Wednesday, February 8, 2012
In a David v. Goliath legal battle, Duke University takes unfair advantage
Click on following link to view the flog.
Part One – An accurate retelling of events leading to Harr’s legal action against Duke
Honesty and fairness are the two most important characteristics for any judge to possess. In his November 16, 2011 recommendation to the Court, United States Magistrate Judge P. Trevor Sharp demonstrated his lack of both by flat out lying to the Court with the intention of misleading the Court for the purpose of achieving a ruling in favor of the defendants from Duke University. That the Duke defendants’ defense against the discrimination complaint made by the Plaintiff Sidney B. Harr was extremely weak was evidenced by the magistrate judge’s unethical conduct in propping up defendants’ position with lies.
Because of the well-known prejudice of the mainstream media against Mike Nifong, Crystal Mangum, Nifong supporters and others considered by the Powers-That-Be to be on the wrong end of the Duke Lacrosse case, the public at large is unfamiliar with the discriminatory and malicious acts of Duke University on April 14, 2010. A concise review of this important case will ensue.
Prior to that date of April 14, 2010, Sidney Harr, the Lay Advocate for the Committee on Justice for Mike Nifong, had visited Duke University on numerous occasions… as an invited guest to public conferences, a book-signing, and other public forums. Harr also at times ventured onto the grounds to say “hello” to a few of his friends, including Law Professor James Coleman and Political Science Chair Mike Munger. In addition Harr had taken in cultural events offered at the Nasher Museum, which is situated on Duke University property, as well as having sat in attendance at Easter mass in the Duke Cathedral.
Harr enjoyed and valued his visits to the Duke campus – whether for enjoyment, enlightenment, or both – and even stated as much. After attending a three day John Hope Franklin conference at Duke Law School on Law, Politics, and Race, Harr took the time to write letters to the university President Richard Brodhead and law school dean David Levi, expressing his appreciation for the wonderful programs that Duke produced for the public’s benefit. Because Harr had previously placed President Brodhead in his educational comic strip, “The MisAdventures of Super-Duper Cooper,” he wanted to assure that President Brodhead harbored no ill will, so he was sure to show other comic strip examples in which Harr utilized self-deprecating humor.
Harr also went to great lengths to express his view that even though he was a supporter of former Durham District Attorney Mike Nifong, that that had nothing to do with his attitude towards Duke University… which at the time was full of nothing but admiration.
And finally, to show his support for the programs Duke put on for the public, Harr wrote in his letters that he planned on attending the interview of U.S. Supreme Court Justice Stephen Breyer… which was scheduled two days later, on April 14, 2010. What is so diabolical about this is that the information that Harr gave of his intention to be in attendance at the April 14th event was used to set a trap in which to arrest Harr for trespassing. The apparent animosity which led the Duke University officials to plot to place Harr behind bars was the fact that he was a well known and outspoken supporter of Mike Nifong. That Harr is an African American also entered into their designs to have him incarcerated, as the criminal justice system in the Tar Heel state is quick to place innocent black people in jail with impunity… even without justification or cause. The arrest of Knightdale resident Carletta Alston, who was held in jail for twelve months by Wake County prosecutor Tom Ford, is a prime example.
Because Harr sent the complimentary letters on Monday, April 12, 2010, he assumed that they would have reached Duke University the morning of Wednesday, April 14th, the day of the event. Harr believed that on that particular morning, both defendants Brodhead and Levi would have been busy with preparations for their distinguished guest, and would not have had the luxury of engaging in a plot against him. He surmised that one of their assistants, probably that of Dean Levi, cooked up the scheme and ordered the security guard to initially confront Harr and then call in the Duke campus police to make the arrest.
Now, had the letter reached Duke University a day earlier, on Tuesday, April 13, 2010, then that would have given defendants Brodhead and Levi ample time to become involved in the skullduggery. Make no mistake that the security guard had been summoned for this mission by someone in the office of the recipients of Harr’s letters because Harr enclosed a “j4n” business card in both letters… and the security officer acknowledged having a “j4n” business card in his possession when he confronted Harr.
At the conclusion of the event, Harr exited the large room and was heading for the exit when he was approached by Tom Breen of the Associated Press. Mr. Breen proceeded to ask Harr of his impressions of interview with the justice. Was Mr. Breen in collusion… part of the conspiracy against Harr? Possibly, as of all the people in attendance, Harr was the only one he saw Mr. Breen interview… and Harr who sat near the front of the large standing room only crowd, was one of the final people to emerge from the room’s rear exit.
