PORTLAND, Maine — Duke University is attempting to legally force a Scarborough author, who wrote about the high-profile and unsuccessful 2006 rape case against three of the school’s lacrosse players, to hand over records of his communications with the players, their attorneys and parents.
Dr. Robert David “KC” Johnson has thus far refused to give up the documents, telling the North Carolina-based university they are protected under the freedom of the press included in the First Amendment of the U.S. Constitution. The First Amendment has been used to protect journalists and their confidential sources.
Duke is being sued on two fronts by groups of former players and their parents, who are claiming the university in effect punished team members who were not charged with any crimes, and gave the players bad legal advice.
In the spring of 2006, Blue Devils lacrosse players David Evans, Collin Finnerty and Reade Seligmann were charged with forcible rape and kidnapping after local stripper Crystal Gail Mangum said she was attacked while performing in March at a party at the house shared by two team captains.
The university canceled the remainder of the lacrosse season and the charged players were the subjects of numerous media reports. But a year later, in April 2007, North Carolina Attorney General Roy Cooper dropped all charges against the players after inconsistencies arose in Mangum’s story and the players produced alibis proving they did not commit the crimes.
In what became a black-eye case nationwide for Duke as well as local police, county District Attorney Mike Nifong was disbarred for his handling of the case and found guilty of criminal contempt.
Johnson, a Brooklyn College professor and author who lives in Scarborough, drew national attention during the case by launching a website defending the players and co-authoring the 2007 book “Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case.”
On Monday, Duke attorneys filed a motion in U.S. District Court in Portland to compel Johnson to turn over records of his communications with the players, parents and attorneys that he used to write the book.
According to the filing, Johnson has refused to appear for depositions in the case or to produce the documents requested by Duke officials.
Portland attorney Peter DeTroy, whose firm Norman, Hanson & DeTroy LLC is representing Duke locally, was not available for comment Wednesday afternoon.
In their motion, DeTroy’s team argues that the players suing Duke have refused to discuss a number of issues relevant to the ongoing case — such as their reason for canceling a meeting with Durham, N.C., police in March 2006 or how they decided to compile student identification card usage data to build a digital alibi — standing behind the protection of attorney-client privilege.
Duke officials are seeking to show that the players or their attorneys shared the sensitive information with Johnson, an unprivileged third party who wrote about those issues in his book, thus voluntarily breaking the attorney-client privilege protection.
Further, Duke attorneys hope to deflect accusations that the university’s lawyers initially put the players at a legal disadvantage with bad counsel, by shining a light on the legal advice those players were receiving at the time from their private attorneys.
But Johnson’s attorney, Portland-based Patrick Strawbridge, said the author’s records of communications with players, family members and lawyers are shielded from use in the ongoing court case by the First Amendment.
He also disagreed with Duke’s claim it cannot reasonably get the information it needs to build its case without forcing Johnson to turn over his records.
“Our position is that the requests are improper under any rules that would apply to third party discovery — because the information isn’t crucial to their case, or the information could be obtained from other sources that are less intrusive or less expensive,” Strawbridge told the Bangor Daily News on Wednesday. “But beyond that, Dr. Johnson serves a journalistic function both as author of the Durham-in-Wonderland blog and of the book ‘Until Proven Innocent.’”
In his Monday filing, DeTroy rebutted that the university is not seeking information from confidential sources, but rather sources openly named in his book.
Strawbridge said he plans to file a response to that argument with the court by the Friday deadline to do so.
“We are going to be filing a response, but we disagree with their statement of the applicable law, and we fully believe the law protects the materials being sought here,” he said.