Sunday, June 10, 2007

Sunday Review

This marks the 700th post for the blog. In the upcoming Yaeger/Pressler book, graduated lacrosse player Kyle Dowd provided an excellent, concise, summary of a main theme of the blog, regarding the Group of 88. Said Dowd:

If you look at it, their whole argument is, “We only put that ad out there to start a dialogue about these issues.” The only problem is, you are willing to start dialogue but now you refuse to speak to the media, you refuse to speak to us, you refuse to speak to other professors. So you’ve actually decreased dialogue about these topics, which is in complete contradiction to your original goal.

No matter which way you look at it, they’ve failed.

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For those who missed it, an important post by defense attorney Brad Bannon in the Liestoppers forum:

I have read a lot of comments & commentary critical of Judge Osmond Smith and his conduct in the matters of the State of North Carolina v. Evans, Finnerty, & Seligmann. As someone very close to those cases & the victims of this hoax, I understand the desire to hold accountable those responsible for instigating & perpetuating it. As someone with previous experience before Judge Smith, and as the lawyer on the defense team primarily responsible for pursuing discovery issues at every hearing where Judge Smith presided in the Evans/Finnerty/Seligmann cases, I can assure you that he is not one of those people.

Before Judge Smith took over the cases, Joe Cheshire & I tried a very intense double capital murder trial before him in the summer of 2005 in Raleigh. Judge Smith was an honorable, thoughtful, fair, & truly professional jurist throughout a trial where two young men had lost their lives, one young man was facing the death penalty for that loss, three devastated families filled a very tense courtroom, and emotions continually ran high. In that scenario, Judge Smith showed respect to all persons involved & maintained a dignified courtroom atmosphere that served the process very well. While respectful to both sides, he was partial to neither; he was only partial to the law & to his role as a neutral judge. He exhibited the same high qualities & standards in the several hearings he conducted in the EFS cases. In short, he was—and is—exactly what a judge should be, and the Memorandum he filed in the cause on Tuesday only serves to reinforce my belief in that regard (for whatever my belief on that subject is worth).

There are a number of people whose actions related to the false accusations against Dave, Collin, and Reade deserve significant scrutiny. Osmond Smith is not one of them . . .

I appreciate the comments of everyone on this board. I am not a word policeman & would never purport to tell people how to act or what to think. That said, I believe some may misunderstand the true role of a judge, and that is to be a neutral arbiter of facts & law. It is not to do research on the backgrounds of lawyers & then treat those lawyers differently (better or worse) than their counterparts in the courtroom. The adversarial system of justice rises & falls on the neutrality of the judge that oversees it; those judges are, likewise, bound by the various statutes & rules that give them their authority. While we often see judicial conduct that is anything but neutral, we always hope for it. Osmond Smith more than provided it in this case. I was there for every moment he acted in his official capacity in these matters, whether in open court or in chambers, whether Mike Nifong was the prosecutor or Jim Coman & Mary Winstead were the prosecutors. As it relates specifically to events that transpired on December 15, 2006, the reason Osmond Smith did not act on those events is simple: as the defense lawyers responsible for seeking that action, we have not yet asked him to do so. In fact, on December 15, when he directly asked me at the conclusion of Dr. Meehan's questioning whether we (the defense) were prepared to seek any additional relief based on what had just happened, we specifically told him that we would like to review the transcripts of the hearing before taking such action, and he deferred to that request. I have every reason to believe that, once we do act, Judge Smith will conduct a fair review of any such request (and a hearing, if necessary), and he will do exactly what he honestly believes the law & the facts require.

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This week’s “Only in Durham” award winner is Deputy Police Chief Ron Hodge. Last Tuesday night featured an open hearing for the three finalists for the Police Chief position. While there, Hodge incredibly asserted that he couldn’t think of a case in the past five years in which the DPD made serious mistakes.

Surely, it would seem, he would retreat from such a statement when given time to reflect. Yesterday’s N&O, however, revealed otherwise. Declared Hodge, “I don't see, at the end of the day, whatever is uncovered about what the Durham Police Department did not do as it relates to the Duke lacrosse case will be major.”

