Case Updates

A few updates in the civil suit.

First, and most significant, an out-of-court settlement was reached in the Pottawatamie case, a civil suit that resulted from massive prosecutorial misconduct, and about which I had blogged previously. As Radley Balko has argued, the Pottawattamie side of the case contended “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The two falsely imprisoned men received $12 million; the Iowa county didn’t admit wrongdoing, but the willingness to settle represented a reasonable reading of the Supreme Court tea leaves. Only Justices Alito and Roberts seemed openly sympathetic to the county’s side.

While the parties to the case could figure out which way the Court was likely to decide, Nifong attorney Jim Craven apparently thought that Pottawatamie would be his client’s ticket to freedom. Back to the drawing board.

The settlement is obviously a victory for the wrongly accused men, but probably a setback for justice, since the Supreme Court seemed inclined to place some minimal checks on prosecutorial misconduct. That said, as Volokh Conspiracy’s John Elwood pointed out, “While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue. The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant."

Who knows: perhaps the case in which the Court checks prosecutors will be the Duke civil suit. As egregious as the conduct of the Pottawattamie prosecutors was, even they didn’t personally direct the entire police investigation, as the disgraced ex-DA Nifong did.

Second, the Durham attorneys are justifying their fees by drawing “the Court’s attention” to two 4^th Circuit cases in which suits against cities or city employees were dismissed. The attorneys’ filing didn’t bother to explain the relevance of either case to the Durham lawsuit, probably because the facts of both cases radically differ from that of the Duke case.

In Monroe v. City of Charlottesville, the city of Charlottesville requested (not required) DNA samples from young, black men in the area after a woman claimed she was raped by a young, black man. One of the subjects of the procedure, Larry Monroe (who voluntarily gave his DNA), sued. The district court dismissed the suit in large part because Monroe failed to state an actionable claim, and also because “Monroe had little interest in or knowledge and understanding of the case, and appeared to be merely lending his name to the suit.” Certainly even the Durham attorneys aren’t suggesting that the Duke plaintiffs have failed to state specific civil rights claims—or that Reade Seligmann, Collin Finnerty, and Dave Evans have “little interest in or knowledge and understanding of the case.”

In one respect, Monroe does have some relationship to the Duke case—but it helps the plaintiffs, not the city of Durham. Although most of his case was dismissed, including his claim that he was targeted because of his race, Monroe was “allowed to proceed on his individual claims of (1) an equal protection violation based on the City’s alleged failure to institute similar investigation methods when the assailant is described as white.”

It’s not too difficult to see the potential relevance of this finding to the Duke case. As of March 2006, Nifong’s only (slim) hope at a primary victory (and thereby keeping his job) was to maximize his performance among the black vote. Against a black candidate and a white challenger (Freda Black) who actually had ties to the local African-American community, this seemed like an impossible order—until the Duke case came along. Strong evidence exists that his (unethical) handling of the case—motivated, as the DHC inquiry found, by his political concerns—raised his support in the black community and paved the way to his narrow primary win, in both the primary and the general election.

Imagine if the races in the Duke case were reversed: would Nifong, the DA desperate for the black vote, have engaged in race-baiting public comments, withheld exculpatory DNA evidence, and ordered a rigged lineup to falsely bring charges against black defendants? It is inconceivable that he would have done so.

The facts of the second case cited by the Durham attorneys, Francis v. Giacomelli, are even further afield from the Duke case. Francis arose when the former Baltimore police commissioner, Kevin Clark, sued the city of Baltimore and former Baltimore mayor Martin O’Malley after O’Malley fired the commissioner. Both the district court and the 4^th Circuit (correctly) held that O’Malley was entitled to qualified immunity.

Since the Durham attorneys don’t explain why they cited Francis, it’s difficult to guess why they thought the case was relevant, but presumably they believed that a finding of qualified immunity for O’Malley would somehow bolster their claim that various Durham police officials and ex-City Manager Patrick Baker deserve qualified immunity. Best of luck to them on that argument.

