HB2 and the NBA's boycott of Charlotte

Friends, since this HB2 matter came up, I have detected a very insincere, but deliberate effort to use transgender rights to undermine women's sports. Now, Melody Wood has written about the same thing. Give her a read. The bottom line is, people who go through puberty as boys have more muscle mass than people who go through puberty as girls. That gives them a natural advantage in most sports. If we allow M to F transgenders who went through puberty as boys to compete on women's teams, very quickly we will have no women's sports at all. As the parent of two women who enjoy and even excel at sports, this is not what I want to have happen.

Walt-in-Durham

Wake DA's office involved in a cover up.

In State v. Sandy and Surpris, ___ N.C. App. ___, ___ S.E.2d ____, COA15-996, (2016) our court of appeals vacated drug dealing convictions against Barshiri Sandy and Henry Surpris. The COA found out via a motion for appropriate relief that a Wake Assistant District Attorney and a Raleigh Police Officer knew their star witness was a drug dealer. Further, they memorialized their knowledge in an email chain on the ADA's private email account rather than her government email. That allowed her to avoid giving the information of their star witness' involvement in the drug trade to the defense. Worse, for the ADA, she allowed her star witness to testify at trial that he was not involved in the drug trade!

The defendants Sandy and Surpris, denied involvement in drug dealing, claiming that the witness was lying. Of course, without the information to impeach him, information well known to the prosecutor in the court room, their lawyers were unable to convince the jury that the state's witness was lying and their clients were telling the truth. A conviction ensued. Unfortunately, for the Wake D.A.'s office, the federal government was about to indict their witness and his involvement in the drug trade come out. But, the real surprise was the emails between the ADA and the RPD keeping that fact a secret from the defense and denying them the opportunity to effectively cross examine the witness.

The COA did the right thing, it followed the law and vacated the convictions. Wake's elected DA, Lorrin Freeman, when she found out, put ADA Colleen Janssen on paid leave so that an investigation could be conducted. While the COA did not name Janssen, your intrepid blogger, through a confidential source, found out that it was Janssen who used her own email account and was the prosecutor in the Sandy and Srupris case at trial. Janssen has now resigned and is, appropriately, facing an inquiry from the NC Bar. I have known Colleen Janssen for many years, and this brings me no pleasure to report. However, you cannot use a private email account to hide information in a criminal trial without consequences. The defendant's right to a fair trial demands the state and its agents be accountable for their misconduct.

Walt-in-Durham

Freeman files a motion to dismiss.

Well, dear readers, Sid has done it again. He's filed a lawsuit that has elicited a 12(b) motion. That means the defendant does not think that, if the court takes everything Sid has claimed as true, he still has not plead a viable cause of action. The state is right. You can read about it here: https://drive.google.com/file/d/0B7z91VniTzKQU3VpdS1ONFBvWlU/view?usp=sharing


Walt

Harr III motions and order

Well, Sid continues his string of frivolous filings. He posted this response to the U.S. District Court's order to show cause.

The court, as you might surmise was less than amused. The judge denied Sid's frivolous motion to disqualify pointing out that a disagreement about the law is not grounds to disqualify a judge. You can read all about it here.

It is worth noting that the court has ordered Sid to appear and show cause.

Walt-in-Durham

Sanctions against Sid Harr?

As many dear readers know, Sid Harr is a serial filer of frivolous lawsuits in several state courts and in the federal courts. One of his perpetually failed attempts is his litigation against Duke University. Sid has sued them three times. Now, the suits are known by their roman numerals. Harr I, Harr II and Harr III. All three allege the same facts and the same legal theories about Sid being trespassed off campus many years ago. I won't burden you with a recitation of the facts, as they are mostly non-sense. However, I will report that Sid has lost twice. (Harr I and Harr II) Now he has filed again. But, he was sanctioned in Harr II and that sanction was upheld by the U.S. Supreme Court when they refused to hear Sid's appeal from his loss at the Fourth Circuit. Now Harr III has triggered the court to issue a show cause order. You can read the order  here.

Naturally, Sid is not one to take such an affront to his dignity lying down. No, he knows that when he's in a hole, he has two choices, stop digging, or dig deeper. In Sid's case, he always digs deeper. He's filed a motion to recuse  Judge Eagles and Magistrate Webster. Two people he impugned in Harr II. Sid's frivolous law suits are usually entertaining, and he and Duke do deserve each other. But, Judge Eagles and Magistrate Webster do not deserve the insults that Sid likes to hurl their way.

Walt-in-Durham

Harr III

Here is a link to Harr III for your reading pleasure. My prediction, all but one defendant get dismissed under the sanction in Harr II. Associated Press will file and win a 12(b)(6) motion.

A college student, a soldier and an airman get on a train...

Sounds like the set up for  a joke. Except it's not. Three brave Americans, two of them servicemen got on a train. Hearing gunfire, they ran to the sound of guns and stopped a terrorist. The French have given them their highest honor. See the story here. But, to quote Abraham Lincoln, "the world will little note, nor long remember what we say" about these brave young Americans, "but, it can never forget what they did...." Spencer Stone, 23, Alek Skarlatos, 22, Anthony Sadler, 23 are brave and deserve to be long remembered for what they did. 

Subway Jared and justice?

Today, reading my facebook page, I came across one of my AFAM friends who was complaining that Jared, of Subway infamy, would serve no more than 12 years for his crimes as opposed to a black youth who was sentenced to 23 years for shooting a police dog. My AFAM friend was vexed at this and of course was raising a ruckus about the injustice of the apparent sentencing disparity. Of course, he blamed the whole thing on white privilege and a thoroughly fouled up justice system.

