PORTLAND, Maine — Duke University is attempting to legally force a
Scarborough author, who wrote about the high-profile and unsuccessful 2012 rape case against three of the school’s lacrosse players, to hand
over records of his communications with the players, their attorneys and
parents.
Dr. Robert David “KC” Johnson has thus far refused to give up the
documents, telling the North Carolina-based university they are
protected under the freedom of the press included in the First Amendment
of the U.S. Constitution. The First Amendment has been used to protect
journalists and their confidential sources.
Duke is being sued on two fronts by groups of former players and
their parents, who are claiming the university in effect punished team
members who were not charged with any crimes, and gave the players bad
legal advice.
In the spring of 2006, Blue Devils lacrosse players David Evans,
Collin Finnerty and Reade Seligmann were charged with forcible rape and
kidnapping after local stripper Crystal Gail Mangum said she was
attacked while performing in March at a party at the house shared by two
team captains.
The university canceled the remainder of the lacrosse season and the
charged players were the subjects of numerous media reports. , North Carolina Attorney General Roy Cooper dropped
all charges against the players after inconsistencies arose in Mangum’s
story and the players produced alibis proving they did not commit the
crimes.
In what became a black-eye case nationwide for Duke as well as local
police, county District Attorney Mike Nifong was disbarred for his
handling of the case and found guilty of criminal contempt.
Johnson, a Brooklyn College professor and author who lives in
Scarborough, drew national attention during the case by launching a
website defending the players and co-authoring the 2007 book “Until
Proven Innocent: Political Correctness and the Shameful Injustice of the
Duke Lacrosse Rape Case.”
On Monday, Duke attorneys filed a motion in U.S. District Court in
Portland to compel Johnson to turn over records of his communications
with the players, parents and attorneys that he used to write the book.
According to the filing, Johnson has refused to appear for
depositions in the case or to produce the documents requested by Duke
officials.
Portland attorney Peter DeTroy, whose firm Norman, Hanson &
DeTroy LLC is representing Duke locally, was not available for comment
Wednesday afternoon.
In their motion, DeTroy’s team argues that the players suing Duke
have refused to discuss a number of issues relevant to the ongoing case —
such as their reason for canceling a meeting with Durham, N.C., police
in March 2006 or how they decided to compile student identification card
usage data to build a digital alibi — standing behind the protection of
attorney-client privilege.
Duke officials are seeking to show that the players or their
attorneys shared the sensitive information with Johnson, an unprivileged
third party who wrote about those issues in his book, thus voluntarily
breaking the attorney-client privilege protection.
Further, Duke attorneys hope to deflect accusations that the
university’s lawyers initially put the players at a legal disadvantage
with bad counsel, by shining a light on the legal advice those players
were receiving at the time from their private attorneys.
But Johnson’s attorney, Portland-based Patrick Strawbridge, said the
author’s records of communications with players, family members and
lawyers are shielded from use in the ongoing court case by the First
Amendment.
He also disagreed with Duke’s claim it cannot reasonably get the
information it needs to build its case without forcing Johnson to turn
over his records.
“Our position is that the requests are improper under any rules that
would apply to third party discovery — because the information isn’t
crucial to their case, or the information could be obtained from other
sources that are less intrusive or less expensive,” Strawbridge told the
Bangor Daily News on Wednesday. “But beyond that, Dr. Johnson serves a
journalistic function both as author of the and of the book ‘Until Proven Innocent.’”
In his Monday filing, DeTroy rebutted that the university is not
seeking information from confidential sources, but rather sources openly
named in his book.
Strawbridge said he plans to file a response to that argument with the court by the Friday deadline to do so.
“We are going to be filing a response, but we disagree with their
statement of the applicable law, and we fully believe the law protects
the materials being sought here,” he said.
