Thursday, August 31, 2006


It goes without saying that Mike Nifong has used the lacrosse case to make a mockery of justice. I'm a historian of Congress; almost all of my scholarship deals, in one way or another, with the signifciance of understanding the relationship between procedure and policy outcomes. So it has been distressing to see important segments of the media--led locally by the Durham Herald-Sun and nationally by CBS legal commentator Andrew Cohen--implicitly suggest that a prosecutor following procedures is of little or no relevance of our legal system.

That said, those who mock justice expose themselves to mockery in turn; and no website has demonstrated a more piercing wit than Liestoppers. Some of the site's best parodies:
My personal favorite came when Liestoppers "Nifonged" the Group of 88.

This case is so depressing that it's good to occasionally view events in Durham through a light-hearted lens.

The Company He Keeps

The Duke Chronicle confirms the story first reported in the N&O: perennial fringe candidate Victoria Peterson is co-chair and founding member of Mike Nifong’s citizens’ committee. She met with Nifong before creating the organization; the district attorney told reporters, “I was very pleased. It made me feel good.” Highlighting Peterson’s penchant for peculiar pronouncements, blogger John in Carolina termed the development a “campaign disaster” for Nifong.

Two of Peterson’s actions in this case raise serious concerns about Nifong’s accepting her as co-chair of his citizens’ committee. On April 11, the day after defense attorneys revealed that the DNA tests that Nifong had promised would “immediately rule out any innocent persons" matched none of the lacrosse players, Peterson spoke out at a forum held on the NCCU campus. She offered a novel rationalization for the DNA results: Duke University hospital had “tampered with” the sample.

Peterson, of course, is entitled to any opinion she wants, no matter how bizarre. But law enforcement officials usually shy away from people who peddle wild conspiracy theories that undermine public confidence in the judicial system. It’s even rarer to see a district attorney express joy at such a figure co-chairing his citizens’ committee. Think back to the assertions of former White House press secretary Pierre Salinger after the TWA Flight 800 crash a decade ago. Can anyone imagine, in the following year’s New York City elections, Manhattan D.A. Robert Morganthau or mayoral candidate and former U.S. Attorney Rudy Giuliani terming themselves “very pleased” or saying it “made me feel good” to have a conspiracy theorist like Salinger running their campaign’s citizens’ committee?

Nifong’s acceptance of a prominent role for Peterson in his campaign seems to conflict with the state bar ethics committee’s assigning district attorneys “the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict.” Obviously, elected district attorneys always face tensions between their job’s political and legal requirements. But affiliating with a figure who publicly suggested a conspiracy by medical officials to alter evidence in a case he’s handling suggests that Nifong has abandoned all pretense of serving as “minister of justice.”

Peterson’s other signficant case-related event came on May 1, when she was one of two people to flank Malik Zulu Shabazz during his public appearance in Durham. The head of the New Black Panther Party demanded the immediate imprisonment of the accused lacrosse players. To return to the state bar’s ethics requirements, the guidelines say that the minister of justice “responsibility carries with it specific obligations to see that the defendant is accorded procedural justice.” It’s hard to see how any prosecutor who took that requirement seriously could welcome a co-chair of his citizens’ committee who gave her public backing to a demand for imprisonment even before a trial.

As with her speculation about DNA, Peterson has the right to associate with anyone she wants, no matter how reprehensible his views. But how could a “minister of justice” say it “made me feel good” to have a citizens’ committee co-chair that he knew also had publicly endorsed the head of an organization that both the Anti-Defamation League and the Southern Poverty Law Center deem a hate group?

Nifong’s acceptance of Peterson as his citizens’ committee co-chair continues his pattern of inexplicable behavior toward the New Black Panthers. Two issues particularly stand out.

1. In his court hearing in May, Reade Seligmann received a death threat from a member of the New Black Panthers party, who sat directly behind him in the courtroom. What did Durham County’s “minister of justice” do? Nothing. (One observer even said he smiled.) To my knowledge, Nifong has never publicly condemned the death threat, much less promised to investigate it.

2. At a time when he was regularly refusing to speak with defense attorneys, Nifong accepted a call from Shabazz. Though he claimed to have used the occasion merely to urge Shabazz to “consider not coming,” the New Black Panther head asserted that two discussed the case at some length. It seems strange that Nifong would talk to Shabazz but refuse to meet before the indictment with Seligmann’s attorney, Kirk Osborn, to discuss what Osborn maintained was evidence to prove his client’s innocence. After all, Nifong had no obligation to speak to Shabazz, while the state bar’s ethics code mandated that he “not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.”

Nifong, of course, cannot control what Victoria Peterson says or does. But he can control whether he publicly welcomes the backing of a figure with such a record. Since he instead expressed joy at Peterson’s involvement in his campaign, it’s time for editorialists in North Carolina to start asking the district attorney some hard questions.
  1. Will Nifong repudiate the DNA theories of his citizens’ committee co-chair?
  2. Will Nifong explain how he could be “very pleased” to have a citizens’ committee co-chair who appeared on the platform when a hate group visited Durham?
  3. Will Nifong, at long last, start serving as a “minister of justice” and publicly condemn a death threat that occurred as he stood not 20 feet away in the courtroom?

Wednesday, August 30, 2006

The Peculiarities of the Elmostafa Case

The longer the Duke lacrosse case proceeds, the more disturbing signs emerge. Certainly Sgt. Mark Gottlieb's typed, four-months-after-the-fact notes, which Stuart Taylor denounced as "transparently contrived" and "unworthy of belief." But yesterday's determination that cab driver Moezeldin Elmostafa was not guilty of a 2003 misdemeanor charge (aiding a shoplifter to whom he gave a cab ride after her crime) also does little to increase confidence in Mike Nifong's ethical core.

The case itself appears to have been laughably weak: according to the N&O, "a former former store security officer testified that he saw the woman get into Elmostafa's cab, which sped away even before the woman could close the door." But Nifong's office possessed a videotape contradicting the security officer's testimony, and no one else claimed that Elmostafa did anything wrong. So why, then, would the district attorney bring the case to trial? It's hard to avoid the inference that this was payback to Elmostafa for coming forward very shortly after the arrest of Reade Seligmann to confirm that he had given Seligmann a cab ride at the time of the alleged crime. Elmostafa's testimony has subsequently been confirmed by Seligmann's cellphone records, a videotape of Seligmann at a Wachovia ATM machine, various other unimpeachable electronic records, and the affidavit of the other person in the cab, Rob Wellington. But at the time that Elmostafa swore out his affidavit, none of this evidence was known to him. So what he did took courage.