Some facts are in order. The black youth referenced is Ivins Rosier who was sixteen when he committed a burglary and killed the dog. The dog, was a retired police dog owned by a Florida State Highway Patrolman. Young Mr. Rosier is not a candidate for criminal mastermind. He was on juvenile probation for a previous burglary. As a part of his probation, he was required to wear an ankle monitor and he was on home arrest. He violated his home arrest by leaving to go burglarize the home of Robert Boody, the afore mentioned highway patrolman. Rosier joined up with some friends to do this burglary. When they got to Boody's home, they encountered a cantankerous German Shepard named Drake.

One of Rosier's cohort's shot Drake through a window. That allowed Rosier and his friends to enter the Boody home. Rosier went to the bedroom to look for loot. He didn't find much, but he did find the wounded Drake in the bathroom. Rosier admitted to shooting Drake another time, or two. Local police didn't have much difficulty linking Rosier to the burglary as his GPS equipped ankle monitor put him in the Boody home at the time of the burglary. For full details see this article.

Police obtained a warrant to arrest Rosier on the basis of the ankle monitor report and the burglary report. They arrested Rosier and took him into custody. In the police car, a Palm Beach County Detective engaged in some highly suggestive interrogation that convinced young Rosier that he was facing a long sentence for murder (untrue, Drake a dog doesn't come under the Florida Murder Statute) and that if he just confessed he could continue his high school studies and even go to college. (True only in the sense that Florida does offer education to convicts serving active sentences.) Despite the transparent untruths of what the detective was telling him, Rosier confessed and named his cohorts.

Subsequently, Rosier was waived into adult court. Why? Because he had exhausted juvenile court rehabilitation efforts. Rosier had a long juvenile record and had not been successfully rehabilitated. Thus, he left the juvenile court with no alternative but to waive him into adult court. There, he was convicted and sentenced to 23 years for armed burglary and animal cruelty. Sounds about right to me. Use a gun in the commission of a crime, kill a dog and burglarize a house - you need a long sentence to figure out what is wrong with your life.

Now to Jared Fogle, a creep indeed. Fogle is alleged to have traveled to New York to frequent young prostitutes, Some as young as Sixteen. For more sordid details, see the Indy Star. He allegedly asked one 17 year old prostitute to find him even younger prostitutes. Gross, and disgusting, no doubt. However, New York defines adults as being 16 and older. So, New York's statutory rape law does not apply to the crimes we know about. The worst that can be said of him is he frequented a prostitute. He also, going back to at least 2007 accessed kiddie porn on the internet. Another disgusting crime. Though not one of direct violence like Rosier's. Law enforcement was in something of a bind on Fogle's case. New York didn't have a felony to prosecute him with and lots of New Yorkers frequent prostitutes every day without being arrested. The kiddie porn is clearly a violation of federal and state law in Indiana. So, that's what they are hitting him with and throwing in the interstate travel to frequent a prostitute just to bump up the news factor of the case.

Does Fogle's, admittedly disgusting, crime spree compare with Rosier's? Not really. I think Rosier got a reasonable sentence for using a fire arm in the conduct of a felony. A very bad felony. And, frankly being about as dumb as a criminal can be. Fogle deserves serious prison time too, and he'll get it. Though not as much as Rosier and I can live with that too.

Walt-in-Durham

Intervening cause and Crystal Mangum.

Over at Sid's blog, a number of posters, well just two really, continue to misunderstand  and mis-apply the law. In fact, Sid is the worst of the bunch. I think a review of the case law is appropriate in this unhappy matter.

The general facts, most beneficial to the defendant are that Crystal Mangum got in an argument with Reginald Daye. During the course of that argument, Crystal armed herself with a steak knife and used it to stab Daye in the flank. Crystal made good her escape after stabbing Daye. Daye sought medical treatment from paramedics. Ultimately he ended up in Duke University Hospital and was operated on. Daye, was admitted in an intoxicated state, but the operation was initially thought successful. However, some days after the operation, Daye was assessed as in need of intubation. The initial intubation was esophageal and did not restore adequate air flow. Daye was re-intubated and this did restore airflow. After some time passed, Daye had no brain function and his family elected to remove him from life support. Thereafter he died.

Issue

When will an intervening act halt criminal liability?

Rule

A defendant will be held criminally responsible for second-degree murder if [her] act caused or directly contributed to the victim's death. State v. Jordan, 333 N.C. 431, 439, 426 S.E.2d 692, 697 (1993),  State v. Welch, 135 N.C. App. 499 at 503, 521 S.E.2d 266 at ___ (1999). To escape responsibility based on an intervening cause, the defendant must show the intervening cause was "the sole cause of death." Sate v. Holsclaw, 42 N.C. App. 696 at 699, 257 S.E.2d 650 at 652 (1979).

Application

In Welch, the court reasoned: "Defendant contends, based on the testimony of Dr. Stanton, that Lemmons' refusal to accept a blood transfusion was an independent and intervening cause of death, such as to cut off any responsibility defendant may have in the victim's death. However, it is clear from the evidence that Lemmons' act in declining a blood transfusion was not "the sole cause" of death." Id. Indeed, all of Lemmons' injuries resulted from the stabbing inflicted by defendant. Thus, but for defendant's act, Lemmons would not have been in need of a blood transfusion."

In Daye's case, Sid, not Crystal, contends that the esophageal intubation was the intervening cause of death, such as to cut off any responsibility Crystal may have in Daye's death. However, as in Welch, Daye would not have been in the hospital but for Crystal's stabbing of him. He would not have needed surgery. He would not have needed an intubation. Thus, as in Welch, but for the defendant's act, Daye would not have died.

