Tuesday, July 31, 2007

Kudos to Jay Crawford: Atlanta NAACP Speaks Up

In an important statement, Atlanta NAACP head R.L. White has admitted his North Carolina counterparts erred in their rush to judgment about the lacrosse case.

Interviewed on ESPN, White mentioned that lacrosse case as an example of a rush to judgment that was wrong. Host Jay Crawford responded immediately, with a great off-the-cuff question:
During that case, the North Carolina chapter of the NAACP didn't show the same restraint that you're calling for now. In fact, they posted on their website 82 laws and torts that the lacrosse players supposedly broke, according to published reports, before the case ever went to trial--a trial that obviously, as you pointed out, never happened because all charges were eventually dropped.

Why is the situation with Michael Vick different than the Duke lacrosse case, when the North Carolina chapter was guilty of doing exactly what you're asking people not to do?
Because Crawford was able to formulate the perfect follow-up question for White, the NAACP head had to confront the issue, and admitted, "We have not always been right in cases. We are not going to make a mistake again. We want to say we made a mistake in that case.”

To my knowledge, Crawford is the first journalist to confront a representative of the NAACP over its handling of the lacrosse case--in an example of a superb interview.

The full video is here.

Cooney & Bannon on DNA

At the Liestoppers forum, Jim Cooney and Brad Bannon have offered some additional insights on DNA and the case, which I’m reproducing. Cooney began:

I have dealt with DNA before, and in fact litigated one of the early DNA cases involving PCR testing in this State. My experience in DNA is that honest labs will report on what they find and everything that they find. The issue in DNA is often what the meaning of the material found may be (in terms of either the power of the identification based on population genetics or the finding itself in terms of the power of the genetic material left behind), whether the sample was complete or potentially contaminated, and whether lab protocols were followed. Put simply, I did not suspect - - and no one suspected - - that the DNA lab would fail to report on results that it had found. I have never seen a lab, let alone a commercial lab, do something like this. Consequently, when I received a report that talked about what was found, who it belonged to (or might have belonged to), that was written in final terms, I operated on the assumption that these were all the results. While it is certainly appropriate to assume that other men’s DNA would have been found on Precious, the report indicated that this had not happened - - that none of the boys’ DNA was on her and that her boyfriend’s DNA was identified.

The report was important as written - - there is no way that these three boys could have raped Precious and left nothing behind. The fact that her boyfriend’s DNA had been found showed that other DNA was present and how sensitive the test had been. In other words, I had no reason to think that this lab would violate its own protocols and deliberately fail to report on the results of all of its testing.

What Brad was doing was precisely what I do with physical evidence, whether I am appointed or retained. You have to inventory every item collected and then, using crime scene reports and lab reports, follow that evidence as it is processed and analyzed. During this process, the evidence can be split, combined, and will certainly be assigned new numbers. Brad was attempting to trace the testing and processing of this evidence when he stumbled across handwritten notations at the top of the electropherogram indicating that the samples found did not match a range of reference numbers - - those numbers turned out to be the players and our clients (and her boyfriend and her driver). The electropherogram did not tell you that, it was the technician’s handwritten note at the top which could only be deciphered if you had done the grunt work necessary to follow the trace evidence. In my experience, this type of grunt work has to be done by the attorneys - - experts cannot be expected to do it nor could they do it without literally dumping all of the discovery (not just the DNA testing) on the expert.

Any attorney who would have taken the 2000 pages we received in late October and dumped them on an expert and said tell me what it says is (1) not much of an attorney, and (2) would have looked like an absolute idiot in trying to cross-examine Dr. Meehan.

Finally, and yes, we were shocked by what happened. When Brad found the testing data, I immediately suspected Nifong - - but we had no proof. When Nifong claimed in chambers that he did not know, yes, we believed him. It was not until Dr. Meehan admitted to an agreement to withhold those results that the enormity of what Nifong had done, and the lengths that he was willing to go to, became apparent. No matter how hostile or pernicious a DA may be, I was not willing to believe that he would lie and risk his license and career for an advantage in this case.

If Brad had followed the advice of some of the posters, we never would have exposed Nifong and Meehan.

Lord knows in 25 years I have made a lot of mistakes, many of them in the courtroom. This case, however, was one of the few cases in which I have participated that everyone of our strategic decisions was proven to be correct. Many of you will remember how we were accused of coddling the prosecutors and being part of a corrupt system when we agreed to postpone the suppression hearing and give the AG a lengthy extension. We were pummeled worse than Nifong by many. However, we decided to go for a home run—a declaration of innocence—because the case had now changed. We thought it was a very long shot, but it was worth the chance for our kids. During the 3 month delay, many people lost faith with us, and our clients got desperate. Some of that desperation was fueled by comments on the blogs ridiculing the delay and accusing us of incompetence (or worse) for agreeing to it.

In the end it was absolutely the right thing to do - - this despite the fact that at the time many thought we were wrong. The DNA evidence is the same. We were right and our approach worked. But no one tipped us off, no one told us where to look, and no one told us how to do our jobs (until after the fact).

For those who want to believe differently, you diminish not our accomplishments, but instead obscure a central truth which Bill Anderson and others have repeated throughout this past year. This was as much a matter of happenstance as good lawyering and, by changing only slightly one or two facts, the case ends very differently. In states with no open file, as Bill has pointed out, what happened here may very well be happening on a regular basis. But each time someone gripes that it would have been found anyway and it was not that remarkable, you diminish not only Nifong’s wrongdoing (in conspiracy with others) but you make the system sound like it always reaches the right result and that the right result is inevitable.

Justice is never inevitable. Like freedom, it has to be earned and fought for, sometimes day by day. That is all that happened in this case.

Bannon added,

As usual, Jim Cooney said all of this much better than I did or could. I would only like to add to the sentiment quoted above. As Jim does, Joe Cheshire & I do a significant amount of court-appointed work. Joe was appointed to represent Alan Gell at Alan’s second trial, and Jim Cooney & I assisted him & Mary Pollard pro bono. Jim worked harder on that case pro bono than I have ever seen a lawyer work to learn & develop complicated scientific & expert testimony about issues related to time of death & body decomposition. The first case I ever worked as a lawyer with Joe Cheshire, Joe was appointed to represent a man charged with killing four children (the State was seeking the death penalty), and Joe worked very hard to learn & develop complicated scientific & expert testimony about fire investigation. When Joe & I represented Tim Johnson in the NC State tailgate shooting trial in the summer of 2005 (another appointed case where our client was facing the death penalty), I worked very hard to learn & develop complicated expert testimony regarding forensic psychiatry & psychology.

We use that approach in all of our cases, appointed or retained, because we believe that is the only way you can truly & effectively represent your client when expert testimony is key to the prosecution’s theory or the defense’s theory. It does not matter if the client can afford to pay you or cannot. It is the right thing to do in either case.

On a final note, I completely agree with Jim’s observation that justice does not come into being on its own. There is a speech in one of my favorite movies where the character, a prosecutor, is giving an argument to the jury, and he says this:

Going back to when we were children, I think most of us in this courtroom thought justice came automatically. That virtue was its own reward. That good triumphs over evil. But as we get older, we know this just isn’t true. Individual human beings have to create justice, and this is not easy, because the truth often poses a threat to power, and one often has to fight power at great risk to themselves.

As the discussion was going on, Michael Gaynor posted a bizarre item suggesting that Bannon had not been entirely forthcoming, generating a response:

If Michael Gaynor wrote that I knew of “another case” where Mike Nifong withheld evidence or lied about it, that is not true. I never had a case with Mike Nifong before I represented Dave Evans, and I have no knowledge of any case in which Nifong was accused of withholding evidence before this case.

I am not sure what Don Yeager and Mike Pressler meant when they wrote that I had a “hunch” about the DNA. To a person, anyone who has ever asked me about the DNA process has received the same explanation as I have posted here & explained during my State Bar testimony. That is because it’s the truth.

As far as the relative trust I would give to a report from a private lab vs. a state-run lab, I can only say that, like we generally rely on officers of the court to tell the truth, we rely on laboratories to produce full & accurate reports that follow industry practices & their own standard protocols. That said, we have a duty to verify the accuracy of those reports when any type of red flag is raised (whether the flag is raised by information we receive from our client, information contained in other lab reports, or the existence of apparently contradictory physical evidence). In this case, the contradictory findings of the SBI lab and DNA Security regarding the fingernail mixture raised such a red flag for me, which is what initially prompted the thorough review of the underlying data. In short, I wanted to know why DNA Security made the call of Dave’s DNA being in the fake fingernail mixture, while the SBI lab did not.