There were three disturbing items that emerged from yesterday's court session, two involving discovery file material not previously known:

1.) The existence of Elmostafa's undelivered warrant (one of thousands in Durham County) was discovered not by the Durham Police, but by Nifong's case investigator, Linwood Wilson. Wilson was last heard from interrupting a press conference by defense attorney Joseph Cheshire to claim that nothing in the 1800 pages of the discovery file suggested that the accuser had ever told differing stories about her alleged attack, only to be humiliated the next day when Cheshire released a police report from the file (that Wilson claimed to have read) in which the accuser asserted that five people raped her.

Regarding Elmostafa, Wilson claimed that the warrant's discovery was routine, the sort of check he does on every witness; "it has nothing to do with putting any kind of pressure on him," said the investigator. But Nifong's office was blindsided by revelations that the accuser had previously filed a charge that she was gang-raped by three men.

Is Nifong's investigator seriously claiming that he does a more thorough background check on potential alibi witnesses for the defense than for his office's own chief witness?

2.) Nifong's office has repeatedly denied any connection between the arrest and the lacrosse case. Yet the notes of Inv. B.W. Himan revealed in court yesterday showed that "Mr. Nifong wanted to know when we picked [Elmostafa] up." This note enhances the credibility of Elmostafa's claim that when Inv. R.D. Clayton picked him up, "The detective asked if I had anything new to say about the lacrosse case. When I said no, they took me to the magistrate."

Is Nifong's office seriously claiming that the district attorney wants to be informed each and every time Durham police serve a 2.5-year-old misdemeanor warrant?

3.) The N&O reports that "all day long, two investigators on the lacrosse case, Benjamin Himan and R.D. Clayton, sat in the courtroom." Elmostafa's lawyer asked the obvious question: "Why are they here? Supposedly they know zero about Hecht's, so why are they here?"

Their appearance yielded one of the classic photographs of the case, with Clayton doing his best caraciture of a 1950s Southern sheriff.

Clayton's pose is apt. In many ways, Durham’s legal system has reverted to a mirror image of what existed in the South 50 years ago, when defendants were halfway to conviction based on the color of their skin. Indeed, the closest historical parallel to Nifong’s behavior over the past five months comes from the 1950s and early 1960s, when district attorneys in the Deep South routinely filed specious charges against civil rights activists. Facts were irrelevant; everyone knew the accused were innocent. These cases politically aided the prosecutors, who, like Nifong, blatantly violated procedures just to get to court. Then, however, the national legal community, academics, and the media rallied against the injustices. Now, it seems, all three have different priorities.

"The Good Old-Fashioned Way"

During the course of the lacrosse case, three of Mike Nifong's statements should have outraged every lawyer in the country--and every person who holds even a sliver of respect for civil liberties:
  1. "One would wonder why one needs an attorney if one was not charged and had not done anything wrong." (March 31)
  2. "None of the 'facts' that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially.” (June 13) [Nifong expressed his initial opinion on the case on March 27, before most of the evidence in the case came in.]
  3. "DNA results can often be helpful, but, you know, I've been doing this for a long time, and most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them." (April 11)
In yesterday's New York Times, attorney Thomas Schlafly offered the only possible retort to Nifong's "old-fashioned" comment:

There’s a big difference between convicting a defendant without DNA evidence because the technology did not exist and convicting a defendant when DNA evidence is available and the DNA results are negative.

In the first instance, there would have been no DNA evidence to counter the testimony of witnesses. In the second, such DNA evidence exists and is exculpatory.

It would seem as if three plausible explanations exist for Nifong's statement.

  1. The Wilson/Glater approach in the New York Times: deem Nifong's statement credible based on assurances from unnamed "outside experts." Such a strategy prompted Stuart Taylor to wonder if the Times had transformed itself into a "witness for the prosecution."
  2. The likely approach: evaluate Nifong's statement in light of his behavior throughout the case, and recognize that he was desperate for any theory to explain away evidence he promised would identify the guilty parties. He made his DNA statement a day after defense attorneys publicly revealed that DNA tests that the district attorney had promised would identify the guilty and exonerate the innocent matched no lacrosse players.
  3. The excessively charitable approach: assume that, perhaps, Nifong was expressing a mistaken, if sincere, belief. After all, it's been some time since he prosecuted a rape case. He hasn't handled one since becoming D.A., and I strongly doubt that any rape cases crossed his desk during the half decade he spent in Traffic Court before an appointment from Governor Mike Easley revived his career.
Nifong might want to familiarize himself with the Innocence Project, which has distinguished itself for exonerating the wrongfully convicted, especially the indigent and minorities, by using postconviction DNA testing. Among the items the Project lists as causing false convictions? "Mistaken eyewitness identification." "Prosecutorial/police mistakes or misconduct."

Or the district attorney could examine the work of the NAACP's Legal Defense Fund, which similarly has championed the value of DNA evidence over "the good old-fashioned way" of doing things. The LDF joined the defense team in the first Supreme Court case, House v. Bell, to consider the question of whether DNA can be used to determine actual innocence.

The recent efforts of groups like the LDF or the Innocence Project show why Nifong's peculiar legal theories are of relevance beyond this case. Its high profile and the aggressiveness of the prosecution's actions mean that the case will provide a precedent, at least for North Carolina if not beyond.

The Nifong theory of DNA is a simple one: this scientific evidence can prove guilt but, apparently, can never exonerate. If his vision of justice prevails, groups like the Innocence Project would have no purpose, since DNA evidence could be used solely to help get convictions.

Is there any responsible legal figure outside the Durham County District Attorney's office who would embrace such an "old-fashioned" belief? If not, they should start speaking up, before the Nifong Rules extend beyond Durham and expose more innocent defendants to the pernicious effects of "old-fashioned" justice.

Hat tips: J.S., Nancy Kidder

Tuesday, August 29, 2006

Welcome Slate Readers

Those who read Stuart Taylor's masterful dissection of the latest Times article might be interested in my open letter to the Times executive editor and news editor. For the blogopshere's most comprehensive dissections of the Wilson/Glater article, take a look at LieStoppers and CrystalMess.

This site focuses on the twin themes of D.A. Mike Nifong's procedural misconduct, correctly termed "mindboggling" by Susan Estrich; and the disturbing reaction to the lacrosse case by the Duke faculty and administration. But I also post on such issues as: commendable developments among the Duke student body; the short-sighted stance taken by outside groups such as the NAACP; the intersection between the case and local politics; and how many in the media have defined the "legal process" in a most peculiar fashion. I hope that you'll take some time to look around the site.

Taylor, of course, has been covering the lacrosse case almost from the start: he was a journalistic voice in the wilderness when virtually all in the mainstream media were accepting the validity of Nifong's claims. He uses that depth of knowledge well in his dismissal of the Times article.

Perhaps the single most important point Taylor makes is that the Times' approach to this case, which has now culminated in the Glaser/Wilson article, is more than simply "bad journalism." It is "worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent."

