mikenifong.com

Campaign websites, obviously, seek to offer a positive spin, usually by highlighting candidates’ strengths and downplaying or ignoring their weaknesses. Take the sites of two of the most ethically challenged figures from this House election cycle, Ohio Republican Bob Ney and West Virginia Democrat Alan Mollohan. Ney’s site touts his using his “positions of influence” to tend to local concerns. Similarly, Alan Mollohan’s website boasts, “His senior position on the Appropriations Committee allows Congressman Mollohan to fund hundreds of millions of dollars in economic development projects throughout north central West Virginia.” Neither site frames the candidates as champions of an ethical Congress: most voters might not follow the day-to-day affairs of politics closely, but they’re not stupid.

The campaign website of Durham District Attorney Mike Nifong eschews the Ney/Mollohan approach in favor of an Orwellian strategy. The unusually chatty site contains, among other items, a “conversation with Mike,” a statement of the DA’s legal philosophy, and a personal letter to Durham voters. Unintentionally revealing in some areas, outright inaccurate in at least one, the site is most notable for its tendency—which would be comical were Nifong’s misconduct not so grave—to position the district attorney as a bastion of integrity, determined to go above and beyond what state procedural regulations require of him.

In a “conversation with Mike,” the district attorney opines, “The shortsighted prosecutor concerns himself only with victory in the courtroom and is willing to take whatever advantage he can, no matter the consequence.” I wonder how Nifong would reconcile this statement with his decision to order the Durham Police Department to violate not only its own procedures but all statewide norms, and confine the accuser’s photo ID session to lacrosse players. This decision would seem the action of a “shortsighted prosecutor” concerned “only with victory in the courtroom” and “willing to take whatever advantage he can, no matter the consequence.” In this case, the consequences included the indictment of a demonstrably innocent person, Reade Seligmann.

“It is the prosecutor,” continues this conversation, “who actually bears the ultimate responsibility for seeing that the defendant has a fair trial.” Surely one aspect of that responsibility would be adhering to state ethics guidelines, such as Rule 3.8, which holds, “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.” I wonder how Nifong would explain, then, his refusal to meet with Seligmann’s attorneys, who wanted to present him with evidence that included cellphone records, affidavits from a cab driver and another lacrosse player, and, most damningly, an ATM video showing even if a crime occurred, there was no way Seligmann could have committed it.

In his “conversation,” Nifong committed himself to “treating defendants with dignity,” since “a prosecutor should never be a bully, never take unfair advantage of his authority, never demean a person based on his situation. To deny dignity is to deny justice.” I wonder how Nifong would square these admirable sentiments with his publicly labeling the team “hooligans”; or his claim that they believed their “daddies could buy them expensive lawyers and that they knew the right people”; or his questioning the players’ “manhood”. Such comments seem more appropriate for a junior high school playground than coming from an officer of the court, perhaps one reason why the North Carolina Bar ethics code prohibits prosecutors from making them.

“I have never understood,” the DA continues, “why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State's case, then the defendant is clearly entitled to have it; if it is not damaging to the State's case, why should it matter if he gets it?” These are certainly good questions. I wonder, then, why Nifong initially declined to investigate the accuser’s cellphone records (which, among other things, revealed a call from to another escort service that occurred during the time of the alleged crime), and why he took so long to have the lead investigator of the case, Sgt. Mark Gottlieb, produce his report.

In the “Meet Mike” section, the district attorney confides, “One of the benefits of my long tenure in this office is that I am known and respected by the key figures in both the other components of the judicial system--law enforcement officers, attorneys and judges--and the community at large--people such as business and civic leaders and elected officials.” I wonder whether his decision to smirk and then openly laugh when Seligmann’s lawyer discussed his client’s airtight alibi is the sort of behavior common to prosecutors who are “known and respected” on both sides of the aisle. Or how Nifong’s profanity-laced public tirade at Kerry Sutton, an attorney for one of the unaccused players, improved his standing? Or how he gained respect with his extraordinary statement, in open court that “some of these attorneys [for unaccused players] were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham”?

“Doing the right thing,” says the district attorney, “is not only the best practice in principle, but it is usually also the most economical process in the long run.” Indeed it is, making Nifong’s decision to ignore basic procedures all the more peculiar. At the very least, his actions suggest that any conviction almost certainly would be overturned on appeal—costing the city time and money, hardly an “economical process.” At the very worst, Nifong’s actions have exposed Durham to massive civil liability in a post-trial lawsuit from the lacrosse players’ families. The early signs of one possible line of assault have appeared in the work of defense attorney Alex Charns.

“For my entire career,” comments Nifong, “I have been known to be a person of the utmost integrity, and I pledge to you that I will continue to live up to that reputation.” I wonder how a person of the “utmost integrity,” desperately needing African-American votes to repel a serious primary challenge from a foe he despised (Freda Black), could have entered into an apparent conflict of interest regarding Mark Simeon, a prominent African-American attorney who ran against Nifong’s boss in 2002 only to turn around and endorse Nifong in 2006. He did so shortly after Nifong waived the bail requirements in an unrelated case for one of his clients, Kim Roberts a/k/a/ Pittman, the second dancer. Roberts a/k/a Pittman shortly thereafter changed her story from the version she reported to police to present a tale far more favorable to Nifong’s reality. Simeon has also expressed a desire to bring a civil suit on behalf of Roberts a/k/a Pittman and the accuser.