What did not raise a red flag for me was the “non-probative” clause. It is ridiculous to suggest that the use of that phrase is “industry practice” to notify defense lawyers or other officers of the court that there is additional exculpatory evidence (or even any relevant evidence) that the lab has not reported. It is laughable to suggest that exclusionary & exculpatory DNA findings would ever honestly be characterized by anyone involved in the analysis & presentation of forensic evidence in sexual assault cases as “non-probative evidence.” And if use of that phrase was “industry practice”--or even DNA Security practice--Dr. Meehan would not have written all of us a letter on January 10 apologizing for the use of that language & recognizing that it was inappropriate. If that was the case, his lab would not have a protocol in place requiring it to report the results of all of its tests (a protocol he admitted under oath on December 15 that he violated when he produced the May 12 report in this case); instead, it would have a protocol allowing the lab to report whatever results it chooses, so long as it throws in a sentence about how non-probative evidence is being retained pending notification of the client, whatever that means.

Also, I got a good laugh from your presumption that Joe & I have not done any rape cases before this one. Reminds me of a similar comment Mike Nifong made in court during the hearing on June 22, 2006. In fact, Joe & I have been involved, separately & together, in many cases of alleged sexual assault over the years. The difference in those cases (and others we have done where DNA was involved) was that DNA was never remotely a contested issue.

Finally, this morning, Bannon offered some additional insights:

There were several evidentiary items that had unidentified male DNA, the existence of which had been reported by either the SBI lab or DNA Security or both: the while towel found outside Bathroom A, the material swabbed from the floor in Bathroom B, and, of course, the fake fingernail mixture. Procedurally, under our law, we never had a forum to question the police or Nifong or the Durham Police Department about the post-indictment acquisition of DNA reference samples, though it is something we would have certainly explored at trial, and I imagine it is something the Whichard Commission may explore when studying the investigation.

Regarding comments critical of the defense or anything I have said, I would first echo what Jim said: we’re grown-ups, we’re fans of open debate, and we’re certainly used to being attacked and having our work criticized as criminal defense lawyers. Second, I distinguish beween legitimate inquiries or criticism of our strategy or actions and unsupported attacks on our honesty. I personally think most of the questions & comments here fall into the former category, but a few approach the latter. For instance, there has not been an “evolving” explanation of our approach to the DNA. That suggestion takes a shot at our honesty, is wrong, and is unsupported by the record.

I believe many of the factual inquiries about our (defense) approach to the DNA in this case have been answered at this point. I have answered the question of why I was the person on the defense team primarily focused on the DNA. I have answered the question of why I initially focused on the underlying data. I have answered the question of why the “non-probative” language was insufficient to put anyone on notice on May 12 that the State was deliberately concealing the results of tests which were then, for several months, repeatedly represented by Mike Nifong (to us & to judges) to have been completely provided to the defense. I have answered the question of why it then surprised me to discover the unidentified male DNA in the rape kit (not so much because I couldn’t believe Crystal Mangum would have such DNA on or in her, but because I couldn’t believe DNA Security would leave that out of its report, and I couldn’t believe Mike Nifong would have deliberately & repeatedly misrepresented that to multiple judges). I have answered the question of why I chose to educate myself & absorb the underlying data myself, before approaching our expert to verify my initial analysis & ask additional questions. (For those who complain that my approach significantly delayed the process, I will reiterate that it took about six weeks to accomplish, from the receipt of the 1,844 pages of underlying data on October 27, to the completion of my analysis memo on November 30, to my meeting with Hal Deadman & Rob Cary on December 8, to the drafting & filing of the motion on December 13, to the hearing on December 15. And during that time, I even managed visit my Mom for Thanksgiving and to go see Tenacious D in concert at Madison Square Garden.) Finally, I have answered the question of why we declined to make any direct accusations against anyone for intentionally withholding the exculpatory DNA evidence before we had a clear record (based on the December 15 revelations & subsequent comments by Mike Nifong) to do so.

Those answers may not satisfy those who would have done things or perceived things differently. They may not satisfy those who find it hard to believe that I was not a DNA expert before this case. They may not satisfy those who actually think a lawyer is doing his duty when he delegates his ethical responsibilities to experts. They may not satisfy those who find it hard to believe that, but for the simple fact of differential findings by two separate labs about the same type of evidentiary DNA analysis, this case might have come out much differently. Nevertheless, those answers are honest, truthful, and factual. And, for that reason, they will never change.

Nifong Backers: "We're Afraid of Smith"

After 16 months in which Durham “justice” was widely ridiculed for following legal procedures that the rest of the country wouldn’t recognize, defenders of the Durham status quo are at it again. In Sunday’s Herald-Sun, former Nifong acolyte John Stevenson carried water for the disgraced ex-DA one last time, penning an article in which various Nifong defenders floated ways to change procedure so the disbarred Nifong could avoid jail time.

A judge’s power in contempt procedures—which can be civil or criminal, depending on the type of conduct and the severity of the offense—is almost absolute. That might be a bad thing. Perhaps due process would best be served for the trial judge to step aside and allow another judge to decide the matter. This approach, of course, would create its own problems: in contempt cases, judges would become prosecutors, or perhaps witnesses.

In the end, the system presumes a minimum amount of good faith, counting on judges to use the contempt power only to uphold the integrity of the system rather than to settle personal scores.

Nifong defenders, however, have suddenly discovered that they don’t like how North Carolina courts handle contempt cases. Instead, they want radical new procedures. Rather than petitioning the legislature for new laws, however, they’ve decided that Judge Osmond Smith should implement these sweeping changes unilaterally, and use the Nifong contempt hearing as the first (and only?) case in which they would apply.

Durham defense attorney John Fitzpatrick demanded that Smith recuse himself from the hearing: “Any time a judge is a potential witness, he may be asked to recuse himself . . . To be fair and impartial, you should have no interest in the outcome of the case . . . It can give the appearance of impropriety. I’ve always known Judge Smith to be very fair and am sure he will be now, but public perceptions are still very important.

Under that rationale, of course, every judge in every contempt proceeding in the country would be required to recuse himself.

Given Fitzpatrick’s concern with “public perceptions,” I wonder why he didn’t insist that Stevenson identify him as a 2006 Nifong campaign donor—and, indeed, someone who made a second donation to the ex-DA on October 1, 2006, well after much of Nifong’s misconduct was public knowledge. Instead, the article positions Fitzpatrick as a dispassionate observer, upholding due process on behalf of the Durham defense bar.

Durham defense attorney Fred Battaglia likewise wants Smith off the case:The accused has an absolute right to face and cross-examine the accuser. In this case, the court [judge] is the accuser. Sure, the lacrosse case was unusual. But that doesn’t mean you usurp constitutional law . . . I think another judge should be brought in. That would allow Judge Smith to be put on the witness stand under oath. Then Mr. Nifong could question him. To me, that is black-letter constitutional law.”

Under that rationale, of course, “black-letter constitutional law” would require every judge in every contempt proceeding in the country to recuse himself. Yet neither the U.S. Supreme Court nor, to my knowledge, any state Supreme Court, has accepted Battaglia’s definition of “black-letter constitutional law” as applied to contempt proceedings.

I wonder, moreover, what questions Battaglia would envision Nifongs attorneys asking Smith:

  • Judge Smith, were you present in the courtroom on September 12, 2006?
  • Judge Smith, were you awake when Mike Nifong spoke?
  • Judge Smith, did you verify that the person who purported to be DA Nifong on that date was, in fact, Mike Nifong?
  • Judge Smith, did Linwood Wilson ever approach you and ask you to change your testimony?
  • Judge Smith, do you challenge the underlying assumptions of Nifong’s handling of the lacrosse casenamely, that laws of space, time, and motion do not apply in Durham?

As with his treatment of Fitzpatrick, Stevenson neglected to reveal important information about Battaglia, who the article identifies merely as a “veteran lawyer.” Herald-Sun readers didn’t learn that Battaglia, like Fitzpatrick, was a Nifong campaign donor.

If they can’t get Smith off the case through recusal, Nifong enablers want to find a way to prevent the judge from making a decision. For Pat Evans, the contempt issue provided an opportunity to retry the lacrosse case. Evans commented, “Why don’t you err on the side of caution and give the man a jury trial? A jury trial would do so much to heal Durham(!).The people of Durham should decide which way this thing should go. Put twelve people in the box and let them decide.”

Much as Editor Bob Ashley did throughout the lacrosse case, Evans appears to be under the impression that the criminal justice system in this country exists to heal tensions in communities beset by racial strife.

Stevenson’s article noted that Evans had unsuccessfully run for Durham DA in the 1990s. But, as with his discussions of Fitzpatrick and Battaglia, the H-S reporter left out a rather significant item: Evans had publicly endorsed Nifong—an endorsement celebrated on the Nifong campaign website—for the general election. That endorsement, moreover, came in the fall, well after most of the ex-DA’s misconduct was known.

While Stevenson didn’t bother to obtain quotes from attorneys skeptical of the Battaglia/Fitzpatrick policy change—which was, in the Wonderland that is Durham, “black-letter constitutional law”—Evans’ suggestion was so bizarre that even the H-S reporter felt compelled to offer the other side. Attorney Mark Edwards noted that Evans’ proposal “is just not the procedure”; that “it’s not how it’s done or how it should be done under the law.”

Perhaps Evans should address her concerns to the state legislature, and explain to them why North Carolina should have jury trials for contempt cases, so that proceedings involving lawyers who allegedly lied to the court can be used to “heal” the community.