A reminder that I blog fairly regularly at Minding the Campus; and also at Cliopatria. Will be back at DIW when developments in the civil case warrant.

Updates

Posting will be light until there are new developments in the civil case; or if there is significant movement on one or two other case-related fronts.

In the meantime, even as the Group of 88 clings to its favored position at Duke, it's worth remembering the legacy of the case for society as a whole. From two recent items:

Radley Balko, in an interview with the Economist: "One real disservice the Duke lacrosse case did for the criminal-justice system is it put in the public consciousness the idea that bad actors like Mike Nifong are regularly disciplined for misconduct. In truth, that case was really exceptional."

Note that for all but the handful of true believers in the deeper recesses of Durham, Mike Nifong is now the national symbol of prosecutorial misconduct.

(By the way, I'd disagree, at least in part, with Balko's point: the high-profile nature of Nifong's humiliation provides at least some deterrence to future prosecutors intent on cheating and breaking rules--lest their last name, too, become a verb meaning "to use the law to destroy innocent people.")

2.) Gary VanSickle, in golf.com: "Even legitimate news organizations have joined in past rushes to judgment that went very wrong, notably the Olympic bombing in Atlanta and the Duke lacrosse rape story."

Note that for all but the handful of true believers in the deeper recesses of Durham and in certain quarters of the Duke faculty, the media's coverage of the lacrosse case is a handy reference points for the shamefulness of rushing to judgment.

While this blog will go dark till future developments, I continue to blog at Minding the Campus and at Cliopatria.

The "Victim" Was a "Girl"

Apart from the obvious—that in both the specifics of the alleged crime and the (to date, non-existent) conduct of the prosecutor the Sacred Heart controversy has no similarities to the Duke lacrosse case—I have no comment on the specifics of the allegations at Sacred Heart. But it is striking to read some of the early press coverage. (Emphasis added throughout.)

Dashiell Bennett, Deadspin:

The victim told police they got naked and assaulted her.

It’s interesting to discover that Bennett—a mere hours after the allegations first went public—had concluded that a crime had occurred, making the (unnamed) accuser “the victim.”

Daniel Tepfer, Connecticut Post:

According to police, the 18-year-old female victim, from New Jersey, was having consensual sex with Sanders in a room at SHU's Roncali dormitory across Park Avenue from the Fairfield campus when Sanders suddenly held the girl down on the bed and called two other males to join him.

Tepfer softens his discovery that a crime occurred behind the “according to police”—but since his “the 18-year-old female victim” isn’t in quotes, the summary appears to be his own. Like Bennett, he has concluded that a crime occurred, since otherwise, how could the (unnamed) accuser be a victim?

Jessica Wakeman, The Frisky.com:

Sanders allegedly held the victim down while Travers and Triner sexually assaulted her; when she screamed and struggled, Travers and Triner fled the room.

It’s unsurprising, of course, that a feminist blog would automatically conclude that the mere filing of a rape allegation means that a crime occurred, thereby making the accuser “the victim.” But what does it say about the standards of Deadspin and the CT Post that they adopted the same guilt-presuming standard?

On another front, Andrew Strickler, Newsday:

He said all three men involved had been drinking, as had the girl.

The (unnamed) “girl” and two of the (named) “men” in the case are the same age. It’s unclear if Newsday policy suggests differing ages of adulthood for males and females.

Trepfer, again:

While Sanders held the girl down, police said the two other males took off their clothes and sexually assaulted her.

The CT Post doesn’t identify the 18-year-old male suspects as “boys.”

Every article I read about the allegations names the three suspects; none names the accuser. Apart from that point, some early coverage--notably that of Stephanie Rietz of the AP--was scrupulously neutral, and a model for others to follow.

From the Court

Last week featured the latest Craven filing from the Mike Nifong camp. Nifong attorney Jim Craven filed a four-page brief (which included a grand total of 14 lines in his own words) regarding the Pottawatomie case, which I have previously discussed.