The Times had an opportunity in this story to do something important if admittedly difficult--admit the error of its original rush to judgment. Sometimes lost in this affair is that Nifong's procedural misconduct, minimized by the Times, has inflicted extraordinary harm on three people. One, Reade Seligmann, is suspended from school, even though, as Taylor pointed out, he is demonstrably innocent. A second, Collin Finnerty, also has been suspended, despite having been selected from the same flawed process as yielded Seligmann. And the third, Dave Evans, has had his post-graduate life turned upside down. Rather than crusade for the innocent (a customary approach of the Times), the paper shaded or omitted critical facts, while giving credence to the inherently incredible--the after-the-fact typed report of Sgt. Mark Gottlieb.

Taylor also breaks new ground in the story. Though never making the claim outright, the Times article was cleverly crafted to suggest the possibility of date rape--the very same tactic that Nifong has employed almost from the start. Perhaps Glater and Wilson should have done more to cultivate defense sources: Joseph Cheshire, Dave Evans' lawyer, told Taylor, "A toxicology report that the defense was informed of last week was negative for any date rape drug in the accuser's system." Taylor also demolishes the story's pernicious suggestion that the DNA evidence wasn't wholly exculpatory to the defense. Indeed, as Nifong promised in his court filing, the DNA test results should have ended the case then and there.

Anyhow, for newcomers, welcome again to the site; any comments or questions about the site can be addressed to


In the upside-down world that has prevailed in Durham for the last five months, Duke students have increasingly risen to the challenge as the institution's arts and sciences faculty has sunk to progressively lower depths. Two developments yesterday reinforced the pattern.

On the positive side, a new student group emerged: Duke Students for an Ethical Durham. We often hear faculty and administrators championing participatory democracy, or expressing their hopes that students will demonstrate greater civic involvement. Normally such statements amount to little more than cloaks to advance various curricular agendas.

Duke students, however, have taken the advice literally. Students for an Ethical Durham is conducting a voter registration drive on the Duke campus, so that Duke students can have a voice in restoring a sense of civic justice to the community in which they live. The group is a bipartisan one: its two spokespersons, Emily Wygod and Christiane Regelbrugge, disagreed on the better candidate in the 2004 presidential, but they have no doubt that Duke students need to participate in the Durham political process if they expect fair treatment from local authorities. As Regelbrugge noted, "The people that Durham residents elect need to be held accountable to treat every resident fairly. Those who've been elected have really not been held accountable at all." The spokespersons said they hope to register 2000 Duke students by the deadline for the November election; currently, less than 10% of Duke students are voters in Durham County.

At a time when D.A. Mike Nifong plows forward with a case created on a tissue of ethical violations and his chief investigator submits an after-the-fact typed report than even a high school reporter might consider fradulent, Durham clearly is a city in need of ethical improvement.

The contrast between the Duke students group and a citizens' group just announced on behalf of D.A. Mike Nifong's campaign is telling. The Nifong effort is also headed by two people: Kim Brummel, who isn't even a resident of Durham County; and Victoria Peterson. As blogger John in Carolina has noted,
Peterson flanked Malik Zulu Shabazz, the national chairman of the New Black Panthers Party, as he announced during a visit to Durham, "We are mad and fired up. We demand justice, and we will have justice, one way or the other." These are the people Mike Nifong (who said "it made me feel good" when Peterson and Brummel pledged their support) wants to chair his citizens' committee? Duke Students for an Ethical Durham didn't appear a moment too soon.

While Students for an Ethical Durham offers a vision of undergraduates at their most idealistic, looking to change society through collective action, this week's ESPN Magazine provided an example of a faculty that has lost its moral compass. The well-written story examines how the events of last spring affected six people on the Duke campus.

One is women's lacrosse coach Kerstin Kimel, and the ESPN article provides yet another reminder of why Kimel is one of the few genuine heroes of this affair. In the early stages of the crisis, reporter Jon Pessah notes, Kimel
wondered why no one at Duke was looking out for the players. This was not a Duke that Kimel recognized, not the one she fell in love with more than a decade ago, not the one that gave coaches the resources to build elite programs. Certainly not the one she told parents about while she sat in their living rooms. "You're not joining a team," she'd say. "You're joining the Duke family."

Kimel recalled an e-mail she received from one of her students: "One of my teachers knows there are six male lacrosse players in the class and said some things that were very out of line this morning. The boys ended up leaving, which made me rather emotional. It just makes me so sad. I feel like the boys are going to feel unsafe in this class from here on out"; in another e-mail, a player told Kimel that her professor calling lacrosse players "animals." Kimel demanded that the Duke administration do something to stop the harassment--a demand, from all accounts, that came from no other person at Duke. To date, there is no evidence that Duke has even investigated any of these incidents, much less meted out punishments to professors who engaged in such unprofessional behavior.

What sort of academic culture can exist in which faculty members see nothing wrong with such behavior? One, apparently, that fosters professors such as the Group of 88. The group's "Social Disaster" ad, which appeared in the April 6 Duke Chronicle and remains posted on the Duke African-American Studies program's webpage, is the low point of the institution's response to this crisis.

  • Ignoring the academy's celebration of dispassionate analysis of all available facts, the Group of 88 relied solely on Nifong's words to definitively state that "something happened" to the accuser.
  • Setting aside the academy's commitment to due process and procedural regularity, a cardinal principle of higher education at least since the McCarthy era, the Group of 88 said "thank you" to campus protesters who had created "wanted" posters of the lacrosse players and had banged pots and pans outside one player's residence, shouting, "Time to confess."
  • Bypassing the academy's promise to do whatever is ethically possible to shield our students from harm, the Group of 88 contributed to what Times columnist David Brooks has termed a "witch-hunt" atmosphere at a time when Nifong had made no indictments.

In recent weeks, some Duke professors have tried to backtrack from the straightforward wording of the Group of 88's statement. We heard that the professors really worried most about an alcohol culture--even though the statement contained not a single mention of Demon Rum. From others came the claim that the Group of 88's statement "has nothing to do with the LAX case." Privately, I've been told, some faculty were even framing the statement as a benevolent expression of common principles--no more, no less.

Such arguments, of course, required a considerable suspension of judgment: in effect, 88 faculty members at a great university wanted observers to believe that they didn't mean what their own words said. In light of the ESPN article, these claims can be fully dismissed.

The publication reveals that the point person for the Group of 88 statement was Wahneema Lubiano, a professor of African-American Studies. Lubiano looked over the final draft--it appears that at least some of the signatories didn't even know which student quotes and which specific faculty wording would appear over their own signatures. No matter--the student gathering from which quotes were culled was hardly representative. According to ESPN, the meeting had two white women, "a few Latino and Asian students and a couple of white faculty members. Everyone else was black."

Lubiano, reports the magazine, "had heard for years about the poor reputation of the lacrosse team, heard some of her students call them racists. A Facebook photo of a male student in blackface, believed to be a lacrosse player, had been e-mailed around before and after the alleged rape." That the Coleman Committee investigated such allegations and found no evidence to substantiate them seems to have had no effect on Lubiano's certitude.

