Monday, June 30, 2008

The Perkinson Files

UPI received two negative reviews from what, at first blush, could be considered expected sources. One came from The Independent: no one would have expected the Triangle’s alternative weekly to suddenly abandon its demagogic view of the lacrosse case. The second, however, came from The Nation—a publication with a distinguished history of championing dissenting thought.

For its review, The Nation turned to Robert Perkinson, an assistant professor in American Studies from the University of Hawai’i. His website states that “student activism”—in such issues as the Yale graduate student union movement, a cause célèbre among “activists” in the academy—“originally kindled Perkinson’s desire to become a historian, and he remains committed to political engagement beyond the academy.” He describes his current scholarship: “Examining the dynamics of race, crime, culture, and politics from slavery to the present, it argues that Texas has served as the crucible of a uniquely harsh, racialized, and profit-driven style of punishment that became a template for the nation in the post civil-rights era.” An episode like the Duke case is clearly difficult for Perkinson to compute. Beyond having the “wrong” kind of victim for a race/class/gender advocate, the case’s very existence—North Carolina’s open file discovery law, the willingness of the State Bar to act—appears to undermine his (dubious) assertion that Texas’ extreme system is a “template for the nation.”

Like Duke defenders of the academic status quo, Perkinson’s review aggressively plays the race card: “The authors,” he writes, “spotlight Alan Gell, a white man wrongfully sent to death row in North Carolina. Conspicuously, though, they omit Darryl Hunt, an African-American North Carolinian who spent eighteen and a half years in prison for raping and murdering a white woman, ten of them after DNA testing proved his innocence. (The Hunt saga apparently provides too awkward a counterpoint to the authors’ drumbeat about reverse racism.)”

Perkinson apparently considers it self-evident that a book on the lacrosse affair should have discussed the case of a black man (Hunt) imprisoned for a crime he didn’t commit alongside a case of a white man (Gell) imprisoned for a crime he didn’t commit. For those in the reality-based community, for whom race-based editorial decisions aren’t self-evident, Perkinson offers no additional guidance.

Gell’s relevance to the lacrosse affair is clear: his case directly led to passage of North Carolina’s Open File Discovery Act, without which Nifong could have concealed many of the files that led to his undoing. And criticism of the State Bar’s passivity in targeting Gell’s prosecutors doubtless emboldened the Bar’s grievance committee to file ethics charges against Nifong—the turning point in the lacrosse case.

None of these factors appeared in the Hunt case—where the most dubious actions came from North Carolina judges and the Winston-Salem Police Department. It’s true Stuart and I could have referenced the case to demonstrate the hypocrisy of the North Carolina NAACP, which celebrated DNA’s importance to free a wrongly convicted black man but denigrated the value of DNA when dealing with falsely accused whites. But we had more directly on-point evidence of such hypocrisy as it was.

More broadly, the Hawai’i professor never says why a book championing a “drumbeat about reverse racism” would have included a chapter discussing non-North Carolina cases of prosecutorial misconduct involving black and Hispanic victims. It likewise is a mystery why such a book would have repeatedly mentioned that minorities and the poor are disproportionately the victims of prosecutorial misconduct.

So why, again, was UPI flawed for not discussing Hunt but stressing Gell’s significance? Perkinson doesn’t say, other than to point out that Hunt is black.


As in his comments about Hunt, Perkinson’s review seems designed more to obscure than enlighten, perhaps from an expectation that most Nation readers would not recall enough about the specifics of the case to challenge the review’s assertions. Some examples:

The lacrosse players’ character: The book, Perkinson complained, omitted how the “lacrosse players, [emphasis added] who make up less than 1 percent of the student population, account [emphasis added] for 25 percent of the school’s disorderly conduct violations.”

I wonder how many Nation readers guessed that the passage above actually was talking about one lacrosse player, in one incident. (The sample size was four students.) Perkinson’s use of the present tense (“account”), meanwhile, implies that the total is a comprehensive, ongoing one; in fact, this statistically insignificant figure came from one (supposedly randomly selected) term only. Few reliable social scientists would extrapolate from such a sample set—the reason Stuart and I did not include it in the book.

When Perkinson can’t use peculiar statistical interpretations to uphold the early media caricatures of the lacrosse players, he resorts to stereotypes. He concedes, for instance, that the players were good students. But of course they were: after all, they graduated from “Northeastern prep schools.” How Perkinson’s analysis applies to the academic performance of the many lacrosse players who didn’t attend “Northeastern prep schools” he did not reveal. Nor did Perkinson indicate any understanding of how the players’ academic performance contradicted the very media caricature his review sought to rehabilitate.

The Group of 88: On April 6, 2006, a full-page ad endorsed by 88 Duke faculty members appeared in the Chronicle (described by the signatories as “the most easily seen venue on campus”). The advertisement falsely claimed the support of five academic departments, was posted on the African-American Studies Program’s official webpage for six months, and unequivocally asserted that something “happened” to Crystal Mangum; it also thanked protesters who had (among other things) urged the castration of Duke students. According to Perkinson, however, this full-page advertisement was merely an “intemperate open letter.” (To my knowledge, no Group member has ever publicly described their advertisement as a letter.) Perkinson’s review does not mention what about the “open letter” made its contents “intemperate,” nor does he hypothesize what it says about Duke’s academic environment that most signatories publicly reaffirmed the contents of this “intemperate” document nine months after it was originally published.

The nature of Nifong’s prosecutorial misconduct: The lacrosse affair, reasons Perkinson, was a “comparatively mild” event. Would most Nation readers suspect that “mild” prosecutorial misconduct entails: concealing exculpatory DNA evidence; lying to two different judges; obtaining a non-testimonial order against people who weren’t even in the county on the night of the alleged crime; ordering the police to violate their own procedures and conduct a “do-over” lineup confined to suspects in the case; usurping the role of Police Department spokesperson and then repeatedly lying about the evidence to a national TV audience; presenting a wholly new timeline and then version of events after the defense revealed unimpeachable exculpatory evidence; being convicted of criminal contempt; and violating 27 counts of State Bar ethics rules, leading to disbarment—all in an attempt to secure the prosecutor’s nomination and then election by charging innocent people for a crime that never even occurred?

Politics, partisanship, and ideology: The book, according to Perkinson, accuses Group members of “voting disproportionately for Democrats.” In fact, in its discussions about Duke’s response to the case, the book went out of its way to dismiss the relevance of either political ideology or partisan affiliation. (For all I know, the entire Group could be registered members of the Natural Law Party.) The book argued that the pedagogical approach of individual professors best predicted whether a faculty member would rush to judgment. Moreover, while strongly criticizing Nifong, who campaigned as a liberal Democrat (Perkinson’s review mentioned neither Nifong’s party affiliation nor his ideology), UPI also praised such liberals and/or Democrats as Jim Coleman, Jeralyn Merritt, Barack Obama, Lewis Cheek, Brad Bannon, and Roy Cooper. How such praise could be reconciled with the book’s non-existent attack on the Group of 88 for voting “disproportionately for Democrats” Perkinson doesn’t reveal.