In the end, Stevenson—as usual—buried the lede. Rather than Nifong charge may be a first,” the paper should have headlined his article, “Nifong Cronies Desperate to Remove Smith from Case, Invent New Procedures.”

Indeed, it was nothing short of extraordinary to see a defendant’s backers launch a public campaign to oust the judge in the defendant’s case. Neither Stevenson nor Bob Ashley appear to have seen anything wrong with such conduct.

Monday, July 30, 2007

NAACP: Stop "Piling On" Vick

R.L. White, president of the Atlanta NAACP, has issued a statement denouncing the rush to judgment regarding Michael Vick.
If Mr. Vick is guilty, he should pay for his crime, but to treat him as he is being treated now is also a crime. Be restrained in your premature judgment until the legal process is completed.
The caution against a rush to judgment and the public defense of due process are both consistent with the NAACP's longstanding principles on criminal justice issues.

But the action only highlights the hypocrisy of the organization's approach to the lacrosse case. The organization's representatives, Al McSurely and Irving Joyner, blandly defended Mike Nifong's approach to the case; McSurely penned a guilt-presuming and factually inaccurate memorandum of law; and state president William Barber delivered a character attack on the players inside the Duke Chapel itself.

Perhaps there are reasons other than race to explain the diametrically different responses. But, sadly, other explanations do not come immediately to mind.

Hat tips: D.K., H.T.

Group Profiles: Maurice Wallace

[The latest installation of a Monday series profiling Group of 88 members, which has included posts on Eduardo Bonilla-Silva, Wahneema Lubiano, Pete Sigal, Grant Farred, Sally Deutsch, Joseph Harris, Jocelyn Olcott, Irene Silverblatt, and Kathy Rudy. The posts examine the scholarship and teaching of Group members, delving into the mindset of professors who last spring abandoned both the tenets of Duke’s Faculty Handbook and the academy’s traditional fidelity to due process. An item to keep in mind: in higher education, professors control the hiring process. The people profiled in this series will craft future job descriptions for Duke professors; and then, for positions assigned to their departments, select new hires.]

Group of 88 member and “clarifying” faculty signatory Maurice Wallace teaches in the English and African-American Studies departments. In 1995, he received a Ph.D. from Duke, where he studied under future Group of 88 stalwarts Karla Holloway and Cathy Davidson.

According to the summer 1999 Journal of Blacks in Higher Education, Wallace’s appointment formed part of a late-1990s diversity “hiring spree” that “is one of the great success stories among the nation’s highest-ranked universities.” The dean of faculty at the time was future Group of 88 leader William Chafe; his associate dean was Holloway.

Wallace’s scholarship has focused on the idea of black masculinity, with particular interests in psychoanalysis and the race/class/gender trinity. In his first published article, he articulated his basic philosophy: “If there is to be an enduring theory of black male identity construction in the West, it will be significantly indebted to a careful analysis of the post-Freudian psychoanalysis and the epistemological work of black feminism.”

He has conceded, however, that utilizing the teachings of Freud—a white male of the West—poses potential problems. “Like so many of its detractors,” Wallace commented in a 2003 essay, “I would lie if I did not concede my own occasional pause at the psychoanalytical hermeneutic . . . it is almost too self-evident to say aloud how such lexemes as disorder, neurosis, and complex might well identify cultural contingencies, to borrow a now-familiar idea from Barbara Herrnstein-Smith, that serve the analysts’ own egotistic fantasies and, in her words, ‘justify the exercise of their own normative authority.’”

Wallace has been an active conference presenter. In a 2005 conference entitled “Re-Imaging Black Religious Identity: Race, Class, Gender & Sexuality,” a sympathetic correspondent recalled that Wallace

explored the connection between the spiritual and the erotic as he summarized the other speakers’ discussions. He talked about how men who “get happy” in church experience what he called a “self-shattering,” which involves “sacrificing one’s aura of being penetrated instead of penetrating.” As the one who “penetrates,” the minister’s “phallic ego is empowered,” Wallace commented. “The straight man shouting gets caught up in a third heaven: feeling feelings.”

At Duke, meanwhile, he assumed a prominent role in a Women’s Studies conference with the only-in-academia title of “Gendering the Diaspora, Race-ing the Transnational.” The Group of 88 member chaired and moderated the panel on “transnational sexualities,” which examined such issues as:

How does sexuality interact with other factors (for example, place, gender, and generation) to construct and differentiate diasporic communities? How are these differentiations articulated through processes of class formation and notions of respectability? In what ways might processes of globalization facilitate particular expressions of gender identities and sexualities? How might the same processes also limit these expressions? Can we actually speak of diasporic sexualities?

Wallace’s writing style combines opaque prose with excruciatingly long sentences. Anyone who’s taken a college composition course doubtless recalls admonitions against run-on sentences, which tend to be very difficult to follow. A case study of the problem could be Wallace’s article on black author Richard Wright, a prominent 1930s communist who left the party in 1942. Published in the Journal of African American History, the piece featured this 111-word sentence:

Perhaps more important to my own undertakings is this: Inasmuch as the psychoanalytic hermeneutic is aimed at a reliable calculus of dynamic intersubjective drives and desires, and insofar as that self-same method declares the subject to emerge as precisely the moment he or she is recognized, perceived to be by an other who is also somehow the same, then, for the raced figure, his or her reflection in the other’s eyes would seem to constitute a primary element of psychoanalytical utility to black and diasporic texts and contexts, the sort of primary function, that is, that constrains the important second glance at Native Son [one of Wright’s books] I pledged my time to moments ago.

In describing the novel and one of its characters (Bigger), Wallace took 117 words between periods:

In a manner extending from Claudia Tate’s reading of Savage Holiday, and following her thesis that “we can illuminate the manifest racial meaning of prominent texts by canonical black writers by probing the latent content in their corresponding noncanononical works,” I want to suggest, from the classical Freudian angle I am convinced, owing to Claudia Tate, Wright held to, that a deconstruction of the violence of the novel’s two infamous murders no longer simply seems as threatening as gazing into the face of Medusa under a Freudian frame; for Bigger that violence is a direct consequence of having already “caught sight” of her and the primal trauma, sublimated deep in the filial unconscious, of seeing her uncovers.

Wright’s novel formed a major element of Wallace’s only book, Constructing the Black Masculine: Identity and Ideality in African American Men's Literature and Culture, 1775-1995. The book attracted rave reviews and a major award from the Modern Language Association, whose past president, Houston Baker, typifies the organization’s location on the ideological spectrum.

The book, asserted Wallace, consisted of “a discursive mix of literary theory, photography and the visual arts, race and ethnic studies, psychoanalysis, queer theory, feminist epistemology, and performance studies.” The (82-word) first sentence of the preface laid out the argument:

Although the high profile of race in the West has made the black male body into a stark palimpsest of fears and fascinations possessing the cultural imagination, issues of gender and sexuality, on the other hand, have been so fully rationalized into our popular stories and stereotypes about maleness that the insufferable silence around these issues as constitutive elements in modern black male subject formation is too often mistaken for a sign of their discursive immateriality to black men’s lives and letters.

The book opened with extensive treatment of Native Son, in a chapter that Wallace described as “materialized . . . by a camerical metonymy that, owed to a suggestive constellation of mimetic and symbolic determinants, is also decidedly male, the racialist gaze (which by definition need not be a racist gaze) congeals black male bodies into statued rigidities, arresting representation at the threshold of human being.” He continued: “Cameras sometimes wield the same power of guns and penises to abase the Other (if not the cultural remembrance of them brandished at black men) to similarly reduce black male images to ‘crushing’ Fanonian objecthood.” The chapter, added the Group of 88’er, established “enframement as the ur-trope of black male specularity for this study.”

The book’s message, unsurprisingly, reassured the paragons of diversity, who often use their scholarship to uncover an idealized past that is—coincidentally, of course—remarkably similar to their contemporary agenda. “Because,” Wallace concluded, “postmodern black masculine identity tends to assert itself in a repertory of characteristically black male body stylizations that range from athletic to comedic to cool, the history, theory, and practice of black male performativity in dance, popular and performance, are especially suited to the task of uncovering (perhaps only recovering) a hermeneutics of black masculinity that is neither heterocentric nor misogynistic but develops out of a uniquely male racial experience nonetheless.”


In the lacrosse affair, Wallace distinguished himself for his extreme views even among the Group of 88. On April 3, 2006, he praised Houston Baker’s demand that Duke immediately expel every member of the lacrosse team. Wallace criticized “the university’s handling of this unambiguously racist and sexist social disaster, whatever a criminal investigation turns up,” and promised that he, for one, would not “let pass, unchallenged, the affront to higher education and anyone’s moral intelligence the Duke men’s lacrosse team and its coaches have been permitted to carry out over years.”

