June 19, 2018
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Duke drops efforts to force Scarborough author to turn over records about 2006 lacrosse rape case

By Seth Koenig, BDN Staff

PORTLAND, Maine — Duke University has dropped efforts to legally force a Scarborough author to turn over his records about 2006 rape allegations against a trio of the school’s lacrosse players.

Dr. Robert David “KC” Johnson was in the process of appealing a lower court ruling in Duke’s favor to U.S. District Judge D. Brock Hornby when the university filed a withdrawal of its subpoenas Friday.

In October, Magistrate Judge John H. Rich III issued a decision backing Duke’s efforts to legally compel Johnson, a Scarborough resident, to turn over records of his communications with former Blue Devils lacrosse players and their lawyers. The author subsequently objected to the decision, and a coalition of media organizations, including the Bangor Daily News, filed an amicus brief supporting Johnson’s position.

In the spring of 2006, Duke 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 at a March party at a 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, launched a website defending the players and co-authored the 2007 book “Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case.”

Duke was sued on two fronts by former players and their parents over the school’s handling of the ordeal, and the university sought records of Johnson’s communications with sources for his book in attempting to develop its defense.

In its withdrawal of subpoenas Friday, Duke’s attorneys acknowledged, in part, that “Dr. Johnson possesses no documents responsive to the subpoenas that Duke University issued in this jurisdiction pursuant” to one of the two lawsuits, fronted by former player Ryan McFadyen. The other lawsuit, filed by a group under the name of former player Bo Carrington, was dropped last week, rendering pursuit of Johnson’s records on that front moot.

Sigmund Schutz, an attorney with the Portland law firm Preti Flaherty, in November announced plans to file an amicus brief backing Johnson’s objection on behalf of the Maine Press Association, Bangor Daily News, Portland Press Herald, Maine Association of Broadcasters and the Reporters Committee for Freedom of the Press.

In his objection to Justice Rich’s decision, Johnson’s attorney, Portland-based Patrick Strawbridge, argued that the author was targeted by Duke in part because of his writings critical of the school.

“[T]his Court can fairly draw the inference that Dr. Johnson’s ongoing coverage, and his critical analysis in the past, has motivated Duke’s efforts to focus their third-party discovery on him,” wrote Strawbridge in his District Court objection. “What else can reasonably explain Duke’s decision to forego subpoenaing other authors or journalists who had extensive contact with the plaintiffs in this case and their attorneys, including Dr. Johnson’s co-author, Stuart Taylor?

“Duke has not even attempted to subpoena the interview notes and correspondence of its own student newspaper, the Duke Chronicle, which in July 2006 was the first media outlet to interview the lacrosse players about the events in question,” he continued. “There is a reason why Duke has ignored allegedly responsive materials collected by reporters on its own campus, but has served a combined six subpoenas on Dr. Johnson.”

Strawbridge and Schutz both argued additionally that forcing Johnson to turn over his records of interviews with sources would infringe on the author’s constitutional freedom of the press.

During the course of the case, university attorneys argued that the players who sued Duke 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.

Therefore, Duke officials said they must be able to review Johnson’s communications with those players to determine if the players or their attorneys shared the sensitive information with the author, an unprivileged third party who wrote about those issues in his book. If so, Duke attorneys argued, those players voluntarily broke the attorney-client privilege protection.

Further, Duke attorneys hoped 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.

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