Conclusion

The jury got it right. Daye's death was the result of Crystal's stabbing. Understand, Crystal's lawyers have grasped this since Dr. Roberts gave her report. That's why they refused to raise the issue at trial and they refused to raise the issue on appeal. 

Walt-in-Durham

New York defamation law survey.

New York uses different words than Virginia discussed earlier. New York calls it, defamation. Further, New York uses a common law approach rather than the mixed statutory and common law approach we are familiar from Virginia. Under New York's common law, the elements of a defamation claim are:

1. a false statement;
2. published to a third party without privilege or authorization;
3. with fault amounting to at least negligence;
4. that caused special harm or defamation per se.

See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999).

            New York courts rely heavily on the "vortex" notion of a limited-purpose public figure. See James v. Gannett Co., Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention."). "A person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). In New York, such figures have included candidates for public office, restaurants (for the purpose of food reviews), and religious groups. The latter category may make Phi Kappa Psi's case under New York law more difficult.

            When the plaintiff in a defamation lawsuit is a private figure and the allegedly defamatory statements relate to a matter of legitimate public concern, the plaintiff must prove that the defendant acted "in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, 38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar than negligence but lower than actual malice, focuses on an objective evaluation of the defendant's actions rather than looking at the defendant's state of mind at the time of publication. In a New York court, or a court applying New York law, the Columbia review of the Rolling Stone story might provide the evidence necessary for a jury to conclude the story was an example of a grossly irresponsible conduct without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.

At least one court has found that the same standard of fault applies to citizen or non-media defendants where the allegedly defamatory statements relate to a matter of legitimate public concern. See Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d Dep't 1985), aff'd 67 N.Y.2d 778 (N.Y. 1986) (no liability for letter to the editor unless writer was "grossly irresponsible"). I think rape is one of those matters of legitimate public concern that might tempt a New York court to apply the higher standard. In cases brought by private figure plaintiffs involving statements not related to a matter of legitimate public concern, New York courts apply a negligence standard.

            To determine whether statements relate to a matter of legitimate public concern, New York courts view the allegedly defamatory statements in context of the writing as a whole. They ask whether the matter can be "fairly considered as relating to any matter of political, social, or other concern of the community" and distinguish this broad category of newsworthy matters from "mere gossip and prurient interest." Overall, the test is deferential to the reporter's judgment about whether a matter is of legitimate public concern. See Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).

            New York courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, substantial truth, and the wire service defense. New York has not explicitly recognized or rejected the neutral reportage privilege.

            There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

            Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice.

            New York has codified the fair report privilege into law. N.Y. Civ. Rights § 74. Under the statute, speakers cannot be held liable for giving a "fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." A report is "fair and true" if it is substantially accurate. The Columbia review and the Charlottesville Police report show that the Rolling Stone story is far from accurate. In fact, Columbia could not substantiate any fact alleged in the article as accurate.

            New York recognizes a privilege that is similar to the wire service defense but explicitly extends protection to content originating from other sources in addition to wire services. Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will not hold republishers liable for reproducing defamatory content unless the republisher had or should have had "substantial reasons" to question the content's accuracy or the original speaker's good faith and reporting practices. See Karaduman v. Newsday, Inc., 51 N.Y.2d 531 (N.Y. 1980). Because courts applying these principles have dealt exclusively with traditional media entities such as newspapers and book publishers -- both as publishers and republishers -- it is not clear whether this privilege would apply to online speakers such as bloggers and citizen media websites.

            The status of the neutral reportage privilege in New York is not settled. The New York Court of Appeals has neither recognized nor rejected the privilege, and the lower courts disagree on whether it is part of New York law.

            The statute of limitations for defamation in New York in one (1) year. See N.Y. C.P.L.R. 215(3). New York has adopted the single publication rule. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948).  The single publication rule applies to the Internet in New York, with the statute of limitations running from the time the defamatory content first appears online. "Republication" of the allegedly defamatory content will restart the statute of limitations. A "republication" occurs upon "a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition.'" Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). The New York Court of appeals has indicated that altering the allegedly defamatory content may trigger republication, and a lower court has held that moving web content to a different web address triggered republication. See Firth v. State, 306 A.D.2d 666 (N.Y. App. Div. 2003). Regardless of the New York single publication rule and Firth, I would say that time is of the essence in this matter.

With many thanks to the Digital Media Law Project. 

Walt-in-Durham

Some thoughts and law on the issue of libel as it applies to the U.Va. rape hoax in the pages of the Rolling Stone. 

VVa. Code. Ann. §8.01-45 Action for insulting words.

·                                 All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

            The Virginia statute arose out of Virginia's long history of dueling. "Although application of [§8.01-45] is no longer confined to its original purpose of preventing duels, it has been interpreted by Virginia courts to be virtually co-extensive with the common-law action for defamation. For this reason any constitutional limitations that apply to the plaintiffs’ defamation action must necessarily apply to their “insulting words” claim as well." Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1987 U.S. App. LEXIS 12607 (4th Cir. Va. 1987). Va. Code. Ann. §8.01-45 only penalizes words used in a verbal attack directed at a particular individual in a face to face confrontation that presents a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000). Thompson calls directly into question the ability of a group to bring an action under Va. Code. Ann. §8.01-45. However, The Thompson court's statement that Va. Code. Ann. §8.01-45 only applies to individuals is dicta. That is, the Thompson court is ruling on a statute of limitations matter and it is not faced with a corporate plaintiff. Thompson is the only Virginia case I could locate that alleges this limitation. I would say that a strong argument could be made that Virginia should follow the Restatement (Second) of Torts § 564A standard, set forth as: "One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. . . ." "[Va. Code Ann. §8.01-45] plainly requires that the words used must not only be insults, but they must also “tend to violence and breach of the peace.” Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 477 S.E.2d 741, 1996 Va. LEXIS 107 (Va. 1996). The Allen court is strongly reverting back to the original purpose of the statute, to provide an alternate to dueling. If not incite to violence, then no recovery. Here, there was a measure of violence directed at the Phi Kappa Psi fraternity house, including smashed windows, bricks or other heavy objects thrown at the building and people living within, angry protests outside the house requiring police presence and graffiti painted on the building.