Per his custom, Harr always exchanged his business card with media-types when the opportunity arose, and so he and Mr. Breen traded business cards during their brief encounter, and Harr continued to walk towards the building’s exit for the purpose of catching a bus to return home to Raleigh. Before he could reach the exit door, Harr was intercepted by a uniformed security guard, K. Harris.
The security guard informed Harr that he would have to immediately leave the campus, but could not give a reason, stating only that the “building manager” ordered him to remove Harr from university property. Harr was moving with the guard towards the door while he tried to get an audience with the building manager or obtain an understanding from the guard for his being thrown off campus. Throughout the conversation, the guard kept threatening to arrest Harr… again without provocation. Because Harr’s behavior was no different from others similarly situated, he came to the immediate realization that he was being discriminated against because of his support for Mike Nifong. He also realized that his future visits to Duke University property and venues were in jeopardy… pending a satisfactory resolution… which at the moment seemed extremely remote.
As the security guard ushered Harr to the exit, Harr saw his friend, Duke Law Professor James Coleman, and flagged him down. With his audio recorder running Harr explained his predicament and Professor Coleman vigorously interceded with the guard on Harr’s behalf. Coleman also attempted to calm down Harr who was visibly upset at being asked to leave the campus. In a hurry to catch a plane, Professor Coleman brokered a settlement of sorts with the security guard before leaving. The brief intervention by Professor Coleman saved Harr from being arrested, as the Duke police had already been summoned by the security guard and he arrived shortly thereafter in a patrol car.
As if the incident within the building wasn’t embarrassing and humiliating enough, the uniformed guard and police officer closely followed Harr, despite his protestations, to the bus stop whereupon he caught a bus that would take him off Duke University property and to the downtown bus terminal… thus ending his campus nightmare.
It was obvious to Harr that any future return to Duke property would be dependent upon one of two things occurring. First, if Duke University was able to give a logical explanation for its treatment of Harr on April 14th, which was, in essence, exceedingly improbable. Secondly, if Duke University would accept responsibility for its misconduct and take other measures of restorative justice to see that mistreatment of Nifong supporters did not recur in the future. Harr was banking on the latter when he wrote individual letters in April and May of 2010 to President Brodhead, Dean Levi, and Pamela Bernard, the general counsel of Duke University.
All hopes for a resolution which would enable Harr to return to Duke campus without fear of being abused, harassed, and/or arrested, were dashed by a May 10, 2010 letter from the Duke University spokesman Mike Schoenfeld. Far from being conciliatory, the letter was accusatory… alleging that Harr had repeatedly violated its policy against solicitation by handing out business cards and asking their recipients to visit his website. This was the best excuse that Duke University could concoct for its mistreatment and near arrest of Harr. Correspondence between the parties concluded with May 15, 2010 letters by Harr to Brodhead, Levi, and Bernard in which he expressed his disapproval and dissatisfaction with Schoenfeld’s letter of May 10th.
During the ensuing months, Harr unsuccessfully tried to get civil rights organizations and individuals to intervene with Duke University on his behalf. On April 5, 2011, with the one year anniversary of the incident fast approaching, Harr reluctantly filed his complaint in federal court in order to protect his legal rights from any statute of limitation provisions.
Part 2 – Serious problems with Magistrate Judge Sharp’s recommendation to the Court
The complaint that Harr filed was based upon his civil rights being violated by Duke University for discriminating against him because of his beliefs, thoughts, opinions and allegiances… which were in favor of Mike Nifong. Because of his strongly held position regarding Mr. Nifong, Harr was singularly targeted in a conspiracy intended to culminate in his arrest… presumably on a trespassing charge, and most likely with other charges, such as interfering with a public officer, tacked on.
The defendants through their attorney from the Greensboro law firm of Ellis & Winters LLP, never denied the factual nature of the events stated by the plaintiff Harr, in large measure because Harr audio recorded much of his conversation with the security guard. From what I could ascertain from the confusingly esoteric legalese mumbo-jumbo spewed by Attorney J. Donald Cowan in his motion, the defense proffered by Duke was mainly that the named defendants were not involved in the April 14th incident, and that Duke University was not an agent of the state.