The Group of 88 reflected broader faculty culture. In late March, a meeting of about 200 anti-lacrosse faculty members occurred, at which "a senior professor stood and berated the team, saying the school needed to flush it down the drain and start over." The African-American Studies professor, meanwhile, entertained no doubt about the significance of the Group of 88's action: "Lubiano knew some would see the ad as a stake through the collective heart of the lacrosse team." She didn't care. At a time when the district attorney was threatening to indict not just alleged rapists but the entire team--and on a day, as we know now, that Nifong understood he had no DNA evidence to move forward--a professor holding such sentiments about her own students is chilling.

Lubiano's hostility to the lacrosse players only intensified after the Group of 88's statement appeared. On April 13, three days after public 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 who had first stated that “DNA evidence requested will immediately rule out any innocent persons.”) But if the case wasn't moving forward as she might have hoped, the campus culture was turning in Lubiano's direction. 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."

If Duke had more people who conceived of their roles as has Kerstin Kimel and less who acted like Wahneema Lubiano, I suspect the institution could have offered a successful moral resistance to Nifong's behavior. If the school spawned more groups like Duke Students for an Ethical Durham and less like the Group of 88, perhaps Duke could even have publicly demanded that local authorities treat Duke students according to local procedures.

In the short term, Duke's failure has harmed three of its students, one of whom is demonstrably innocent and the other two who almost certainly are. In the long term, it will be up to the students--people like Emily Wygod and Christiane Regelbrugge--to revitalize the institution's moral core that their administrators and faculty have sacrificed.

Monday, August 28, 2006

Times Open Letter

I sent the following email to Times executive editor Bill Keller and news editor Jill Abramson. Perhaps unsurprisingly, no response was received.

Mr. Keller:

My name is KC Johnson; I am professor of political and constitutional history at Brooklyn College and the CUNY Graduate Center:

I have blogged extensively about the Duke lacrosse case, and write to express my dismay, intensified by the recent Wilson/Glater article, at The Times' coverage. As Times columnists David Brooks and Nicholas Kristof have expressed profound concern about D.A. Mike Nifong's wholesale disregard for legal ethics, the Times news staff appear determined to fit the case into a preconceived storyline of racial injustice even if doing so requires ignoring the facts of the case and minimizing the extent of Nifong's misconduct.

The Wilson/Glater article, as in previous Times coverage:

  • neglects to mention that Nifong's early comments on the case almost certainly violated Rules 3.8(f) of North Carolina's Code of Professional Responsibility, which forbids prosecutors from from making extrajudicial comments that have "a substantial likelihood of heightening public condemnation of the accused." Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did. He was successful enough that his relentlessly repeated—and almost certainly false—accusation of racial rape has defined this case and The Times' coverage of it to this day.
  • declines to state that Nifong's pre-indictment refusal to meet with defense lawyers who claimed to possess evidence of Reade Seligmann's innocence violated two other sections of Rule 3.8, comments 1 and 2. The first comment says that "a prosecutor has the responsibility of a minister of justice and not simply that of an advocate . . . This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice"; the second holds 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." Nifong's action was about as outrageous an abuse of power as any prosecutor can exercise. Think of one of your own children facing false indictment and a prosecutor refusing even to look at evidence proving their innocence.
  • never explains that Nifong explicitly ordered Durham police officers to violate their own department's procedures regarding eyewitness identifications—an extraordinary action for any district attorney to take. The authors vaguely suggest that the lineup violated "generally accepted guidelines," not revealing the source for these guidelines.

These were not minor procedural errors—they revealed a pattern of misconduct that strikes at the heart of our legal system. But don't take my word for it. Duke Law School professor James Coleman remarked, "Up to now, virtually everything that Nifong has done has undermined public confidence in the case . . . Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case." Coleman's Duke Law colleague, Erwin Chemerinsky, recently said he couldn't "think of any" comparable examples of a prosecutor first assuming control of a police investigation and then disregarding multiple standard procedures in order to secure indictments. USC Law's Susan Estrich wrote that Nifong demonstrated "a failure to follow standard procedure that is rather mind-boggling." She said this case should never have gone forward.

Estrich, of course, is a leading feminist who served as Mike Dukakis' campaign manager. Coleman and Chemerinsky are two of the most prominent legal liberals in North Carolina, recipients of multiple awards from the ACLU and NAACP.

The reasons for this "mind-boggling" procedural misconduct were not hard to understand. In two rounds of discovery, Nifong turned over what seemed like his whole file. There was nothing there. As items that should have formed the heart of his case (statements of the second dancer, the neighbor, the accuser's "driver," the DNA evidence) instead undermined Nifong's claims, everyone was bailing out—even the Black press in Durham. It was clear he had no case, even before Seligmann's lawyer publicly presented the essentially air-tight alibi that the district attorney had ignored.

And then along came Sgt. Mark Gottlieb's written-from-memory, four-months-after-the-fact report, supplemented by few if any contemporaneous notes—in effect going in after every apparent hole in the case, changing facts, coming up with information contrary to what was already known, desperately trying to put some meat on the threadbare bones of this case. His report contradicted or differed substantially from the contemporaneous notes or written reports of, at a bare minimum: (1) his partner; (2) a female police officer; (3) the SANE nurse; and (4) doctors at Duke Medical Center. Most outrageous was his obvious lie about the accuser's March 16 descriptions of her alleged assailants. His partner's report made clear the accuser's descriptions totally ruled out Collin Finnerty, who bears zero resemblance to any of the three identifications she provided. Yet in his recapitulation of the exact same meeting, Gottlieb four months later claims the accuser detailed what amounts to a dead-on description of Finnerty. How could The Times print this with a straight face?

I'm stunned that that any reporter at The Times, much less an editor or group of editors, could look at Gottlieb's document with so little skepticism—indeed, to view it as the spine of a major story. What kind of reporter could accept such a document at face value? What kind of newspaper accepts such shoddy goods as gospel? I've read The Times my whole life. I've always viewed it with the utmost respect. But to read your coverage of a case I know a lot about leaves me utterly shaken. I don't know if your reporting is driven by incompetence, laziness, or an agenda, but it's an embarrassment.

Finally, have you no sense at all of the political dimensions of what's going on? Nifong embraced this case when he was desperate for black votes in a closely contested Democratic primary. He promised DNA would identify the guilty. When it matched no one on the team, he plowed on with his tainted lineup and then got indictments the week before his election. One of those accused, Seligmann, was on the phone or away from the house virtually the entire time the alleged rape took place. The other, Finnerty, bore no resemblance tothe accuser's description of any of her three alleged attacker. Nifong got those black votes and won. He's now in what amounts to a recall election—a contest, amazingly, unmentioned in The Times' nearly 6,000-word article. There is one other name on the ballot, a local politician who says he won't serve if elected. But if he wins, the Governor gets to pick a new D.A. So Nifong needs to keep this case alive at least until November, and he desperately needs someone to come out and say he has a reason to go forward. I would have expected the Durham Herald-Sun to do that for him, but not the New York Times.