            As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985) cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985). The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985).

            "In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern." Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985).

            One of the key issues in the Rolling Stone article is Sabrina Rueben Erdely's failure to verify negative statements about people in her story. The Virginia Supreme Court in a very similar case addressed the issue. "In a defamation action brought by a school teacher against newspaper reporter and his employer, where a number of supervisors, a fellow teacher, and students, including some classmates of the complaining students, testified as to plaintiff’s good qualities as a teacher and contradicted virtually all the negative statements made by the persons the reporter interviewed, the students who contradicted the negative testimony were all shown to have been readily available for interview in the Richmond area, while the school authorities would not furnish the reporter with the names or addresses of other students in plaintiff’s classes, the jury could have inferred from the evidence that the reporter could have obtained this information from the students he interviewed but negligently failed to do so, and, in fact, one student gave the reporter the names of some of the other students, but the reporter apparently did nothing with the information, the jury had ample evidence from which to conclude that a reasonably prudent news reporter writing the article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so." Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32, 1987 Va. LEXIS 260 (Va. 1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (U.S. 1988).

            "Words that impute the commission of a crime that is punishable by imprisonment in a state or federal institution are actionable per se." Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42, 1995 Va. LEXIS 53 (Va. 1995). In this story, Erdely alleged actions that constituted rape and failure to report crimes. In Virginia Code Ann. § 18.2-61 provides for a mandatory minimum sentence for rape of five years and a maximum of life in prison. The Rolling Stone made allegations of rape. According to the Virginia Supreme Court, those are actionable per se. That means, the case will survive a motion to dismiss and the jury will be instructed the same.

            In this case, there is expert evidence of the standard for investigative reports. However, Virginia does not require that. "The trial court did not err in excluding evidence from an expert witness, a nationally known journalist, proffered on the standards for investigative reporting. A jury in this state is as competent as any expert to form an intelligent and accurate opinion as to whether a reporter should have conducted additional investigations. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32, 1987 Va. LEXIS 260 (Va. 1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (U.S. 1988).

            Jurisdiction might be a problem . The Fourth Circuit and the Virginal Supreme court have held: "It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words actionable under this section." Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. Va. 1894). Where a "defendant, in Virginia, wrote a letter to a third party in Washington, D.C., containing defamatory statements about the plaintiff. Plaintiff questioned defendant in Virginia in regard to the letter and defendant substantially repeated and assumed responsibility for the contents of the letter when he admitted its authorship and said to defendant that the letter spoke for itself. The defendant was liable in Virginia under this statute as he reiterated the insulting words to plaintiff in Virginia." Davis v. Heflin, 130 Va. 169, 107 S.E. 673, 1921 Va. LEXIS 148 (Va. 1921).

            Under Va. Code Ann. § 8.01-45, "malice, either express or implied, is essential to a recovery for slander or for insulting words, but actual or express malice need not be proved except as a basis for punitive damages. For the latter purpose it is indispensable." Windsor v. Carlton, 136 Va. 652, 118 S.E. 222, 1923 Va. LEXIS 112 (Va. 1923). Not the Va. Supreme Court's best effort at clarity. However, I think the court is saying that malice is only required for punitive damages. The court has also held that for insulting words made actionable by the statute, "it is not necessary to prove actual or pecuniary loss." Weatherford v. Birchett, 158 Va. 741, 164 S.E. 535, 1932 Va. LEXIS 294 (Va. 1932). "The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss." Boyd v. Boyd, 116 Va. 326, 82 S.E. 110 (1914); W.T. Grant Co. v. Owens, 149 Va. 906, 141 S.E. 860 (1928). See also, Jordan v. Melville Shoe Corp., 150 Va. 101, 142 S.E. 387, 1928 Va. LEXIS 298 (Va. 1928). "In an action, under this section, there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation." Boyd v. Boyd, 116 Va. 326, 82 S.E. 110, 1914 Va. LEXIS 36 (Va. 1914). "The amount of the damages is to be measured by the prejudice sustained by the plaintiff."  Moseley v. Moss, 47 Va. 534, 1850 Va. LEXIS 5 (Va. 1850). There is no fixed standard for measuring exemplary or punitive damages, and the amount of the award is largely a matter of discretion with the jury. Old Dominion Branch 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972). "While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation of the plaintiff or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted." Stubbs v. Cowden, 179 Va. 190, 18 S.E.2d 275, 1942 Va. LEXIS 211 (Va. 1942).

Walt-in-Durham

The Duke/Harr litigation continues on.

As many of you know, Sid Harr is a perpetual litigant when it comes to Duke University. He has now sued them twice over the same incident where he was told to leave campus. He lost the first time because he didn't have a legal theory to support his rather absurd claim. He later published a tape recording of the incident which made Duke look reasonable. Never one to be deterred, he sued them again using the same theory that the United States Supreme Court found to be without merit. Of course, you can't do that under our law, or anyone else's for that matter. Sid, never one to let the law or the facts stand in his way did file again. And, as you might imagine, he lost in the U.S. District Court. Of course he appealed. But, this time he was late with his filing. The 4th Circuit denied his appeal on the grounds that he was late in filing and he'd had his opportunity to fully litigate once and already lost. So, what does Sid do? He asks the 4th Circuit to review the case en banc! Here's Sid's petition.