A timeline of events that followed Harr’s filing of his complaint on April 5, 2011 are as follows:
April 15, 2011 – the Defendants file a Motion to Dismiss the Plaintiff’s complaint;
May 6, 2011 – Plaintiff Harr files a Response to Defendants’ Motion to Dismiss;
May 16, 2011 – Defendants file a Response in Further Support of Defendants’ Motion to Dismiss;
May 20, 2011 – Harr sends a letter to the Court expressing his displeasure at being denied the opportunity to respond to the Defendants’ May 16, 2011 filing;
November 16, 2011 – Magistrate Judge P. Trevor Sharp files his Recommendation to the Court regarding the motion by the defense; and
December 8, 2011 – Harr files a timely response with the Court about the Recommendation of the Magistrate Judge.
The problem with Magistrate Judge P. Trevor Sharp’s Recommendation begins with the first sentence in the second paragraph in which he states: “The following factual allegations are made in Plaintiff’s complaint.” By allegedly basing the facts on statements made by the Plaintiff, he sets the stage in which the facts he is about to re-state are not likely to be in dispute by the Plaintiff.
On page two, line eight, the calculated lies begin with the following statement: “After the interview concluded, Plaintiff began handing out business cards of the Committee and was asked by a reporter for the Associated Press for an interview.” This is totally false as neither Harr, nor the Defendants’ stated that Harr began handing out business cards at the conclusion of the Justice Breyer interview. Specifically, Harr stated the following in his complaint:
“14. While waiting for the event, Plaintiff, per his usual custom when on the Duke campus, stopped by the office of Duke Law Professor James Coleman (hereinafter “COLEMAN”) to say “hello.” COLEMAN was not in his office, so Plaintiff returned to the building’s lobby to read his book.
15. While waiting and between stints of reading, Plaintiff struck up conversations with about a half dozen individuals, a few of whom were law students. Plaintiff handed out a few COMMITTEE business cards to some of the people with whom he had conversed, and collected business cards from those who had some.”
The complaint explicitly states that the cards were handed out while Harr was waiting for the interview to begin, and it further states that they were not handed out indiscriminately, but to those individuals with whom Harr was engaged in dialogue.
Magistrate Judge Sharp falsely states that “Plaintiff began handing out business cards of the Committee and was asked by a reporter for the Associated Press for an interview.” This is a fabrication because it suggests that the reporter Tom Breen witnessed Harr distributing cards, and as a result asked him for an interview. There is nothing in Plaintiff Harr’s complaint to suggest such a scenario. In fact, Harr’s complaint reads as follows:
“17. At the event’s conclusion, Plaintiff, who was seated about a third of the way in the front of the packed lecture hall, filed out of the large room en mass with others in attendance.
18. On leaving the room, a gentleman approached the Plaintiff and introduced himself as Tom Breen of the Associated Press. Plaintiff was under the assumption that he was randomly chosen by the reporter from the attendees to give his thoughts about the event. After briefly giving his opinions, the Plaintiff began telling Mr. Breen about his advocacy for NIFONG, and the two exchanged business cards.”
Magistrate Judge Sharp’s reconstruction of the event implied that Harr’s actions induced the reporter Mr. Breen to seek an interview with him. The truth, as stated in Harr’s complaint, is that Harr was leaving the room as others similarly situated when he was approached by Mr. Breen… and that he was not handing out business cards. In fact, per Harr’s complaint, the two were well into their brief conversation when the business cards were exchanged. Furthermore, the card Harr gave to Mr. Breen was the only business card he handed out after the conclusion of the Justice Breyer interview.
Finally, Magistrate Judge Sharp falsely states, “After this interview (with Mr. Breen), Duke campus security approached Plaintiff and advised him he would have to leave the campus. The security officer told Plaintiff that the ‘building manager’ was having him removed. When Plaintiff protested, the security officer called for campus police to meet them.” This, again, is a prevarication which is not substantiated in Harr’s complaint.
In this instance the interpretation of the word “protesting” is of vital importance and Magistrate Judge Sharp uses it to imply that Harr protested being removed from Duke property, as though he were an occupier. To appreciate the essence of the proper interpretation, it should be put into context as is stated in Harr’s complaint which follows:
“21. When Plaintiff asked SECURITY who was responsible for kicking him off campus, SECURITY replied, ‘the building manager.’ Plaintiff asked SECURITY to take him to see the building manager, and SECURITY refused.
