The University rested its case in the Heather Sue Mercer Title IX suit Wednesday after calling to the stand former director of sports information Mike Cragg, Assistant University Council Kate Hendricks and several former Duke football players.
Following the plaintiff's rebuttal, the defense asked Federal District Judge James Beaty, Jr. for a directed verdict; if the judge, set to announce his decision this morning, grants the verdict, the defense will win the trial without jury deliberations.
Earlier in the day, Cragg denied using Mercer for publicity, contradicting her testimony last week that he had repeatedly pressured her to respond to media requests for interviews and appearances.
"She said, 'I didn't do this for publicity.' I said, 'I understand that. We're not looking for publicity either,'" Cragg testified. He admitted to having joked about a media request from the Late Show with David Letterman but said he did not seriously encourage her to do any interviews.
But in the plaintiff's rebuttal, Mercer's mother, Diane Mercer, said Cragg told her daughter in an Aug. 23, 1995 meeting that she was obligated to appear in a press conference just two days later, when Mercer eventually told the press she would have been on the team if she were a man. Although Cragg said the press conference was scheduled with the Mercers, Diane Mercer said he scheduled it on his own.
"[Cragg said], 'As a member of this team, you must do this press conference.' He said she shouldn't worry about it, just tell the truth.... He was very upbeat and positive about it," Diane Mercer said.
Diane Mercer said that given her and her daughter's August 1995 meeting with then-head football coach Fred Goldsmith-at which the coach told Heather Sue Mercer she would not dress out for games-the player did not know how to handle the press conference and was given no assistance by Cragg.
Goldsmith's decision not to put Mercer in uniform was publicized in a press release entitled "Mercer not on Active Roster" that quoted the coach as saying Mercer would act in the same capacity as she had in 1994-when she was a student manager.
In his testimony Tuesday, Goldsmith did not recall saying that, but Cragg said he took direct quotes from the coach.
Former player Sims Lenhardt, reiterating statements made by Goldsmith and assistant football coach Fred Chatham, said the media coverage of Mercer was "disgusting" and at times "annoying." He described an incident when former punter John Krueger purposely punted a ball in the direction of a photographer.
But former player Carlos Bagley, another of the plaintiff's rebuttal witnesses, disagreed with Lenhardt's assessment. "She knew she had a pretty much outside shot... but yet still showed up every day, still was on time to every practice, still worked as hard as anyone on the team," he said. "That's something to be admired [rather than considered] a distraction." Former player and rebuttal witness Tijon Redmon, who testified last week, was recalled to the stand yesterday and added that Mercer had served as an inspiration to the team during the 1995 season.
Bagley, Trinity '96, also testified about the controversial team selection process for the 1995 Blue and White scrimmage-at which Mercer kicked the game-winning field goal. He said it was the players-not the coaches, as asserted by Goldsmith in his Tuesday testimony-who chose which kickers would play on the two teams. He added that Mercer was one of the first kickers to be chosen. Redmon reiterated Bagley's statements, adding that Mercer was chosen first because of her athletic ability.
But former player Ray Farmer, who said he was also in the room during the selection process, contradicted their testimony. He explained that the coaches had chosen the kickers for each team to evenly distribute the "kicking power." But Farmer acknowledged on cross examination that Krueger, a punter, and kicker Ted Post, the top two kickers that season, were placed on the same team.
"I believe Heather was chosen... because we had the best punter, they got the best and worst kicker and we'd get the middle," Farmer, Trinity '96, said. He added that he could have blocked Mercer's game-winning field goal, and other players agreed that the kick was not particularly impressive.
In fact, several former football players testified Wednesday that Mercer never really had much kicking ability in the first place.
"She had the heart to compete at the Division I level," Farmer said. "Heather wanted to do as much as she could. Physically, she was not able to perform at the same level as the other guys."
Other kickers, too, would never get any playing time, but Goldsmith said Tuesday they were able to contribute to the team by playing on the scout team-a group of players who simulate the opposition in scrimmages with the first-string team. Mercer, he said, could make no such contribution.
"They want the better athlete out there [on the scout team]," said Lenhardt, Trinity '00. "From what I observed... she wouldn't have had the speed." Goldsmith and others have also argued that it would not have been safe for Mercer because scout members often engaged in high-speed contact play. But Bagley said such intense play was rare.
Mercer, testifying herself as a rebuttal witness, said she could have played on the scout team.
"It is very difficult for me to believe that I cannot play scout or would not [be able to].... That's extraordinary to me," she said in her testimony, which was at times angry and sarcastic.
Earlier in the day, the defense called Hendricks to the stand to discuss her action on the matter.
The university counsel said that after she received a March 26, 1997 letter from Melinda Lawrence, Mercer's attorney, she conducted an investigation into claims that Mercer was lower on the team's depth charts than she deserved. Hendricks said she determined there was no basis for the allegation and relayed this message to Lawrence in a phone conversation.
"A student at Duke University has many avenues available to them for filing complaints," said Hendricks, whose office is responsible for Title IX compliance.
Kathleen Smith, chair of Duke's Athletic Council and the biology department, also testified Wednesday about discrimination policymaking at the University.
The trial will reconvene at 9:30 this morning at the federal courthouse in Greensboro. Each side will have one hour to present its closing arguments.
Get The Chronicle straight to your inbox
Signup for our weekly newsletter. Cancel at any time.