Outside praise of the book: Perkinson notes that the book received (strong) praise from George Will, Thomas Sowell, and the Weekly Standard. He ignores the (strong) praise from Nadine Strossen of the ACLU; Gene Upshaw of the NFLPA; and John Grisham, who most recently was a high-profile supporter of Hillary Clinton. Conceding that the figures on both the right and the left strongly praised the book would have undermined Perkinson’s thesis.

The central target of the book: According to Perkinson, “the most dastardly evildoers in this overstuffed polemic are Duke faculty members.” That would be news to anyone who’s read UPI (or even to anyone who just glanced through the index). While the book strongly criticizes the performance of the Group of 88 and its allies, the central villain is obviously Nifong, whose path of misconduct dominates a dozen chapters. As a defender of the academic status quo, Perkinson seems unusually sensitive to criticism of his ideological comrades, and therefore inclined to inflate its presence—much like the Zimmerman blog, which falsely claimed that 50 percent of DIW’s posts were about the Duke professoriate. The total is actually less than 20 percent.*

Nifong’s motives: Perkinson summarizes the book’s argument in the following way: “Taylor and Johnson speculate that Nifong took personal command of the case to garner publicity for his sagging political campaign against a rival in the DA’s office, but this doesn't fully explain why he would continue the quest long after the polls closed and the press turned predatory.” But the book never claimed that understanding why Nifong took command of the case explained why he sustained the case. Perkinson mysteriously omits from his review the book’s discussion of why Nifong went forward. The emergence of the Cheek challenge made it necessary for the D.A. to keep the case alive through the November election, so as to retain black voter loyalty (as ultimately occurred). And getting the case to trial—especially in Durham, where a hung jury was all but ensured—was a central component of Nifong’s strategy of fighting Bar ethics charges that he knew had been filed. A hung jury would have given the D.A. a chance of beating back ethics allegations that he had brought a case without probable cause.

The insinuation that Perkinson leaves: since UPI didn’t offer a reason why Nifong sustained the case (when, of course, the book did), perhaps Nifong, in his own mind, believed that he had a legitimate rationale for sustaining the case (when, of course, he did not).

Nifong & his enablers. In one of the review’s more curious passages, Perkinson writes, “Most incredibly, the authors suggest that faculty ‘cheerleaders for Nifong,’ aided and abetted by fellow travelers in the community such as the ‘all-powerful’ Durham Committee on the Affairs of Black People, a local political group, beckoned the prosecutor forward and aided his metamorphosis into an antiwhite ‘racial demagogue.’ If this was the case, Nifong's conversion was incomplete. Of the 431 people his office sent to prison in 2006, 82 percent of them were black—hardly the output one would expect from the PC panderer depicted here.”

It’s telling that even a Group of 88 apologist like Perkinson doesn’t deny that the Group’s statements and actions, as well as those of local “activists,” bolstered Nifong. (That would be hard to do, of course, given the copious evidence presented in the motion to change venue.) Instead, Perkinson suggests that Nifong’s policies harmed Durham’s black residents, and so the disgraced D.A. apparently wasn’t a “racial demagogue.” Yet throughout the early and mid-20th century, Southern “racial demagogues”—people like Mississippi’s Theodore Bilbo or Ross Barnett—regularly used race-based appeals to win votes from people (poor whites) who were harmed by the demagogues’ actual policies. Perkinson’s website lists him as someone who teaches about U.S. politics and who writes about the U.S. South; I’m startled that he appears ignorant of the tradition of Southern race-based demagogues to which Nifong so richly contributed.


Perkinson’s review operates in an air of unreality for anyone who actually followed the case. How did events in Durham attract such white-hot media attention? Perkinson cites only Nancy Grace and (unspecified) blogs “on the left.” (The New York Times, whose coverage the review fails to mention, apparently doesn’t count in Perkinson’s world.) Yes, Perkinson implies, some Durham residents did overreact, but he (paternalistically) portrays them as unthinking automatons, figures condemned by their past and their station in life to leap in protest amidst Nifong’s pre-primary publicity crusade. Perhaps, Perkinson concedes, President Brodhead (whom he describes as “an aureate middle-of-the-road literature professor”) did cancel the lacrosse season prematurely, but the president quickly reversed course, and—in an Orwellian interpretation of events—“repeatedly intervened on behalf of the players(!).” Apparently the president’s summer 2006 open letter asserting that a trial would allow “our students to be proved innocent” was, in Perkinson’s version of reality, part of Brodhead’s heretofore unrevealed record of bolstering the players.

At the most basic level, Perkinson offers a blunt message: Stuart and I should have written a different book, on a different topic, one that didn’t challenge his preconceived, race-based notions of U.S. society and the academy. An alternative? He references Jena—once a holy grail of the politically correct but now a crusade that even Jesse Jackson and Al Sharpton appear to have abandoned, as more facts became public—as an appropriate high-profile case of prosecutorial misconduct. What Nifongesque prosecutorial misconduct occurred in the Jena case (or, indeed, what prosecutorial misconduct occurred at all) Perkinson declines to reveal.

On one level, Perkinson’s review was hardly surprising: a Group of 88 apologist defended the Group and minimized the significance of the case to which the Group had embarrassingly linked its agenda. On a personal level, however, the review was disappointing. As some DIW readers know, I have a distant connection to The Nation. My second book was a (very sympathetic) biography of former Alaska senator Ernest Gruening. Best-known for casting one of the two votes against the Tonkin Gulf Resolution, Gruening also thrice served as editor of The Nation.

During Gruening’s first stint at its helm, in the early 1920s, The Nation played a critical role in rallying public opinion against the U.S. military interventions in Haiti, the Dominican Republic, and Nicaragua. Gruening also helped fashion a trans-national anti-imperialist coalition, which had a transformative effect on Caribbean Basin international affairs for much of the interwar period.

Ernest Gruening’s Nation, in short, was a publication willing to speak truth to power, even if it meant confronting the national security policies of the U.S. government. The Nation as represented by Perkinson, on the other hand, comes across as a magazine committed to resolutely defending the status quo, even if doing so requires the peculiar leaps of logic evident in the Perkinson review. It’s sad to witness such a transformation.

*--I have been forwarded a post from Prof. Zimmerman in which he denies that his 50 percent total referred to the Duke professoriate, but merely was a reference to how the case affected Duke. It's not clear to me how he determined his (incorrect) figure, but my apologies for assuming that this Group apologist referenced the faculty with his (incorrect) claim. Interpreted literally, around 98 percent of the posts on DIW refer to how the case affected Duke, since, of course, the case involved three people who at the time were students at Duke. (The remaining 2 percent are posts that deal with bookkeeping matters at the blog.)

Monday, June 23, 2008

A Gorelick Essay

As mentioned below, Duke civil attorney Jamie Gorelick is presenting today at the NACUA conference, held in Manhattan’s Marriot Marquis hotel. Her topic: “The Best Defense: Navigating Complex Criminal Matters on Your Campus.”

