Justify or Retract

Duke alumni tell me they didn’t buy the administration’s story, widely peddled at Homecoming, of “we did just fine handling the lacrosse controversy.” Indeed, many report that they let administrators and trustees know their sentiments--perhaps explaining a bizarre item posted yesterday on the Duke Alumni Association’s website. Administration officials “suggest” to alumni some “key points” to answer any questions that others might have about Duke’s actions--but the remarks really seem to be directed at Duke alumni themselves.

One item particularly caught my eye:

Why hasn't the university -- the president and others -- spoken out against the district attorney and demanded that the charges be dropped when it is so clear the players are innocent?

Even though recent media accounts call into question many aspects of the case against the three players, neither the news media nor Duke has access to all the facts that may emerge in a trial. Within our democratic system, it is the role of the legal system - not of universities or others - to determine when it is appropriate to charge people and have trials. The district attorney and others with responsibility for this process have an obligation to act fairly and responsibly in pursuing the truth. If the planned trial does proceed, everyone will have an opportunity to finally see all of the evidence and assess whether it was appropriate for the district attorney to pursue the charges.

The Alumni Association’s “talking points” mirror Brodhead’s response to the open letter from Friends of Duke. The statement itself can only be characterized as willfully deceptive, on three separate levels:

• the traditional relationship between universities and the legal system;
• Brodhead’s own past actions;
• the specifics of this case.

1.) The academy and the legal system

Under the terms of the “Brodhead Doctrine,” universities and academics must defer on legal matters, since “within our democratic system, it is the role of the legal system - not of universities or others - to determine when it is appropriate to charge people and have trials.”

This conception of the proper role of the academy no doubt would have surprised Harvard Law Professor and future Supreme Court Justice Felix Frankfurter, who rallied academics and the public by exposing the procedural abuses in the Sacco and Vanzetti case.

The Brodhead Doctrine likewise repudiates the legacy of a generation of courageous professors—and academic leaders—who denounced Southern prosecutors in the 1950s and early 1960s for regularly bringing trumped-up charges against African-American civil rights activists. Professors and their colleges, according to the Duke Alumni Association talking points, should have remained silent about such prosecutorial misconduct, at least until the conclusion of a trial and the inevitable convictions. Speaking out, alas, would have suggested a lack of faith that “the district attorney and others with responsibility for this process have an obligation to act fairly and responsibly in pursuing the truth.”

Who, exactly, do Duke Alumni Association officials hope to fool? These talking points were written for highly educated people: Duke graduates. Anyone smart enough to get a degree from Duke will be fully aware that professors and leaders of academic institutions have never adopted a blanket policy of refusing to comment when confronting procedural injustices. Indeed, the willingness of educators and educational institutions to speak out in such cases has been a hallmark of “our democratic system.”

2.) Brodhead’s past actions

If the Brodhead Doctrine mischaracterizes the history of higher education in the United States, it also—ironically—misrepresents Brodhead’s own personal history. On at least two occasions, the Duke president has intervened in the legal process to promote due process, acting at behest of his students.

Incident 1: In 2003, while still dean at Yale, Brodhead signed a letter to the New York Board of Parole urging the release of inmate Kathy Boudin, whose son, Chesa, was then a student at Yale. Chesa’s campaign to earn parole for his mother had become a cause célèbre among the radical left, although police union officials considered Boudin a “domestic terrorist.” (The former member of “Weather Underground” was serving a sentence of 20 years to life for felony murder and robbery.) “This case,” wrote Brodhead, “raises in a very deep way the question of rehabilitation, the question whether punishment and suffering can work a change that makes further punishment just vindictive.”

Incident 2: In 2005, a Duke graduate student in cultural anthropology, Yektan Turkyilmaz, was placed on trial in Armenia. The charges resulted from procedurally dubious conduct by Armenian authorities and seemed politically inspired: Turkyilmaz, a Turk, had been researching the Armenian genocide. In response, Brodhead wrote to the president of Armenia, asking him to intervene in the trial and urging him to release Turkyilmaz. As with Boudin, Turkyilmaz’s cause had powerful support from the campus left—in this case, Professor Orin Starn.

Once again, who, exactly, do Duke Alumni Association officials hope to fool? Duke graduates are fully capable of using the internet to learn about Brodhead’s actions in the Turkyilmaz and Boudin cases. Does the Brodhead Doctrine carry an exception allowing academics or leaders of academic institutions to intervene in the legal system for causes that are considered politically correct?

3.) The specifics of this case

As in Brodhead’s response to the Friends of Duke letter, the Duke Alumni Association talking points misrepresent the requests that have been made of university leaders. To my knowledge, the president has received few, if any, public requests that he “demand that the charges be dropped when it is so clear the players are innocent.” He has, however, received many requests that university officials publicly demand that local authorities treat Duke students according to the same procedures applied to all other Durham residents.

The Alumni Association’s response to such pleas: “If the planned trial does proceed, everyone will have an opportunity to finally see all of the evidence.” Of course, at least since Mapp v. Ohio, American jurisprudence has not operated under such premises: the exclusionary rule means that evidence obtained as a result of police or prosecutorial misconduct is never presented at trial.

The Nifongian “wait to the trial” refrain is becoming rather commonplace from high levels of the Duke administration. It appeared in Brodhead’s response to Friends of Duke. It is, apparently, a favorite argument of Board of Trustees chairman Robert Steel. And now, the Duke Alumni Association has offered it.

Duke officials should be made to justify their claim that material could come out at trial to disprove allegations that Mike Nifong has violated various procedures of either the city of Durham or the North Carolina Bar. And if Duke officials cannot offer evidence that could rationalize Nifong's conduct, they should retract their claim, and publicly demand that the district attorney apply to Duke students the same procedures that all other citizens of Durham receive.

Accordingly, I invite readers of this blog who attended Duke to email Duke Alumni Association president Tom Clark (whose email, according to the DAA website, is tcclark100@aol.com), with a cc to BOT chairman Robert Steel (whose email, according to the Duke website, is boardchair@duke.edu). I urge asking the following:

In light of repeated statements from administration and alumni officials that the university must wait until a trial to demand that the district attorney uphold the due process rights of all Duke students, could you please tell me what material could possibly appear at trial to disprove allegations that:

1. District Attorney Nifong violated city procedures and statewide norms in the April 4 photo ID array;
2. District Attorney Nifong violated Rule 3.8, comment 2, of the Rules of Professional Conduct, which states that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused,” when he refused to meet with Reade Seligmann’s attorney to consider Seligmann’s alibi evidence;
3. District Attorney Nifong violated Rule 3.8(f) of the Rules of Professional Conduct, which states that a prosecutor must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” in his public relations spree of late March and early April.

I will post any replies that are received.

Rather than attempting to establish a “Brodhead Doctrine” that willfully distorts past events, it’s time for Brodhead and the Board of Trustees to come clean and admit the obvious: they fear the local reaction if Duke stands up for the due process rights of its students.

Such a statement would constitute an admission that over the last six months, Duke has pursued a cowardly, amoral policy. But at least it would restore a sense of honesty sorely lacking in recent comments about the case from the Duke administration.