Craven’s conclusion? "We suggest that if the Supreme Court rules in favor of the Iowa prosecutors/petitioners on the immunity case, such a ruling would likely apply to the defendant Michael B. Nifong in this case.” Craven’s argument in support of that conclusion? Nothing. Craven devoted not even one of his fourteen lines to offering an argument on behalf of his assertion. He also cited some amicus briefs that actually distinguished the sort of behavior exhibited by Nifong in the lacrosse case from that of the Iowa prosecutors.

To tease out Craven’s (unoffered) argument: if the Supreme Court sides with the Iowa prosecutors, then all prosecutors who decide to personally supervise the police investigation, from a point well before any decision to charge is ultimately made, should be shielded from civil suits regarding any of their misconduct—even as the police officers who they corruptly directed will not be shielded from civil suits.

The Court’s oral argument offered little to bolster Nifong’s Craven view. Only two justices, John Roberts and Samuel Alito, seemed indifferent to designing a solution that might hold the Iowa prosecutors accountable for their actions; the duo has a well-deserved reputation for taking the government’s side regarding virtually all criminal justice issues, so their pro-prosecutors position in the oral argument came as little surprise. As usual, Clarence Thomas didn’t ask any questions in the session; the other six justices appeared to have an open mind about the case.

Attorney Stephen Sanders , representing the two ethically challenged Iowa prosecutors, went out of his way to frame his claim in such a way that it would not apply to the behavior Mike Nifong exhibited in the lacrosse case. “If a prosecutor’s absolute immunity in judicial proceedings means anything,” declared Sanders, “it means that a prosecutor may not be sued because a trial has ended in a conviction. Yet that is exactly what happened in this case.” Of course, in the lacrosse case, Nifong never took his manufactured evidence to trial, so never had the opportunity to establish the immunity that Sanders feels his clients deserve.

The attorney couldn’t have been clearer on this point: “There is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation [emphasis added] while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute [immunity].” Nifong’s key misconduct—his improper public statements, his withholding of exculpatory evidence, his ordering the police to run a lineup that blatantly violated their own procedures, his decision to go ahead with the case though lacking in probable cause—all occurred “during the investigation,” or when Nifong, the elected DA, improperly assumed personal control of the police investigation.

When asked by Justice Ruth Ginsburg whether he was envisioning a process in which police officers who manufactured evidence would receive only qualified immunity while a prosecutor who engaged in comparable conduct but didn’t try the case would receive absolute immunity, Sanders demurred. The prosecutor’s role would be same as police officer who was subject to civil suit, he reasoned,"if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution”—as occurred with Nifong in the lacrosse case.

Ginsburg summarized the Iowa prosecutor’s position: “You can have a prosecutor, who wasn’t involved in the trial, [who] would have liability.” Sanders agreed.

So Craven, it appears, is counting on the Supreme Court not only deciding in favor of the Iowa prosecutors but issuing a ruling going beyond what the attorney for the prosecutors desired. That’s possible, but unlikely.

One point in the oral argument showed just how extraordinary Nifong’s usurpation of the police role in was. Justice Stephen Breyer seemed unsympathetic to the prosecutors, but he worried about the effects of a decision allowing civil suits to go forward, lest such a ruling make prosecutors gun-shy about moving in to check out-of-control police officers. “All things being equal,” Breyer maintained, “I think it’s probably a good thing to get prosecutors involved in the questioning process” early. “That has kind of a check on police.” Breyer continued: “The concern I’d have is that the—this will discourage the prosecutors from becoming involved in the witness—witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.”

Breyer, obviously, has never met Mike Nifong.

"Alleged"

The media generally does not withhold information as a matter of official policy. But, to my knowledge, every major newspaper in the country has an official policy of not reporting the names of accusers in rape or sexual assault cases. (I’m not aware of any paper that has a policy of refusing to report the name of suspects in sexual assault cases.) Though this practice stems from good intentions (a belief that the reporting of accusers’ names will make some real victims unlikely to report the crime), the net effect subtly shades reporting in favor of the suspect’s guilt.