It seems, by the way, I am not alone in my astonishment and dismay. I invite you to look at the posts below, which come from blogs of varying ideological persuasions:

And I've also included a few of my own blogs that might be worth your consideration:

Thanks so much for reading this. Please let me know if there's any further help I can provide.

KC Johnson

Sunday, August 27, 2006

Eyes Wide Shut

The Durham Herald-Sun’s Bob Ashley is presiding over the biggest trial in his city’s history. Yet his “eyes wide shut” approach to coverage has gotten so one-sided that he is now the subject of internet lampoons (and quite clever ones, at that).

In recent weeks, the Herald-Sun has seemed to go out of its way not to provide basic information about the case that conflicts with the editorial page’s line that regardless of the extent of D.A. Mike Nifong’s procedural misconduct, a trial must occur. Some typical examples, based on a recent Lexis/Nexis review, of what anyone who exclusively reads the Herald-Sun would not know:
  • That Durham city procedures contain General Order 4077, which requires all eyewitness ID lineups to contain five fillers per every suspect, an independent investigator to run the array, and the eyewitness to be informed that the suspects might or might not be in the array. The News&Observer revealed the information; the Herald-Sun has contented itself with repeating claims that defense attorneys have suggested Nifong’s April 4 lineup doesn’t pass constitutional muster.
  • That Nifong sent a bizarre e-mail to members of the Animal Control Advisory Committee, saying that “was truly dismayed at the number of my fellow board members who signed the Lewis Cheek [petition].” He added, “Since it is apparent that many of you do not have confidence in me, I intend to reassess the position of my office with respect to representation on the board and to inform you of my decision about whether we will continue to participate within the next two weeks . . . Animal control is a very important issue in Durham, and it is crucial that the [committee] be comprised of people who can work together in an atmosphere of mutual respect and trust.” Again, the News&Observer broke the story; the Herald-Sun followed up a day later mentioning “reports” of Nifong’s displeasure but never saying that Nifong started the controversy by sending an e-mail.
  • That Duke law professor James Coleman, a former chief counsel to the House Ethics Committee (when the Democrats controlled the House), publicly demanded appointment of a special prosecutor because of Nifong’s myriad procedural irregularities; and that Coleman commented, “I don’t think he’s showing detached judgment. I personally have no confidence in him.” Yet again, the News&Observer broke the story; the Herald-Sun has never mentioned Coleman’s position, which he reiterated in an interview for Sports Illustrated.
  • That, contrary to city procedures and elementary principles of due process, the police conducted a photo ID lineup with the accuser whose results they then ignored. Take a guess which paper revealed the information, which, like Coleman’s demand, has never been mentioned in the Herald-Sun.

Omitting obviously relevant framing information is another Herald-Sun tactic. Twice this summer, the paper has featured strongly pro-prosecution comments from Irving Joyner. On June 15, Joyner dismissed documents released by defense attorneys showing gaping holes in Nifong’s case: “In the public view, it probably seems like this is a big deal and that the police were caught doing something wrong. It plays well in the theater, so to speak. But at this point, I don’t think it’s all that strong. A lot will depend on the fortitude of Mike Nifong and his faith in his case. If he believes in what he is doing, it could go all the way.”

Then, on August 1, Joyner weighed in about the fact that Dave Evans’ DNA, along with that of another person who wasn’t the accuser, was discovered on a towel—from his own house. “It would tend to support the prosecution’s case,” Joyner said. “Of course, the prosecution will need to establish how the semen got there and its relevance to the young lady. There are still some hurdles, but this will help the prosecutor. The defense will have to go some lengths to explain it.”

Both of those stories identified Joyner as a law professor at NCCU. Neither, however, mentioned that he was a de facto party to the case.

As the Herald-Sun’s own pages (though not reporter John Stevenson, author of the above-referenced articles) revealed on April 19, Joyner is one of two men “organizing an NAACP panel to monitor the subsequent proceedings in the case.” The other? NAACP legal redress chairman Al McSurely, who indicated in the same article that “my sense is that the district attorney and his investigative arm, the Police Department, have done a good job.” Given that the NAACP has served as a reliable ally of Nifong’s for the past several months—even to the extent of filing a pro-prosecution gag order—surely the Herald-Sun should have identified Joyner’s position as the NAACP-designated case monitor, just as any reporter would identify a defense lawyer as someone representing the accused.

What sort of pieces has the Herald-Sun produced? Articles like this one, labeled by blogger John in Carolina as a “fake story.” Not exactly inspiring journalistic confidence.

Ashley, of course, can take any editorial position he desires, but the increasing signs that his “trial-at-any-cost” belief is shaping Herald-Sun news coverage raise concerns. So, too, does Ashley’s rationalization for his position: “One point I’d like to stress, though, is that given the sentiments in this community, I believe the best hope we have for closure is for these questions to be decided in a courtroom.”

As Ashley fully understands, criminal trials in this country do not exist to provide “closure” to a “community,” even in cases where, unlike this one, the state has not elected to charge a demonstrably innocent person.

We don’t have political trials in the United States. So if the “community” wants “closure” by trying a demonstrably innocent person, presumably the “community” will eventually have to pay for that “closure” through a massive civil settlement. Since Ashley seems unwilling to explore Nifong’s procedural irregularities in his newspaper, perhaps he might want to examine what’s happened in other cases when cities have been held liable for improper prosecutions. Then, at least, he could prepare his readers for the likely results of his blindly pro-Nifong approach.

Saturday, August 26, 2006

Times and the Blogs

The Times, no doubt, will be delighted to see its Wilson/Glater story/news analysis/very lengthy op-ed being shredded to pieces by blogs less than 24 hours after it appeared.

Liestoppers' painstaking analysis remains the best, though its fine post is challenged by the superb item from Crystal Mess.

Elsewhere, see:

No doubt all the pro-Times bloggers are experiencing internet connectivity issues, and are unable to post any items.

Dan Abrams concludes, ""I thought it was shameful. I think it was an editorial on the front page of what is supposed to be the news division of the newspaper."

Friday, August 25, 2006

More Bad Times

[Welcome Instapundit readers. I invite you to sample the site, where I'm currently housing all my posts on the case.]

Liestoppers has an painstakingly detailed examination of the . . . inconsistencies . . . in the Times' story of this morning; see here for a prosecutor's standpoint, arguing, "Having looked at these 'new' revelations supposedly beneficial to the prosecution, I disagree that it makes Nifong’s case any stronger. In fact, I think it raises some very disturbing questions."