The website occasionally lapses into unintentionally revealing comments. For instance, in the conversations section, Nifong notes, “Some people believe that the job of the District Attorney is simply to run the District Attorney's Office. But I believe that the District Attorney's responsibility extends well beyond the limits of that office.” Perhaps this expansive view of his duties explains why Nifong decided to serve as de facto police commissioner in the lacrosse case, as Durham’s nominal police commissioner, Steve Chalmers, retreated into the cone of silence, from which he wasn’t heard for months at a time.

Campaign websites normally feature outsiders (friends, political associates, newspapers) saying positive things about the candidate. mikenifong.com dispenses with the middleman. “I have,” Nifong confides, “earned the reputation among my colleagues in the court system as a prosecutor of the highest level of professional skill.” (This is a man, it’s worth remembering, who had spent the previous several years in traffic court before being appointed DA.) This egoism frequently has appeared in the lacrosse case, perhaps most notably when Nifong asserted, “If I were one of those [defense] attorneys, I wouldn't really want to try a case against me either.”

The only campaign website I’ve ever seen that provides no interactive way to reach the candidate, mikenifong.com features neither an email address for the campaign nor a campaign phone number. It’s as if the candidate wants to ensure he cannot receive outside information, especially from those who might challenge his preconceived notions—just as Nifong refused to listen to Dave Evans’ attorney, who offered to provide evidence that Evans, contrary to the accuser’s assertion, never had a mustache.

Finally, in his open letter to Durham constituents, the district attorney was candid about his intentions: “I must win on November 7.” (emphasis in original). Nifong certainly has shown a willingness to violate any ethical or procedural guideline that might obstruct the victory he considers so essential.

The letter to voters contains one out-and-out false item. Nifong asserts, “Under my leadership, the District Attorney’s office is an institution of unquestioned integrity.”

It’s worth evaluating that statement in light of some of the comments made about Nifong by prominent members of the media:

• Writing in National Journal, Stuart Taylor termed Nifong a “petty-tyrant” prosecutor who should “be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.”
• San Diego Union editorialist Chris Reed wrote that Nifong was “despicable . . . a disgrace” who “deserves to be pilloried every day the rest of his life.”
• In the New York Times, Nicholas Kristof compared Nifong to the unethical prosecutors who oversaw the Scottsboro Boys trial.
• Fox News commentator Kimberly Guilfoyle, previously a defender of Nifong, recently labeled his actions “unconscionable.”

Even Duke professor Alex Rosenberg hopped onto the anti-integrity bandwagon, asserting that each and every member of the Group of 88 believed that Nifong was exploiting the lacrosse case for political purposes. Of course, that belief didn’t prevent Rosenberg and 87 colleagues from publicly denouncing not the DA but the lacrosse players. After all, as Wahneema Lubiano gleefully noted, these heterosexual white male athletes were the “perfect offenders,” while Nifong was working, albeit unethically, to uphold the race/class/gender trinity so treasured by many of Duke’s faculty.

It might be that Taylor, Reed, Kristof, and Guilfoyle are simply wrong. But surely it can’t be said that the integrity of the Nifong’s office has been “unquestioned.”

mikenifong.com makes one undeniably accurate claim. “The two absolutely essential traits for a prosecutor to possess,” reasons the DA, “are integrity and good judgment. People of integrity can always develop good judgment through experience, but people who lack integrity can never develop either.” Mike Nifong is a perfect demonstration of how those apparently lacking in integrity are incapable of exercising good judgment.

Hat tips: JinC; Nancy Kidder.

[Originally published in Cliopatria.]

Court TV Will Have the Answer

I haven't commented much on the media coverage of the Duke lacrosse case, in part because several other bloggers (John in Carolina, Lead and Gold) have analyzed the topic much better than I could have. But this morning, a disturbing column appeared, penned by Bob Ashley, the editor of the Durham Herald-Sun. Ashley's remarks seemed worthy of notice--partly because of their exceedingly narrow conception of what constitutes the "legal process"; partly because they might explain the remarkably passive attitude that the local press has exhibited in this case. (The work of the N&O's Joseph Neff stands in stark relief to this pattern.) The editorial pages of both the N&O and the Herald-Sun have hardly been imitators of Ben Bradlee in speaking truth to power

Ashley hailed a column a couple of weeks back by CBS chief legal analyst Andrew Cohen, which accused the media of uncritically accepting the version of events offered by defense attorneys. Cohen's column made scarce mention of the coverage in the first six weeks of the case, nor did he note that, just maybe, one reason why there's been some turn is that many journalists no longer consider D.A. Mike Nifong credible, having learned that many of his early statements were inaccurate at best and deliberately misleading at worst. Cohen also decided not to mention that defense attorneys have, by and large, backed up their key claims with hard evidence.

Cohen complained that "we haven't had the privilege of seeing the case unfold at trial the way it is supposed to." Nothing in this case, however, has unfolded "the way it is supposed to." Nifong almost certainly violated the state bar's code of ethics in his inflammatory public statements, though this conduct served its purpose in ensuring his victory in the Democratic primary. He certainly violated Section 3.8, comment 2 of the ethics code in his refusal to meet with defense attorneys before issuing indictments, and in his decision to seek indictments before investigating the accuser's cellphone records and waiting for the second DNA tests. And, as I pointed out a while back, the photo lineup that Nifong ordered contradicted the norms everywhere else in North Carolina in at least four respects, to such an extent that he seemed to be operating under an entirely different legal system. These procedural violations were massive.