In summer 2006—after Mike Nifong’s case began to implode and after the Coleman Committee’s report gave the lie to Wallace’s assertion that the lacrosse team had carried out “over years” an “affront to higher education and anyone’s moral intelligence”—a DIW reader asked Wallace if he had any qualms about signing the Group of 88’s statement. The reader also wondered whether, at least, Wallace would publicly support due process for the Duke students that Nifong had targeted.

The request “humored” the English professor. He asserted that the “social disaster” of the Group’s ad, “in fact, cannot be reduced to the accused players or the scandal associated with them.” In any case, he continued, “Our day-to-day experience on this campus is all the fact we need to justify our ad. Whether the accused lacrosse players are found guilty or innocent, the voices represented in the ad express wounds, injustices and daily disasters that could be heard ten or twenty years ago. That ad, therefore, could not but stand the test of time since it is a record of sentiments shared by no less than two or three generations of Duke’s invisible classes.”

Wallace’s prediction that the ad would stand the test of time, of course, hasn’t fared too well. It appears, indeed, that he failed to read the ad. Despite his claim, the ad was quite clear in its reference to the lacrosse case—whether in its unequivocal statement that something “happened” to Crystal Mangum; or in its praise for protesters “making collective noise” through such mechanisms as the “wanted” poster or the “castrate” banner; or in its anonymous quotes from alleged Duke students reflecting a belief in Mangum’s credibility.

And would Wallace uphold the academy’s traditional fidelity to due process? “I plan no public statements on behalf the accused students. They have secured well-paid lawyers to do that.”

Wallace concluded by promising to “disregard any subsequent correspondence” on the issue. A few months later, he signed onto the “clarifying” statement. He also was one of the six presenters at the “shut up and teach” forum, the culminating event of the disastrous Group of 88 Rehab Tour.


Wallace teaches classes in African-American literature. In a 2003 interview with the Herald-Sun, he outlined his teaching philosophy:

I have a responsibility to all of my students—every single one of them—to disabuse them of all of the national, racial, middle-class, gender and sexual myths they’ve been taught to comfort or flatter themselves and, of course, the people who, perhaps unknowingly, miseducated them. While I do my part in my community, each May, they go out by the hundreds into our communities, too, and it’s my job, my vocation, to prepare them for our collective responsibility as thinking citizens, rather than mechanical mediocrities.

How, precisely, would this philosophy translate in the classroom? What happens when a student—in good faith—disagrees with Wallace’s inherently political decision on what constitutes “myth” and what constitutes reality? Can a professor who implies that students who do not accept his worldview are “mechanical mediocrities” grade them fairly?

Moreover, despite his assertion that he wants to train “thinking citizens,” Wallace’s behavior over the past 17 months suggests that he doesn’t practice what he preaches. His conduct in the lacrosse case gave no indication that Wallace believes that “thinking citizens” should speak out against prosecutorial misconduct in their midst—a vision of civic affairs that would leave students as automatons, discouraged from challenging government authority.

Wallace is a tenured associate professor. His fall 2007 classes are “Religion and Literature” and “King/Baldwin/Fanon.”

Sunday, July 29, 2007

New Duke Position

According to Inside Higher Ed, Duke is seeking a new director for “Diversity and Equity,” whose task will be “to provide training and support diversity initiatives.”

The justification:

An environment characterized by exemplary academic performance and high levels of employee productivity requires an organizational culture that sets clear expectations, provides appropriate support and engenders respect and dignity.

Engendering “respect and dignity,” presumably, would require not rushing to judgment based on students’ race, class, gender, or athletic status—through such initiatives as distributing “wanted” posters or 88 faculty members signing a denunciatory ad cited by the students' own attorneys as highly prejudicial.

The expectations include:

Provide consultation to senior leaders, managers and supervisors in designing and implementing department-wide and institution-wide changes to ensure diversity, equity and respect for all faculty, staff, students and patients.

Since President Brodhead has thrice defended the Group of 88’s statement—indeed, once going so far to describe the Group as professors who “signed a petition defending students who as minorities, felt threatened by the situation”—it would seem that respect for “all faculty, staff, students, and patients” will not be a priority of the new “diversity and equity” director.

The position has an academic component as well. The director is expected to “provide support, advice and consultation to Duke University departments in their efforts to enhance diversity and inclusion among undergraduate and graduate students.”

If the new director were to implement this task fairly, among his or her first assignments should be scheduling a seminar for the AAAS department on how sponsoring a denunciatory ad targeting a group of the school’s students does not enhance “inclusion.” Somehow, I doubt that will occur.

The job requirements:

Minimum requirement is a Masters degree in education, social work, psychology, business or a related field. Excellent interpersonal and cross-cultural communication and presentation skills. Outstanding listening, collaboration and team building skills. Proven capacity to analyze and implement diversity and inclusion strategies. Demonstrated skill in conflict resolution and problem-solving. Clear understanding of cross-cultural and diversity theory and practice. Sophisticated knowledge of organizational change formulations. Demonstrated ability to work effectively within a culturally diverse workforce and provide leadership in organizational change. Ability to focus on strategic goals and implement appropriate interventions.

In theory, of course, such a position is perfectly appropriate. But given the track record of the past 17 months, in which all students were not treated equally by some quarters of the faculty and administration based on their race, class, gender, or athletic status, it seems unlikely that the new director will treat all students equally.

Saturday, July 28, 2007

The True Believers March On

The pro-Mangum blog abyss2hope, run by Marcela Chester, recently critiqued the AJR’s comprehensive review, “Justice Delayed,” of the media’s handling of the lacrosse case. Chester attacked AJR author Rachel Smolkin for continuing to “make unsubstantiated accusations against the alleged victim.”

But how is Mangum the “alleged victim”? The state of North Carolina said that nothing happened. The city of Durham said that nothing happened. The Durham Police Chief said that nothing happened. Even Mike Nifong has conceded that nothing happened. So who, exactly, is “alleging” that Mangum is a “victim”?

To Chester, suggesting Mangum leveled a false accusation is unacceptable, since “the alleged victim has still not been charged with a crime.” But, of course, a good reason exists for this decision: as AG Cooper noted, Mangum’s mental problems mean that she might actually believe her myriad, mutually contradictory, tales—which would explain why a prosecutor might exercise discretion and not file charges. That decision doesn’t mean that journalists should be prohibited from deeming false a claim that Mangum was raped while suspended in mid-air, at a time when her own cellphone records and the receipt of her “driver” indicated she wasn’t even at the lacrosse house.

Chester also went of her way to defend Nifong: “There has been no proof that Nifong knew that the players were innocent and decided to frame them in order to win an election. But hey, why wait for proof?”

Chester apparently missed the Disciplinary Hearing Committee’s findings of fact, which made exactly this point. That alone would have disproved her wild charge that Roy Cooper’s behavior “mirrored Nifong.”

Chester added,

Now that the case has been dropped, accepting the statements of all the players and all defense attorneys without question is as dangerous as accepting the initial statements made by Nifong. They clearly want to do more than see the criminal case resolved, they want to control the narrative.
But, of course, no one is arguing that people should accept the statements of the players and their attorneys “without question.” The players and their attorneys had corroborating evidence—in the form of unimpeachable electronic data. (Without any foundation for do so, Chester suggested that some of this evidence might have been doctored.)

For some, alas, the accusation alone will be enough.

Bannon on the DNA Process

Brad Bannon recently gave the "blog hooligans" at Liestoppers an inside look as to his rationale for mastering the DNA evidence:

In fact, the first thing we asked Judge Smith to do, in the first sentence on the first page of the motion, was to hold Mike Nifong in criminal contempt of court for his misconduct before the Court on September 22 and December 15. The first thing we asked for in the motion’s concluding prayer for relief was “an order holding Mr. Nifong in criminal contempt.” That is why, when Judge Smith entered his order to show cause regarding the September 22 misconduct, he specifically noted that he was doing so on our motion as well as his own. In effect, when Judge Smith found probable cause to believe that Mike Nifong engaged in criminal contempt by misleading the Court on September 22, we won the primary objective of the sanctions motion, which was a forum for the Court to determine whether Mike Nifong should be held in criminal contempt of Court.

Regarding the comments about the “story” of my DNA work being “misplayed to some extent for dramatic effect,” while I agree that far too much emphasis has been placed on my DNA work (to the exclusion of equal focus on the more important contributions of the rest of the defense team), it has not been “misplayed for dramatic effect.” The truth is that no one was focused on the DNA except me, for the reasons I stated under oath at the State Bar hearing and that Jim Cooney has mentioned here in these threads. While I did not know much about DNA when we got this case, I knew a lot about representing criminal defendants at trial, and I knew about trying criminal cases where expert testimony & subject matter is involved. So I knew that you simply cannot dump a bunch of documents on an expert, say “Tell me what I need to know about these materials,” and wash your hands of your responsibility to provide context & know the science yourself. You must provide your expert with context related to the facts & procedure of the specific case. You must also review the materials yourself, because (a) you have knowledge about the law that an expert does not have when he or she is reviewing materials, and (b) you may catch things an expert would miss. Most importantly, as it turned out in this particular case, you have a duty to learn about the science & the complexities of the area of expertise yourself; otherwise, you will not be able to effectively deal with experts in the courtroom (whether it's cross examining the prosecution expert or presenting your own).