With that extraordinary backdrop in mind—that every newspaper already has a policy of framing coverage of sexual assault cases in such a way that suggests readers should accept the validity of the accuser’s story—comes a recent Chronicle letter from a UNC biostatistics professor named Eric Bair. Bair criticized the Chronicle for using the word “alleged” to describe events in an article detailing the filing of rape charges against a Duke police officer. “Can’t we just say,” the UNC professor mused, “‘she was raped’”?

Bair’s letter explained his reasoning. He conceded that the suspect, Officer Webster Simmons, “is innocent until proven guilty,” and that it was acceptable for the Chronicle to write that the accuser had identified Webster as her alleged attacker. And he further admitted—albeit obliquely—that the Duke campus had first-hand experience with a woman who said “she was raped” having spectacularly lied about the claim.

Nonetheless, Bair described the version of events presented by Simmons’ accuser as “the victim”—not even “alleged” victim—as entitled to belief by the media. (Why newspapers should accept as true what an accuser says about an alleged crime but not trust her identification of the alleged criminal Bair didn’t say.) The Chronicle’s using terms such as “the alleged attack,” “the alleged assault,” “the alleged rape” and “the alleged victim” could be seen as “creating an environment where all women who report a rape are presumed to be liars until they can prove otherwise.” Indeed, continued Bair, “a cynic might suggest that the editors of the Chronicle believe that the reports of rape victims are inherently unreliable.” (A non-cynic might suggest that, in the aftermath of Crystal Mangum’s fantastic lies, the Chronicle has, appropriately, decided to be neutral in reporting the specifics of allegations of rape.)

The policy, Bair concluded, could be seen as “casting doubt on the credibility of rape victims generally or discouraging other women from reporting incidents of rape.” In other words: to not discourage true rape victims from coming forward, newspapers must not only not report their names but must accept everything they say (apart, apparently, from the identity of their alleged assailant) as true.

In response to several pointed comments in the Chronicle discussion thread, Bair held his ground, suggesting that because the Chronicle doesn’t regularly use the word “alleged” to describe other crimes, it shouldn’t do so in describing sexual assault. I e-mailed Bair to ask him if his proposed standard didn’t excuse the (widely condemned) early, credible coverage of the Nifong/Mangum lies. He graciously responded, suggesting that based on his knowledge of the lacrosse case, “there was virtually no physical evidence to corroborate the woman’s [Mangum’s] claims of rape and that the entire thing was the result of a district attorney who was afraid of losing reelection of he didn’t prosecute the case.”

The issue, he continued, is a “difficult” one—balancing the public’s right to know about violent crimes versus protecting the rights of the accused. However, whatever standard a particular newspaper (or the media generally) chooses to adopt, I think it should be applied consistently . . . If the Chronicle were describing every single crime report as an ‘alleged’ incident, I wouldn’t have a major issue with the reporting. However, the fact that they only seem to be doing this in a particular report about rape suggests that the author in question or the editorial board of the Chronicle believe that reports of rape are intrinsically less credible than reports of other crimes. Given that many women are already afraid to report rape cases for fear that they will not be believed, I find that to be very troubling.”

But, of course, the burden of proof about whether a crime occurred in sexual assault differs from that of most other crimes. Take, for instance, murder: police investigate the crime only when they discover a body (or, in highly unusual cases, when they conclude that a missing person was in fact killed). Or robbery: police make a charge only after their investigation discovers that something was, in fact, robbed. Or kidnapping: police make an arrest only after their investigation produces evidence that someone was kidnapped.

With regard to sexual assault, on the other hand, North Carolina law (and that of most other states) requires no corroborating evidence: a person can be convicted of rape solely on the basis of the accuser’s testimony and in-court identification (even if the accused is, say, on a videotape more than a mile away at the time of the alleged “crime”).