Flawed procedures beget flawed results. There's nothing that could come out at a trial, or at a later stage of this process, that could change our knowledge that these flawed procedures occurred--the record is already there. It's remarkable that Cohen, a TV network's chief legal analyst, could claim that a prosecutor can blatantly disregard procedures at every stage of the process, and that such behavior nonetheless is all part of the process as it is "supposed to" occur.

In an earlier Herald-Sun editorial (written I assume, by Ashley, judging from his sentiments in today's column), the editorial board reasoned, "Nifong's critics have questioned everything from his character to his legal savvy. We think that the 25-year veteran of the prosecutor's office must have some evidence, or he would have dropped the case long ago." Such a comment, of course, requires turning a blind eye to Nifong's unethical behavior in recent months--as Craig Henry pointed out in a fine post on the matter. But it also ignores an important fact: the lacrosse case is the state's first-high profile trial since North Carolina adopted an open discovery law, which requires the prosecution to turn over all of its material--not just evidence it considers exculpatory--to the defense, and to turn over all that evidence in a timely fashion.

As a result, we know far more about the facts of this case than would occur in most jurisdictions. Even if he possessed any evidence to substantiate his claims, Nifong couldn't hold it back to spring as a surprise at trial. Items such as the police reports containing the accuser's multiple, contradictory versions of what occurred; the initial statement of Kim Roberts a/k/a Pittman, terming the accusation a "crock"; the transcript of the procedurally flawed photo ID session; and the sworn summaries of the DNA and medical evidence all represent the sort of evidence that, in most jurisdictions, wouldn't be seen until the trial (and in most trials would represent the heart of the prosecution's case, not substantiate the defense version of events). Meanwhile, the attorneys for one of the players, Reade Seligmann, decided to publicly release the exculpatory evidence that Nifong violated the state ethics code so he wouldn't have to see--namely, the statements of two witnesses who were with him at the time of the alleged attack; records showing Seligmann was on the cellphone when the attack allegedly began; and, most damningly, an ATM video showing he was more than a mile away when the attack was allegedly occurring.

Neither the media nor outside observers are jurors, with a moral or legal requirement to wait until the end of a trial to form judgments. It doesn't take a Ph.D. to figure out that someone who's on a videotape a mile away from the scene of an alleged crime at the time the crime allegedly occurred is innocent. That no medical evidence exists to support the accuser's allegations; that the ID of Seligmann resulted from procedurally dubious circumstances; and that the accuser seemed unable to come up with anything resembling a consistent story only fortifies that belief. I wonder: what, exactly, could Cohen or Ashley expect to come out at a trial that would allow anyone to believe that a college student can rape someone from the distance of more than a mile? That Seligmann has a secret twin who was actually the person at the ATM machine while the rape allegedly occurred? That normal laws of space, time, and motion don't apply in Durham, North Carolina?

The arguments of Ashley and Cohen are so intellectually peculiar as to suggest ulterior motives. It's no secret that Cohen has been manhandled on this story by Dan Abrams (NBC's chief legal correspondent) and by the legal reporters from Fox. And I wonder whether Ashley would be so blasé if Nifong's targets were Durham residents rather than out-of-staters.

This passive attitude also rationalizes Ashley avoiding asking some hard questions as to whether the revelations of this case suggest broader problems within Durham's law enforcement apparatus. News broke today that the lead investigator in the lacrosse case, Sergeant Mark Gottlieb (last seen overseeing the procedurally flawed lineup) is under investigation for assault, which allegedly included use of a racial epithet. (Can Nifong be far behind, appearing on CBS, as he did in the lacrosse case before any serious investigation had occurred, to opine, "The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible"?) Yet, as John in Carolina pointed out, the local media has, nearly 60 hours after the incident, not asked some basic questions--such as whether Gottlieb was on-duty at the time of the alleged incident and why the initial police report of the incident hasn't been made public. I suppose we all should, as Cohen and Ashley recommend, just wait for a trial to find the answers to these questions. Under this definition of journalism, we wouldn't even need journalists--court reporters could simply type up a summary of their day and release it to the papers.

An undercurrent of the columns by Cohen and Ashley, never explicitly stated but strongly implied, is that the Duke players have benefited from selective outrage--that these sorts of things occur in our criminal justice system all the time, usually without outside notice. I disagree: Nifong and Gottlieb hardly typify the American justice system. Moreover, while I'm obviously not a lawyer, I can't recall a single publicized case in recent years where procedural violations this massive were publicly known at this stage of the process. Normally, we don't hear about this sort of prosecutorial misconduct until the appeals process. (This, of course, is what happened in the Alan Gell case, which prompted the Open Discovery law.) In this respect, Nifong is the victim of his own decision to ignore the ethics guidelines and make his 50+ press appearances. He got the outside attention that served his short-term political interests--but he couldn't stop it once the primary had occurred, even though he no longer needed the free publicity.

As Chris Richardson wrote in an excellent recent post, recent massive miscarriages of justice have occurred on scales worse than what we've seen in Durham, though normally the victims were poor African-Americans. It seems to me that Chris is suggesting (and he can correct me if I'm wrong) that Rudolph Holton and James Tollman never should have gone to jail: had we known about the improper behavior of authorities in their cases at an earlier stage, the process would have been brought to a halt. What Cohen and Ashley seem to be saying, however, is no--that like the Duke lacrosse players, in the cases of Holton and Tollman the "process" should have played out, because massive prosecutorial misconduct is effectively part of the "process," and that the improperly accused (and even convicted) should have simply waited their turn, until an appeals court had time to hear their case. That Holton and Tollmann had to spend 16 years in jail as a result of the state's misbehavior? Too bad, apparently: that's part of the "process."

