The Honorable Gerald Bard Tjoflat, a judge with the Eleventh Circuit Court of Appeals and Duke Law alumnus (Class of 1957), recently addressed a group of law school alumni about the case—in highly perceptive remarks about both the case and the surrounding events.
The case itself, Tjoflat noted, “was a classic example of a racially-motivated mob mentality, stirred up by a demagogue who played the race card, drawing on the tensions, anxieties, and grievances that demagogues like to exploit for their own purposes. His purpose, of course, was to get elected.”
In this environment, the Bar saved the day, by taking the case out of Mike Nifong’s hands. Had it not intervened, Tjoflat predicted that the case would have ended in the following fashion:
On the day set for trial, the prosecutor announces to the court that the accuser refuses to testify; the adverse publicity she has had to endure is such that going forward would create an unacceptable risk to her mental and physical health. The prosecutor doesn't need to imply that defense counsel—meaning the defendants themselves—are to blame; the politically correct world draws that implication for him. He really wanted to proceed to trial—because, as he repeatedly stated in his pre-indictment press releases to the news media, he believed the accuser's story, a rape did occur—but he will go no further. He ends the prosecution with the entry of a nolle prosequi, and leaves the accused twisting in the wind.
Tjoflat found two cases comparable to the lacrosse affair—the Scottsboro Boys case, and the fictional tale of To Kill a Mockingbird. Both featured “racial unrest whether manifested openly or just lurking beneath the surface waiting to be unleashed as pure hatred,” which provided “a perfect setting for this sort of mob mentality.” Such problems are compounded by the election of judges, creating a timidity on the bench in which judges are reluctant to rein in prosecutors, no matter how egregious the behavior. In North Carolina, the situation is even worse, since the case management system and prosecutors’ control over the court calendar tilts power heavily away from the judge and toward the district attorney.
Tjoflat observed that Nifong’s behavior built off the established prosecutorial culture: “Prosecutors like Nifong—who had been in the Durham D.A.'s office for 27 years—don't do what he did unless they are absolutely confident that the court will give them free rein. This is especially true in a case, like the Lacrosse Case, in which the result will be reflected in the ballot box.” Nonetheless, Nifong’s conduct was extraordinary and clearly poisoned any Durham County jury pool; indeed, Tjoflat noted that he had been “on the bench for nearly 39 years and have never seen the like of it.”
In a perfect world, Tjoflat reasoned, Judges Stephens or Titus would have acted upon Kirk Osborn’s May 1 recusal motion. In his mind, “any judge reading the motion would have concluded (1) that Nifong had engaged in conduct that would surely result in discipline and (2) that Nifong was likely to suborn perjury or otherwise obstruct justice in order to obtain a conviction and thereby confirm his pre-indictment condemnation of the accused. In short, Nifong was operating under a clear conflict of interest. At the very least, it appeared that he was—sufficiently so that the court should have heard the motion. But the court never heard or ruled on the motion.” Why? Because Stephens and Titus were unlikely to challenge Nifong’s control of the court docket. (Defense counsel eventually withdrew the motion, for tactical reasons, after the case passed to Judge Smith.) Tjoflat also blasted the North Carolina courts for not stopping the case by scheduling a prompt hearing on suppressing the lineup, which everyone involved knew was unconstitutional. Again, he suspected, political concerns explained judges’ timidity.
Why did state DA’s ultimately abandon Nifong? Tjoflat doubts that altruism explained their actions. Instead, the December 15 hearing, with Meehan’s revelation of the conspiracy, “was too much for the N.C. Bar and the prosecutors around the state to tolerate.” Tjoflat surmised that “prosecutors, faced with a growing sentiment in the state legislature to establish a mechanism for monitoring prosecutorial conduct, got word to Nifong that he was now on his own. They had to maintain the status quo. The superior court belonged to them. After all, most of its judges were former prosecutors and, therefore, sympathetic to them. But, however they may have made their thoughts known to Nifong, he was not about to budge. He had one of his investigators re-interview the accuser," dropped the rape charge, but “proceeded full steam ahead with the kidnapping and assault charges.” Only at that point, the North Carolina Conference of DA’s abandoned him, while courageous voices in the State Bar decided to press ahead with a grievance—by a vote, as we know now, of a mere one vote.