Because a lower burden of proof is necessary to bring charges in a sexual assault case, the range of possible defenses is much wider. A suspect accused of murder can’t credibly claim that the victim wasn’t actually murdered. Except in highly unusual cases, a suspect in an armed robbery can’t credibly claim that the victim or institution wasn’t robbed. But in a rape case, a central line of defense can be—and often is—that no crime occurred in the first place. Bair’s standard suggests that newspapers should unequivocally declare that such a line of defense is false, by accepting as true the accuser’s claim of being attacked.

The issue is, as Bair suggests, a “difficult” one. But it is made more difficult by the media’s more general policy in rape cases of not reporting all the facts by withholding information about the accuser’s identity. Given that most sexual assault reporting already tilts toward the accuser, it’s hard to fault the Chronicle for not electing to accept, from the beginning, everything the accuser says (apart from the ID) as absolutely true.

hat tip: Anon.

News & Notes

Few journalists performed as poorly in the lacrosse case as Samiha Khanna. Virtually every statement in her N&O interview with false accuser Crystal Mangum turned out to be wrong. Khanna seemed not to have even bothered to do a basic reporting task—checking her interviewee’s name in the N&O database—which would have uncovered not only Mangum’s criminal conviction but would have proved that Mangum had lied to Khanna in claiming that she was a newcomer to the world of exotic dancing.

Perhaps most problematically, Khanna conceded that she was approaching the case through a far-left ideological prism: "I think Tim Tyson taught readers Sunday about a history not many were aware had occurred. Durham is a place of many new residents, people who may not have the institutional knowledge of the university's history in the community. We are trying to explore these notions as we follow up on the story in the coming weeks. In response to your specific question about Mr. Tyson’s piece—I haven’t seen an equivalent piece in other publications. Many people have spoken out about a history of sex crimes on college campuses, but not issues of race and gender on the Duke campus specifically. These are keys to thorough follow-up stories that we are working to document." [emphases added] Liestoppers correctly termed Khanna’s reporting on the case “irresponsible and willfully misleading.”

Khanna was downsized from the N&O in 2008 and spent nearly a year outside the journalism industry (as a “public relations specialist”). That’s no surprise: with the financial difficulties that journalism is currently experiencing, good reporters are having trouble getting jobs—to say nothing of figures such as Khanna.

Incredibly, however, she’s back working as a reporter—though at an entity where the sort of ideological bias she demonstrated in the lacrosse case is a job requirement. Khanna is now a beat reporter for The Independent, which formed a critical element of the Nifong base of “true believers.” Khanna’s brand of “journalism” is exactly what people expect from the Indy.

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Jesse Jackson managed to insert himself back into case-related news last week. In an interview with the Greensboro newspaper, Jackson gave his take on the case:

“The good news is those boys’ parents paid to get the proper legal representation and get them vindicated. So often, young black youth and youth who are poor, don’t have legal protection. That’s why you have 2.3 million Americans in prison.”

That’s a very different interpretation than Jackson originally offered. First, of course, Jackson stated that his organization’s donors would pay Mangum’s college tuition, even if (as ultimately occurred) it was proved that Mangum had lied. Second, he published a column riddled with false assertions: that “this was the first time [Crystal Mangum] had been hired to dance for a party”; that “the one African American on the team wasn’t there”; that “we know that the two women were abused”; that “the Duke players are maintaining a code of silence”; that “it shouldn’t take the brutalizing of a mother of two” to “lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many.”

And a year after writing those words, the Rev. Jackson maintained, “I didn’t make a mistake.”

Of course he didn’t. And now he’s on the scene to preach “the good news.”

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A couple of follow-up items from the comment thread regarding other experiences with the Duke fundraising arm:

I’ve had a similar experience to that of “ES Class of 1990.” For 3 years now I’ve responded to solicitations from Duke by saying that the funds I would otherwise give are “on hold” until the civil suits are resolved, because I believe the university should not be spending donor money on legal fees supporting the defense of various administrators who were not acting in the best interest of the institution and who made serious (and entirely avoidable) mistakes in judgment. This year, the student who placed the call had “talking points” about how the annual fund could not be spent on legal fees. (As if the annual fund couldn’t be spent on other things that could then free up funds from other accounts to pay legal fees!) In any event, Duke annual giving is prepared to encounter resistance from alumni who are questioning whether the institution is deserving of their largess given the current state of leadership.

