Valuing Procedure

Since late April, a pattern has emerged in the Duke lacrosse case. What initially was framed as an episode of unspeakable misconduct by college students has transformed into an example of dubious behavior by their elders.

As women’s lacrosse coach Kerstin Kimel observed several weeks ago, the captains of the men’s squad “made a very bad decision in hosting the party and hiring strippers.” But that decision, for which the captains deserved to be criticized, pales in significance when compared to the massive procedural misconduct demonstrated by Durham D.A. Mike Nifong. The utter silence of the Duke arts and sciences faculty about Nifong’s behavior therefore stands in stark contrast to the professors’ eagerness to condemn all the lacrosse players at a time when Nifong alone was supplying information about the incident.

As their administrators and professors have ignored both the abuses of due process that have marred this case and the unfair, group-based characterizations of the lacrosse players, Duke students have taken the initiative. Though Robert Bliwise only spoke to one undergraduate (who was, unsurprisingly, harshly critical of the team) for his Duke Magazine article on the case, hundreds of Duke students participated in pro-due process campus protests at the tail end of spring term; the women’s lacrosse team even expressed their solidarity with the targeted players at the Final Four this past May. And dozens of undergraduates who know one of the targeted players, Reade Seligmann, have publicly testified to his character—at a time when Seligmann’s professors remained silent, allowing grossly inaccurate portrayals of him to linger.

Given this pattern, I recently wrote to the head of ACLU@DUKE, Daniel Bowes, to ask whether the campus ACLU had decided to fill this void; I specifically wondered about the group’s opinion of Nifong’s photo lineup, which violated city procedures and statewide norms in no less than four ways. Unfortunately, my e-mails to Bowes landed in his spam box; after my post on the NAACP and the case, he got in touch with me, both privately and through public comments.

Regarding events last spring, Bowes wrote:

As the initial facts concerning the case became clear, it was obvious to the ACLU@DUKE’s members that what D.A. Nifong was doing was unethical, inappropriate, and illegal. However, for better or worse we made the decision to focus our efforts on increasing the conversation within Duke’s community. While we did not feel qualified to speak on the O’Reilly factor or similar shows—we felt comfortable telling our classmates that the immediate, large-scale presumption of guilt, and the circumstances that Nifong created that allowed such to happen, were reprehensible and not so different from the very same presumptions that had for so long—and still today—plagued minorities.

This sentiment, it seems to me, should have guided the NAACP’s response to this case, especially as more facts have emerged about the prosecution’s tactics. Instead, to its long-term detriment, the organization has taken the unfortunate approach of giving a pass to the Nifong-orchestrated lineup while adopting a hard-line victims’ rights position.

Bowes added that, last spring, “We found that much of the Duke student body already felt as we did, but many were too intimidated by the outside media to openly speak their minds. However, once we and a few other students began to speak out, more and more students followed. You need only look in the campus newspaper archives (dukechronicle.com) (the editorial section specifically) to see the emersion.” Indeed, the paper compiled a strong springtime record of coverage and editorials, easily outdistancing the performance of either the N&O or the Herald-Sun for most of that period. Members of his organization, Bowes recalled, “were somewhat comforted by the fact, and still are today, that are large proportion of the conversation regarding the lacrosse case on Duke’s campus revolves around Nifong’s inappropriate behavior.” He also personally briefed Duke student Stephen Miller, who was a regular on both Headline News and FOX broadcasts last spring.

Bowes added that ACLU@DUKE has been very active in protesting the activities of a state agency, Alcohol Law Enforcement, whose search and seizure practices a Durham judge recently found to be unlawful. And the group has worked with the Duke University Police (which, in contrast to Durham counterparts, appear to have behaved with consistent professionalism in the lacrosse affair) in an event speaking “to students candidly on what their rights are and how to protect those rights.”

Bowes serves in two capacities—as president of ACLU@DUKE and the Duke/Durham Community Liaison. Regarding the specifics of this case, I wonder about the tension between the two posts. It’s clear that a structural problem exists at Duke: having an excessive number of undergraduates living off-campus all but invites town/gown difficulties. It’s also clear that the March 13 incident and its aftermath has adversely affected relations between Duke and the Durham community and stimulated increased anti-Durham sentiments among some students.

That said, the Durham leadership—ranging from Mayor Bill Bell and Town Manager Patrick Baker to Herald-Sun editor Bob Ashley to most community leaders—has seemed unwilling or unable to question Nifong’s conduct; Bell, Baker, and Ashley have actually defended it. It’s likely that a town/gown disagreement exists on the facts of the case, or even the severity of the lacrosse players’ acknowledged actions. But a desire for more collegial relationship between Duke and its neighbors ought not to quiet campus outrage over how the Durham leadership has implicitly condoned Nifong’s overriding city guidelines and state procedures.