Nifong, Tjoflat understood, had his enablers, and the identity of some of these enablers should concern all Duke alumni. The Group of 88, the judge noted, “claim that their intent was not to prejudge the case, but rather to call attention to long-standing issues on campus. Countless editorial writers and commentators—both before and after the N. C. Attorney General declared the accused innocent—have emphatically disagreed. Regardless of their intent, however, by taking out an advertisement by broadcasting to the world their agenda, rather than initiating on-campus discussion in less public ways, ‘The Duke 88’ only fanned the flames of a fire that they certainly should have seen burning. Someone needs to educate them about the Bill of Rights on which they are quick to rely when advancing their own causes: the right to a fair trial is included there as well. Someone should ask them how they would have felt had they been subjected to the calumny being heaped upon the lacrosse players—and the accused—day in and day out.”
Tjoflat argued that the Duke Law faculty performed well in the case—an assessment with which I agree. He singled out two people. Jim Coleman was a courageous voice for due process at a time when the mob, in Durham and on campus, had presumed guilt. And Paul Haagen provided steady leadership of the Academic Council. (Imagine what would have occurred had Group of 88’er Paula McClain been Academic Council chair in spring 2006.)
What should Duke do now? Tjoflat offered three broad recommendations. First, “Our students need to know that what the N.C. Bar and the A.G. did was to administer some experimental medicine to a sick system. When the day comes that the Bar has to act as it did in this case, lawyers, law professors, editorial writers, politicians, and anyone else supposedly interested in the administration of criminal justice has to ask, ‘What is going on here? Why is our system malfunctioning?’ At the recent law alumni meeting, the faculty put on a program which focused on this case from an 'Ethics' point of view. If our law faculty doesn't expand its approach to the discussion of the Lacrosse Case to include the shortcomings of N.C.'s criminal justice system, the roles the blogosphere, talk radio, and cable news networks played in prompting the Bar to act as it did, the faculty will be shortchanging our students - and I say with regret - being a tad disingenuous." It is my sense that the faculty is interested in such matters: the Law School has planned a major conference on issues arising from the case (in which I'll be participating) for September 27 and 28.
Second, Brodhead and the Board of Trustees “need to apologize” for the Group of 88:
They need to tell the Duke community and beyond that 'The Duke 88' issued their statement at an inopportune time, and in so doing, disregarded the accused's right to a fundamentally fair proceeding. It is true that a college campus is a place for open debate, discussion, and disagreement, but there is a critical difference between using accusations like those made here as a jumping off point for on-campus classroom and private discussions, and making broad public statements likely to incite vitriol at a time when all the facts are not known and somber contemplation is called for. These professors need to be educated about the Bill of Rights and the requisites of a fair criminal proceeding. They also need to consider whether they can treat Duke's athletes, especially the lacrosse players, fairly and impartially. If there is the slightest doubt that they might not be able to do that, they should say so.
Third, Tjoflat urged reasonable voices—such as the attorneys on Duke Law School’s Board of Visitors—to remain engaged with the University and work for reform, rather than to express distaste with the Group’s behavior by abandoning the school. Much like Jim Coleman, he takes a fairly mild line toward President Brodhead’s behavior; he doesn’t mention Brodhead’s April 5 guilt-presuming statement or the president’s reaction to the arrests of Seligmann and Finnerty (“whatever they did was bad enough”), but says Brodhead’s options were limited.
Tjoflat’s analysis is candid and well-reasoned. Both North Carolina and Duke would be wise to follow it. But if—as seems increasingly likely—Brodhead maintains his determination not to apologize for the Group’s conduct but to continue to facilitate it, how should reasonable Duke alumni respond?