To put it mildly, it is highly problemmatic that the Times--for a piece widely touted as a review of its initial, one-sided coverage--elected to send the same reporter (Duff Wilson) to write the new story. The history of this case has been the rush to judgment (by Nifong, by the Group of 88, by much of the national media) coupled with an almost complete refusal to admit that initial judgments might have been overstatement (David Brooks and, ironically, Ruth Sheehan are exceptions here).

There are three serious problems with the Times piece, which I will take in order of ascending importance.


The Times article is a lengthy one--nearly 6000 words--and so lack of space should not have been a problem. Why, then, as I mentioned this morning, did Wilson and co-author Jonathan Glater neglect to mention that Reade Seligmann's alibi includes a videotape of him a mile away at the time of the alleged crime? In fact, the duo go out of their way not to mention this, describing the alibi as one that his defense attorney claimed "includes cellphone records, an A.T.M. record, a time-coded dormitory entry card and a taxi driver’s account." What, exactly, is "an A.T.M. record"? Times policy seems to be to engage in creative writing and allow readers to draw their own conclusions, rather than to say, "Reade Seligmann was on a Wachovia Bank videotape at an ATM machine a mile away at the time of the alleged crime." Even those who have trouble understanding the intracacies of procedure would recognize that it's impossible to commit a crime while you're on videotape someplace else.

And why the failure to mention Nifong's promise to the court that a negative DNA test would clear "innocent" persons--while Wilson and Glater found space to include Nifong's complete rationale for dismissing the significance of the very DNA tests he had pressed the court to compel?

On the DNA front, the Times duo does everything it can to help out Nifong. The authors toss in this odd sentence: "Outside experts say it is possible for a rapist to leave no DNA evidence." Who are the "outside experts" who contend it is possible for three men that the accuser said didn't use condoms and who violently raped her "to leave no DNA evidence"? Wilson and Glater don't tell us: I guess we're just supposed to trust their word. And they also offer this strange assertion: "The woman had initially told doctors and nurses that her attackers had not used condoms." Are they asking the readers to believe that she "subsequently" changed her story? If not, why did they use "initially" in the sentence?

The Wilson/Glater approach to the primary represents another peculiarity in the article. Here is the only mention of a key motivation for Nifong to act as he did: "Mr. Nifong, in the middle of a tight primary campaign, was summoning racial ghosts for political gain. " No discussion of the racial dynamics either in the election or in the electorate. No analysis of whether Nifong's actions helped him in the primary. It unquestionably did. No mention, even, of the primary's outcome. And I've heard rumors that thousands of people signed petitions to get another candidate on the ballot, an extraordinary development in a race for DA in Durham County. Wilson and Glater apparently couldn't find time to confirm or deny these reports.

And regarding the 4-4 lineup, Wilson and Glater write the following, "The array of photographs used to identify the suspects violated generally accepted guidelines for lineups, because it included only lacrosse team members. " Well, not exactly. The lineup violated Durham city procedures--along with "generally accepted guidelines." That's a pretty big omission.

Questions for Nifong

Given the authors' obvious sympathy for Nifong, perhaps they could have found time to ask him some questions based on the facts they revealed in this story.

1.) "One of the team captains, Dan Flannery, using the name 'Dan Flanigan,' called a local escort service and arranged to pay $800 for two women to dance at what he described as a bachelor party." Nifong has repeatedly asserted that the team captains used aliases for their names, in an attempt to "confuse" the accuser. There's been no version of events (as far as I know) in which the accuser was ever given the last names of any of the players. There's no suggestion that Dan Flannery was using an alias for his first name; Kim Roberts' statement says he wasn't using an alias in talking with her, nor was Dave Evans. So where's the evidence that the players were using fake first names--a claim critical to Nifong's case, and at the heart of his March 23 filing for DNA evidence? Did Wilson and Glater ask their contacts in the DA's office about this problem?

2.) "About 30 players had been at the party," reveal Wilson and Glater. They say their article is based on "an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation," but don't say where they got confirmation that "about 30 players" were at the party. Given this fact, under what possible rationale, well after he had filed charges in the rape case, did Nifong seek federally protected student keycard information of players that he knew were not at the party? Wilson and Glater don't say.

3.) As Liestoppers has pointed out, the last article from Duff Wilson maintained the following, "Mr. Cheshire's news conference was briefly interrupted by Linwood Wilson, an investigator for the district attorney, who challenged him to show where in the documents the woman had changed her story. In an interview later, Mr. Wilson said he had seen all the evidence and that the woman, a 27-year-old student and stripper, had not changed her story." A Lexis/Nexis search reveals that Duff Wilson never wrote about Cheshire releasing, the very next day, a statement by the accuser, from the file, that five men raped her--suggesting Nifong's case investigator was either lying or hadn't read the file. Here's how Duff Wilson treats the issue in today's article. "The reference to five rapists has not been explained."

Gottlieb and the Missed Headline

The main source for the Times duo is the late-arriving report of Sgt. Mark Gottlieb. The Times reveals that Gottlieb possesses extraordinary memory skills: his report was typed months after the events it described, with, apparently, virtually no contemporary notes.

As it's apparently Times policy to trust the good faith of figures like Gottlieb, Wilson and Glater seem to have missed a main story: the Durham police force (and medical staff in the area) bring incompetence to a new level.

1.) The Times reports, "A female officer took photographs and confirmed that 'she had the onset of new bruises present,' Sergeant Gottlieb wrote. (The female officer’s report does not mention bruises.) " The Glater/Wilson article--which says it reviewed the entire discovery file--makes no mention of the authors having seen these photos. Did they?

In any case, we have Gottlieb's notes (which, again, Glater and Wilson trust enough to use as the spine of their article) saying one thing, and the female officer's notes, along with the findings of the Duke Medical staff, saying another.

2.) The Times reports,
In Officer Himan’s handwritten notes, the woman described all three as chubby or heavy. Adam: “white male, short, red cheeks fluffy hair chubby face, brn.” Matt: “Heavy set short haircut 260-270.” Bret: “Chubby.” The descriptions in Sergeant Gottlieb’s notes are more detailed and correspond more closely to the men later arrested: Collin Finnerty, 20, a slender 6-foot-3 and 175 pounds with light hair; Mr. Evans, 23, 5-foot-10, 190 pounds and with dark hair; and Mr. Seligmann, 20, who is 6-foot-1 and 215 pounds with dark hair.
Again, we have Gottlieb's notes saying one thing, and notes of another police officer saying something quite different.

Imagine any sort of cross-examination: "Sgt. Gottlieb, was your partner so incompetent as to botch the accuser's fairly straightforward descriptions"? "Sgt. Gottlieb, did you make up the accuser's reference to bruises, or was your female colleague so incompetent that she didn't mention this vital item in her report"? "Sgt. Gottlieb, since your notes reveal that the accuser apparently gave a dead-on description of Collin Finnerty, why didn't you have her view a photograph of him on March 16 or March 21: is it customary not to show accusers photos of people who look like their descriptions of their alleged attackers"? "Sgt. Gottlieb, could you explain why the Duke Medical staff was unable to detect bruises that you seem to have had no trouble observing"?