It makes for humorous reading if not particularly enlightening reading. Sid entitles his reasons as "exceptional" thus commanding the full court's attention. First, he confuses state and federal court. And then he ignores the well settled law surrounding FRCP 12(b)(6). Without citing to authority, he tries to raise the fact that Professor Mike Adams was ultimately granted a trial after the District Court dismissed his case under FRCP 12(b)(6) as a reason the 4th Circuit should do the same for him. As usual, Sid demonstrates a complete lack of understanding of the law. He simply wants a jury trial because Mike Adams got one.

Once he's finished with Adams, Sid decides to insult a sitting District Court Judge and Magistrate, without any proof what so ever. I think Sid's paranoia is getting in the way of his ability to reason. This part of the petition is not funny, it is just sad and mean.

Of course, Sid has to complain about his being denied access to the District Court's law library. What he ignores is he can go to the NCCU law library and look at all the materials he wants. Of course letting Sid in a law library would be a waste of resources as he never pays attention to the law.

Finished with his complaints about the law library situation, Sid decides it's a good idea to engage in  a few more gratuitous insults directed at the District Court Judges and Magistrates. Again, very mean spirited. Finally, Sid closes with his theory that everyone, including the media is involved in a conspiracy against him and Crystal Mangum.

Sid and Duke deserve this perpetual litigation. But, the judges and magistrates don't, neither do the taxpayers of North Carolina. The 4th Circuit will dispatch his petition because the court below was correct that he filed late. And, the three judge panel that ruled so, is also correct.

Walt-in-Durham

Heads have rolled? Well, not many.

UNC Chancellor Little Carol Folt, from Dartmouth don't you know, said heads would roll as a result of the expensive Wainstein report. Well, our friends at WNCN are now reporting on the names of six who were terminated.

The most ironic is Jeanette Boxill, Ph.D. Ms. Boxill was the director of the Parr Center for Ethics. A touch of irony in an otherwise depressing tale. Boxill lost her job with the Parr Center and Little Carol has terminated her from the University. Of course Boxill is appealing. An appeal from the ethically challenged director of the center for ethics.

The rest of the terminees seem to be middle and low level employees, only one one other professor, non-tenure track at that, among the bunch. Timothy J. McMillan, a senior lecturer was let go. He admitted to Wainstein that he should have known what was going on. But, he claims he didn't and he says he did nothing to stop it. Well, thanks Mr. McMillan for your diligence. Don't let the door hit you on the way out.

To its credit, UNC-Wilmington, UNC-by-the-sea, let go an academic adviser who was identified in the Wainstein report and disclosed that name promptly in accordance with North Carolina law.

Walt-in-Durham

More than one side to the story.

When I was a child, my mother and father used to say to me: "There's always more than one side to the story." I have remembered that saying a lot in the last few weeks. First there was the UVA rape story that was woefully one sided in its presentation by the Rolling Stone.  That story has since collapsed. I won't go into that in detail in this post.

Now, the December 5, "peaceful protest" story in Durham is coming unraveled. Right after the "peaceful protest" several people took to facebook and at least a couple of preacher took to their pulpits to excoriate the Durham Police Department's handling of that so called "peaceful protest." They would have drawn the disdain of my parents. I, frankly, am ashamed that I did not call my own preacher to task for her sermon that blamed police for the violence at the "peaceful protest."

WNCN our local NBC affiliate is reporting that the protest was far from peaceful. According to the WNCN report, DPD was expecting a large protest that might turn violent on Friday December 5. They based that conclusion on social media postings threatening violence. A reasonable conclusion, I might add. According to DPD and the City Manager, the protest began at CCB Plaza and moved toward the Durham County Jail. Once at the jail, fireworks were launched at the jail into the air and paint was thrown on the street. Things went downhill from there. Ultimately, 31 people were arrested by 120 police officers. It seems that those who were claiming a totally peaceful protest were, at the least, uninformed. They failed to get both sides of the story. And in doing so they presented a version that was far - far from the complete truth.

Walt-in-Durham

More on rape and false accusations.

Lena Dunham has decided to respond to the criticism of her book: Not that kind of girl. The book makes two allegations about Ms. Dunham being raped. Most of the criticism has been directed at those two sections of the book. They are the most provocative. In her response to critics, Ms. Dunham says: "When I finally decided to share my story, it had ambiguities and gray areas, because that’s what I experienced, because that’s what so many of us have experienced. As indicated in the beginning of the book, I made the choice to keep certain identities private, changing names and some descriptive details. " Unfortunately, Ms. Dunham and her publisher did not make clear when she was using pseudonyms and when she was not. That lack of clarity lead to someone who had never had any contact with Ms. Dunham being identified as her rapist. After all, the real Barry was a well known conservative around Oberlin College when Ms. Dunham was there. She should never have been so sloppy as to not tell us when she was using a pseudonym. 

Thankfully, Ms. Dunham has now clarified the situation. She wrote: "To be very clear, “Barry” is a pseudonym, not the name of the man who assaulted me, and any resemblance to a person with this name is an unfortunate and surreal coincidence. I am sorry about all he has experienced." She should be sorry. Her trauma is no excuse for inflicting trauma against an innocent person completely un-involved in her experience. Her conduct was and is unacceptable. Her apology is a good first step. But, now she must atone and more importantly, she must never ever do this again. 

Walt-in-Durham

Mangum appeal briefs are filed.