22. As an upset and protesting Plaintiff was being escorted to the nearest exit of the building, Plaintiff saw COLEMAN and flagged him down in order to express what Plaintiff considered to be his unwarranted expulsion from the campus…”
That Harr was protesting his “treatment” is further evidenced in paragraph 23 which reads: “COLEMAN tried his best to defuse the issue and calm down Plaintiff who was highly indignant by his treatment.”
Magistrate Judge Sharp failed to mention that in Harr’s complaint, he stated that he was in compliance with the security guard with regards to leaving the campus. The magistrate judge also failed to mention that the security guard repeatedly threatened Harr with arrest. And the magistrate judge failed to mention Harr’s contention that Duke police was summoned without provocation. That paragraph reads as follows:
“26. Plaintiff who was not submissive but more agitated at his mistreatment – not unlike Harvard University’s Professor Henry Louis Gates, Jr. – was in compliance with SECURITY and walking towards the bus stop while seeking answers to why he was being kicked off the campus. Nonetheless, SECURITY continued to threaten Plaintiff with arrest, and then without provocation called in backup from Duke University campus police.”
That Harr protested his unwarranted and humiliating treatment by security is not at issue, and in itself did not warrant calling in police. The fact is that Harr never refused to leave Duke University property and even stated that he was in compliance with SECURITY.
Part 3 – Reasons behind the magistrate judge’s false and misleading statements
That the recommendation by Magistrate Judge Sharp contains false and misleading statements is indisputable, and directly questions the honesty of the magistrate judge. The reason that the magistrate judge misrepresented the facts of the complaint by Harr, is directly linked to his pronounced prejudice in favor of the defendants from Duke University… as the facts of the incident in question lay the groundwork for the conclusions drawn by the magistrate judge and the impressions developed by the Court upon which to make its rulings.
It is imperative that the re-stated facts be accurate, as they are the foundation upon which conclusions are made and decisions are reached. For example, in a June 17, 2007 online article titled: “Nifong’s punishment is extreme, appropritate,” by MSNBC Senior Legal Analyst Susan F. Filan, she states as fact that Mr. Nifong asked his son to attend his disciplinary hearing.
When notified of the passage, Mrs. Nifong emphatically stated that Ms. Filan’s statement was totally false. She went so far as to say that Mr. Nifong asked his son not to attend… but that his son insisted in order to show support for his beleaguered father.
Ms. Filan, using this untruthful premise as a basis, then reached the conclusion that he asked his son to come as a ploy in order to gain sympathy, leniency, and pity… and she trounces Mr. Nifong’s character and role as a father with the rhetorical question, “Why put your son through this?”
That the media is biased against Mike Nifong is clearly demonstrated by the fact that letters that pointed out these gross mistakes and mailed to NBC Universal President and CEO Jeff Zucker, MSNBC President Phil Griffin, Vice president and General Counsel Rick Cotton, and the MSNBC Legal Department were returned to the sender Harr unopened.
By misstating that Harr began handing out business cards upon the conclusion of the Justice Breyer interview, Magistrate Judge Sharp is trying to make a trespassing case for the defendants to use against Harr. When Harr was handing out the business cards prior to the interview, he was a guest of the campus waiting for the event, which was open to the public, to begin. However, upon the conclusion of the event, Harr was no longer under the umbrella of being an invited guest. The slack and misleading representation of Harr following the Justice Breyer interview is that of a peddler indiscriminately handing out business cards as though they were flyers being given to passersby.
With respect to reporter Tom Breen, Magistrate Judge Sharp implies that Harr’s alleged actions attracted Mr. Breen… not that the reality that Mr. Breen had targeted Harr and approached Harr as he was leaving the lecture room walking as those around him, and not talking or handing out cards.
Finally, Magistrate Judge P. Trevor Sharp takes the liberty of misinterpreting Harr’s statement that he was protesting his treatment by the security guard, and not refusing to leave the Duke University campus grounds. Harr’s statement goes so far as to state that he was complying with the security guards demands that he leave the campus.