There is, of course, an explanation other than the utter incompetence of Gottlieb's partner, Gottlieb's female colleague, and the doctors trained to detect bruises. Some might wonder about the credibility of Gottlieb's all-too-convenient revelations, at least to the extent of authors not using them as the spine of the article. But this is, after all, the New York Times, which showed in the WMD crisis that it's newspaper policy to uncritically accept the unverified or even contradicted accounts of government officials who might have personal, political, or ideological motives to lie. Old habits apparently die hard.

The Times Drops the Ball

Presented with a chance to review all the evidence in the Duke lacrosse case file, the Times, alas, continued the bias it demonstrated in its initial coverage of the lacrosse case, with hysteria articles from Selena Roberts and Harvey Araton.

A few items particularly stand out from the piece:

1.) Reade Seligmann's alibi. By far the most powerful portion of the alibi is the fact that Seligmann is on videotape at a Wachovia ATM a mile away from the scene of the alleged crime at the time that crime was allegedly occurring. How does the Times describe his alibi? A "cellphone log and other records." [emphasis added]

In the grand scheme of the story, this is a minor point. But it's a terribly revealing indication of bias that the Times reporters would consider a cellphone log to be more significant that the videotape of Seligmann at at ATM. I suspect a poll of 100 randomly selected lawyers would disagree 100-0 with the Times on that point. But why didn't the reporters give the readers the opportunity to make the choice, and describe what the other records were?

2.) The Gottlieb notes. The framing of the Times story--which lead off with the notes and rely on them heavily--suggests that the authors of the piece treated these notes as reliable. Yet, as the piece itself repeatedly observes, these notes (produced three months after the first indictments and the very last items turned over in discovery) contradict significant contemporaneous items in the file--the SANE nurse in training's recollections of the accuser; his fellow officer's contemporaneous recollections of the accuser's initial descriptions.

Gottlieb's notes, according to the Times, were typed, with little or no hand-written material.

The Times' conclusion: should the notes be treated with suspicion? No: The notes show that there is a "more ambiguous picture" than the defense suggested; "it shows that while there are big weaknesses in Mr. Nifong’s case, there is also a body of evidence to support his decision to take the matter to a jury."

Goittlieb's notes, of course, didn't exist when Nifong took the case even to the grand jury. In a case where typed notes turned in months after the fact contradict items produced in a timely fashion; and when those notes amount to the only evidence the state possesses (as the Times makes clear), perhaps a wee bit of journalistic skepticism is in order?

3.) Nifong's filing with the court asking for DNA claimed, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

The Times story repeats only the second half of that statement, while quoting in full Nifong's after-the-fact rationalizing that DNA evidence no longer would rule out "innocent persons." I'm sure that Nifong, too, would like the world to forget that he ever promised the court that a negative DNA test would rule out the innocent.

I'll have a more thorough review tonight. But in a story that obviously took considerable time to research, the paper dropped the ball.

Wednesday, August 23, 2006


Duke president Richard Brodhead’s response to the open letter from the Friends of Duke University is a must-read, if only because it provides so much new information. For instance, Brodhead announces that he’s “eager for our students to be proved innocent” at trial. Duke’s new Vice President and General Counsel took office July 1, so perhaps she hasn’t had time to prep the president on principles of due process. After she does, hopefully Brodhead will realize that the purpose of a trial is not for the accused “to be proved innocent.”

The letter exemplifies a new phenomenon in Durham—Brodhead revisionism, by which the president has positioned himself as a die-hard defender of the players’ right to due process during the difficulties of last spring. He informed FODU “that those of us in positions of responsibility have acted as best we could to make two points: that what the players were accused of was, if true, a heinous act; and that it would be equally unjust to prejudge their guilt in the absence of proof and certainty. This dual message has been at the heart of virtually every public statement I have made on the case.” [emphasis added]

Really? On April 5, Brodhead made a 2,399-word public statement on the case. Reprinted below are paragraphs two through 5 of that statement:

Allegations against members of the Duke lacrosse team stemming from the party on the evening of March 13 have deeply troubled me and everyone else at this university and our surrounding city. We can’t be surprised at the outpouring of outrage. Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure. When reports of racial abuse are added to the mix, the evil is compounded, reviving memories of the systematic racial oppression we had hoped to have left behind us.

If the allegations are verified, what happened would be a deep violation of fundamental ethical principles and among the most serious crimes known to the legal system. Such conduct is completely unacceptable both within the university and in our society at large. If the truth of the allegations is upheld, it will call for severe punishment from the courts and from Duke’s disciplinary system. This university has cooperated and will continue to cooperate to the fullest to speed the ongoing investigation by the police, and I pledge that Duke will respond with appropriate seriousness when the truth is established.

But it is clear that the acts the police are investigating are only part of the problem. This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced.

Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed. And they include concerns that, whether they intend to or not, universities like Duke participate in this inequality and supply a home for a culture of privilege. The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. I know that to many in our community, this student behavior has seemed to be the face of Duke.

The only section of the letter that conceivably could be described as contending “that it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty” is the following:

The criminal allegations against members of the team must continue to be investigated by the Durham police and we will continue to cooperate with that investigation to the fullest. Many have urged me to have Duke conduct its own inquiry into these charges. Frustrating though it is, Duke must defer its own investigation until the police inquiry is completed, first because the police have access to key witnesses, warrants, and information that we lack, and second because our concurrent questioning could create a risk of complications—for instance, charges of witness tampering—that could negatively affect the legal proceedings. I assure you, however, that the Duke disciplinary system will be brought to bear as soon as this can appropriately be done. Until that time, I urge us to be patient and remind ourselves that allegations have been made, the team has denied them, and we must wait until the authorities act before reaching any judgment in the criminal case.

One sentence—38 words, or 1.6 percent of the total statement—in an otherwise hostile paragraph, and even there, nothing resembling an unequivocal declaration deeming it “unjust to prejudge their guilt in the absence of proof and certainty.” As he isn’t trained in the law, neither is Brodhead a mathematician, but 1.6 percent does not constitute the “heart” of a letter that opened with a four-paragraph explication of how “what the players were accused of was, if true, a heinous act.” Can Brodhead seriously contend that at the “heart” of his April 5 statement was a “dual message” of condemning the allegations contained in the charges, if true, coupled with an assertion “that it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty”?

On June 5, Brodhead produced a 2350-word public statement. Of those 2350 words, the 54 below could be said to reflect a claim that it is “unjust to prejudge [the players’] guilt in the absence of proof and certainty.”

As I have said, it’s essential that we allow the criminal justice system to run its course, and that we wait for the truth to be established before we reach final judgment. In the meanwhile, we need to remember that the American legal system is based on the principle of the presumption of innocence.