For journalists, who are, in part, supposed to serve as watchdogs of government officials and expose misconduct when they find it, this attitude strikes me as nothing short of bizarre.

[Originally posted in Cliopatria.]

Open Letter to Brodhead

Today's Duke Chronicle features an open letter to President Richard Brodhead and Duke's Board of Trustees. Sponsored by Friends of Duke University, a grassroots organization, the letter urges the Brodhead administration to do more to speak up for Duke students, in part by "formally demand[ing] that Mr. Nifong immediately correct, to the extent now possible, the grave errors that he has committed to date." The letter also notes that beyond acknowledging bad conduct by the lacrosse team, as he has repeatedly done, Brodhead needs to "call attention to the larger, more positive, context the [Coleman] committee found” about the team. In general, the letter advocates a more robust response by Duke to the crisis, asking the institution to use its formal but especially informal powers on behalf of both itself and its students.

The letter concludes by reminding Brodhead:

One of our university's finest moments occurred 100 years ago during the Bassett Affair. When a member of the university community unfairly came under attack, the President and Board of Trustees refused to cave into momentary expediency. Instead, Duke's leaders spoke out for what was right. In the end, rather than suffer for it, Duke's reputation was greatly enhanced by the courage of the President and Board. Can we now say the same about the Lacrosse Affair?

(Disclosure: I'm a strong supporter of this organization, and the FODU website has posted links to my writings on the case.)

The open letter comes almost exactly 100 days after another full-page Duke Chronicle ad: the so-called "listening" statement, signed by the Group of 88. Even now, there seems to be no recognition on the signatories' part as to how a large group of professors issuing a public, denunciatory statement about their own school's students would have facilitated D.A. Mike Nifong's witch-hunt. Yet there are some positive developments about the campus climate regarding the statement. In a recent discussion thread at John in Carolina's blog, a commenter incorrectly identified as a Group of 88 member Professor Orin Starn, who has criticized the lacrosse team as part of his campaign to transform Duke into an athletic version of Haverford. Within an hour, Starn requested a retraction. When even Orin Starn wants to avoid association with the Group of 88, a sea change in attitudes has occurred.

The group's collective profile is revealing. To begin with, only 69 of the 88 are tenured or tenure-track faculty: seven were visitors (it's understandable why they would care little about the fate of Duke students); seven teach in the University Writing Program; and one each was a program registrar, graduate student, program administrator, clinical nurse, and "affiliate" to an unspecified Duke program. Statement sponsors haven’t explained how they determined who was eligible to sign the document.

The 69 permanent faculty signatories included only two professors in math, just one in the hard sciences, and zero in law. (It would have been difficult indeed for a law professor to have signed a statement deeming irrelevant "the results of the police investigation.") Of the permanent signatories, 58—an astonishing 84.1 percent—describe their research interests as related to race, class, or gender (or all three), in some cases to an extent bordering on caricature. One Group of 88 member stated that his current project "argues that unless we attempt to read racialized trauma according to a more Freudian, Lacanian understanding for subjectivity we will continue to misunderstand why racial stigma persists and, more generally, why the laws humans create to protect against forms of discrimination leave in place a notion of the racialized subject as emptied of interiority and the psychical." Another reasoned that "it was not merely military mobilization . . . that paved the path to war [in Iraq] but a highly gendered war talk." An example? Laura Bush’s late 2001 comments about the plight of Afghan women, which “furthered the [U.S.] imperial project in her highly gendered appeal to a world conscience.” A third signatory, after beginning her career exploring "postmodernist theory about the individual and the body," is now " working on a new project critiquing animal rights from speciesist perspective."

Some Group of 88 members, as I've noted before, have started to re-invent themselves as neo-temperance activists. But most remain mired in a classic example of what Mark Bauerlein, in his 2004 essay for the Chronicle of Higher Education, described as academic "groupthink." Under increasing criticism from Duke alums (I've been forwarded a couple dozen such emails), many seem genuinely puzzled that their actions have attracted outside attention. After all, in one respect, the statement represented a not uncommon event on campus: race/class/gender professors wielding their collective muscle, with little or no public opposition from professors who fear being branded as insensitive to the contemporary academy's Trinity. One signatory responded emphatically to whether she would consider signing a public statement urging due process for the lacrosse players: "NO." There's no need: as another signatory recently claimed, the Group of 88's statement "has nothing to do with the LAX case."

It's remarkable that anyone could argue, in good faith, that a statement asserting something "happened" to the accuser and publicly thanking protesters who distributed wanted posters and banged pots and pans while calling the players "rapists" had "nothing to do with the LAX case." After all, the issue was hardly being ignored by faculty at the time. Houston Baker's public demand for the immediate expulsion of the "team and its members" was well known; a lacrosse parent recalled a class with History professor Reeve Huston: "The week following the news of the allegations, my son was in class and was subjected to a professor's personal editorial barrage regarding the guilt of the entire team. He left the class rather than be subjected to assertions that he knew were not true."