Say, for example, a prosecutor walks into a courtroom one day and, without notice, presents an expert for testimony, and this will be the only opportunity you have to cross-examine that expert. If you had not taken the time to learn about all of the underlying documents & the rudimentary scientific concepts necessary to interpret them (if, in other words, you had taken the approach of sending materials to an expert and saying “Tell me what I need to know about these materials”), you would not remotely be ready to cross-examine that expert extemporaneously, especially if that expert (a) initially attempted to deny the premise of your scientific conclusion, or (b) became very difficult & erratic under questioning. By contrast, learning about the materials & the science gives you both the scientific & legal knowledge necessary to effectively get that expert witness under control and lead him to the truth.

I learned this approach from the master: Jim Cooney. That is why it was entirely appropriate for Jim to deliver the final blows at the hearing on December 15, and that is why it was entirely appropriate for him to get the applause.

As I testified in the State Bar hearing, I learned fundamental concepts of DNA testing from reading John Butler's second edition of Forensic DNA Typing. After recieving the underlying data (1,844 pages) on October 27, I reviewed them while reading that book. In November, I made the discoveries. I put them into a 40-page memo and sent it to Rob Cary and Chris Manning at Williams & Connolly in DC. Rob & Chris had provided Joe Cheshire & me with very valuable input on various issues in the case up to that point and had agreed to help us coordinate a DNA expert at the appropriate time. They shared my memo and the underlying data (1,844 pages) with Hal Deadman, a DNA expert. He reviewed the memo & materials and met with Rob and me on December 8 at Williams & Connolly's office in DC. He confirmed the analysis in my memo. We converted it to the Motion we filed on December 13. Two days later, on December 15, Mike Nifong presented Dr. Brian Meehan for testimony without giving us any notice. If you review the transcript of that proceeding, you will see that Dr. Meehan initially denied the basic premise of our motion: that his lab found but did not report multiple male DNA on various rape kit items that excluded the lacrosse players. I then took him through each of the findings I had made and questioned him about specific concepts in DNA analysis & interpretation, and he ultimately admitted that yes, they did find it, and no, they did not report it. He then admitted that Mike Nifong knew about it in April and had participated in the process of deciding to report only the "matches," a reporting formula that necessarily excluded the exculpatory results we found. Whether that process & turn of events was dramatic or not, that was how it unfolded.

New Message from Prof. Ho

I just received an e-mail from Prof. Ho denying that she responded to my original post, and further asserting that I do not have the right to quote from her e-mail in which she informed me that she did not respond to my original post.

As she is currently denying that she responded to the original post, I accept her at her word, and have removed the relevant post, with appropriate apologies.

Also, although the blogger software does not allow me to ban individual commenters, I will issue a request to "Polanski" to cease commenting on this blog. I will heretofore delete all comments from "Polanski," and ask readers to e-mail me whenever they see an undeleted comment from "Polanski," so I can remove it.

Friday, July 27, 2007

More Academic Embarrassment

Jennifer Ho is a professor of English at the University of North Carolina. She has published a book—Consumption and Identity in Asian American Coming-of-Age Novels, which “examines the intersection of coming-of-age, ethnic identity formation, and foodways in late 20th Century Asian American bildungsromane and American popular culture.” She also has authored three articles/book chapters: “A Tale of Two Courses: Conflict and Community in the Asian American Classroom”; “Ambiguous Movements: Paisley Rekdal’s Passing Identity in The Night My Mother Met Bruce Lee: Observations on Not Fitting In”; and “When the Political is Personal: Life on the Multi-Ethnic Margins.”

The latter piece was a chapter in a book called Race in the College Classroom, which addresses what one reviewer termed three “core concerns: how the race of an instructor (or her decision to address race as a subject of study) affects her authority in the classroom, what effects the decision to address this ‘uncomfortable’ topic has on one’s teaching evaluations and future prospects in the academy, and what models are available for faculty wishing to pursue an ‘antiracist pedagogy’ in the classroom.”

Ho writes that her “next research project will focus on gossip and the ways in which various communities of women in the U.S. have used gossip as productive modes of communication, affiliation, and empowerment.”

From this background, Ho offered her perspective on the lacrosse case. Commentary is interspersed.
Today I heard that Mike Nifong, the disgraced D.A. who mishandled the Duke Lacrosse rape case, apologized to the three men he originally accused and said that there was not substantial evidence to link them in the rape case. And as various magazine and newspaper articles, and even a book written by the former Duke Lacrosse coach all emphasize, these young men were all victims of ‘racial profiling’ and are, instead, innocent of the charges brought against them.
With all due respect to journalists and even to Mike Pressler, it seems to me far more significant that, after a comprehensive investigation, the Attorney General of North Carolina termed these young men “innocent of the charges against them.”
And in the wake of this media storm, I’m not sure what to think with respect to the woman who brought these accusations against the men. I certainly feel sympathy for her, because regardless of whether she made up her story or she was, indeed, sexually assaulted, she more than likely did not bargain for the reception she received at the house party in which the lacrosse players were present and she more than likely did not think when she was a little girl that she wanted to earn extra money to support herself through college by taking off her clothes for drunken college boys.
The portrayal of Crystal Mangum as a naïf is a touching one, if almost entirely contradicted by the evidence. The Yaeger/Pressler book quoted Durham attorney Butch Williams (an African-American), who mocked portrayals such as Ho’s for making Mangum look like “Sweet Polly Purebred, who met some hooligans that took advantage of her.” Williams was blunt: “C’mon, kids. She wasn’t this little poor North Carolina Central student working the fields. She was a whore.” H.P. (“Fats”) Thomas, the former security manager at Mangum’s strip club who, like Williams, is African-American, described Mangum as “more of a hooker than a stripper. She was stripping as advertising for hooking.” Given her emotional instability, he added, she was a ticking time bomb: “That could’ve been any one of us. These boys just ended up with the wrong stripper. Forget white or black for a minute. That could’ve been any one of us.” If that portrayal sounds familiar, it should: it corroborates Kim Roberts’ March 22, 2006 statement that Mangum wanted to return to the lacrosse house to make more money.

It’s unclear what Ho meant by asserting that Mangum was looking to “earn extra money” as a stripper, since sexual work appears to have been Mangum’s sole profession, not something she did on the side. Anyhow, I suspect that many people would consider it hard to “find sympathy” with someone who made up allegations that could have resulted in three innocent people going to jail for 30 years.
If she did lie, well, then that’s a topic for another post--because it is damaging for women to lie about rape—there are so many women who are raped every day, many by people they know . . . So if this woman did lie, well, she’s doing a lot of damage for a lot of people.
Don’t let an analysis of the facts get in the way of the desired topic to address.
But putting aside the veracity of her story—

Again, let’s put aside the facts and move on to analyze the case through a preferred ideological perspective, the preferred option of Rev. William Barber and the Group of 88.
—the larger problem I have with the exoneration of the Duke lacrosse team is over issues of race, class, and sex. There are the facts of the largely white team members and the two women, one African American, the other half-black, half-Asian.
Of course, the players requested white strippers. Should, then, the team have turned the strippers away when the players discovered the escort service sent non-whites?
There is [sic] the overheard racist remarks outside the house (“Thank your grandaddy for my cotton shirt”) and the racist comments that the women reported went on inside the house.
Actually, Kim Roberts never claimed that “racist comments” went on inside the house. And even Mike (“nothing happened”) Nifong has now conceded that nothing untoward occurred inside the house. Ho also appears not to have noticed that Roberts long ago conceded that she initiated the racially charged exchange outside the house, with a racial taunt of her own.
There is the privilege that comes with wealth and with attending an elite university like Duke and with playing for an elite sport like lacrosse.
Ho appears to have access to the bank accounts of the families of the 47 players on the 2005-2006 team. Ho also did not indicate what sports college students could play without exposing themselves to allegations of elitism.
And then there’s the fact that this group of young men, athletes, who ostensibly represent their school, didn’t think twice about hiring women to take off their clothes for them.
There’s also the fact that women’s groups at Duke “didn’t think twice about hiring men to take off their clothes for them”; and that thousands of college students engage in tasteless behavior during spring break.

What I’m trying to get at is that regardless of whether or not these men sexually assaulted this women—I don’t feel the Duke lacrosse team is fully exonerated. Yes, they may not have perpetrated rape, but are they totally innocent of the white privilege, the class privilege, the very male privilege that they wear as casually as they wear their uniforms?
At least Ho is candid: regardless of whether three of its members “perpetrated rape,” the 47 members of the lacrosse team cannot be “fully exonerated”—although, it appears, Devon Sherwood is more exonerated than his 46 teammates.
And Duke students who support these players, do they stop and think about the larger picture—that rather than seeing themselves as embattled victims of a corrupt legal system—as victims prosecuted by the media, perhaps they need to really think about what it means to have the privilege of attending Duke University or any four-year university—of having a college degree, something only 25% of the US population has. Shouldn’t Duke students, lacrosse players and non-lacrosse players alike, owe it to themselves to question the kinds of privilege they walk around with and the ways in which subtle promotion of white male superiority gets produced around not-so-innocuous parties involving dark skinned women taking off their clothes at the command of white men?
Again, Ho deserves marks for candor: as they saw their classmates being victimized by an unethical prosecutor who (as even he has now admitted) had no case, Duke students apparently should have stood aside, and allowed Reade Seligmann, Collin Finnerty, and Dave Evans to be sacrificed on the altar of privilege.

