Leadership, Not Leakers

“Leadership,” stated Katharine Bartlett, dean of the Duke Law School, is “a critical value” among her institution’s faculty. An article in yesterday’s Herald-Sun, however, suggests otherwise. On Friday, a packed hearing room learned that Mike Nifong and DNA Security Lab Director Brian Meehan entered into an agreement to intentionally withhold exculpatory evidence. Meehan violated his own company’s protocols, while Meehan and Nifong agreed to ignore the requirements of North Carolina state law and the Supreme Court’s Brady decision.

Surely, it would seem, the D.A.’s own witness testifying that Nifong joined him in a conspiracy to prevent turning over exculpatory evidence would create outrage among a faculty committed to the values that Bartlett articulated. Duke Law professor James Coleman, heretofore Nifong’s most eloquent and influential critic, understood the matter: “I tell you,” he said, “the more you hear about [Nifong’s] missteps, the more you have to question whether it’s purely a matter of incompetence or worse.”

Beyond Coleman, however, Friday’s revelations triggered an effort to assist Nifong’s wounded cause. An unknown figure—either a law professor or an affiliate who teaches a course at the Law School—leaked to the Herald-Sun e-mails showing that at least four members of the Duke Law faculty, in writing, opposed signing a statement criticizing Nifong’s prosecutorial misconduct.

One of the quartet, visiting professor Michael Tigar, cavalierly dismissed efforts to assemble such a statement: he pronounced himself “at an age where I get to pick my clients and causes.” (There’s a line for the “Our Faculty Cares” section of Duke’s next fundraising drive.) Apparently unaware of Rule 3.6(c) of the Rules of Professional Conduct—which states that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client”—Tigar suggested that Nifong’s procedurally improper public statements were balanced by the procedurally proper activities of advocates for the accused players, who he detected as having had “fingerprints on some of the media coverage.”

A second—and highly surprising—refusal came from civil liberties advocate Erwin Chemerinsky. The Duke Law professor, who had criticized Nifong’s behavior in this post, was quoted by the Herald-Sun as saying that “there has been prosecutorial misconduct in the handling of the Duke lacrosse” case. But, according to the H-S, the professor that reporter Ray Gronberg gleefully described as “a well-known constitutional-law scholar” doubted that the petition accurately claimed that the students’ due process rights had been violated.

Trina Jones, meanwhile, pronounced herself “troubled by any attempt to have Duke faculty use our institutional affiliation to leverage either side in what is an ongoing criminal case.” Jones, however, issued no similar critique of the Group of 88, who on April 6 used their institutional affiliation to assert unequivocally that something “happened” to the accuser, while saying “thank you” to protesters who had branded the lacrosse players rapists. I e-mailed Jones to ask if, in light of the remarks attributed to her by the H-S, she would publicly urge Group of 88 members to retract their signatures. She did not reply.

The final objector? Karla Holloway—the same professor who previously had opined, “Justice inevitably has an attendant social construction. And this parallelism means that despite what may be our desire, the seriousness of the matter cannot be finally or fully adjudicated in the courts.” Though a member of the English Department and African-American Studies program, Holloway—fantastically—teaches a course in the Law School called “Language of Constitutional Law.”

According to the H-S, Holloway contended that signing a petition criticizing Nifong would imply “that Duke students should not be held to the standards of legal conduct.” The purpose of the petition, of course, was to suggest that Duke students should be held to standards of legal conduct—standards that cannot operate if the prosecutor habitually violates ethical canons.

---------

While Holloway did her best to blunt the effect of Coleman’s remarks, three thousand miles away, a law professor with impeccable liberal credentials maintained, in light of Friday’s revelations, that “this is not the way the system is supposed to operate.”

Susan Estrich previously had published what I consider the single best column on the case: she outdid herself in an essay published last night. As she notes of Nifong’s decision to withhold exculpatory DNA evidence,

You can’t come across the smoking gun covered with fingerprints on it—come across it because you have the power of the state to collect all the evidence—and then decide to ignore it because they don’t match the fingerprints of the guy you’re prosecuting for the crime. You certainly can’t file the report from the lab for your eyes only.

“What is going on in the prosecutors’ office in Durham,” Estrich lamented, “is disturbing in ways that go beyond the ugly allegations that started this case.” She contended, correctly, that Nifong “has clearly lost sight of his mission, and with it the last remnants of any ethical compass.”

Earlier problems included “unduly suggestive” identification procedures and a rush to indict “that turned appropriate timing of an investigation on its head.” But for Estrich, “Withholding exculpatory evidence moves the impropriety to a whole new level. This is not simply best practices, but basic constitutional criminal law.”

To Estrich, “If ever a prosecutor had shown himself to be no longer capable of exercising the sort of judgment required of him to be fair, it would be this prosecutor in this case.” She concluded by demanding Nifong’s removal as a prosecutor—since “this appears, increasingly, to be an extreme case of lawlessness by the prosecutors if not the defendants.”

---------

Who is the Law School Leaker? There’s no way to know, though obviously the Leaker desperately wanted to create the impression that Law School professors aren’t particularly troubled by Nifong’s conduct.

In the event, the Law School Leaker has accomplished his/her goal. Acting as a body, Duke’s law faculty could have joined Estrich and Coleman in responding to Friday’s revelations by showing “leadership,” demanding that their local prosecutor respect basic ethical requirements. Instead, the Leaker’s actions have created the impression that Coleman’s colleagues consider him an outlier in his strong critique of Nifong’s misconduct.

At this stage, in short, the Duke Law faculty needs more leadership and fewer leakers.

[Update, 10.12am: Several commenters have noted, correctly, that while the H-S quotes Tigar, Jones, and Holloway in their reasons for refusing to sign the petition, reporter Ray Gronberg only summarizes Chemerinsky's alleged rationale. Given the H-S pattern of pro-Nifong distortions, anything said in the article about Chemerinsky needs to be taken with a grain of salt. Hopefully, he will pen a letter to the editor to clarify the situation.]