City Councilman Eugene Brown noted that when Hodge made his original remarks, “There was laughter, as well there should be.” Brown further observed that “Hodge definitely represents the status quo—that things are fine.”

Jim Cooney added that whatever Hodge seems to think, “There were serious investigative missteps in this case . . . The decision-makers in Durham should think long and hard about choosing anyone who thinks that the police department should continue to conduct this kind of investigation.”

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A good editorial in yesterday’s N&O on the need for a comprehensive inquiry into the Durham Police’s mishandling of the lacrosse case. Both the citizens of Durham and of North Carolina, the editors realized, need “a more forthcoming account of the police department's performance in the case than one issued last month by Police Chief Steve Chalmers,” which “clearly was deficient.” The editors also blast City Manager Patrick Baker’s approach, which “contained a few mild criticisms but otherwise staunchly defended the handling of the case.”

Despite the need for a comprehensive inquiry, the staffing of the committee raises grave concerns. At the bare minimum, acceptance of the complete findings of AG Cooper’s report should be a requirement for service on the commission—a standard that would rule out Councilwoman Diane Catotti’s selection of Aurelia Sands Belle. Committee members also should have no conflicts of interest in dealing with the DPD—a standard that also would rule out . . . Catotti’s selection.

More broadly, the lack of criminal defense attorneys on the panel—an apparent outgrowth of Catotti’s insistence on hard quotas from the Council’s appointments—threaten to render the investigation stillborn before it starts. That the body’s only currently practicing attorney is a graduate of NCCU Law School—home of pro-Nifong commentator Irving Joyner—further calls into question the committee’s partiality.

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Joan Foster turned her attention to Ron Hodge in a witty poem this week.

Meanwhile, an unintentionally humorous verse comes from the blog, “Listening Project,” written by a Duke graduate student. A tribute to Wahneema Lubiano, “All My Affect,” includes such stanzas as:

attention gains wings
and outfits and land
from the way you listen . . .

what was a glass cielding
becomes sturdy enough
to rest books on top of
past our reach
Though the site is allegedly authored by a graduate student in English, the dictionary contains no entry for the word “cielding.”

No sign of whether the UBUNTU dancer will interpret the blog's poems, which also include an item hailing Karla Holloway.

This post, meanwhile, appears as if it could have been penned by Lubiano herself.

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The "Real Social Disaster" site--organized by Duke students seeking an apology from the Group of 88; or, in the alternative, for President Brodhead to stand up for Duke students against the actions of faculty extremists--currently has 994 Duke students. It would be good to see the total reach 1,000.

Of course, no apology will be forthcoming. While the Group was eager to "listen" to a handful of anonymous quotes from alleged Duke students, since those anonymous comments happened to conform to the professors' worldviews, there is no evidence they desire to hear from real Duke students.

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An excellent post from John in Carolina on Greensboro blogger David Boyd--who, appropriately, took to task the Greensboro News & Record for its lightweight coverage of incoming Bennett College president Julianne Malveaux.

Malveaux's "commentary" on the case--in which she wildly asserted, "I think something happened here . . . You may not be able to prove anything. But something did happen here, and it was something wrong"--came just before the announcement of her assuming the presidency. The N&R's summary of this comment?

Her quick wit and words have won her fans — and detractors. Malveaux caught flak in the early 1990s for comments about Supreme Court Justice Clarence Thomas, and more recently, for remarks about the Duke lacrosse case.

N&R editor John Robinson responded, oddly, "Yes, we should have included more on the Duke issue. But, really, we have covered it in earlier papers." The issue wasn't the case itself--it was Malveaux's extremist interpretation of the case. And the N&R, to my knowledge, did not cover Malveaux's interpretation earlier.