Ho confirms the depressing fact that the Group of 88’s mindset is hardly confined to Duke.

[Update, 1.28pm: I should note that the above link to Prof. Ho's site no longer works, since she has made her blog open only to invited readers--as, of course, is her right.]

Week in Review

In Lacrosse Magazine, Clare Lochary has a nicely done piece on Collin Finnerty’s arrival at Loyola. Coach Charlie Toomey was candid in his excitement with the decision: “It’s a new beginning, and it’s a great opportunity for him. And it’s obviously a great opportunity for us.” Lochary noted,

Snagging Finnerty was one of many adept recruiting moves that Toomey made this season. His incoming class is small in number (just eight freshmen plus Finnerty, a second-semester sophomore) but strong in talent. Last year's points leader, junior Shane Koppens, returns, but Toomey expects a new look on the offensive end of the field—faster, more athletic, and less reliant on pure shooters to get the job done.

It seems as if Brown will not be the only beneficiary of departures from Duke.


Hal Crowther, the Indy columnist who penned one of the worst articles on the case, was back again recently, this time in a piece for Oxford American.

Amidst a rambling column on why people shouldn’t look down at the South, Crowther opined,

After waiting a year to find out what happened at that infamous off-campus stag party, we were told that nothing happened . . . The DA was virtually lynched, an unprecedented martyrdom that seems to have crushed his career and any hope of future happiness. The black stripper who pressed the charges was merely impeached, ostracized, and forgotten. The exonerated lacrosse players, according to my local paper, were “greeted like heroes” wherever Duke students gathered. Innocent was the word in general use, though all the Attorney General had actually determined was that they couldn’t be convicted—and shouldn’t have been indicted—on these charges brought by this witness (doesn’t that make them less innocent, technically, than, say, O.J. Simpson, who was actually acquitted?).

Actually, the Attorney General stated that “it was in the best interests of justice to declare these three individuals innocent.” Emphasis added, since Crowther seems to have missed this item.

More Crowther:

Their innocence was asserted so aggressively by the media that we were left with the impression that they had actually been studying in the library when the incident in question occurred.

Crowther never quite explained how an “incident” that never happened could have “occurred.” I don’t believe that either Reade Seligmann or Collin Finnerty ever left the “impression” that they were at the library. Instead, even using the timeline employed by Mike (“nothing happened”) Nifong, one was at an ATM machine, and the other was walking to a restaurant.

Crowther concluded with a paean to the Group of 88, noting, “Professors who used the lacrosse case to make a statement about over-privileged and under-restrained athletes are still receiving threatening e-mails from bullies with racial agendas.”

The Indy columnist appears not to have received the latest Group talking points, which assert: the Group’s statement had nothing to do with the case, and certainly nothing to do with athletes. It only was an attempt to defend unnamed minority students who were subjected to taunts from unspecified defenders of the lacrosse team between March 29 and April 6, 2006.

Crowther confessed that he experienced “extreme nausea” when reading Ruth Sheehan’s apology. Perhaps Group members can express their gratitude by sending him a bottle of Rolaids.


A more realistic appraisal of the Group of 88’s statement came in the summer City Journal, courtesy of a lengthy lead article by Myron Magnet. He noted,

What the Duke “rape” case shows is that these attitudes about race have hardened into dogma among elites. Otherwise, who would believe for long the fishy charges of accuser Crystal Mangum, then 27, who kept changing her story about how many Duke students had assaulted her, what they looked like, and what they had done? Hired as a stripper for a lacrosse-team party (where she turned up “passed-out drunk,” a cop on the scene reported), the unmarried mother of two claimed that she’d been raped, beaten, robbed, and threatened with violation with a broomstick, by three or five or maybe even 20 members of the Duke team, though she picked out different young men from different arrays of police photos. Or maybe she hadn’t been raped but only assaulted—or perhaps suspended in midair and used sexually by three young men at once, in a tiny bathroom. State attorney general Roy Cooper understandably suspected that Mangum might have had a tenuous grasp on reality. “She may actually believe the many different stories that she has been telling,” the AG remarked, in declaring the students innocent. “You can’t piece it together.”

As Magnet observed, it’s not hard to understand the political motives that led Nifong to champion the case. “But,” he continued,

what led the Duke faculty and officials, along with the mainstream media, to treat this cock-and-bull story as gospel to the bitter end? Why did the university promptly suspend the three students, cancel the rest of the lacrosse season, and force out the coach? Why did president Richard Brodhead say, just after police arrested the trio, “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”? As a lacrosse player recently told the student newspaper: “It was unfortunate that some of the subsequent actions that were taken by the University didn’t really imply a presumption of innocence.” . . .
Part of what a university should teach is the critical reasoning power to analyze situations like these, with claims and counterclaims, and determine what actually happened . . . But the professors sidestep this challenge, simplifying and flattening these complex truths about culture and consciousness. They reach the false conclusion that all descriptions of society and our nature are not just colored or refracted by our cultural assumptions but are mere propaganda, aimed at convincing others that the world is as our class or subgroup wishes it to be. Moreover, since the profs believe that not just the social order but also what we take to be “human nature” is man-made, whoever wins the propaganda battle gets to mold society and human nature—human reality itself—into the shape he chooses.
From these assumptions flows academe’s well-known mania for unmasking Western civilization (including its literature and art) as a machine for oppressing the nonwhite, non-rich, and non-male. This worldview—which grants its adherents a sense of superiority over their supposedly racist and sexist fellow men and also a belief in their own special power to remake the world by their words—appears so self-evident on campus as to be impervious to such realities as accelerating black success, for example, or the crowding out of male students by female ones on college campuses themselves.
So not only did many Duke professors feel that they didn’t have to think twice when stripper Mangum filed her charges; they scarcely had to think once. With one eye looking inward and the other fixed on the heavens, they knew instantly what must have happened . . . What to make of such almost comically irrational terror-without-a-name that the profs have stirred up with their specters of racists and sexists, like the nonexistent witches of old? Given the mass hysteria at this supposed seat of reason, the accused trio can probably count themselves lucky that they lost only a year of their lives.

Magnet moved on from the case to sharply critique rap culture. No doubt Group stalwart Mark Anthony (“thugniggaintellectual”) would be outraged.


The most recent Chronicle features an interview with Coach K. When asked about the University’s handling of the lacrosse case, he responded,

It’s easy to look back and say everything that you would have done or that could have been done. Instead of rehashing those things—we could have taken care of the kids better, we could have done this better—Overall we could have done that better. Could we have done that worse? Absolutely, we could have done it a lot worse. Right now, especially [after the conclusion of the Nifong hearings], there’s a great deal of closure now that has happened with Nifong. We need to be in a healing phase, and I want to be a part of that as much as I can…. No matter what, you’ve got to be there for them—that’s the job of a parent, a coach, a school or whatever. There were so many lives to this thing that it got complicated, and in that complication, I think some mistakes were made, including the proper care of our kids.

Normally “healing” requires some acknowledgement of wrongdoing, but the University’s unwillingness to hold accountable those who didn’t adhere to the Faculty Handbook suggests that Duke is going to try a different approach.


Wendy Murphy continues to make national news—this time in a laughably one-sided story in Time. The adjunct professor has abandoned her conspiracy theories on how the Duke case ended to criticize a Nebraska judge who prevented an accuser in a date-rape case from using the word “rape” in the trial. Instead, the accuser was told she could describe what the suspect allegedly did to her.

Murphy is now representing the accuser, claiming that “nobody in that courtroom was allowed to describe what happened as a crime.” Added Michelle Anderson, dean of the CUNY Law School, the judge’s ruling reflected an old-fashioned approach to rape: “The notion that the word rape is so charged derives from an historical willingness to place a higher burden on rape victims who come forward.”

Time spoke to the defense, but elected not to find anyone neutral to challenge Anderson’s portrayal of events—and so any reader could have fairly concluded that the judge in this case was retrograde, someone hostile to victims’ rights, perhaps even biased against women.

What neither Time nor Murphy mentioned: in the same trial, the judge allowed the women who had made unproven claims about the suspects’ sexual conduct to testify for the state. Imagine how Murphy or Anderson—or, presumably, Time reporter Meg Massey—would have complained had the defense been allowed to call to the stand two witnesses to make unproved allegations about the accuser.


This week’s humor comes from Liestoppers, where Baldo looks into Durham’s peculiar arrangement of “two chiefs for the price of . . . two chiefs.”