Recent attempts to rationalize their actions have provided an unintentional, and unpleasant, look inside the Group of 88's mindset. Karla Holloway, for instance, has termed herself a "victim" of the affair—though how, exactly, the holder of an endowed chair is a "victim" of an unethical prosecutor targeting three Duke students remains unclear. Holloway also has claimed that by joining the Group of 88, she was merely expressing her support for "all" Duke students. When asked, however, whether that support extended to the lacrosse players, she declined to respond.

Then there's Hollaway's AAAS colleague, Wahneema Lubiano. Three days after revelations that no DNA evidence implicated team members, she dismissed the news as part of a "demand for perfect evidence on the part of the defenders of the team." (It was actually not team defenders but Nifong, of course, who had first stated that “DNA evidence requested will immediately rule out any innocent persons.”) While History professor Thavolia Glymph fretted that the negative DNA tests could result in the Group of 88's crusade to transform the campus "moving backwards,” Lubiano interpreted campus patterns with more savvy. She was pleased "that the Duke administration is getting the point”: the banging of pots and pans had hammered home that a specific claim to innocence in this case mattered little. "Regardless of the 'truth' established in whatever period of time about the incident at the house on N. Buchanan Blvd.," she mused, "the engine of outcry in this moment has been fueled by the difficult and mundane reality that pre-existed this incident." To Lubiano, the "members of the team are almost perfect offenders in the sense that [critical race theorist Kimberle] Crenshaw writes about," since they are "the exemplars of the upper end of the class hierarchy, the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus."

"Perfect offenders," however, can't be innocent, as perhaps even Lubiano would concede privately. As a recent article in the New York Times noted, "It's easier to spin the narrative of race, class and [gender] when it's not attached to a real person." One such person, Reade Seligmann, seems to be a combination of demonstrably innocent and of high character. So in Lubiano's "truth," the Group of 88's statement has come to represent not an attempt by faculty to exploit the crisis to further their on-campus aims, but instead an effort to defend "students who were being told to shut up.” Who were these students? Who was telling them to "shut up"? Who even possessed such authority? These questions are irrelevant. In a groupthink world, it's obvious that students who champion a race/class/gender worldview would have to "shut up." After all, how else could one explain the apparent ideological chasm between the faculty and student body on most campuses?

The comments of figures such as Lubiano and Holloway exemplify elements that Bauerlein identified as common to a "groupthink" faculty. "Apart from the ill-mannered righteousness," he noted, "academics with too much confidence in their audience utter debatable propositions as received wisdom"; questionable assertions—like those in the Group of 88's statement—are "put forward not for discussion but for approval." The process, Bauerlein recognized, produces comments whose "tendentiousness is striking to everyone except those involved." As a result, "Instead of uniting academics with a broader public," groupthink "isolates them as a ritualized club."

Ironically, the most extreme manifestation of groupthink has come from one of the few Group of 88 members whose research eschews race/class/gender issues. Philosophy's Alex Rosenberg is the only signatory to have had Reade Seligmann in class. I e-mailed Rosenberg, said that I had blogged about the case, and asked whether the fact that he had taught Seligmann altered his perspective on the statement. Channeling the spirit of Ivan Tribble, Rosenberg dignified me with a reply even though, he revealed, in his opinion bloggers are cranks with too much free time on their hands. The sole defenders of the lacrosse players in this case, the professor suggested, are extreme advocates of the economic status quo—a revelation that no doubt will come as news to, among others, Jeralyn Merritt, a liberal trial attorney whose blog has provided the most incisive legal critique of Nifong's behavior. An article from Sunday's Times featured several of Seligmann's high school teachers issuing what could only be termed glowing descriptions of his character; a recent Duke graduate, Katie Fisher, recalled, "When I heard it was Reade, I knew 100 percent in my heart this was a completely false allegation." Rosenberg, instead, recommends the novel public relations strategy of those who know Seligmann remaining silent amidst Nifong’s deceptive publicity barrage. Perhaps the professor might want to offer his services to the second dancer—who remains without representation after being rejected as a client by a New York p.r. firm, to whom she e-mailed, "I'm worried about letting this opportunity pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage."

Most stunningly, Rosenberg claimed that every member of the Group of 88 believed that Nifong was motivated not by the pursuit of justice but by the looming Democratic primary for D.A. If true, this breathtaking assertion means that the Duke faculty, despite recognizing that a local prosecutor was abusing his office to railroad their own institution's students, chose to go public instead with a mass statement denouncing the students targeted by that very same prosecutor.

Duke's admissions home page promises, "Our faculty members are committed to giving students the individual attention that nurtures ideas and pushes them to excel." Ironically, two of the professors profiled on that page (Ariel Dorfman and Arlie Petters) belong to the Group of 88. If the behavior of Rosenberg, Lubiano, and other Group of 88 members typifies "the individual attention that nurtures ideas and pushes [students] to excel," Duke needs to go back to the drawing board. Following the advice of the Friends of Duke University's open letter would be a good place to start.

Update, 3.45pm: La Shawn Barber has an excellent analysis of the unsavory media aspect of this case--a point that's been nicely explicated by John in Carolina as well. With the exception of N&O reporter Joseph Neff, the local press coverage of this affair hasn't been impressive. The Duke Chronicle, however, continues its fine work, with a lengthy article of what things were like for lacrosse players this spring. The item that caught my eye:

"This is a social disaster."

That was the tagline of a paid advertisement signed by 88 members of the Duke faculty that appeared in the April 6 issue of The Chronicle.

"I think that all of us kind of checked over our teachers to make sure they weren't on that list," Carrington said.