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Richard Jencks had a nicely done radio commentary this week, on KSCO AM:

In Spring 2006 the Duke lacrosse team was a favorite to go to the national finals. But three team members had been indicted for the alleged rape of a strip dancer engaged to entertain at a team party. Duke's President, Richard Brodhead, not only did not afford to them the presumption of innocence, but believed that there was something about lacrosse itself that somehow contributed to the alleged crimes. So Brodhead canceled the team's remaining 2006 games, fired the lacrosse coach, removed the game of lacrosse as a varsity sport, and decided that, pending trial, the two indicted players who had not yet graduated were not eligible to remain at Duke. Many in the Duke community labeled the team as part of a culture of privilege, racism and violence. Team members were taunted night and day.

For the 2007 season Brodhead reversed himself, reinstated lacrosse, and hired a new coach. Despite the demoralizing background, and the continued absence of two of its best players, the Duke lacrosse team fought through to the 2007 finals against Johns Hopkins. Down ten to five at the half, Duke ultimately lost by the margin of a single goal. But who can say that this Duke team did not achieve one of the most courageous victories, both for their own vindication, and for the game they loved, that has ever been achieved in college sports? Meanwhile, the Attorney General of North Carolina had dismissed the criminal charges and declared the three indicted students completely "innocent."

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Finally, three great opinion pieces from this week’s Chronicle. Jason Trumpbour wonders why Duke has no protested the “separate-but-equal” justice system imposed by Durham against all Duke students. Kristin Butler urges (properly, in my opinion) alumni to become more active in the college governance process. And the editorial board praises (again properly, in my opinion) the NCAA’s decision to grant the 2007 sophomores, juniors, and seniors an extra year of eligibility.

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Scheduling notice: I will be in Raleigh, live-blogging the Nifong ethics trial, all this week.

25 comments:

Anonymous said...

Another terrific analysis by the incredible Professor Johnson. If you get a chance, you might want to insert Malveaux' incredibly sickening statement about Justice Thomas, especially since the Greensboro newspaper omitted it.

Michael said...

Columnist Julianne Malveaux told a television audience, "I hope [Thomas’s] wife feeds him lots of eggs and butter, and he dies early, like many black men do, of heart disease. . . .He’s an absolutely reprehensible person." Imagine the public outcry we would have heard if white speakers had uttered such mean-spirited nonsense.

http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=1779

Anonymous said...

Malveaux and Brodhead: more embarrassment for North Carolina.

rrhamilton said...

I really, really want to "channel Farred" on the meaning of "cielding", but I'm having too much fun reading Lubiano's(?) posting at http://deborahmnotices.blogspot.com/2007/06/critical.html

Can one really write such voodoo nonsense and be a professor at what was once considered a fine U.S. university?

Anonymous said...

There's another fine clown at a blog called Rachel's Tavern. All one has to do is read her rants on the case, calling for the heads of the accused, back in March and April '06, and then see how quickly she simply dropped the subject when the first DNA results came back, as a reminder of why we're all outraged about the hate we saw in this case.

Michael said...

re: 12:57

[This last widely- held criticism ("not well-researched") was spurred by the misspelling of Rutgers ("Rutger's") and prompted numerous commentators to decry the ad's lack of depth; for some readers it indicated callousness towards womens' sports in general and for the Rutgers womens]

Isn't it always amazing that when you ding someone for a problem; that you also make the same or a similar problem? I'm sure that KC's regular readers can spot the problem with this fragment.

Gary Packwood said...

The “Listening Project,” written by a Duke graduate student... A tribute to Wahneema Lubiano, with the stanza that included the word CIELDING is probably a poetic reference to the body of knowledge that is associated with 'Language of Poverty' as studied by linguists and psycholinguistics scholars.

I believe it was Noam Chomsky who first suggested in his work on Transformational Grammar that the language used by poor people may be criticized for being grammatically incorrect but the language usage is no less meaningful.

Thus, the language and spelling are just ...different.
::
GP

Michael said...

I just did a google search for the word and it is used on quite a few web pages. The word should be ceiling but it appears that a lot of web writers spell it in a rather creative way.

Anonymous said...

Can I just say something?

First, I may be the youngest person whoever picked cotton by hand. Two things about that: First, I never saw any blacks out there with me. Second, (and therefore), it always seemed to me that the refutation "Thank your grandfather for my cotton shirt" was more of a CLASS thing than a racial thing. Although a racial thing would've been fully justified after she called them "small-dicked white boys".