Those two sentences comprise 2.3 percent of the June 5 statement. Again, it’s hard to see how anyone could seriously contend that this 2.3 percent means the “heart” of Brodhead’s June 5 statement contained a “dual message” of condemning the players’ behavior, if true, coupled with an assertion “that it would be equally unjust to prejudge their guilt in the absence of proof and certainty.”

Adjectives in Brodhead statements, meanwhile, don’t seem consistent with considering it “equally unjust to prejudge their guilt in the absence of proof and certainty.” At various points, he labeled the lacrosse players “arrogant,” “dishonorable,” “disrespectful,” and “irresponsible”. He said their behavior was “heinous,” “highly inappropriate,” and “unacceptable,” and blasted the team’s “culture of privilege.” And when given an opportunity in his June 5 statement to balance these characterizations with the Coleman Committee’s revelation of the many positive things about the players’ academic, athletic, social, and community service performance, Brodhead pointedly declined to do so. His characterization of the players’ character remained exclusively negative.

Perhaps Brodhead’s single most inexcusable comment during this affair came in an appearance at a Durham Chamber of Commerce meeting on April 20, two days after the indictments of Reade Seligmann and Colin Finnerty. WRAL-TV quoted the president as saying, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

This quote contains no mention of the unjustness of prejudging. But the statement itself, to borrow Brodhead’s phrase, “is bad enough.” Take the case of Reade Seligmann. There’s no longer any question that he “did what is alleged”: Seligmann is demonstrably innocent, on a videotape a mile away at the time of the alleged crime. Brodhead’s second sentence therefore, presumably would apply to Seligmann: “If they didn’t do it, whatever they did is bad enough.”

What, exactly, did Seligmann do? He attended a team party in which he played no role in organizing and drank some beer. That is “bad enough” to merit widespread public condemnation and suspension from school? If so, does Brodhead extend this standard to the other 6000-plus undergraduates at Duke? How many of this total would he consider “bad enough”? Twenty percent? One third? Half? The estimated 75-80 percent who consume alcohol? I’m sure that Duke parents would be alarmed to hear that Brodhead’s characterization could apply to their son or daughter.

Or was Brodhead claiming that Seligmann did something else besides drink and attend a party—“whatever they [Seligmann and Finnerty] did is bad enough.” If so, the president was “prejudging” Seligmann’s “guilt” for an ill-defined offense.

In short, Brodhead’s claim of a “dual message” in his public statements, in which he defended due process while condemning the acts if proved, is patently false:

  • Defenses of the players’ due process rights and presumption of innocence formed miniscule portions—always less than 4 percent—of his public remarks.
  • He never used the phrase “unjust to prejudge their guilt in the absence of proof and certainty,” or one of similar strength, on any occasion before the FODU letter.
  • His April 20 condemnation of Seligmann and Finnerty—“if they didn’t do it, whatever they did is bad enough”—demonstrated appalling judgment.

Brodhead concluded his June 5 remarks by noting, “To make a mistake, to recognize it as such, and to take responsibility for making a change might be said to be the essence of education.” As he noted, people must “recognize” their mistakes before benefiting from the fruits of education. A president dissembling about the actual content of his public messages constitutes denial, not recognition. Is such a figure capable of leading a great institution of higher learning?

More on Procedure

Among Duke Law School’s most celebrated recruiting coups in recent memory was the successful wooing of Professor Erwin Chemerinsky from USC Law School. In his tenure in Los Angeles, Chemerinsky had established himself as a significant presence in the city’s political, media, academic, and legal circles.

By his own admission, Chemerinsky has not followed the lacrosse case closely; he recently wrote that “my colleague, Jim Coleman, has followed it much more.” Coleman, it’s worth remembering, has bitterly criticized Nifong’s myriad procedural violations. For instance, in June he told Sports Illustrated, “You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, ‘You’ve got to convict somebody?’ To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice.”

But as Chemerinsky is a major figure on civil liberties issues, I had a few broader questions about the case to ask him.

Q: I did an examination of how most North Carolina cities and towns handle eyewitness photo IDs, and was surprised to discover the statewide trend in favor of greater transparency and due process. The Nifong-ordered lineup obviously violated both this trend and Durham city procedures in many ways. I also was taken aback by Nifong’s refusal to meet with defense attorneys to consider pre-indictment exculpatory evidence, despite a state bar ethics code requirement that he do so; and his highly prejudicial (and, apparently, misleading) public statements on the case, again in violation of the state bar’s ethics code. I realize you’re relatively new to North Carolina, but is it your sense that the legal community in the state believes that procedures can be cast aside whenever necessary?

Chemerinsky noted that he hadn’t been in the state long enough to get an in-depth sense of statewide commitment to procedures; but that he had encountered “great criticism” of Nifong among many lawyers to which he spoke.

Q: I’ve been troubled by commentators (such as Andrew Cohen) or local editorialists (such as Bob Ashley) who have implied that even if Nifong blatantly violated procedures to secure the indictments, the “process” requires the case going to trial and being decided by a jury. Do you share this view? Are there ways in which the media, or the academy, should be considering the procedural matters this case has raised absent the “facts” that would be determined at trial?

Chemerinsky: Of course, the process does not require that the case go to the jury. The prosecutor should take the case to the jury only if there are facts to warrant it.

As to the process, Susan Estrich had a wonderful essay about two weeks ago about its many flaws.

[Indeed, that Estrich essay notes, “If the discovery is any indication, [Nifong’s] case is sitting on quicksand . . . at the very least, standard procedure should have been to await the results of tests, and then, given the results, the inconsistencies in the woman’s statements, the fact that at least one of the boys seems to have an airtight alibi, investigate further before indicting anyone.” Instead, the USC law professor noted, Nifong demonstrated “a failure to follow standard procedure that is rather mind-boggling.”]

Q: I’m unaware of any case in the past 15-20 years where this extent of procedurally irregular behavior was widely known by the public at this stage of the process. (Obviously, we’ve seen worse prosecutorial misconduct than what Nifong has done, though the evidence usually doesn’t become apparent until post-appellate review.) Are you aware of comparable cases, either from your time in LA or since you arrived in North Carolina, where a prosecutor first assumed control of a police investigation and then disregarded multiple standard procedures in order to secure indictments?

Chemerinsky: I can’t think of any in such a high profile case.


As Estrich pointed out, “There are reasons you follow procedures. In general, they are there to spare outrage.” In this case, Nifong violated procedures to announce that the police investigation had definitively concluded a crime occurred (even though the only evidence then, as now, was the accuser’s multiple, mutually contradictory, versions of events); and he then violated some different procedures in order to secure indictments before the primary.

When prosecutors violate procedure on such a massive scale, they deserve outrage.

Sunday, August 20, 2006

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 ( (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.