Another:

The telephone exchanges I’ve had with Duke students dialing for dollars, once or twice annually, have been nearly identical to the one reported by ES Class of 1990.

Generally, the talking points for cheerful, optimistic, true blue Dukies seem to be along the line: The lacrosse affair was a long time ago, it was an unfortunate isolated incident not indicative of what’s great about our wonderful university, President Brodhead made an eloquent apology (have you seen the video?), and all that’s behind us now.

I usually ask about the status of the ongoing lawsuits, and why have several members of the Group of 88 professors been rewarded with positions of leadership and increased responsibility.

That’s where the conversations abruptly end.

In the Can

I recently received an email from DIW reader and commenter ES Class of 1990. He reports:

I got a fundraising call from a Duke Freshman this evening. This is a tried and true Duke event, in which living groups raise money for Duke and get a slice for their group or cause...I have done it myself. It is called “Dialing for Dollars.”

When I informed the polite young lady that I would not contribute to the university in any financial way until there had been an accounting of the behavior of the Gang of 88, she pointed out to me that Brodhead had in fact apologized and that the video was on YouTube. I countered that they still had not addressed the fact that several students had their rights to privacy violated and that faculty had in fact violated their own code of conduct...both events that would preclude any giving on my part until they had been sorted out in a public forum. I wished her good luck and ended the call.

It hit me later...they had a planned, “in the can” counter to the Gang of 88 argument! ”Look here, the President DID apologize, and here is the URL.” They clearly had been briefed and coached to deflect this argument to giving, knowing that it would be a sticking point with alums.

Is that amazing or what?

Indeed the news is amazing, for at least three reasons beyond the obvious: the fact Duke has an “in the can” response suggests this issue regularly comes up in fundraising pleas.

1.)These remarks represent the first acknowledgement by anyone affiliated with Duke that Brodhead’s September 2007 statement referred to the Group of 88. In his remarks, the President didn’t specifically reference the Group, but merely apologized for ill-judged and divisive comments by unnamed Duke professors.

2.) While it’s nice to know that Duke finally recognizes the Group’s statement as “ill-judged and divisive,” the acknowledgement raises the question of why Brodhead’s apology never accompanied any policy changes to deal with the problem that the Group’s statement illustrated.

In that respect, the “apology” is a little like an apology from a neighbor whose little boy regularly tosses a baseball through your window—but who does nothing to ensure that the little boy sees that he did something wrong; or to ensure that the following day, the little boy doesn’t again toss the same ball, in the same direction, and through the same window. At some point, the “apology” rings a little hollow.

3.) ES’s point about Duke not living up to its own standards is well-taken—even more so in light of a front-page story from yesterday’s Times. The article profiled a deeply troubling move by the Cook County (Ill.) State’s Attorney to subpoena records, including grades, from the student journalists in the Medill Innocence Project, a program at Northwestern’s journalism school. The interim director of the Illinois Press Association observed, “Taken to its logical conclusion, what they’re trying to do is dismantle the project."

Faced with a dubious demand from a local prosecutor that would seem to violate the federally protected rights of its students, how is Northwestern responding? The dean of the Medill School blasted the subpoena as “astonishing” and has committed the institution to vigorously contesting the prosecution’s demands in court. Such a response, of course, would be fully expected, both by parents and by the Congress that passed FERPA.

Contrast the Northwestern approach to defending students’ federally protected rights to that of Duke. When the Durham Police, working alongside the disgraced ex-DA Mike Nifong, demanded that Duke turn over FERPA-protected information regarding the lacrosse players, Duke did so willingly. Then, stunningly, the University didn’t come clean about what it had done—even after a subsequent court hearing on the request resulted in even the prosecution-friendly Judge Titus ruling that Nifong’s demand fell afoul of federal law.

Brodhead, it should be noted, never apologized for the FERPA fiasco.