An essay prepared by Gorelick and Christopher Zimmermann provides background for her talk. Much of the article deals with matters extraneous to the Duke civil case—notably how university counsel (or outside lawyers hired by the university) should behave when dealing with alleged criminal conduct by university employees, or when handling internal investigations of alleged improprieties. Three Gorelick passages, however, stand out, in light either of Duke’s conduct or of Gorelick’s own recent filings.

Gorelick and Zimmermann write,

During execution of a search warrant or otherwise, government agents may attempt to speak with employees or students. It will often be the case that the organization has no reason to suspect such inquiries, but if a college or university does anticipate government contact, relevant employees should be advised how to respond. In any conversation with the government, employees should tell the truth. However, employees should be advised that they are not required to speak with government agents and have the right to consult with an attorney before consenting to any interview.

The Gorelick essay doesn’t spell out how a university should respond when “government agents may attempt to speak with . . . students,” but it would be hard to argue that Duke administrators—at least one of whom urged the players not to tell their parents about the case, and who were involved in organizing a mass interrogation of the players without counsel—lived up to the spirit of Gorelick’s guidelines.

Moreover, at least by the time of the nighttime Durham Police visit to the Duke dorms (mid-April 2006), Duke had good “reason to suspect such inquiries.” Yet the University appears to have made no protest about Durham Police officers surreptitiously gaining entrance to a Duke dorm and trying to interrogate Duke students outside the presence of their counsel.

Some of the victims of these policy failures are the plaintiffs in both the Cooper and the Ekstrand lawsuits.

Gorelick and Zimmermann write,

Counsel may represent both the organization and its employees personally when their interests are aligned. However, . . . there may be situations in which the interests of the college and university itself and those of its employees diverge, such as a decision on the part of the organization to divulge privileged information regarding an employee to an investigative agency. An organization should consider whether and when a dual or multiple representation is appropriate.

Duke’s handling of the civil case doesn’t seem to reflect this guidance. To take the most glaring example, unless the motion to dismiss is granted, “the interests of the college and university” and the interests of former SANE-nurse-in-training Tara Levicy would seem directly in conflict—yet Gorelick represents them both.

It is in Levicy’s best interest to maintain that she consulted regularly with her superiors, and that her “change-her-story-to-fit-Nifong’s-new-theory” approach to the case had her superiors’ blessing. It is in the university’s interest to portray Levicy as a rogue employee, whose initial involvement in the case might have been an honest error, but who was subsequently reined in, only to continue trying to bolster Nifong’s case secretly, outside established university channels.

Gorelick and Zimmermann write,

If the witness is an employee of the college or university, he or she may have a duty to cooperate set forth in employee handbooks and policies pursuant to which the organization has the right to demand cooperation . . . Refusal to cooperate with the investigation, including maintaining its confidentiality, may amount to a breach of loyalty and become grounds for termination. [emphasis added]

In her recent filing, however, Gorelick outlined a radically different conception of the power of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation.” According to Gorelick’s motion to dismiss, employee handbooks (like the Duke faculty handbook) or “policies pursuant to which the organization has the right to demand cooperation” (like Duke’s anti-harassment policies) are little more than scraps of paper. The university has no obligation to enforce them; professors and students can, apparently, violate them at will.

Up until the lacrosse case, Duke’s approach to enforcement of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation” corresponded more to Gorelick’s position in her essay than in Gorelick’s position in her motion to dismiss.

This record, of course, raises the obvious question: how can a Duke student (or a Duke parent) know when the University will choose to enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation”—if, on the one hand, a violation of these policies could “amount to a breach of loyalty and become grounds for termination,” but on the other hand, violations of these policies might be ignored, on the grounds that the University has no legal obligation to enforce its own policies?

Gorelick offers no answer. Had she done so, she might have provided the obvious response to this obvious question: the university will enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation,” except when doing so will arouse the wrath of the politically correct on campus. In such cases, the university will not obstruct advocates of the dominant race/class/gender faction.

Sunday, June 22, 2008

Comments Policy

On at least four occasions over the course of the blog, I have printed my comments policy.

Having received an e-mail yesterday inaccurately describing the comments policy, I will print it again.

(1) Comments are moderated, but with the lightest of touches, to exclude only off-topic comments or obviously racist or similar remarks.

(2) My clearing a comment implies neither that I agree nor that I disagree with the comment. My opinion is expressed in my words and my words only. Since this blog has more than 1200 posts, and since I at least occasionally comment myself, the blog provides more than enough material for readers to discern my opinions.

(3) If a reader finds an offensive comment, I urge the reader to e-mail me; if the comment is offensive, I will gladly delete it.

Friday, June 20, 2008


In light of recent filings, this item passed onto me by a reader is ironic.

National Association of College and University Attorneys: 48th Annual Conference

June 22-25, 2008, Session 3H: “The Best Defense: Navigating Complex Criminal Matters on Your Campus,” Monday, June 23, 11:15 a.m. - 12:30 p.m.

Marriott Marquis at Times Square
1535 Broadway
New York, NY 10036

NACUA’s 48th Annual Conference will be held from Sunday, June 22nd to Wednesday, June 25th in New York City. This conference will provide strong educational training, professional development, and networking opportunities for attendees.

Partner Jamie Gorelick, Co-Chair of WilmerHale's Defense, National Security and Government Contracts Practice Group and Chair, Public Policy and Strategy will be a featured speaker along with Kent Alexander of Emory University and Pamela Bernard of Duke University, on a panel discussing navigating complex criminal matters on college campuses.

Any DIW readers who attend the session are invited to pass along a report.

Wednesday, June 18, 2008

Deferring Discovery

It perhaps should surprise few that the civil cases would be as peculiar as was the criminal case. First came Duke's peculiar (and unsuccessful) motion demanding that the judge shut down the website—even though the website only had links to case events and documents, while Duke itself hosted a website containing President Brodhead's official statement linking the plaintiffs to racism and the legacy of rape.

Then came Linwood Wilson—acting as his own attorney—calling on the court to disqualify Bill Thomas from the case. The act seemed less like a legal maneuver than payback for the fact that Thomas consistently and effectively stood up for due process during Mike Nifong's 2006 reign of terror.

Now comes the latest filing of Duke and Durham—a plea to the court that they be allowed to defer discovery. A few weeks back, the unindicted players' attorneys filed a request that Duke consent to a Rule 26(f) discovery conference." In their motion, they described the requirements: the parties would "confer 'as soon as practicable' regarding 'the nature and basis of their claims and defenses,' the plan for initial disclosures, preservation of relevant evidence, and for creating a discovery plan to govern among other things the timing and form of discovery."

Duke's lead attorney, Jamie Gorelick, claims that the University should be trusted to preserve all relevant documentation, and that having attorneys for both sides get together to begin the process at this stage would be premature. First, she says, she wants the court to rule on the motion to dismiss.