[Originally published in Cliopatria.]

North Carolina Norms

One month ago, Duke law professor James Coleman expressed his concern about the circumstances under which the lacrosse case accuser identified the three defendants. “According to the police account of the identification,” he noted, “the police officer who presided over the proceedings told the alleged victim at the outset that he wanted her to look at people the police had reason to believe attended the party. Thus, the police not only failed to include people they knew were not suspects among the photographs shown the woman, they told the witness in effect that there would be no such ‘fillers’ among the photographs she would see. This strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.”

To what extent did this behavior typify law enforcement in North Carolina? Are procedures in the state normally applied in an arbitrary and capricious fashion? Did the reforms growing out of a major state initiative, the North Carolina Actual Innocence Commission, have much of an impact? Quite apart from this case, these questions seemed like interesting ones for an academic project, and I’m going to spin an article out of this for Criminology and Public Policy.

The recommended guidelines laid down by the Actual Innocence Commission (AIC) (on which, it should be noted, Professor Coleman served) grew out of a late 2002 initiative from former state Supreme Court Chief Justice Beverly Lake. Declining confidence in the integrity of the system motivated Lake: as one of his former law partners noted, “He is really conscientious about the public perception of the judicial branch.” Barely two weeks after Lake’s initial gathering met, a highly publicized, intensively researched, series in the N&O uncovered an extreme case of prosecutorial misconduct, which ended in a death sentence (subsequently overturned) against a man named Alan Gell.

With political cover provided by Lake, a conservative Republican, and a somewhat favorable local climate, in 2003 the AIC voted 25-0 in favor of a variety of recommendations regarding eyewitness photo IDs. The commission urged, among other items:

• The individual conducting the photo or live lineup should not know the identity of the actual suspect. This is called a double-blind procedure and addresses misidentifications resulting from unintentional influences from those conducting the identification procedure.
• Witnesses should be instructed that the suspect may or may not be in the lineup.
• A minimum of eight photos should be used in photo identification procedures.

At the time, Iowa State psychology professor Gary Wells, an expert in misidentification by crime witnesses, hailed North Carolina as “out there in front, way ahead of the curve on these changes.” He added that down the line, innocent people would benefit, though “they'll never know that they perhaps were one of the people saved from a hellacious experience by these procedures." In 2004, police from around the state attended a daylong conference in Cary, where they heard from New Jersey officers who had embraced a similar set of policies. One supervisor from New Jersey’s Union County admitted, "I thought, why do we need new procedures? But it works out very well. And it really makes a difference.” By adopting transparent, standardized procedures, AIC backers hoped to eliminate situations in which courts had to make difficult calls to exclude procedurally dubious IDs. As the AIC’s executive director noted in 2004, the change was “something that should come from basic law enforcement.”

Since Nifong himself ordered the Durham Police to confine the photo ID session to pictures of the lacrosse team, I assumed this degree of D.A. involvement was standard practice for North Carolina. So I e-mailed every district attorney in the state, asking if they used AIC guidelines in photo ID lineups that they oversaw. I noted that my interest had been sparked by the revelations in the lacrosse case. In one-line replies, two refused to answer my questions; several others didn’t respond. But from the rest (with one exception, to be noted below), I received what was for me a surprising consensus, for which this note was typical: “In North Carolina, DAs have little power to dictate to local law enforcement what investigative techniques should be used.” Most (though not all) said that they encouraged police departments in their jurisdiction to use AIC guidelines.

One D.A. told me, “In North Carolina to be a law enforcement officer, one must complete 488 hours of instruction at a host of community colleges or at the central North Carolina Justice Academy and pass a state board examination. The course of instruction includes proper identification procedures—proper meaning consistent with Constitutional and statutory requirement (i.e. not unduly suggestive).” He suggested that I contact the Justice Academy for more details.

The Justice Academy’s representative reported that the “Basic Law Enforcement Training and Mandated In-Service Training curricula . . . differ from the Actual Innocence Commission in that the CJ [Criminal Justice] Commission recommends the use of six photographs in a photographic identification process rather than the eight recommended by the AI Commission.“ Like those of the AIC, the CJ guidelines require that “witnesses should be instructed that the suspect may or may not be in the lineup.” The CJ guidelines are slightly more permissive on who should conduct the session: they urge the “double-blind” approach, but note that departments who lack available personnel can waive this requirement—though they “should be prepared to articulate in court why.”

That said, the representative informed me, “The Justice Academy does not train officers to follow the guidelines, but the Academy does train officers on the use of the guidelines.” Police departments themselves, in consultation with local district attorneys, decide whether to follow the AIC guidelines, the CJ guidelines, or no guidelines at all.

Accordingly, I got in touch with North Carolina police departments. I contacted departments from five cities of more than 100,000 people in the 2000 census (Charlotte, Fayetteville, Greensboro, Raleigh, and Winston-Salem); five cities with populations of between 50,000 and 100,000 (Cary, Gastonia, Jacksonville, Rocky Mount, and Wilmington); and five cities of less than 50,000 people (Burlington, Chapel Hill, Hickory, Spencer, and Tarboro). I e-mailed each department to ask if it adhered to the AIC guidelines; and, if not, which, if any, procedure it employed. Follow-up calls went to departments that didn’t respond to my e-mail request. Every law enforcement officer to whom I spoke communicated a genuine desire to ensure that the procedure followed was fair, and answered every question I had. For those whose primary exposure to the North Carolina criminal justice system has come through watching Nifong’s behavior, this finding is reassuring.