Readers may recall that on the night of April 2-3 2011, Crystal Gail Mangum stabbed the man she was living with. A few days later, Reginald Daye passed from this life as a result of Crystal's stab wound. She was indicted in April 2011 and after many machinations, went to trial in Superior Court on November 12, 2013. Trial lasted several days and a guilty verdict was finally returned on November 22, 2013. Judge Ridgeway sentenced Crystal to a term of not less than 170 months to not more than 216 months in the custody of the North Carolina Department of Corrections. Readers may also recall that it was Crystal Gail Mangum who falsely accused three men of a rape that never took place. Readers may also recall that Crystal Gail Mangum assaulted her previous live in boyfriend and set fire to his clothes and shoes.

After her conviction, Crystal filed the Record and her Brief with the N. C. Court of Appeals. In her brief, Crystal raises only one issue: WHETHER ADMISSION OF EVIDENCE THAT DEFENDANT CRYSTAL MANGUM ALLEGEDLY ATTEMPTED TO ASSAULT MILTON WALKER IN FEBRUARY 2010 WAS ERROR WHEN IT HAD NO PROBATIVE VALUE TO PROVE ANY
MATERIAL FACT OTHER THAN THE DEFENDANT'S BAD CHARACTER?

Much has been made by Sid Harr at the Justice4Nifong blog about defense counsel's date errors. In fact, Sid missed more errors of counsel when it comes to dates. For example, defense counsel alleges Crystal was indicted on March 18, 2011. Three weeks before the stabbing took place on the night of April 2-3 2011. After reading the defense brief, I must conclude that the drafter was none too careful with dates. None of these issues are fatal to the brief, they just go to a lack of careful drafting. All in all, the state's recitation of the facts in its Brief is more accurate.

The defense raised one issue and one only, that is the prior bad acts admitted under rule 404(b). Hereafter, I will refer to this as the 404(b) evidence. Specifically the defense complained about Milton Walker's testimony about Crystal's threat to harm him with a knife on the night she burned some of his clothes and shoes. Walker's testimony is particularly damaging as it shows a violent temper and a eerie similarity to what she did to Daye. There is no doubt this is why the state offered Walker's testimony. Walker, despite Crystal's attitude toward him, considers himself a friend and did not want to testify. None the less, Walker was compelled to do so and he gave some damning testimony. Testimony that was, for the most part, backed up by a couple of Durham police officers.

In her argument, Crystal's lawyer is really at her best. She does a good job of highlighting why 404(b) evidence is so difficult for a defendant. More importantly, Crystal's lawyer does a good job of hitting all the limits to 404(b) admissibility. What she does not do is argue to overturn the precedents that allow so much 404(b) evidence into the record in North Carolina.  Frankly, this is not the best set of facts to make that argument. The state, as expected, did a good job of countering the argument. After all, the state has the weight of precedent on its side. The one thing going for Crystal is the Court of Appeals review de novo 404(b) rulings by a trial court. De novo is a latin phrase that literally means from the beginning. In law, we understand it to mean the Court reviews this ruling as if the court below had never ruled at all. However, that does not end the 404(b) analysis.

Once the trail court, and the Court of Appeals determine if 404(b) evidence is admissible, then the court must turn to a Rule 403 analysis. Rule 403, in short, says that a court may not admit evidence even if otherwise admissible, if its probative value is outweighed by the prejudice it is likely to cause. However, Rule 403 review is not de novo, but for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). As you can see, this rule is from the N.C. Supreme Court. Thus it cannot be overturned by the Court of Appeals, or even disregarded. The COA has to follow the Supreme Court's precedent. In an abuse of discretion analysis, the trial court will be affirmed if it has a reasonable basis for the ruling, any reasonable basis. I doubt the COA is going to overturn Judge Ridgeway on this issue.

Don't pay attention to Sid's effort to misdirect your attention. He claims that somehow Duke University had something to do with Daye's death. Crystal does not make that argument. the only argument she makes regards the 404(b) evidence. Sid is just attempting to keep his tiny band of followers distracted from what is really going on. A band that is both easily distracted and wants the distraction.

Of final note, Crystal does not raise any error regarding self-defense or her demonstrative evidence of the door which goes a long way toward the self-defense angle. It appears that she is pinning her whole hopes on 404(b). That's her strongest argument. Unfortunately, by not challenging the self-defense conviction as being unsupported by sufficient evidence, Crystal openly invites the court to engage in a harmless error analysis. That is exactly the opening the state jumped at in the later stages if their brief. Even if the COA is inclined to give her some relief on the 404(b) issue, they will most likely rule it harmless error.

Walt

Police misconduct.

Food for thought. I spent the weekend with my family and the question of Michael Brown came up. As the only lawyer in the group, several people asked me what I thought. I have posted elsewhere that I thought the Grand Jury did a good job over going over the record and making a decision. I have also posted that I do not think the DA had a conflict of interest as we understand it within the Rules of Professional Conduct.

However, Michael Bell, a retired USAF Lt. Colonel writing in Politico raises a very good point about police and prosecutors investigating themselves. Wisconsin has a law, thanks in part to Michael Bell, that calls for an outside investigation of police shootings. Lance the intern wrote at Justice4Nifong about his concerns about the prosecutor's perceived conflict of interest. While I still think the prosecutor had no conflict as it is recognized by the Rules of Professional Conduct. Lance and Michael Bell have very good points. What we really need, not just if Ferguson, but in the country as a whole is a system of holding police accountable. At the very least that means we need an independent review of police involved shootings.

