David Daniels’s attorney: Phone will not be given up for forensic examination under Fifth Amendment

Thursday, August 8, 2019 - 6:28pm

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David Daniels, the University of Michigan School of Music, Theatre and Dance professor currently on leave following multiple allegations of sexual assault, is denying a request to have his phone undergo foresnic examination under the Fifth Amendment right to not self incriminate, according to a response filed through his counsel, Francyne Stacey of Stacey Law Practice, on Thursday.

Eight days ago, attorney Deborah Gordon filed a protective order on behalf of her client who is the plantiff in the lawsuit, Andrew Lipian, claiming University lawyers engaged in practices “designed to oppress” Lipian.  Gordon wrote the University’s investigative process was aggressive and for inadmissible evidence to prove Lipian — a married man with three children — is gay.

Additionally, she wrote that proving the sexual orientation of Lipian would contribute to a theory that because he is gay, he actually welcomed the advances of David Daniels, a renouned countertenor charged with second-degree criminal sexual misconduct along with his huband, Scott Walters, after he received tenure from the University in a separate case. She said in an interview last week that this theory draws on negative LGBTQ+ steoretoypes, like gay men being promiscuous.

While Daniels has been placed on paid leave since August 2018, the University has publically considered the process of dismissing him from his duties. An investigation from The Daily uncovered that the University knew of Daniels’s alleged misconduct before he made tenure, though the University has disputed this.

Daniels denied Lipian’s claims and filed a countersuit against Lipian alleging “invasion of privacy and intentional infliction of emotional distress.”

Thursday’s filling states the Daniels will not provide his phone for forensic examination to University lawyers. According to the document, Daniels produced all communications between the two parties as requested and there is only speculation Daniels did not produce all communications, an argument which the lawyer noted there is no proof to support.

In addition to this, Stacey wrote Daniels is asserting his Fifth Amendment privilege against self-incrimination. With these two arguments in mind, Stacey requested the motion for forensic examination be denied by the court.

“As there may be evidence on Daniels’s phone that could or does pertain to these subjects, Daniels’s fifth amendment privilege is legitimately asserted,” the document read.

National Public Radio published the findings of a public records request filed with the University on Thursday afternoon. From this request, NPR received internal memos from the Office of Institutional Equity, in which it read that Daniels displayed a “a pattern of behavior that is harassing, abusive and exploitative of University of Michigan students, specifically students in the School of Music, Theatre and Dance in which he is a faculty member.” Daniels has a copy of these memos, which were mailed to him in April as part of the University’s intent to dismiss him.

Additionally, NPR found the University found five reasons — with multiple examples of each — to dismiss Daniels. According to the article, these reasons prove misconduct and include potentially criminal conduct. 

The reasonings are “soliciting” multiple University students for sex in exchange for money, which The Daily found in its investigation and is considered a criminal practice in Michigan; sending pornographic images and at least one video to students; making “open and graphic sexual comments” to University students and at least one prospective student; noting his “desire for sexual relationships” or “trying to engage in sexual banter” with multiple students during lessons and other academic or performance settings; and providing false information to OIE.

According to the memos found from NPR’s request, in these instances, Daniels expressed “potential or actual academic supervisory authority over some or all of the students” involved. It is unclear if any of the episodes listed happened before Lipian’s lawsuit was filed.

This article has been updated to clarify the defense of the case and the University's intent of dismissing Daniels.