Second thing: When I was in college (undergrad), I read reams of interviews with former slaves that the government had made in the early 20th century. In EVERY case, according to the former slaves, they either lived with the BEST white family on Earth, or the WORST white family on Earth. In EVERY case, their white family owners were described with glowing tributes to their kindness, etc., or with the harshest descriptions of the white family's cruelties. I often wondered: Why the difference? Were there NO white families who were "just ok", "not too bad", "not great", something?

It is due to this lacrosse case that I have finally arrived at a judgment about why the white families were described as they were -- good and bad.

R.R. Hamilton

Legal Eagle said...

Nice to hear Judge Smith is cloaked in the garment of neutrality.

Still, in a world where perception is nine tenths of the law, one must wonder how such garment wound up on the floor... when, on the 6th month and 11th hour, Judge Smith stepped from behind Harry Potter's invisibility shield to recall Nifong's prior evils in his courtroom.

Prof. Chic-Lit said...

I'll have a go at "ceilding": action word, as to walk or stomp on a raised barrier (see, Spiderwoman). Suggesting boldness, courage, and/or literary inspiration.

Webster (Noah) must be ever vigilant, lest the lexicon be yanked out from under him.

Anonymous said...

I have been following the Duke case very closely since the beginning. However, its scary to think that had it not for a close friend I would not have been aware of KC Johnson and the other sources of blogger information. I am not "a computer guy" and would have obtained my info from the NY Times, WSJ, TIME ,USA Today, local papers, SI,Fox, and ESPN. With the exception of Fox and the WSJ, I would have read lie after lie after lie. Or worse, half truth after half truth.

That said, I am now reading "Its Not About the Truth" by Yeager/Pressler. I urge everybody to get a copy (ESPECIALLY IF YOU HAVE BEEN FOLLOWING THIS CASE CLOSELY). Its very very upsetting but adds to the story in many many ways. I will say this: after reading this book you are reminded how many spineless, rotten humans are out there. Durham/Duke clearly has more than their share. There is certainly plenty of new info.

By the way, I live in a major city and had to try 5 bookstores before finding a copy. I urged the managers at these stores to put the book right out front.

Again, ANYONE who is not outaged by this story is either an idiot, a racist, a jackass, full of hate, unethical, stupid, or possibly all of these. Or maybe is a Michael Moore follower.

As far as I'm concerned KC Johnson is the real hero in this story. The defense attorneys, while great, were paid up front. Johnson got into this for other reasons. No KC Johnson and this case is still in play. No KC Johnson and the AG does not use the word innocent.

Finally, I have a young boy. I pray that he has the strength of character of the Duke 3 and has coaches and teachers like Pressler. He will also be part of the first generation in my family in decades who will NOT read the NY Times on a daily basis.

And to those of you who still "think that something happened". 1. read about DNA. 2. Your actions GUARANTEE that more rapists will ultimately go free. And the truth is, as long as you get to grind your silly axes, most of you do not really care who you hurt.

Anonymous said...

I have been following the Duke case very closely since the beginning. However, its scary to think that had it not for a close friend I would not have been aware of KC Johnson and the other sources of blogger information. I am not "a computer guy" and would have obtained my info from the NY Times, WSJ, TIME ,USA Today, local papers, SI,Fox, and ESPN. With the exception of Fox and the WSJ, I would have read lie after lie after lie. Or worse, half truth after half truth.

That said, I am now reading "Its Not About the Truth" by Yeager/Pressler. I urge everybody to get a copy (ESPECIALLY IF YOU HAVE BEEN FOLLOWING THIS CASE CLOSELY). Its very very upsetting but adds to the story in many many ways. I will say this: after reading this book you are reminded how many spineless, rotten humans are out there. Durham/Duke clearly has more than their share. There is certainly plenty of new info.

By the way, I live in a major city and had to try 5 bookstores before finding a copy. I urged the managers at these stores to put the book right out front.

