The fallout from the fraudulent prosecution of three former Duke University men’s lacrosse players on bogus rape charges continues. The Associated Press reports that today, 38 of the unindicted members and former members of the squad filed a federal lawsuit against Duke, the City of Durham and a host of other entities and individuals. In their 237 page complaint, the players assert claims for, among other things, intentional infliction of emotional distress and invasion of privacy based upon what they say were the defendants’ deliberate acts of ignoring, suppressing and actively discrediting evidence that would have exonerated the members of the lacrosse team, of standing idly by while team members were harassed on campus.

I have been involved in a number of cases where claims for intentional infliction of emotional distress have been alleged. Such claims, under Pennsylvania law, at least, are extraordinarily difficult to establish. At first blush, then, one might conclude that the players’ claims are perhaps not all that strong. The Duke case, however, presents a set of facts that, in my view is unprecedented. Virtually every adult in a position of responsibility not only abdicated their responsibility to act fairly and to safeguard these young men’s rights but, in many cases, took affirmative steps that had the result of harming these players notwithstanding mounting objective evidence that no rape ever occurred. This may be one of the very, very few cases I have ever seen that likely satisfies Pennsylvania’s standard for such claims (note, however, that North Carolina law applies to these claims). With powerhouse Washington lawyer Chuck Cooper representing them, these young men have a very  good chance of obtaining a significant recovery. The lacrosse affair is a matter that will forever besmirch the administration of Duke President Richard Brodhead and his subordinates. Let’s hope that the young men who were their victims can find some measure of justice in federal court.

The ABA Journal reports that disbarred, discredited and disgraced former Durham District Attorney and former inmate Mike Nifong has formally requested that Durham should either assume his defense in the civil suit that the former Duke lacrosse players have filed, or pay for him to hire counsel. Of course he has. Nifong claims that he is entitled to this because the claims arose out of his work as DA. Under Nifong’s theory, a bank guard who participates in a robbery of the bank where he works would be entitled to have the bank pay for his defense against bank robbery charges because the charges arose out of the guard’s work at the bank. The man has no shame. None at all.

Courtesy of the Duke Basketball Report (I’m a Duke alum. Get over it.) comes the news that the three lacrosse players wrongfully accused of rape by Crystal Mangum are preparing to sue the city of Durham, North Carolina. Most interesting to me is the identity of the two lawyers representing the Duke Three, Brendan Sullivan and Barry Scheck. Both of these guys are heavyweights of the highest order. Folks of a certain age will remember Sullivan from his representation of Lt. Col Oliver North during the Iran-Contra scandal (“I’m not a potted plant.”) Scheck, of course, is one of the nation’s foremost DNA gurus, and a moving force behind the Innocence Project.He was, you will recall, a critical member of O.J. Simpson’s “Dream Team.” The involvement of these tweo tremendous lawyers suggests that the City of Durham has A LOT to worry about. Stay tuned.

Update: As always, KC Johnson at the Lie Stoppers blog has the skinny here and here.

The Duke men’s lacrosse team today defeated previously unbeaten Cornell 12-11 in the NCAA tournament semifinals, earning a spot in Monday’s title game against Johns Hopkins. The top seeded Blue Devils are favored to win their first national title, and have already earned a large dose of redemption. Meanwhile, the jackbooted thug Mike Nifong, who sought to advance his career by prosecuting three innocent former teammates of the Duke team readies himself for a hearing on ethics charges arising out of his failed jihad against the Duke Three. If there is even a small measure of justice in the Universe, the Duke team will triumph on Monday, and Nifong will be disbarred.

I would like to extend my congratulations to the Duke Men’s Lacrosse team on their win over the hated North Carolina Tar Heels in the quarterfinals of the NCAA Tournament. The team now advances to this weekend’s Final Four where, I predict, they will claim the title that Mike Nifong and a cowardly Duke administration conspired to steal from them last year. Let’s go Duke!

The National Law Journal this week reported that prosecutors across the nation report that they are beginning to experience the adverse consequences of Mike Nifong’s baseless jihad against three Duke lacrosse players. The prosecutors claim that defense attorney’s are increasingly making the argument that the Duke lacrosse prosecution is proof that defendants are often wrongfully charged and prosecuted. Preumably the argument is meeting with some success, or the prosecutors wouldn’t be whining about it. The fact is that what happened to the Duke students happens more frequently than any of us would prefer to believe or admit. Its about time that the prosecutors began to reap the whirlwind from the abusive tactics that they so often employ.