Indeed, it seems as if Gorelick wants to delay the start of discovery for a considerable period of time. The Duke brief states,

The task of arriving at an efficient discovery plan is complicated by the fact that there are three other pending cases in this District that would be affected by a decision to commence discovery now in this case. Coordination among the many parties involved in these multiple lawsuits and their counsel will be necessary and challenging, given the volume of potential witnesses and issues that are common to all the matters.

Any discovery plan in this action should be fashioned in a manner that will accommodate, but not unnecessarily duplicate, discovery needs in the other cases. The most efficient and sensible way to achieve this aim is to proceed with discovery after all the motions to dismiss in the pending cases have been resolved by the Court, whereupon the parties in the various cases can assess which claims against which parties remain to be litigated and can then develop a coordinated discovery plan.

In other words, Duke wants the University to receive a free pass on discovery issues not only until the motions to dismiss in this case and the Ekstrand lawsuit are ruled upon—but until the court also deals with the motion to dismiss in the lawsuit filed by the three falsely accused players against Durham. Duke, of course, is not even a party to this lawsuit.

Even more oddly, the Duke brief cites two cases that appear to undermine its argument. First, Gorelick approvingly quotes Tschirn v. Kurzweg to bolster her claim that "under these circumstances, where discovery may prove superfluous and unnecessary costs of early discovery may be avoided, proceeding with discovery only after resolution of the motions to dismiss is warranted. Yet Tschirn, as her own citation notes, granted "the defendants’ motion for stay of all discovery pending ruling on motion to dismiss and completion of Rule 26(f) conference." [emphasis added]

The lacrosse players, of course, had filed a motion explicitly requesting . . . a Rule 26(f) conference, in which Duke thus far has refused to participate. (The players' motion is entitled, "MOTION TO REQUIRE DEFENDANTS TO PARTICIPATE IN THE MANDATORY RULE 26(F) DISCOVERY CONFERENCE.") How a case justifying deferring all discovery pending completion of a Rule 26(f) conference is relevant to Duke's claim that it doesn't have to participate in a Rule 26(f) conference at this stage Gorelick doesn't reveal.

Gorelick concedes that case law for a defendant to unilaterally refuse to participate in a 26(f) conference is murky, but the Duke brief cites another case Hall v. Witteman, which lays out guidelines for "staying discovery pending resolution of dispositive motions or motions to dismiss."

Hall holds that “it is appropriate for a court to stay discovery until a pending dispositive motion is decided … where the case is likely to be finally concluded as a result of the ruling thereon; where the facts sought through uncompleted discovery would not affect the resolution of the motion; or where discovery on all issues of the broad complaint would be wasteful.” [emphasis added]

*In evaluating a motion to dismiss, the judge must assume that all facts in the motion are true. But--as the Duke and Durham motions to dismiss repeatedly pointed out--the judge need not assume that legal conclusions (such as an allegation of conspiracy) are true. Such a claim is a critical component of the Ekstrand lawsuit. Both the Duke and Durham responses allege that the facts presented did not support the conspiracy claim. But would facts sought through discovery colster it?

Take the most vulnerable of the Duke defendants, Tara Levicy. Among other items relating to Levicy is the Gottlieb brief, which essentially blames the entire initiation of the case on the former SANE-nurse-in-training. Is it really Duke's position that nothing in a deposition of Levicy (which would surely include the heretofore wholly unrevealed questions of how much her supervisors knew about her performance, and what she said in a June conference with Nifong) would "not affect" the motion to dismiss, regarding the conspiracy claim?

Or take the e-mails of the senior administrators of the Brodhead administration, especially those penned by guilt-presuming Larry Moneta. Is it really Duke's position that an examination of Moneta's files, or a deposition of Moneta himself, would "not affect" the motion to dismiss, regarding the conspiracy claim?

Update: A reader points out another anomaly in the Duke response. Gorelick demands that discovery (and, indeed, even convening a 26(f) conference) must be deferred until all motions to dismiss (including the motion to dismiss the suit filed by the three falsely accused players) are decided. But that motion, which solely involves non-Duke actors, raises legal issues (namely immunity and qualified immunity) that are wholly irrelevant to the unindicted players' suit against Duke. What possible rationale, then, exists for Duke to avoid even scheduling a discovery conference while a judge evaluates various constitutional claims that have nothing to do with any issue at hand in the lawsuit against Duke?

*--corrected and clarified

Monday, June 16, 2008

Journalistic Hit-Jobs

A paperback version of UPI will be published in September; it will include additional material updating matters since the hardcover book appeared. In the process of working on the update, I went back and looked through some of the early press coverage of events in Durham, and was particularly struck by two articles—columns that could be described as journalistic hit jobs. Unlike the biased work of the New York Times or the Durham Herald-Sun, these articles came from publications (ESPN, the New Statesman) that didn't do much work on the case. As a result, they could have been expected to have provided little original reporting. Instead, both articles made outlandish claims that proved unsubstantiated. And, of course, neither publication has run a correction.

The ESPN piece appeared as an insert column on April 11, 2006, the day after defense attorneys announced that the DNA tests Mike Nifong had promised would exonerate the innocent all had come back with no matches. Reported by Eric Adelson of ESPN: The Magazine, the column stated:

A source has provided ESPN with a detailed account of the exotic dancer’s arrival at the hospital the night of the alleged sexual assault at a party thrown by members of the Duke men’s lacrosse team.

The source, who asked to remain anonymous, was present at the hospital on the night of the alleged incident and says the woman was “beat up” but would not immediately divulge to anyone the identity of her alleged assailants.

“She was hysterical,” the source said. “She was crying, she was pretty banged up. She said she was sexually assaulted, but she didn’t say by whom.”

The source says the woman entered the hospital well after midnight March 13 wearing a red nightgown and nothing on her feet. She was walking on her own, but there were bruises on her face, neck, and arms.

A triage nurse attended to her, but the woman did not want him to touch her because he was a man. She was then examined by a sexual assault nurse.

There were injuries to the woman’s pelvic area, the source said.

According to the source, the woman did not immediately inform either the police or the hospital staff who inflicted the injuries to her.

“She never said one thing about Duke, any athlete or anything,” the source said. “She just kept hollering and screaming. She never said who did it.”

As the Attorney General's report made clear, no evidence exists to corroborate the claims of Adelson's single anonymous source—which, as a thread in the old Liestoppers convincingly argued, was probably former Duke Police Officer Sara Falcon. The italicized items above all appear to be false.

Several months ago, I e-mailed Adelson to ask if he stood by his story (a version of events that, to my knowledge, appeared in no other article). I recently e-mailed ESPN ombudsman Le Anne Schreiber to bring to her attention the errors in Adelson's story. Schreiber didn't respond; Adelson said he stood by his source.

An even more fantastic version of events came from New Statesman U.S. editor Andrew Stephen. He framed the case in terms that could have been ripped from the Group of 88's ad: the case, he wrote, "brings to the surface subliminal fault lines of the nation, which are historical in origin but still have present-day ramifications, and which Americans today prefer to forget: rampant class and privilege, poverty, master-servant racism and resentment, the forcing of sex by white men on black women, problem drinking, and the destructive jock culture that is so peculiarly unique to America."