Again, ANYONE who is not outaged by this story is either an idiot, a racist, a jackass, full of hate, unethical, stupid, or possibly all of these. Or maybe is a Michael Moore follower.

As far as I'm concerned KC Johnson is the real hero in this story. The defense attorneys, while great, were paid up front. Johnson got into this for other reasons. No KC Johnson and this case is still in play. No KC Johnson and the AG does not use the word innocent.

Finally, I have a young boy. I pray that he has the strength of character of the Duke 3 and has coaches and teachers like Pressler. He will also be part of the first generation in my family in decades who will NOT read the NY Times on a daily basis.

And to those of you who still "think that something happened". 1. read about DNA. 2. Your actions GUARANTEE that more rapists will ultimately go free. And the truth is, as long as you get to grind your silly axes, most of you do not really care who you hurt.

Anonymous said...

Michael Gaynor - Can't get an email off. You are correct about Paris - the system is discriminating against her. I worked detentions for five years - most folk in her positon spend a few hours. I think the penality for DD should be more, but there is not room in the jails for the real criminals. She is in Medical and the best place to be is in jail. There is even a chance, they let her keep her sweat sweather - but not much.

Anonymous said...

1:42--Hamilton: that's a quite nice summary of this blog. After all, from your perspective, and based on the diversity of views represented here, slavery wasn't such a bad thing, was it?

mac said...

Boy, what a bad poem!
What next: an ode to Grant Farred's
prowess envy? The poem by a
graduate student ought to be called
"All My Defect."

Eugene Brown's comment about the
status quo indicates that he believes
it might be changing.
No wonder the DPD feels threatened.

DPD either:
1) Can't watch Reno 911 because it's embarassingly true.
2) Watches Reno 911 for their CEUs.

What happened with respect to accreditation, anyway?

Anonymous said...

2:49--That was not what was said in the 1:42 posting. Try a better or closer reading of the text of the message. By the way, have you ever picked cotton? You should try it.

madder than a hornet said...

to 2:12~ thank you, because of people like you I am still proud to be an American.

Many others have caused me to doubt our democracy but we are "getting em" one by one! This week will be another victory for truth.

KC has been a beacon of light in the darkest of days. Each of his 700 post have been critical to the lax families keeping courage!

Hope your hotel in Dirtham is comfy KC!

Anonymous said...

Legal Eagle --

I understand the perception you're talking about. But I also think it does fit in with what Brad Bannon says about Judge Smith.

A few years ago, when I started following a legal blog, an attorney of many years' experience explained it this way: a judge has to be looking ahead, not just to the verdict that he will render, but also to attempts to appeal or overturn his verdict. Oftentimes, their easiest pretext for an appeal is the idea that the judge was somehow biased or prejudiced against them. Thus, the judge who wants to make his verdict "appeal-proof" will often lean over backwards in apparent support of the side he suspects he will eventually rule against; in fact, I believe the attorney who described this said that if you have a judge whose verdicts never get successfully appealed, and he seems to be starting to favor one side in giving them leeway -- that means it's the beginning of the end for them. Yes, it would be highly satisfying to watch a judge who recognizes that one side is playing fast and loose to slap them down hard with all the power that the law provides for punishing attorney misconduct. It might also be winning the battle to lose the war, since a sleazy lawyer can then point to the judge's hostility and pretend that it actually preceded, rather than being caused by, anything that the lawyer did wrong.

Obviously a judge who really is biased is going to lean over backwards for one side... and lean over for that side... and keep leaning... and eventually lean over backwards to give that side the verdict. But if an experienced attorney like Brad Bannon says that Smith doesn't fall into that category, I can believe it -- especially where Bannon says that the defense lawyers could have asked Judge Smith for more in the way of slapping-down and they themselves refrained.

Anonymous said...

9:40--
Well said. I have been disturbed by some of the criticisms I have seen of Judge Smith, and your gloss on Brad Bannon's defense hits the nail on the head in describing the proper role of the judge and how Judge Smith's behavior falls within it.

The old activists' cry "if you're not with us, you're against us" doesn't hold when applied to people whose crucial role in our system is to make impartial decisions on the basis of legal principles and facts in the record.