Some time has now passed since the dismissal of the charges against the Duke Three. We now begin to confront the aftermath. One man who was very silent during the process – understandably – was the now former Duke lacrosse coach Mike Pressler. Pressler’s book on the whole catastrophe, ‘It’s Not About the Truth,” will be released shortly. I look forward to reading Coach Pressler’s story, and urge everyone who reads this blog to do so as well.

Randy Barnett, a professor at the Georgetown University Law Center, has an excellent op-ed piece in today’s Wall Street Journal. Barnett makes a great case for the critical role that defense lawyers play in protecting the rights of the innocent, and why that means that the rights of the guilty must be protected, too. Barnett’s work is always interesting, and his Journal piece especially so.

As if bowing to the wave of political correctness and abandoning their students to the public lynch mob last year were not enough, Duke University officialdom remains more or less unrepentant. The day after the charges against the Duke Three were dismissed, I received the following email from the Chairman of Duke’s Board of Trustees (I am a Duke alumnus):

Dear Member of the Duke University Community,

I write to you on behalf of the Trustees of Duke University.

Today the North Carolina State Attorney General announced that all remaining
charges against David Evans, Collin Finnerty and Reade Seligmann have been
dropped and should never have been brought. This announcement explicitly and
unequivocally establishes the innocence of David, Collin and Reade, who with
their families have suffered an unimaginable year of accusation and public
scrutiny. They deserve our respect for the honorable way they have conducted
themselves during this long legal ordeal that ends with their exoneration.

The Attorney General determined that there was no credible evidence to support
the charges that were brought, with so many statements of certainty, by the
Durham District Attorney last spring. Many have suffered from his actions,
these three students and their families most of all. The Attorney General’s
investigation places responsibility for this miscarriage of justice with the
District Attorney, and we now look to the proceedings of the state bar to call
him to account before his peers.

Much as we wish that these three young men, their teammates and their families
and indeed the whole community of people who love Duke could have been spared
the agony of the past year, we believe that it was essential for the
University to defer to the criminal justice system. As imperfect and flawed as
it may be, it is that process that brings us today to this resolution.

Throughout the past year President Richard Brodhead consulted regularly with
the trustees and has had our continuing support. He made considered and
thoughtful decisions in a volatile and uncertain situation. Each step of the
way, the board agreed with the principles that he established and the actions
he took. As we look back and with the benefit of what we now know there is no
question that there are some things that might have been done differently.
However, anyone critical of President Brodhead should be similarly critical of
the entire board.

In closing, we express our relief for today’s outcome and recognize the
character that our three students, their teammates and all of their families
have shown over the past year. Furthermore, we hope that the resolution of
this unfair, divisive and painful episode can serve to unite us all. There is
much to learn from the events that we have lived through, and we intend to put
this learning to use. Duke is a great university that steps up to challenges
and opportunities, and together we will use this moment to make our community
stronger.

Robert K. Steel, Chair, Duke University Board of Trustees

So Mr. Steel and his colleagues wish this whole episode had not happened, and that the three young men are people of character. But where is the apology? Why not say “we’re sorry?” For throwing you to the media wolves. For the fact that our faculty bought into the portrayal of you as hooligans, and as a team out of control? For not doing the right thing, standing up and saying that our students are innocent until proven guilty, and until and unless guilt is proved in a court of law we stand behind them? Why not? Probably because that would take at least a small measure of courage. A lot of splainin’ to do, indeed.

That is the focus of an article in the April 23rd issue of Newsweek. While largely a rehash of information available from other sources over the past year, the piece does provide some new details and is worth a read. One thing is clear – and was clear before the article – is that there is more than enough blame and shame to go around in this story, from Nifong, to the Duke faculty and administration, to the news media. One interesting point that the article makes, and that I would reiterate, is that the “behavior” by the lacrosse team that has been nearly universally labeled as “reprehensible” even if not criminal, i.e., having a party where underage men drank beer and hired strippers, was hardly a unique occurrence at Duke, or, for that matter, on any other college campus in America. And I would hope that everyone – even the moron Terry Moran – would agree, that drinking beer underage and paying money to a stripper, hardly excuses or justifies the making of false rape allegations.