Stephen's article—which appeared in late May 2006, long after Reade Seligmann's innocence was publicly known, along with much of Mike Nifong's prosecutorial misconduct—conceded only that "it is proving ever harder to establish what actually happened, and for many the truth will never be satisfactorily proven."

Nonetheless, he decided to provide UK readers with some "basic facts" of the case:

--41 members of the lacrosse team "were in full jock-party mode." [How does Stephen know this? And what is "full jock-party mode"? He never said.]

--"The 'performance' started at around midnight but within a minute or two got out of hand: according to the women, they were called 'niggers' and one of them was told, 'Hey, bitch, thank your grandpa for my nice cotton shirt.'" [Like Duff Wilson, Stephen falsely asserted that the racially charged argument occurred inside the house—"within a minute or two"—and ignored Kim Roberts' racially charged taunt initiating the exchange.]

--"Lacrosse is a sport almost entirely confined to private schools in the north-east, and very few white American kids, let alone blacks, ever get the chance to play it; the sport is a phenomenon of America's white elite, one with an aura almost like that of polo." [In fact, lacrosse is one of the fastest-growing sports in the country of which Stephen is his paper's editor.]

--"The father of the reputed ringleader, 20-year-old Reade Seligmann, is a Wall Street financier and the whole family summers at the $4.3m Seligmann home in the Hamptons." [Even Wendy Murphy never suggested that Reade Seligmann was the "reputed ringleader." The Seligmanns own no vacation "home in the Hamptons," or anyplace else for that matter.]

--"Despite appearances to the contrary, lacrosse is a violent game that attracts the most oafish jocks." [Stephen's evidence presented in the article? None.]

--"A tiny handful will go on to make huge sums in professional sports; the rest will almost certainly follow their fathers into boring, drudge jobs in the world of finance; then, in generational turn, they themselves will live vicariously through their own sons' jockish exploits." [Which lacrosse players make "huge sums in professional sports" Stephen never revealed. Despite his assault on the lacrosse players' parents' character, he never gave any evidence of having interviewed even one parent.]

--"In a determined and methodical media campaign to change minds before the case goes before a jury, the defence has also released photos from digital cameras with times imprinted on them, plus detailed mobile-phone records, which seem to indicate - quite convincingly, I must say - that Seligmann, at least, could not have been present when the rapes supposedly occurred." [So how, exactly, was Seligmann the "reputed ringleader," and what did that claim say about the perverse nature of Mike Nifong's case? Stephen didn't care to explore this question.]

Having penned a column filled with untruths, Stephen then proposed his "false-accusers-should-profit" solution: "Probably the least harmful denouement for all concerned would be a civil settlement in which the accuser(s) would be paid millions in exchange for withdrawing their allegations . . . It is a saga that says so much about America, and how its past can come back to haunt its present."

Unlike Adelson, Stephen's ideological bias was transparent—and the fact that he was so wrong about the Duke case didn't prompt any rethinking of his approach. In a recent column, he wildly asserted, "History, I suspect, will look back on the past six months as an example of America going through one of its collectively deranged episodes - rather like Prohibition from 1920-33, or McCarthyism some 30 years later." What is this new "McCarthyism"? The media's allegedly sexist treatment of Hillary Clinton—the same Hillary Clinton many in the very same media hailed as the inevitable nominee for most of 2007!

Stephen's tendency toward ideologically slanted factual inaccuracies established in his work on the Duke case continued unabated: "But never before have the US media taken it upon themselves to proclaim the victor before the primary contests are over or the choice of all the super-delegates is known, and the result was that the media's tidal wave of sexism became self-fulfilling: Americans like to back winners, and polls immediately showed dramatic surges of support for Obama."

Actually, the US media has regularly "taken it upon themselves to proclaim the victor before the primary contests are over"—they did so with John McCain in 2008, John Kerry in 2004, Al Gore and George W. Bush in 2000, and Bill Clinton in 1992. (Does Stephen even follow the media in the country to which he is U.S. editor?) Nor did "polls immediately show[] dramatic surges of support for Obama" after journalists (correctly) started asserting in early March that Clinton had almost no mathematical chance of capturing the nomination; indeed, one of the most remarkable elements of this political season was how stable the polling was. But why let facts get in the way of a good argument?

Having done their one-shot journalistic hit-jobs on the lacrosse case, neither Adelson nor Stephen appeared to have returned to it.

Wednesday, June 11, 2008

Items in the News

[The middle section of this post has been updated.]

The N&O has reported that, to date, the city of Durham has spent more than $730,000 on legal fees defending the various lawsuits arising from the case. The city’s insurance carrier pays for legal (and settlement) costs starting at $500,000 but ending at $5 million—which means, if the city fails in its attempt to get the falsely accused players’ lawsuit dismissed, legal bills alone likely will exceed the insurance policy.

Durham is pursuing what amounts to a high-risk, high-reward strategy. If the city manages to get all lawsuits dismissed, the affair will only cost the city $500,000 in legal fees. But if the city fails to win at that stage, all of the defendants will have to go through the discovery and depositions process. Perhaps ex-Sgt. Gottlieb, et al., will reveal nothing damaging. But, unless the defendants can all stay on-message, the city might regret its decision not to participate in serious settlement talks before the lawsuits got underway.


An announcement from Duke yesterday: Lee Baker, an associate professor in cultural anthropology and African-American Studies, was named dean of Trinity College. The chair of the search committee described Baker as “very sensitive to student issues.”

It’s unclear whether the search committee considered Baker’s decision to sign the Group of 88’s statement—which, after all, rushed to judgment in denouncing Duke students—and then to reaffirm that signature by joining the “clarifying” faculty in January 2007 as emblematic of what the institution means by very sensitive to student issues.”

Baker joins fellow African-American Studies Department faculty member—and the far more strident Group activist—Paula McClain (Academic Council chair) in occupying two of the most powerful academic positions at Duke. Some might consider it remarkable that a department with a mere two percent of the overall Duke undergraduate faculty has managed to secure two such influential positions. Yet the African-American Studies department has defied statistical probabilities before: in a higher total than any other department, 80 percent of AAAS professors joined the Group of 88. The department also paid for the statement out of its official funds, in violation of Duke rules, and hosted the statement on its website for nearly six months.

Unlike many members of the Group, Baker is both a serious scholar and someone whose teaching has attracted praise. And had the institution shown any signs of critical self-reflection in examining why so many of its professors chose to advance their own personal, pedagogical, or ideological aims at the expense of their students’ well-being, Baker’s appointment would have been remarkable only in the unusual nature of such a nod going to an associate professor. (At Ivy League schools, for instance, the dean is almost always a full professor.)

Instead, the move seems to be part of a pattern of the institution placing in positions of power professors whose record in the lacrosse case raised serious questions.

