those three mounted a separate case against Duke, which settled it.

As for this lawsuit, if you read the players’ complaint online, you can see why the school would just as soon you didn’t. It says school officials knew from the start that police doubted the accuser’s ever-changing story and that the physician who examined her reported no signs of the brutal sexual assault she described. And yet, university officials did little to quell the growing fury aimed at the team or to protect players from harassment. President Richard Brodhead agreed to speak with protesters while refusing to meet with the players’ parents or lawyers, seemingly signaling his viewpoint. He told the protesters, “We can’t promise you there will never be instances of disgusting and disturbing things,” according to a university account.

The players also complain that a university-hired lawyer told them not to tell their parents about the then-new rape allegation, not to hire lawyers, but to appear for interviews with police with only him present. Bad advice if you are a player. Good advice if you are the university. And it was a Duke University Hospital nurse, Tara Levicy, who falsely told police that the accuser showed physical signs of a violent, sexual attack. However harmed the players, however disgraceful the handling of the matter by university officials, the question is whether they or the school can be held legally liable.

And, shocking as the thought may be, sometimes lawyers seek press attention for their cause because they hope to bring public pressure to bear on a legally weak case.

“The word ‘shakedown’ comes to mind,” Kent Alexander, general counsel to Emory University and former U.S. attorney in Atlanta, said of the lawsuit, which he has read about.

“I feel bad for any of the players who had to go through that,” he said. But university officials couldn’t interfere with a criminal investigation, he said, and had “to take the allegations seriously.”

As for its new attempt to censor speech, Duke is only going after a single, lawyer-sponsored site set up as part of the lawsuit. The judge has scheduled a hearing on the issue for next week.

Anyone looking for what Duke did wrong can go to other sites or read books on it.

The point the university makes is that lawyers are required to be more careful about what they say than the rest of us. If the Duke matter taught us anything, it is beware of lawyers trying to inflame passions before presenting evidence to back up their claims.

Ms. Woolner is a columnist of Bloomberg news.


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