Also, columnist Kathleen Parker—who was correct on the lacrosse case from the start—proposed a new ailment. Nifong Syndrome is “the mind virus that causes otherwise intelligent people to embrace likely falsehoods because they validate a preconceived belief.”

She continued,

Michael B. Nifong, the North Carolina prosecutor in the Duke lacrosse case, was able to convince a credulous community of residents, academics and especially journalists that the three falsely accused men had raped a black stripper despite compelling evidence to the contrary.

Why? Because the lies supported their own truths. In the case of Duke, that "truth" was that privileged white athletes are racist pigs who of course would rape a black woman given half a chance and a bottle o' beer.


The salutary effects of the case in North Carolina politics continue. This week, the state legislature unanimously approved a measure to establish uniform procedures for photo ID lineups throughout the state.

Among the provisions, according to the N&O:

  • “The person running the lineup must be someone who is not involved in the investigation and has no information about the potential suspect. That would reduce the opportunity for police to cue witnesses—intentionally or unintentionally—to pick a certain suspect.”
  • “The use of “fillers,” or people who aren’t suspects but who generally resemble the witness’ description of the suspect, would be required in a lineup.

State Rep. Rick Glazier, sponsor of the bill, conceded that “the timing of getting the bill through and getting a quicker consensus” resulted from the public attention given to the DPD’s misconduct.

Gary Wells, an Iowa State professor who’s a national expert in eyewitness identification procedures, praised the legislature’s action: It’s a near certainty that there will be a reduction in mistaken eyewitness identification . . . The cases that come along after this will be more pristine and more trustworthy. So not only will it save some innocent people from ever getting to that point, but it also makes sure that guilty parties are convicted.”

Hat tip: J.W.

[Note: As the case winds down, a schedule shift: Group profiles on Monday; roundup posts move to Friday; and I no longer will be making regular posts on the weekend, although I will post weekend items as news demands.]

Thursday, July 26, 2007

Nifong Hearing Date Set

The contempt hearing for Mike (“nothing happened”) Nifong has been set for August 30; I will be in Durham to live-blog the proceedings.

With the man whose version of events they unqualifiedly accepted last spring having at last conceded that nothing untoward occurred at the party, the Group of 88 (minus Arlie Petters and a few other members, such as Lee Baker, who have issued conciliatory statements) would seem to be out on a limb. But, of course, those awaiting an apology from most of the Group figure to be in for a very long wait.

Nifong Unqualified Apology

Mike Nifong made the following statement today in court:

The last 16 months have proven to be a difficult and painful journey for my family and myself. This has also been a difficult and painful journey for Reade Seligmann, Collin Finnerty and David Evans, for their families, for Durham and the state of North Carolina.

We all need to heal. I believe, however, that this healing process cannot truly begin until all proceedings involving this matter are concluded and everyone is able to go forward.

I have resigned my position as Durham District Attorney as a part of this process.

I have read the report released by the attorney general, including his recitation of evidence that I did not have, obtained from his own investigation. I agree with the attorney general’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty and Mr. Evans commited any of the crimes for which they were indicted or any other crimes during the party that occurred on March 13 and 14 of 2006 at 610 N. Buchanan Blvd.

Mr. Seligmann, Mr. Finnerty and Mr. Evans were entitled to the presumption of innocence when they were under indictment. Surely, they are entitled to more than that now as they go forward with the rest of their lives. And that is what the attorney general tried to give them in his declaration that they are innocent.

I have admitted on more than one occasion that I have made mistakes in the prosecution of these cases. For that, I sincerely apologize to Mr. Seligmann, Mr. Finnerty, Mr. Evans and to their families.

It is my hope that all of us can learn from the mistakes of this case, and that all of us can begin to move forward. It is my hope that we can start this process today. Thank you.

A video of his remarks is here.

The Vick Case

Today is Michael Vick’s first court appearance following his indictment on federal charges relating to dog fighting. In the nation’s sports columns, a conventional wisdom has emerged on how to interpret the allegations. The storyline: the lacrosse case is a cautionary tale regarding the need for due process and the dangers of rushing to judgment.

Take a look:

Mark Bradley, Atlanta Journal-Constitution: “Facing a deluge of publicity and an ongoing investigation, a prestigious university shuttered an entire program and fired the coach. Today, Duke’s mishandling of its lacrosse team stands as an object lesson—how not to respond.”

Bob Smizik, Pittsburgh Post-Gazette: “People who already have [Vick] guilty should remember the Duke lacrosse players. Three members of the Duke team were tried and convicted of rape by no less than the upper administration of that university, to say nothing of much of the public, long before the case went to trial. Turns out, there never was a trial. Charges were dropped, but the lives of the players were greatly disrupted and almost ruined by the same rush to judgment that prevails with Vick.”

David Steele, Baltimore Sun: “Neither the NFL nor the Atlanta Falcons should kick out Michael Vick just because of an indictment, and just because he ‘sounds’ guilty. It didn’t happen with Kobe Bryant or Ray Lewis, and as we know now, it shouldn't have happened to the Duke lacrosse players . . . Let’s not forget the key phrase from the breakdown of the Duke case, ‘rush to judgment,’ and hope that there’s no federal prosecutor channeling Michael B. Nifong.”

Adam Schefter, nfl.com: “The league is determined to exercise patience, something Duke did not do when three of its players were indicted and the school cancelled its lacrosse season.”

Dr. Z, Sports Illustrated: “The Duke lacrosse case should have given us a valuable lesson. Don’t be first in line at the necktie party. Don’t assign guilt until it’s proven.”

Kyle Tucker, The Virginian-Pilot: “With the rape case involving falsely accused Duke lacrosse players still fresh, some Vick supporters remind others not to jump to conclusions.”

Peter King, Sports Illustrated: “Rookie commissioner Roger Goodell sent a strong message: This is not going to be the Duke lacrosse case. The NFL is not going to preemptively strike against a player with a relatively clean slate, as Vick has.”

Mike Vacarro, New York Post: “The Duke lacrosse case should have scared us all straight by now, of course. If one good thing emerged from that awfulness in Durham the past year and a half, it should’ve been this: No matter how disgusting the crime, no matter how distasteful the situation, everyone is entitled to their day in court first before anyone prepares a gallows. It’s what our legal system is founded on, a reminder that will serve as Mike Nifong’s lasting parting gift to us.”

The first four items are particularly noteworthy, in that they suggest that Duke’s mishandling of affairs is now widely acknowledged, even by those who didn’t follow the case closely. And, indeed, if ten years from now the lacrosse case is remembered as the best example of why due process matters, this outcome would be appropriate.


Due process means more than a presumption of innocence: the principle also requires prosecutors and police to abide by their own procedures and uphold the Constitution. Perhaps the greatest failure in most early coverage of the lacrosse case (excepting the N&O and the Chronicle) came in the failure to give Nifong’s procedural improprieties appropriate emphasis, and to recognize that due process is impossible when a prosecutor and police routinely break the rules.

To my knowledge, no one—excepting (of all people) Emmitt Smith—has accused Chuck Rosenberg, U.S. Attorney in the Eastern District of Virginia, of inappropriate conduct in the Vick case.

It also would be unfortunate if the media adopted the Herald-Sun’s definition of “due process”—to wit, due process means that all must avoid any comment on criminal justice matters until a jury reaches a verdict, especially in cases where the politically correct course is to avoid comment. This version of “due process,” of course, led the Herald-Sun to castigate those who pointed out that Reade Seligmann—on videotape someplace else at the time of the “crime”—was demonstrably innocent.

There are obvious differences between the Vick and Duke cases. In the Vick case, no one is denying that a crime occurred (authorities uncovered the dead dogs, after all); the government has multiple witnesses (of uncertain credibility); and Vick is a salaried employee of the Falcons. In the lacrosse case, the defense vigorously (and accurately) denied that a crime occurred; the government had one witness (of dubious credibility); and the affected parties were college students paying to attend Duke.

A few sportswriters—ironically, those who wrote or spoke on the lacrosse case as it was occurring—have stressed the differences between the two cases. Bill Plaschke of the Los Angeles Times argued that Roger Goodell shouldn’t be “worried about acting like one of those vigilantes who rushed to judgment in the Duke lacrosse rape case . . . A federal indictment is not a small-town rape charge. Vick is being chased by the federal government, not some backwater district attorney. Vick’s alleged crimes were confirmed by four witnesses, not one questionable victim.” MSNBC’s Mike Celizic added, “This isn’t the Duke lacrosse team, so don’t talk about a rush to judgment. With Duke, we were talking about college students who were forced out of school, an entire team that whose season was canceled, more than 20 young men who were smeared by association by a rogue city prosecutor running for reelection.”


Then there are those who seemed to learn nothing from the Duke case. Channeling Allan Gurganus is his contempt for due process, Bob Ryan of the Boston Globe opened a recent Vick column with the following lines: “Yes, yes, I know. An indictment is not a conviction. We need to observe due process. I know that, too. However . . .”