[Update: An alert reader passes along the following item from January 2007, in which Baker rationalized the refusal of the Group to apologize: “We had a long discussion about what the word 'regret' means, and philosophy professors weighed in and we had a whole range of very detailed discussions in terms of the etymology of specific words. We were disappointed people did not understand the intention--it was never to rush to judgment, it was about listening to our students who have been trying to make their way in a not only racist and sexist campus, but country.

Under this rationale, of course, no one would ever have to apologize for anything. A refusal to apologize could simply be explained away by citing a long discussion about what the word 'regret' means.”

As for Baker's disappointment that people allegedly "did not understand the intention" of the ad: such a statement defies credulity. After all, Wahneema Lubiano solicited signatures for the ad by saying it was about the lacrosse incident, not the fact that the United States is supposedly a sexist or racist country. And it's hard to see how "listening to our students" required professors taking out a full-page ad at a time when a media mob had descended upon the lacrosse players, or declaring unequivocally that something happened to Crystal Mangum, or thanking protesters who had (among other things) urged the castration of Duke students, or falsely affirming that academic departments had supported the statement.

The comment above reinforces the sense that when the search committee for dean noted that Baker was “very sensitive to student issues,” they really meant “very sensitive to issues for some students.]


Finally, an eagle-eyed DIW reader noticed the following item, posted in late May, from a company called “Fire Filmz”:

I know Crystal very well because I have been working with her for over a year to get her life on track. My company has agreed to publish her book and do other projects with her. [Perhaps the city of Durham can recommend good attorneys for the company.]

I know the conventional wisdom is that she lied however, there is always he said, she said and the truth. Things lie somewhere in the middle here. I think everyone will be surprised when they finally hear from her. She is very thoughtful and intelligent and things didn’t go down exactly like you suppose. [Again, we are talking about someone whose final version of events was that a sexual assault occurred while she was suspended in mid-air.]

Al and Jesse did come to NC but never met with her. There are a number of other things that have been mischaracterized but that would take too long. Let’s just say we have an upcoming television event that will deal with some of those issues. As for the book, it does deal some with the Duke case but it is more about her life and how she has struggled to get her life on track before and after this.

For the people who think ill of her, oh well. There isn’t much I can say to change your minds. For those who have the capacity to be patient and seek the truth, you will find a lot in her story that can teach valuable lessons. [Don't file false police reports?] None of what anyone has said about her is nearly the truth as I know it.

For people who say they are familiar with the case, I have seen the case file and most of the evidence collected and it tells a much different story than what we saw. I would just caution folks to think about who released the information about her medical history and such. They are the same people who have been going full tilt to hurt many other people for years. [The information about Mangum’s medical history was released by the court and by defense attorneys; it’s not clear how Fire Filmz determined that either “hurt many other people for years.”]

Anyway, least you think I’m an apologist for people who make false claims, I am very concerned about wrongful prosecutions and have worked on a lot of cases. [It is odd indeed, then, for someone "very concerned" with wrongful prosecutions to then seek out an attempted perpetrator of a wrongful prosecution.] You can view one of my films about just such a case called Breeding While Black. [This case, it should be noted, deals with an African-American man charged with dog-fighting.] As for the book and other information about Crystal we will be launching the website and book sometime in early June.

Intrigued, I asked when the book would appear and noted that I would review it when (or if) it did so. I also noted that I, too, had seen the case file, and that I hadn’t seen items in it that “tells a much different story than what we saw.” I haven’t seen, however, Mangum’s psychological file (which was sealed by the court). So I asked whether the poster was referring to this material in discussing what the alleged Mangum book would reveal.

From Fire Filmz head Vincent Clark, I received a curious reply: “Unfortunately, we will have to respectfully decline your invitation to review the book and can/will not be able to provide any other information at this time due to contractual obligations.”

I’m not certain how a publisher can “decline” a reviewer’s ability to review a book (perhaps the book will be confiscated by Israeli customs?), and it’s hard for me to imagine what “contractual obligations” could allow Clark to publicly claim that he had read the case file but to refuse to answer whether he had read the psychological file.

In any case, we’re past early June, and the Mangum Opus has yet to appear.

Monday, June 09, 2008

The Butler Column and Its Response

A few weeks ago, the Chronicle’s Kristin Butler penned a column that opened with the arresting line, “It seems anyone can get a college degree these days—especially if they go to North Carolina Central University.”

Given Crystal Mangum’s personal history of accusing people of crimes that never occurred, drug and alcohol abuse, hospitalization for mental difficulties, and participation in the sex trade, Butler wondered how the false accuser did not seem to have violated NCCU’s honor code. Butler also recalled the remarkable case of Solomon Burnette—NCCU Class of 2007—a convicted felon who had robbed two Duke students at gunpoint, and who penned a spring 2007 column seeming to advocate vigilante justice against (white) Duke students.

If Butler had more space, she might also have mentioned Chan Hall, the former NCCU student government leader who informed Newsweek that he wanted to see the Duke students prosecuted “whether it happened or not. It would be justice for things that happened in the past.” Or she might have wondered about the intellectual environment at an institution where hundreds of students offered such an extremist attitude at an April 2006 forum that—for the first and only time in the entire lacrosse case—Mike Nifong actually looked moderate by comparison. Indeed, Nifong required a police escort to get out of the hall.

Despite (or perhaps because of?) these facts, Butler’s column has attracted a storm of criticism, which has taken four basic lines of argument: (1) Butler had no standing to comment on matters at NCCU, and harmed Duke-NCCU relations by doing so; (2) Critics can invent their own version of the facts to chastise Butler; (3) Butler was unfair in her attack on NCCU; and (4) Critics of what Mangum’s graduation says about NCCU’s academic environment are racists.

(1) The lack of standing argument.

In a recent edition of the Herald-Sun, NCCU student Candra Broadie—after engaging in a few ad hominem attacks against Butler—dismissed the ability of “outsiders who have never attended the university to speak about NCCU in such a degrading manner.” How dare a student “from a high-status university,” she mused, criticize NCCU, whose “list of illustrious alumnus [sic] include Gov. Easley, Ernie Barnes, a famous artist and former professional football player, Maynard Jackson, the first black mayor [of?] Atlanta[,] and Willie Gary, a prominent black attorney, and CEO of MBC.”

If Herald-Sun editor Bob Ashley had elected to utilize some basic fact-checking (not to mention a copy editor) before printing Broadie’s column, he would have discovered that Easley received a B.A. from the University of North Carolina (Chapel Hill); Jackson’s undergraduate degree came from Morehouse College; and Gary graduated from Shaw University. All three men are alumni not of NCCU but of NCCU’s law school. (Barnes, like Crystal Mangum, actually was an undergraduate student at NCCU.)

In theory, an argument could be made that a Duke student (or any outsider) should avoid criticizing NCCU’s approach to the case. That line of reasoning, however, presupposes that the institution itself had engaged in some soul-searching about Mangum or the university’s response to her false allegations.