Of the 15 departments, eight follow the AIC guidelines in their entirety. (A ninth, Winston-Salem, is currently revising its guidelines along the lines recommended by the AIC, after some local controversy over whether to follow the commission's recommendations.) Typical e-mail responses to my question of whether the department followed the AIC recommendations: “Yes—and every member of the agency was trained in (early) 2005 on the protocol.” Another: “Yes we do, and we do not steer from what the guidelines are.” And a third: “YES!”

A representative from Burlington’s department described for me its procedures, which seem to provide a model for conforming to all AIC guidelines. In the central North Carolina city, which is around one-quarter Durham’s size, all witnesses are shown arrays of eight photos—one of a suspect, seven of which are computer-generated from the department’s pre-existing database to resemble the suspect’s basic parameters. The person conducting the session, who might even be a department secretary, has no idea of which of the eight photos contains the suspect. Witnesses can ask to look again at a photo, but not until all eight photos have been shown; and if they re-check, the witness has to re-examine at all eight photos.

Similarly, Chapel Hill’s procedure rigorously follows AIC guidelines, even in cases with many possible suspects. According to its official document on eyewitness investigations,

1.) Line-ups shall consist of one known suspect and seven filler photos/images.

2.) If there are multiple suspects in a case, a different line-up shall be created for each suspect. Filler photos/images can not be used in more than one line-up.

3.) Filler photos/images are selected based upon shared characteristics with the suspect photo . . .

In displaying the line-up,

1.) Verbal instructions [which include the following statement: “The person who committed the crime may or may not be included”] shall be given to the witness by the person conducting the line-up.

2.) The photos/images will be shown to the witness sequentially and in a predetermined order. No more than one photo at a time should be seen by the witness. If the witness wishes to see the line-up a second time, the photos will be presented in the same order as in the first presentation.

. . . 4.) Whenever possible, the individual presenting the line-up should not be aware of the suspect’s identity.

5.) The witness should receive no feedback from the person conducting the line-up.

Four other departments conform to the CJ guidelines. In Gastonia, Greensboro, Fayetteville, and Jacksonville, the official policy calls for five "filler” photos for every suspect shown. (The departments vary on whether an uninvolved person will conduct the photo session, and also on whether the photos will be shown sequentially or all on one page; all have either formal or informal policies in which the person conducting the session opens with a statement that the lineup might or might not include the suspect.) Rocky Mount’s department, meanwhile, uses only five fillers rather than seven, but in all other respects conforms to the AIC guidelines.

The southeastern corner of the state features a unique hybrid structure. The largest city in this area, Wilmington, uses a “six pack,” which contains five “filler” photos and one of a suspect. Its police department—along with all others in North Carolina’s 5th Judicial District—runs its sessions according to a detailed form prepared by District Attorney Benjamin David.

To begin each interview, the officer informs the witness, “In a moment, I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed a crime now being investigated.” The report produced from the ID session contains not only the specific results but considerable contextual material. Of the five areas in which officers record items, three deal with the background to the session: the witness’s opportunity to view the suspect during the crime itself; the witness’s degree of attention (i.e., the nature of the crime; the witness’s occupation, training, prior experience as victim; and the witness’s prior relationship, if any, to the defendant); and the accuracy of the witness’s principal description of the alleged assailants (i.e., when and to whom the description was first given; whether the witness identified an accent or distinctive marks, tattoos, limp, or other such feature on the suspect). During the photo array process, officers are required to observe the level of certainty (i.e., the time the witness viewed the lineup before making an identification; what the witness said or did when making an identification). Finally, the officer must record the length of time between the crime and the photo lineup. Obviously, a session that occurs a day or two after the crime will yield a far more reliable identification than one that takes place, say, three weeks after the incident.

Of all the procedures in the state—including those of the Actual Innocence Commission—that structured by D.A. David seems the most comprehensive. It combines the spirit of the AIC’s desired procedural protections for suspects with common-sense efficiency measures and the guaranteed recording of useful contextual information for law enforcement. Mistaken ID’s, of course, always can occur, but in the David system, they would seem highly unlikely; and proper ID’s would be more likely to yield convictions.

On the question of eyewitness IDs, then, North Carolina features an overwhelming consensus. And in the aftermath of the Gell case and the work of the AIC, that consensus is moving in favor of more, not less, fairness and transparency in the eyewitness ID process.

This procedures employed in the lacrosse case contradict from this pattern in almost every respect. As an N&O story observed, the policy followed in Durham before April 4, General Order 4077, reflected CJ guidelines. But in the first paragraph of Sergeant M.D. Gottlieb’s report of the lacrosse ID session, he wrote:

Mr. Nifong suggested we put together the mug shot type photographs [of the lacrosse players] into a group since we are under impression the players at the party are members of the Duke Lacrosse team and instead of doing a line up or a photographic array, we would merely ask the [alleged] victim to look at each picture and see if she recalled seeing the individuals at the party.

Gottlieb himself conducted the session—beginning, as Coleman noted, by informing the accuser that she would only be seeing “people we had reason to believe attended the party.” The accuser identified one person (Collin Finnerty) who she claimed attacked her in a variety of ways. Three others, she said, “looked” like people who might have attacked her. For reasons that remain unclear, Gottlieb treated each of these three partial IDs in very different ways—confirming the wisdom of policies like Burlington’s, where people who have no involvement with the case oversee the viewing and therefore are consistent throughout the process.