We often hear about “teachable moments” in the academy, where professors use contemporary campus events to illustrate broader points. It would be hard to imagine a more appropriate “teachable moment” regarding the role of due process in American jurisprudence than what Duke has experienced over the past five months—88 faculty signing a statement saying “thank you” to protesters who had branded the players rapists, amidst an investigation run by a district attorney whose willingness to violate either city procedures or the state bar’s ethics code appears to know no bounds. Apart from the law school’s James Coleman, however, no Duke professor has publicly expressed a concern about due process issues in Durham as they relate to this case, much less committed to using the affair as a “teachable moment” about the importance of procedure.

Given this void, Bowes’ organization can perform a vital role on campus in the coming semester. Two issues spring to mind, both of which have received scant media attention.

The first involves the question of what constitutes the criminal justice process. Such Nifong enablers as the Herald-Sun and Andrew Cohen of CBS have suggested that the “process” requires completion of a trial, regardless of whatever misconduct occurred to obtain indictments in the first place. This limited conception of what constitutes the criminal justice “process” is especially flawed in light of the scope of Nifong’s procedural misconduct. In the popular perception, a procedural “technicality” is, perhaps, an officer mistakenly typing the wrong date on the warrant, followed by a civil liberties-oriented judge using the error to free a convicted criminal. From the other extreme, meanwhile, some commentary, especially in the Black press, has suggested that all criminal defendants experience the kind of treatment exhibited by Nifong, and has condemned his critics for selective outrage.

Both of these views represent caricatures of the legal system, one of the extreme right, the other of the extreme left. Nifong’s procedural misconduct is hardly a compilation of technicalities; rather, it strikes to the heart of the system’s integrity. This is a man who, after all:

• ordered the police to conduct a lineup that blatantly violated city procedures—even though the police already had conducted a lineup, which had yielded no results;
• refused to meet with defense attorneys who said they possessed evidence to prove their client’s innocence—violating both the state bar’s ethical canons and common sense;
• secured a court order to obtain DNA samples solely on the basis of group membership—and then ignored the results when they didn’t fit his theories;
• made numerous prejudicial (and misleading) public statements despite the state bar’s prohibitions against district attorneys doing so.

As Susan Estrich recently wrote, this record “suggests a failure to follow standard procedure that is rather mind-boggling.” Recognizing this fact is crucial to understanding all other aspects of the case.

That said, Nifong’s misconduct, while massive, is hardly unprecedented—though the public’s learning of this type of misconduct at this stage of the process is unprecedented, at least in the last 20-25 years. In terms of “teachable moments,” it’s worth examining what Nifong’s misconduct (and the silence about it by all other North Carolina district attorneys save one) says about the state’s legal process in cases that receive little or no media attention—and also what kind of “process” would allow such a procedurally dubious case to lurch forward.

Second, examining the motives for Nifong’s procedural misconduct provides a teachable moment. As Bob Ashley has regularly observed, this man has served more than a quarter century in the district attorney’s office; he can’t credibly claim to have not known the procedures that he was violating. Why, then, did he act so brazenly?

The normal excuse offered in such circumstances—the end justifies the means—isn’t available to Nifong. We know what his file contained on March 27, when he made his first public comments on the case: the Roberts statement deeming the allegations a “crock”; the neighbor’s affidavit supporting Roberts’ version of events; several police reports containing contradictory tales by the accuser; and the captains’ statements, all denying the accusations. No one, not even Nifong, could take from that combination of material a certainty that a brutal but unprovable rape occurred.

The logical conclusion, then, for Nifong’s procedural misconduct? He needed, for personal and political reasons, to secure indictments, but he couldn’t do so by following city procedures or adhering to the state ethics code. So he simply started breaking them. And, like a gambler trying to redeem earlier losses with just one more wager, he continued to violate procedure, right down to the moment when this so-called “minister of justice” sought an arrest warrant against Dave Evans without ever attempting to ascertain whether Evans, as the accuser claimed, had a mustache on the night of the incident.

In many ways, it’s unfair to expect a student group, rather than faculty or the campus administration, to organize the campus response to a “teachable moment.” But, as Bowes has written, ACLU@DUKE’s “primary responsibility as a student organization lies in defending and educating students.” Given the Duke student body’s impressive performance to date, not to mention the equally disturbing record by the faculty, perhaps relying on its students to educate the campus on issues of due process is Duke’s best bet.