No evidence exists that such soul-searching has occurred. Indeed, no evidence exists that any soul-searching has occurred. In January, I e-mailed NCCU spokesperson Miji Bell to ask for any initiatives or comments (from either the administration or student body) that gave a sense of how NCCU has achieved its own sense of closure to the issues raised by the lacrosse case, and whether NCCU had used the Mangum affair to look at enforcement of its student judicial code. Bell never replied.

Broadie doesn’t seem interested in such soul-searching, either. “Is it up to us,” she asked, “to hold one back from success in life because of a mistake that was made years ago? Whatever [sic] happened to forgiveness?” (Of course, Mangum’s “mistake”—at least her most recent one—occurred while she was a student at NCCU, the whole point of Butler’s column.) “According to Butler,” Broadie continued, “no one deserves a chance to live a successful life after having done wrong.” This is, to put it mildly, an unusual interpretation of the argument in Butler’s column.

(2) The damn-the-facts argument.

Broadie was not the only Butler critic who offered a factually challenged line of attack. In a recent posting at Diverse—with the none-too-subtle title of “Prejudice Rears Its Ugly Head and Aims Itself at North Carolina Central University”—Dr. Marybeth Gasman, a professor at Penn’s School of Education, accused Butler of factual inaccuracy. Wrote she, “Ms. Butler mistakenly [emphasis added] labeled Ms. Mangum a prostitute.”

Curious about Gasman’s evidence for leveling such a critique, I e-mailed the Education professor. Butler’s assertion struck me as unremarkable. After all, the case featured such items as Mangum’s former manager noting that she used her “exotic dancing” trade to scout customers for prostitution, authorities taking statements from two of Mangum’s drivers (some called them “pimps”), defense attorneys tracking down at least one of Mangum’s pre-party “customers,” and the DNA of multiple male sexual partners in Mangum’s rape kit—male sexual partners whose identity was unknown to Mangum.

Perhaps the above set of facts yields a logical explanation other than the one Butler offered, but such an explanation doesn’t immediately come to mind.

Gasman’s response? She noted her belief in freedom of opinion, and explained that her accusation of Butler’s factual inaccuracy resulted from “merely my read of the evidence—and my perspective on the case.”

We’re all, of course, entitled to our own opinions, and our own perspectives. But we’re not entitled to our own facts. It seems awfully convenient to accuse someone of factual inaccuracy—a very serious charge, after all—based on evidence that the critic then refuses to identify.

I e-mailed Gasman to note my puzzlement with her reply; she reiterated only that she had a “different perspective on this case.” But, again, whether or not Gasman has a “different perspective on this case” is irrelevant to the question of whether she had any evidence to substantiate her in-print assertion that “Ms. Butler mistakenly [emphasis added] labeled Ms. Mangum a prostitute.”

(3) The unfairness argument.

Beyond her damn-the-facts line of attack, Gasman asserted that “Butler commits a ‘sin’ in her op-ed that surfaces over and over when people are assessing Black colleges. She condemns an entire institution for one incident.”

I’m sympathetic to Gasman’s argument (though this “sin” occurs in public criticisms of many non-elite colleges, not just HBCU’s). That said, the Mangum/NCCU affair would seem to be an exception to the general rule. After what we learned of Mangum during the lacrosse case, it’s hard to imagine how she could receive a B.A. degree—and in criminal justice, no less—from any institution of higher learning.

After all, this is a person who had serious mental problems (a psychological file that appeared to be around 1000 pages long when Judge Osmond Smith held it up in the courtroom). Even before the lacrosse case, she had leveled serious allegations (rape, attempted murder, child abuse) against three different sets of individuals. She had a record of alcohol and drug abuse. Based on her statement to police, she appeared to write at around an 8th or 9th grade level.

The case file also provided an insight on Mangum’s “study habits” while at NCCU, especially in the form of Jarriel Johnson’s statement. (Most in the media delicately referred to Johnson as Mangum’s “driver.” But, if we adopt the Gasman “perspective on the case,” Johnson was apparently Durham’s version of the Good Samaritan, a man who provided a free car service to an unemployed woman who had lost her license, and who was on call at all hours of the day and night, willing to drive to all sorts of locations in the Triangle. How he supported himself financially must remain a mystery; perhaps he was independently wealthy.)

According to Johnson’s police statement, Mangum (when she allegedly was an NCCU student) spent a lot of time at exotic dancing establishments, or in hotel rooms for various “appointments,” often till the wee hours of the morning. His statement, however, contained no mention of driving her to or from class; or of her taking time to study; or indeed, of her doing anything remotely resembling academic activity.

Given what we know of Mangum, then, it’s hard not to ask the question Butler’s column raised: what does such a figure earning a college degree say about the institution’s overall academic environment?

(4) The racist argument.

Events in Durham since 2006 have shown a depressing pattern: when all else fails, play the race card. The response to Butler’s column was no exception. For instance, beyond accusing Butler of factual inaccuracy by citing evidence that she then refused to reveal, Gasman also labeled Butler’s column as “racist.”

The most inflammatory playing of the race card, however, came from an experienced practitioner in the trade, Durham minister Carl Kenney. Close followers of the lacrosse case will recognize Kenney’s name: in October 2006, he offered a bizarre interpretation of the U.S. justice system, demanding that Mangum receive “her day in court,” regardless of whether any evidence existed for her myriad tales. After the DHC had found Mike Nifong guilty of 27 of 32 counts of unethical conduct, Kenney fantastically asserted that “Nifong has been stripped of his right to practices [sic] law and serve as DA because he believes an exotic dancer.”

In critiquing Butler, Kenney didn’t even bother with Gasman’s strategy of offering an unsubstantiated allegation of factual inaccuracy. Instead, he simply leveled a claim of racism. “Butler’s column,” he fumed, “was racist at its core. Why? Because Butler made assumptions about an institution that is loving and forgiving enough to give a person like Crystal Mangum a second chance.”

Making unidentified “assumptions” about North Carolina Central, it seems, produces a “racist” column. Is there any criticism that Butler could have that would not have been “racist”? Kenney doesn’t say. Does Kenney think that NCCU appropriately enforced its honor code in dealing with Mangum and Burnette? He doesn’t say. Does Kenney have any concern about how someone with Mangum’s record of behavior could possibly have had the time (much less the ability) to complete the necessary classwork to receive a degree? He doesn’t say. Does Kenney have any concern about the attitudes expressed by the NCCU student body in spring 2006? He doesn’t say.

Kenney does suggest, however, that he saw nothing problematic with Burnette’s column, which seemed to demand vigilante justice against (white) Duke students.

Of course.

By the way, the target of all this ire received yet another award--being named by UWIRE as among the 100 best student journalists in the country.

[Update: Shortly after this post appeared, all traces of the Gasman column vanished from the Diverse website. A reader has posted the original version of the Gasman item in the comments section.]