Gottlieb passed over the first partial ID quickly and without explanation. The second partial ID—of Dave Evans—led to the accuser saying Evans resembled her attacker, but the person who attacked her had a mustache (which Evans does not). Gottlieb then asked the accuser to give a “percentage-wise” estimate, something that he hadn’t asked of the previous partial ID. (The accuser said she was 90% sure.) The third partial ID—of Reade Seligmann—began with the accuser saying “he looked like one of the guys who assaulted me.” Then, under follow-up questioning from Gottlieb, the accuser claimed that she was 100% sure. As far as we know, this one statement is the only evidence against Seligmann, who was video-taped at a Wachovia ATM a mile away at the time of the alleged crime.

The conclusions?

For the state: The AIC seems to have had a significant, and constructive, influence on fairness in eyewitness IDs—even though its guidelines are only recommendations. Many small departments have adopted the recommendations en toto. Among large departments, one (Winston-Salem) is moving in that direction, another (Raleigh) follows the basics of the AIC approach, and a third (Charlotte-Mecklenburg) is headed by a police chief who was himself a member of the AIC. Two of the smaller departments noted that the apparent preference of the North Carolina courts for AIC identifications had facilitated their decisions. All non-AIC departments surveyed adhere to CJ guidelines, except those in southeastern North Carolina, whose independent approach seems more conducive to the cause of justice than either the AIC or CJ policies.

For the lacrosse case: The manner in which Nifong orchestrated the photo ID deviates wildly from common North Carolina practice, in at least four ways:

1.) The basic debate in the state seems to revolve around following the AIC or CJ guidelines, or developing a hybrid (D.A. David). As far as I could determine, in no North Carolina jurisdiction is it the policy to confine eyewitness ID sessions to suspects in the case.

2.) Every police department that communicated with me has a standard policy—either formal or informal—of telling witnesses that the photo array might or might not include the suspect. As far as I could determine, in no North Carolina jurisdiction is it the practice, as was followed in this case, for the witness to be informed that the photo array would consist only of possible suspects.

3.) As far as I could determine, no North Carolina jurisdiction possesses a third identification procedure, one that can be used, to quote Gottlieb’s description of Nifong’s words, “instead of doing a line up or a photographic array.”

4.) Some district attorneys who communicated with me seemed to like the AIC guidelines; others weren’t particularly enthusiastic about them; others (like David) developed their own systems. But of those who said that they made recommendations to local law enforcement, all did so in favor of departments using fillers in photo ID sessions, not the reverse. And a district attorney setting policy for an eyewitness ID session seems to be unusual in and of itself.

The lacrosse session also departed from the statewide norm (although here no unanimity exists) in having someone intimately involved with the investigation oversee the photo ID session.

A notion to suppress the IDs in this case is pending.

[Originally published in Cliopatria.]

D.A. Fundraising Totals

North Carolina District Attorneys
Percentage of Itemized Contributions from Lawyers with Business before the Court
First Quarter, 2006

Nifong fundraising burst: 83.6% of itemized donations from local lawyers ($12,500 of $14,950 raised)

Nifong personal loan to campaign once fundraising went dry: 1st quarter, $6601; $28,989 total

Name	$ from lawyers	overall fundraising total	% from lawyers	candidate loans
Frank Parrish	n/a	n/a	n/a	n/a
Seth Edwards	9425	19750	47.7	0
Clark Everett	n/a	n/a	n/a	n/a
Scott Thomas	0	223	0.0	0
Dewey Hudson	0	0	0.0	0
Ben David	150	475	31.6	0
Bill Graham	700	3040	23.0	0
Valerie Asbell	1900	5225	36.4	0
Howard Boney	6350	11750	54.0	0
Branny Vickory	n/a	n/a	n/a	n/a
Sam Currin	0	0	0.0	0
Joel Brewer	5750	6750	85.1	0
Colon Willoughby	0	114	0.0	0
Thomas Lock	500	700	71.4	0
Edward Grannis	0	0	0.0	0
Rex Gore	13150	40625	32.4	0
Robert Johnson	0	44258	0.0	0
James Woodall	0	2450	0.0	0
Kristy Newton	0	0	0.0	0
L. Johnson Britt	1000	3000	33.3	0
Belinda Foster	2750	12895	21.3	0
Ricky Bowman	n/a	n/a	n/a	n/a
Doug Henderson	18640	29551	63.0	0
Roxann Vaneekhoven	750	2755	27.2	0
Garland Yates	n/a	n/a	n/a	n/a
William Kenerly	n/a	n/a	n/a	n/a
Michael Parker	4210	19186	21.9	3000
Thomas Keith	5625	9775	57.6	0
Garry Frank	0	0	0.0	0
Tom Horner	n/a	n/a	n/a	n/a
Jerry Wilson	n/a	n/a	n/a	n/a
James Gaither	500	13408	3.7	0
Peter Gilchrist	n/a	n/a	n/a	n/a
Michael Lands	300	1400	21.4	0
William Young	n/a	n/a	n/a	n/a
Ronald Moore	150	150	100	0
Jeff Hunt	1750	20160	8.7	0
Mike Bonfoey	0	2751	0.0	1053

n/a=candidates whose fundraising threshold didn't meet minimum required to file an itemized report
0=nothing raised in the quarter, but cash-on-hand exceeds minimum required to file an itemized report