I would go farther though. The Duke lacrosse fiasco shows the need for an effective system of outside review of police actions. In the fiasco, the State Bar of North Carolina provided an outside review of Nifong's disreputable prosecution. But, there was nothing like that for the Durham Police Department. The innocent men wrongly accused filed a civil lawsuit seeking an outside overseer for the DPD. The city fought that notion tooth and nail, ultimately prevailing on procedural grounds. In NC, we have been the victim of too many cases of police and prosecutorial malfeasance. Allen Gell, Darryl Hunt and Eric Daniels come to mind immediately. But, there sadly others. An outside review board in these cases would have saved us a lot of grief. These cases have cost taxpayers around NC millions of dollars that could have been put to productive use. If prosecutors and police knew that they were accountable, we would not have had to put up with these fiascoes. Nor would the innocent men involved had to be charged, and in some cases imprisoned for crimes they did not commit. Yet in no case has any police officer been disciplined. Not one!

I do not think that good police officers would oppose such a board. They want to do a good job. Good police officers do not want to be sullied by false prosecutions. Most of all, they do not want to be associated with unaccountable killers.

I do not know that an independent review of the Brown case would have reached a different outcome. As I wrote earlier, the Grand Jury did a thorough job and it looks like a good "No Bill" was returned. However, if the Ferguson Police knew that every police shooting would be referred to an ouside agency and the department as well as the officer would be subject to accountability, perhaps Officer Wilson would have not shot in the first place.

Walt-in-Durham

UNC vandals at work.

UNC student athletes vandalized the visiting locker room at Wallace Wade Thursday night following UNC's victory over Duke. Apparently, this was an extension of the celebratory painting of the victory bell. Worse, none of the coaching staff saw a thing and did nothing to stop the damage. Nothing? No, not a thing. Saw nothing did nothing. Well friends, where are the adults? I played football in high school. From the moment we left school on the bus to go on  a road game, through the whole game and the entire ride home, we were under the constant supervision of our coaches and staff. There was also a school official, usually the Principal or the Assistant Principal along too. I did not play football in college, but I did spend enough time around the athletic department as a tutor to know that football players never were left alone on game day. There was always a coach, a graduate assistant, or a football staffer with the players from the time the bus left until it got back. It simply boggles the mind that no responsible adults were present when this was going on.

Larry Fedora, it's time for you to step up and take responsibility. Find out which coaches were "not present" and find out why. Then dismiss them. Find out which players were the ring leaders. Coaches always know who their leaders are. For good or ill, coaches know. Dismiss the ring leaders from the team for the rest of the season. I know it's just the NCSU game and that's a big game for you. But, it's not as big as the school's reputation. Which is in tatters if you haven't noticed. Third, find the participants and make them run the stairs at the stadium, and run and run and run. Run them until it hurts or they are doing physical damage to their bodies. Teach them that doing stupid things have consequences.

Rebuilding UNC

Don Eggleston has an op/ed piece at the Greensboro News & Record today proposing how to rebuild UNC. Don is significant because he is "one of the family." He played and lettered in basketball under Dean Smith. He was a Morehead scholar and he received his law degree from UNC.

Don, a fellow attorney and all around good guy, proposes a scorched earth policy for UNC. Fire or retire everyone who is not clerical staff in any department that touched the scandal. That includes basketball coaches (Roy Williams, Sylvia Hatchell and a hose of coaches you and I have never heard of.) Don would close up the AFAM department along the way. As a side note, two very respected and very liberal college professor friends of mine both questioned how and or why AFAM could survive as a department. Both noted the scarcity of published works as an indication of how little scholarship was really going on. Both said that without scholarship, there is no point in a department because there is no one to teach. Don wants to clean out top administration too. He didn't call for Carol Folt's early departure, but I will add her to the list. Her treatment of Mary Willingham, who was right about everything she wrote, is deplorable. To that list, I would add Tom Ross. He was there for the end of this fiasco. He did nothing. Ross gives empty suits a bad name. It's time for that empty suit to leave the building.

Don's piece is reprinted below:

By Donald P. Eggleston

This open letter to the UNC family is both a reaction and response to the recent investigation and report by former Assistant Attorney General for National Security Kenneth Wainstein. I offer it in the hope that the university can apply appropriate remedies to recapture its academic credibility.

My suggestions are drastic, but only drastic remedies offer a reasonable opportunity for recovery of the respect we have lost, both academically and athletically. Those suggestions include the wholesale replacement of coaches, administrators, tutors and faculty who were complicit in the fraud and a re-examination of the appropriate relationship between intercollegiate athletics and academics.

Inherent in this analysis is a reconsideration of the “student-athlete” model. I have concluded that this term, ubiquitous in the National Collegiate Athletics Association’s lexicon, has been so demeaned by the current atmosphere of major-college athletics as to have no realistic application to the current condition. Therefore, I suggest a total reevaluation of its relevance in real world college athletics.

Who knew when?

I hold to the principle that it does not matter if a coach or administrator or faculty member did not have actual knowledge of the “shadow” nature of the classes. All of the parties involved had a responsibility to know.

There is no doubt that signs were sufficiently apparent to put everyone on notice. If I am a coach who has recruited my players, I am aware of their often-limited academic backgrounds and natural proclivities. When I see more than 80 percent of my players are taking the same course, I have enough information to warrant an investigation.

Further, if I elect to delegate that responsibility to someone else, I must answer to the failure of my delegate to effectively investigate. Constructive knowledge equals actual knowledge, and the blame lies with all.

Coach Williams’ role

With all due respect to coach Roy Williams, it is not about whether the “kids tried to do the right thing.” The problem is not what the “kids” did, but rather what the “adults” allowed, helped and even directed the kids to do.

Deflecting the attention to the “kids” is just an escape mechanism to deflect responsibility off the adults. The really sad part is that this deflection has been present for a long time. We have aided and abetted academic fraud.