A significant point here is that Harr was upset, agitated, and indignant at the unexpected and unwarranted turn of events following the Justice Breyer interview. It was during his confrontation with the security guard that two realizations were swiftly evident to Harr: (1) the actions taken against him were unleashed because he was a supporter of Mike Nifong; and (2) that unless a satisfactory resolution regarding this incident soon followed, that it was likely that he would never be able to return to any of Duke’s properties or venues. That Harr highly valued the programs and events offered at Duke University, and stated so in his letters of April 12, 2010 to defendants Brodhead and Levi, as well as is documented in his complaint, is confirmed by his reaction when he realized the implications of being asked by the security guard to leave the Duke campus. In other words, the damages sustained by Harr by Duke defendants’ actions are significant.
On the other hand, had Harr acted calmly and taken in stride his forced removal from the university campus, then one could more likely surmise that Duke’s mistreatment of Harr was of no major consequence to him. That Harr’s reaction tended to be more volatile is proportional to his perceived sense of loss and the damages he incurred.
What is extremely chilling and disappointing about the legal process thus far is that a magistrate judge would recommend to the Court that the legitimate complaint filed by Harr be dismissed… especially in lieu of the fact that Duke defendants’ actions were premeditated and filled with malice. The university’s response to the kind and complimentary words of Harr was to use the supportive information contained therein to cobble a scheme in which to place its author in jail… an action beyond cruel.
Part 4 – Why this case is important to everyone
The importance of this case cannot be emphasized enough, as its implications go far beyond actions suffered by Harr. This case has relevance for all citizens who go to private property that is a place of public accommodation. Although Duke University is a prime example, being a private institution on private property which holds many events for which it solicits the public to attend its campus buildings, museum, chapel, library, cathedral and other venues, what happen to Harr would have meaning for any private business catering to the public. For example, could a privately owned establishment on private property discriminate against a patron because of his/her belief regarding the death penalty, abortion, or any other controversial topic? Could a privately owned sports bar have a customer removed because his allegiance as displayed by his apparel is for a ball team other than the one favored by the proprietor? These examples are similar to the incident that happened to Harr on Duke’s campus in April 2010.
Duke University knows that it is on the wrong side of justice in this case, but feels that it can trample on the rights of most individuals because it has the media on its side, and to an extent, as recently revealed by Magistrate Judge Sharp’s recommendation, the courts. The media has had full knowledge of the discriminatory acts by Duke early on, but has refused to cover the story. That the mainstream media is under the control of Duke University in this particular instance, and that it can be unfairly controlled by those in powers, is evident. Duke has heavily relied upon the media to keep its disgraceful and embarrassing misconduct against Harr hidden from the public.
As a point of contrast, when two lesbians were asked by a security guard in 2010 to leave a shopping mall in Raleigh, North Carolina, because they briefly showed affection publicly, the media ran with the story… giving it extensive coverage in print and on air. Both locally, and nationally, and where it was even the topic of a cable news program. As a result, the offenders quickly acquiesced to the grievances of the lesbians, who had the full support of the ACLU, Gay and Lesbian groups, and others.
Harr on the other hand was blindsided by Duke University, wherein a premeditated conspiracy was launched against Harr with the intention of putting him behind bars… his offense, being a supporter of Mike Nifong… because of his beliefs, thoughts, and opinions. And not because of any actions committed by him. Yet, the media, acting in unison, has kept this egregious discriminatory act by Duke University secreted away.
Because the U.S. Magistrate Judge P. Trevor Sharp not only sided with defense attorneys for Duke, but felt the need to reinforce its weak defense with lies about facts of the case and misleading statements, it seems to me that Duke felt it has the courts, as well as the media, in its back pocket.
Ramifications of the Motion to Dismiss are far-reaching if Duke University is allowed to abuse it in court. The motion could be used by mammoth institutions and mega-corporations to fend off legitimate and worthy complaints by individuals they have wronged, by relying on the court to dismiss legal actions against them without the arguments even being heard by a jury. This would be the equivalent of giving Goliath a Kevlar body suit with riot headgear before sending him out to do battle with David. Talk about an uneven playing field…
But Harr is not fighting for any advantage, or even a level playing field. All he wants is the opportunity to engage Duke University and its defense team on the playing field. Despite Duke’s many advantages in its pecuniary coffers and legal expertise over Harr, Harr remains confident that he will prevail because he has justice on his side… and he is fighting for the legal rights of all ordinary individuals who have been trampled upon by the big and powerful.