Ryan then went on to note, “Lester Munson of ESPN.com is probably the foremost American sports investigative journalist, and he paints a pretty grim picture for Ookie and friends. ‘Vick is in real trouble,’ Munson says, and he goes on from there.”

That would be the same Lester Munson who:

  • suggested that Reade Seligmann’s publicizing his alibi would expose him to an obstruction of justice charge;
  • claimed that “the whole idea that DNA evidence was somehow conclusive was the invention of the defense lawyers,” despite the motion from Nifong’s office that DNA would exonerate the innocent;
  • predicted that, after Nifong dropped the rape charges, people should look for “the accused players to attempt to settle everything with a guilty plea on lesser charges.”

Munson might be many things, but the foremost American sports investigative journalist is not among them.
Hat tips: M.R., D.W.

Wednesday, July 25, 2007

Still Channeling Selena

When last heard from regarding the case, Newsday columnist Steven Marcus channeled Selena Roberts, as he:

  • provided a one-sided summary of the Coleman Committee report;
  • criticized Chaminade High School for selecting the falsely accused Collin Finnerty as a volunteer lacrosse coach; and
  • allowed a senior Duke administrator to engage in anonymous character assassination against Finnerty and Reade Seligmann.

He recently returned, with a negative review of the Yaeger/Pressler book. Marcus concluded his review by asserting, “Yaeger cites Pressler’s 100 percent graduation of Duke players as his crowning achievement. Someone [sic], I don’t think he’ll be remembered for that. It is highly irrelevant to the issue.”

Think about that statement for a minute: is it “highly irrelevant” for a 16-year college coach of a team that fields more than 40 players per squad to have had a 100 percent graduation rate?

The remark captures the odd nature of how many in the media (and, more important, at Duke) approached this case. Perhaps Marcus is a graduate of BYU or Liberty, where underage drinking is considered indicative of negative character. But at most colleges, academic achievement is generally seen as much more important than whether or not students consume alcohol. (I speak as someone who doesn’t drink.)

Before coming to Brooklyn, I taught at Williams College, and served two years on the college disciplinary committee. Almost all of our cases involved academic integrity issues—not underage drinking violations. Yet reflecting the Wonderland that was the lacrosse case, much of the media and the vocal element of the Duke professoriate acted as if drinking provided the key insight into students’ character, with academic performance—to borrow Marcus’ phrase—“highly irrelevant.”

Marcus concluded his column with grudging praise for the blog but a negative prediction about Until Proven Innocent. A DIW reader asked Marcus how—regardless of his opinion of me—he could so easily dismiss co-author Stuart Taylor. After all, Taylor, a Harvard J.D., is currently senior columnist for National Journal (which nominated him for a National Magazine Award for his columns on the Duke case) and a contributing editor for Newsweek. He previously covered legal affairs and the Supreme Court at the New York Times, which nominated him for a Pulitzer Prize.

Marcus’ response? “I have no idea who he is.”


Analyzing the Defense 13

Friday’s defense presentation laid out thirteen issues upon which the Whichard Committee could focus.

The issues, in turn, divide into three categories: investigative failures; procedural failures; and possible abuses of power.

Investigative Failures

The defense attorneys identified five principal failures of basic investigation—caused, as Jim Cooney speculated, by the intent of both the DPD and Mike Nifong to prove the truth of Crystal Mangum’s story rather than to determine what actually happened.

“In this rush to indict,” Cooney concluded, the department decided “to cut off an investigation.”

Three of these failures flowed from the DPD’s decision to accept wholeheartedly Mangum’s word (or whatever version of the truth she happened to be offering at that point in the investigation). As a result, as Cooney pointed out, the DPD never:

  • conducted a detailed interview with Jason Bissey, to help establish a timeline;
  • did any substantial checking into Mangum’s rather robust activities in the weekend before the party, which would have more than explained a finding of “diffuse edema on the vaginal walls”;
  • looked into Mangum’s work schedule, and discovered that she went back to “work” very quickly despite her false claims of trauma;
  • reconciled her disparate statements about the amount and effect of alcohol (and prescription drugs) that she consumed the night of the party.

Moreover, once the DNA results showed the presence of DNA of multiple unidentified males (including that of her three acknowledged sexual partners), the police never asked Mangum who these unidentified males might be.

A host of other items fall under this category, such as:

  • the failure to re-interview Kim Roberts before indictments, after Mangum’s April 6 statement described Roberts as a witness to the beginning of the “attack”;
  • the failure—as Officer Michelle Soucie’s April 5, 2006 notes stated needed to be done—to interview the one non-suspect lacrosse player, Devon Sherwood, who police knew attended the party. Sherwood would never be interviewed by law enforcement until the AG’s office took over the case.

Of course, to committee member Aurelia Sands-Belle (whose April 11 statement strongly implied that a rape might have occurred), such investigative practices might be acceptable, since the “victim” must be believed. But hopefully the other 11 committee members will recognize the extraordinary impropriety of such an incomplete inquiry—whether it flowed from incompetence or malevolence.

Significant Procedural Errors

Cooney’s presentation concluded—in great detail—about the procedural violations associated with the April 4, 2006 lineup, which violated Durham regulations in just about every manner possible.

The most alarming aspect about the April 4 lineup is that even now—after the lineup led to the indictments of three innocent people for a crime that never occurred—no one in the DPD has acknowledged that the lineup was procedurally flawed. Indeed, they have done just the opposite. Police Chief Chalmers (in the Baker/Chalmers report), Lt. Mike Ripberger (in his Bar deposition), Sgt. Mark Gottlieb (in his Bar deposition), and Officer Ben Himan (in his Bar deposition) each asserted that the April 4 lineup was procedurally proper.

As JinC has pointed out, the record of an official police spokesperson (Cpl. David Addison) giving out false information to the public is unacceptable. Yet no record exists that Addison was disciplined in any way for his false and inflammatory statements.

Committee members appeared most interested in the third procedural irregularity—namely, an investigation that did not follow the established chain of command. The tone of some comments, however, suggested a fundamental misreading of this issue, a suggestion that the failure came in Chalmers and his underlings failing to stand up for the police—who wanted to do the right thing.

The more appropriate line of inquiry would be to ask why the chain of command didn’t use the power they had to ensure that Gottlieb, et al., conducted a thorough investigation, instead of leaving the holes outlined above.

Possible Abuses of Power

Finally, five of the defense issues deal with possible abuses of power—indeed, possible criminal misconduct. As with the improper April 4 lineup, no one in the DPD has acknowledged any error.

The Gottlieb “supplemental case notes” should—in and of themselves—be enough to earn the sergeant a pink slip. As Bill Cotter noted Friday, “We were getting the idea that people were cheating . . . [they were] so determined to convict these boys that they’re not playing by the rules. That was our biggest fear in this case.” Nothing better exemplified that fear than the sudden appearance of the “straight-from-memory” notes that conveniently plugged holes in Nifong’s case.

But take Gottlieb at his word: he thought his contemporaneous notes—dutifully penned on a dry-eraser board, he claimed—were being preserved by Officer Himan photographing the board at the end of every day. And for more than three months, in the highest-profile criminal case in the city’s history, Gottlieb never noticed that Himan, in fact, wasn’t taking snapshots of the dry-eraser board. Any police department should consider such behavior totally unacceptable.

Cooney raised four other issues involving possible abuses of power. The arrest of Moez Elmostafa certainly looks like witness tampering—especially since the five principal figures involved each gave different, and in some cases mutually contradictory, explanations for the decision. The alleged Linwood Wilson internal affairs inquiry into Sgt. Shelton appears like little more than an abuse of government power to punish a whistleblower. The NTO affidavit claimed that evidence existed that the players called each other by their numbers at the party—but no such evidence was in the possession of the police. And the entire affair raises the possibility of a cover-up.

These five items all beg for a federal criminal inquiry.

Other Issues

Two other issues—possibly not central to the Whichard Committee’s charge—nonetheless deserve an examination.

First: the relationship between the DPD and the Duke Police. This issue should have been comprehensively explored by the Bowen/Chambers Committee. But the politically correct duo appeared interest only in information that would cast the lacrosse players in an unfavorable light, and so ignored the matter altogether.

The Bar depositions, however, revealed that Duke officers met on several occasions with their DPD counterparts before the April 4 lineup. No clear record exists of what transpired at these meetings.

Second: the DPD’s handling of SANE Nurse-in-training Tara Levicy. In her initial conversations with police, Levicy implied that she, rather than Dr. Julie Manly, conducted the critical portions of the SANE exam; stated that Mangum exhibited the effects of “blunt force trauma”; and asserted that Mangum’s behavior and injuries were consistent with a sexual assault.

All of these items, it turned out, were wrong. Yet police (and Nifong) appear to have accepted Levicy’s word without question. Did that decision reflect official DPD policy in dealing with SANE Nurses (or SANE Nurses-in-training)? If so, it would seem that the policy needs a second look. And why did the police never interview Dr. Manly? Was it because they feared Manly might contradict the testimony of Nurse-in-training Levicy?

The committee, in short, has a massive record of dubious behavior to examine.