We now have a unique opportunity to use this situation as a stepping stone to address a quickly evolving major college athletic atmosphere, study it and determine the appropriate means to adjust to it. As Richard M. Southall, Mark S. Nagel and Ellen J. Staurowsky conclude in a blog post for The Chronicle of Higher Education: “While the stated tax-exempt purpose of big-time college sports is education, we all know it is about entertainment and money. ... The academic fraud at UNC was a calculated cost of doing business, one that every institution with a big-time athletic program pays in one way or another. Some get caught breaking the rules, some don’t.”

The academic/athletic paradigm has changed. In the words of Gerald S. Gurney in his fine article, “Stop Lowering the Bar for College Athletes” (The Chronicle of Higher Education, April 10, 2011): “Because of the time demands of athletics and the deficiencies in academic skills that hinder high-risk athletes from competing in more-demanding curricula, they tend to select majors of least resistance with an abundance of elective coursework: general studies, multidisciplinary studies, interdisciplinary studies. They even resort to acts of academic dishonesty to maintain their athletic eligibility.”

My recommendations for further actions:

The athletics department. As I understand the current university model, the athletics department has been tasked with the overall management and supervision of the various individual sports programs. As such, athletics officials have the primary responsibility of overseeing the entire operation of each separate program, including academic performance. They failed in that role. I recommend the replacement of all non-clerical staff of the department who served in any capacity during the time athletes were enrolled in African and Afro-American Studies, or AFAM , classes. This should coincide with a complete review of the role and mission statement of the athletics department.

Sports program staffs. All non-clerical staff of any individual sports program in which any players were enrolled in any classes within AFAM be replaced. That includes all head and assistant coaches. As suggested earlier, they have succumbed to the disease of performance over academics that has led to the loss of all credibility, outside the community of the fanatic boosters of their respective or collective sports. No amount of finger pointing or gnashing of teeth is persuasive. We are all sorry that we were caught, but some of us are sorry that it happened. The issue is the exercise and acceptance of responsibility. Each sports program should be rebuilt upon a more integrity-based model in conjunction with my recommended restatement of academic standards and goals.

Academic Support Program for Student-Athletes. In recounting the involvement of the Academic Support Program for Student-Athletes, or ASPSA, in the scandal, the Wainstein Report describes a program that totally and abjectly lost its direction and understanding of its mission. Or, it could be said, when succumbing to the pressures applied by the various athletics programs, ASPSA chose to redefine its mission in line with that pressure. The outcome was that it accepted as its sole mission keeping athletes eligible.

Whether misled by signals, or lack thereof, from the administration and faculty, the program still failed. I am satisfied that all staff knew the difference between what was right and what they were actually doing. The entire staff of this program should be replaced. Further, the university should re-evaluate the viability and context of this program and, if it elects to continue it, redefine its purposes and policies.

If the program is to be continued, supervision and control over its operation, including the hiring of all counselors/tutors in the program, should be assigned to a division of the general administration and faculty. This program should be independent of the athletics department. Staff performance should be judged by students’ academic performance, not eligibility retention.

African and Afro-American Studies Department. I find it particularly troublesome that AFAM, now renamed African, African American and Diaspora Studies, was drawn into this scheme, given the importance of this department to the university’s diversity program. However, it is inconceivable to me, in the current climate created by this scandal, that AFAM will not struggle to retain any credibility in the academic community. Additionally, given the overwhelming breadth of the abuse outlined in the Wainstein Report, the reasonable conclusion is that no one in the department could have failed to know of or suspect the abuses. My conclusion is that the entire program needs a rebuild. All current faculty and non-clerical staff who were there at the time should be replaced.

Faculty Athletic Council. The failure of the Faculty Athletic Council is not just an athletic failure. It is clear that academic politics played a part in the failure of that group to closely supervise both AFAM and athletic performance. Wainstein suggests that the members of this committee were persuaded against close investigation of AFAM because of academic autonomy. Irrespective of the motivations, there is no doubt that it refused to exercise the very purpose of the committee. Quoting Wainstein: “Although the committee noticed that an AFAM class, AFAM 190 (AFAM Independent Studies), was one of two courses that accounted for the majority of student-athlete independent study enrollments, it ‘did not find any cause for concern in this situation.’ ... It would be more accurate to say, however, that the FAC did not try to find any cause for concern.”

Regardless of the primary justification, one must conclude that the council exercised the same “plausible deniability” defense to excuse its lack of oversight. This was once again a failure of mission. To regain credibility, the university must restate and reinforce the purpose of this committee, replace its members and recharge the replacements as to purpose.

Of course, it may not be appropriate or necessary to replace personnel who been brought in since the uncovering of the scandal, e.g. the new chairwoman of AFAM. But I agree with Luke DeCock’s statement in his recent commentary (Raleigh News & Observer): “The challenge now is whether North Carolina can become the national example of how to put athletics in their proper place going forward.”

I choose to believe that this fiasco can serve as an opportunity for UNC to lead by example. And one way to lead is to open a new dialogue as to the appropriate role of “big college sports” in the university community.

I believe we have a responsibility to every student who enrolls at the university; and we have abrogated and abandoned significant portions of that responsibility in the relentless chase for attention, athletic success and money.

If, indeed, “(W)e thought we were doing the right thing, felt very comfortable about it,” as coach Williams contended, we need to re-examine our comfort level and realign our thinking as to what is appropriate. I would like for UNC to be a leader in that much-needed examination and realignment.

Donald P. Eggleston is a member of the UNC-Chapel Hill Class of 1971. He was a John Motley Morehead Scholar, a basketball letterman under Dean Smith (1967-71) and received his law degree from UNC in 1974.