Legal Eagle said...

9:40 - I prefer your reasoning to my own, although I wouldn't discount the basis of the question; why, on the 6th month and 11th hour, did Judge Smith step from behind the veil of neutrality?

Is a judge required to sit idly by while crimes are being perpetrated right in his own courtroom -or- are we to assume some judges are slower than others?

The preemptive manipulation of the appeals process is certainly intriguing, but here we must also assume not only slowness, but a total lack of anticipation on the part of the appeals court. Not to suggest games are not played, but even the slowest judge knows the basic rules.

For me, the alert was raised by the timing and intent of Judge Smith's statement, followed by the apparent [rehabilitating] support from Brad Bannon.

With the Bar proceedings about to commence, it seems Judge Smith was concerned about entry into the record - given Nifong's extra-legal performance in his courtroom.

Anonymous said...

To its credit, the legal system in NC seems to be trying to acknowledge its imperfections (to put it mildly) and maybe improve. No such self-reform is occurring within the police force, but at least it is being scrutinised formally. Some elements of the media have recanted and there is some small measure of debate and soul-searching. But at Brodhead's DUKE there is no formal and very little informal self-scrutiny. A flurry of commissions and inquiries were struck when the rape allegations were first made. But now that the case has imploded and it is apparent that MANY mistakes were made by Duke... nothing. That may be the biggest scandal of them all.

Anonymous said...

Anonymous said...
To its credit, the legal system in NC seems to be trying to acknowledge its imperfections (to put it mildly) and maybe improve. No such self-reform is occurring within the police force, but at least it is being scrutinised formally. Some elements of the media have recanted and there is some small measure of debate and soul-searching. But at Brodhead's DUKE there is no formal and very little informal self-scrutiny. A flurry of commissions and inquiries were struck when the rape allegations were first made. But now that the case has imploded and it is apparent that MANY mistakes were made by Duke... nothing. That may be the biggest scandal of them all.

Jun 10, 2007 6:04:00 PM

================================

Great point. By the way, has anybody tabulated the # of actual sexual assaults in Durham over the past few years(including unsolved ones)and what is being done about it?

E-D

Ralph Phelan said...

"incoming Bennett College president Julianne Malveaux"

Proof once again that if you're in academia you face a stark choice - career advancement, or commitment to the truth, but not both.

Something is very, very wrong with the entire industry, and I hope its customers are beginning to wake up to that fact.

Anonymous said...

Legal eagle --

I'm the 9:40, by the way. Again, I cannot speak for Bannon or Smith, but I can say what I suspect was the reasoning behind their choices. If I was Judge Smith, I think my reasoning would have gone something like this:

"Holy crap, did that witness just testify that he conspired with the DA to withhold evidence from the defense? He did, didn't he? That's it -- he's going to face the music for that, some way, some how. The question is, when and how? Even though I have a right and even a duty to smack him down for it right now, as the judge charged with preserving the fairness of these proceedings, I know that anything I do can be taken out of context by unethical schmucks just like this one to make me look like I violated fairness by taking sides. However, the defense has just as much interest in seeing this guy smacked down as I do, and they don't have to hold themselves back. Hmmmm, I think I'll hint to Bannon that he might seek "additional relief" over this. Ah, he's asking for time to "review the transcripts" first? I'll leave it up to him, then -- Bannon's a sharp guy, as he showed by figuring out the game the prosecution was playing with the DNA and then making Meehan spill it on the stand. If he wants to take his time to make sure he has Nifong square in his sights, I'm not going to force his hand and make him act before he's ready. ... oh, but what's this over here? Nifong is claiming to the Bar that he must not have done anything wrong, because I didn't hammer him down? Bad, bad mistake, Mr. Nifong. When it comes to proceedings against the three lacrosse players, I have to remain neutral. When it comes to proceedings against you, I'm under no such restrictions; I am a representative of the Court that you tried to hoodwink and if you dare to tell the State Bar that I approve of what you did in my court, I will remind you that it is still my prerogative to lower the boom on you for your attempts to subvert justice."