Friday, June 06, 2008

Eugene Brown, Voice of Reason

City Council member Eugene Brown has been one of the few voices of reason from Durham's political leadership over the past two-plus years. The N&O's Bull's Eye blog recounts this detail from yesterday's City Council meeting, regarding John Shelton--the police officer who saw through Crystal Mangum's lies from the start:

Councilman Eugene Brown told Lt. J.C. Shelton, the Durham police officer who first encountered Duke lacrosse accuser Crystal Mangum and was skeptical of her rape claims, that "I wish the hell we'd have listened to you."

Shelton met an intoxicated Mangum in a Kroger parking lot the night she had been paid to dance at a Duke lacrosse team party. He said loudly after transporting her to Duke Hospital that he thought she was lying about being raped. The N.C. Attorney General agreed more than a year later. The Durham District Attorney lost his job and spent a night in jail for pushing the case, and now the city faces several lawsuits for their roles in accusing three lacrosse players.

At a City Council work session today, the recently promoted Shelton was speaking on an unrelated matter.

As he prepared to leave the podium, Brown said, "I think several years ago you were on duty that fateful night in front of the Kroger's. I just have one thing to say: I wish the hell we'd have listened to you. Otherwise that issue would have been cleared up in a day or two instead of a year and a half."

There was some shifting among council members, and Councilwoman Diane Catotti mumbled something about that being inappropriate while the city is facing litigation.

Minutes later, Brown asked the clerk to strike his statement from the record.

This is the same Diane Catotti who aggressively backed Nifong's election in November 2006; and who, as late as June 2007 (two months after the AG's report) still seemed to think a rape might have occurred; and who went out of her way first to block and then to neutralize any investigation of why the Durham Police so mishandled the case.

No wonder Catotti was troubled by Brown's statement.

Thursday, June 05, 2008

Nifong's Guitar

Tamara Gibbs is reporting that Mike Nifong has filed an appeal against the court order denying his request to get out of the lacrosse players' lawsuit by pleading bankruptcy.

The bankruptcy judge's order, meanwhile, contains the following only-in-Durham item:

3. The Debtor [Nifong] owns, and has claimed as exempt, a Paul Reid Smith guitar, a Fender Deluxe guitar, and a Martin guitar (“the Guitars”).
4. According to two independent appraisals of the Guitars, the higher value of the Guitars is $3,389.00. The Trustee is of the opinion that the value of the Guitars is approximately $3,500.00.
5. The Debtor has agreed to pay the Trustee the full appraised value of the Guitars, $3,389.00, in consideration for the interest of the estate, and a sale of the estate’s interest in the Guitars to the Debtor is more economically feasible than an attempt to market and sell the Guitars to a third party.

Monday, June 02, 2008

Reflections on the Motions to Dismiss

The several hundred pages of briefs filed last Friday contained four items of note. Two were genuine surprises—even at a stage in the process when only the most jaded person could be surprised about the case. Two more were expected legal arguments—but nonetheless spoke volumes about the atmosphere in Durham and at Duke.

The surprises:

1.) Duke attorneys obliquely revived the “something happened” argument.

When a judge evaluates a motion to dismiss, factual claims of the plaintiffs (in this case, the lacrosse players) must be accepted as true. Duke’s attorneys therefore had no legal rationale for challenging the factual claims of the players. They certainly had no legal rationale for challenging the factual conclusions of the Attorney General’s report.

Yet twice in the Duke Hospital brief, attorneys Jamie Gorelick and Dan McLamb did just that. First, they flatly asserted that former SANE nurse-in-training Tara Levicy “did not” give “false and misleading” information to the police. Yet the Attorney General’s report made clear that Levicy did not base her conclusions on any objective medical evidence. When, then, Levicy told police that Mangum’s medical exam corroborated the accuser’s myriad stories, or when Levicy told police that Mangum’s medical exam indicated the accuser experienced “blunt force trauma,” how was that information not “false and misleading”? Duke doesn’t say. Are Gorelick and McLamb suggesting that Mangum did experience blunt force trauma, or that her exam was consistent with a claim of sexual assault?

Then, of course, the Duke Duo followed up with a Nifongesque description of Mangum as “the victim”—not the alleged victim, not the accuser, but “the victim.”

Beyond the lack of any legal rationale for these items, it’s hard to see any public relations benefit for Duke to suggest that maybe—just maybe—Levicy was right all along, and maybe—just maybe—Mangum was a “victim.”

The inclusion of these gratuitous clauses suggests a degree of bitterness among the Duke attorneys that’s surprising for lawyers of this caliber.

2.) Gottlieb implicated Levicy as the key figure in initiating the case.

Up until Friday, representatives of Duke and those of Durham officials had tended to corroborate each others’ arguments. (That both could blame everything on Mike Nifong helped this pattern along.) It therefore was stunning to see Gottlieb’s brief choose not to blame everything on Nifong but also to target Levicy so unequivocally.

On no fewer than four occasions, Gottlieb asserted that he and the Durham investigators based their decision to proceed with the case (in the period before Nifong even became involved) on the statements of the discredited former SANE nurse-in-training. Those statements—as everyone except, it seems, for Gorelick and McLamb now concede—were at the very least inaccurate.

The Gottlieb brief also presents the court with a dilemma, since it so directly and repeatedly contradicts the assertions and arguments in the Duke Hospital brief. If the defendants can’t even get their story straight, can the court really grant a motion to dismiss?

The expected, if nonetheless startling, items:

1.) The Durham Police Department continues to believe that its basic approach to the lacrosse case was acceptable.

One depressing vignette of the case was the fate of the Whichard Committee. For a short period last summer, it appeared as if the Durham political and even media elite planned to come to grips with how the Police Department so badly botched this case, with the hope of suggesting reforms to ensure that, in the future, the city didn’t prosecute innocent people.

Then, after one session, the committee was suspended, and never heard from again.

As the briefs from current and former police officers make clear, things are back to usual at the DPD. The City of Durham professes to see nothing wrong with the decision to seek a non-testimonial order solely on the basis of group identity, without providing a scintilla of evidence that every subject of the NTO was even present in Durham that evening. Imagine the local reaction if the city had tried this with a group more politically popular in Durham.

The City of Durham professes to see nothing wrong with its official Police Department spokesperson uttering demonstrably false statements—and making seemingly slanderous editorial comments—about Durham residents. Imagine the local reaction if the city had tried this with a group more politically popular in Durham.

And the Gottlieb brief—contradicted by nothing in the Durham filings, or any action of the DPD—deems it absurd to term the ex-sergeant’s behavior “malicious,” or “reckless[ly] indifferen[t] to the rights of others,” or “prejudicial or injurious” to the lacrosse players. Imagine the local reaction if Gottlieb’s behavior had been directed at a group more politically popular in Durham.

2.) Duke has codes of conduct for both its students and its professors, but believes that it has no legal obligation to enforce either standard when it might be politically incorrect to do so.

Yes, the Duke motion to dismiss admits, Duke professors might be required to treat all students with respect as fellow members of the academic community, and not to harass them on basis of race, class, or gender; and yes, Duke professors might have (without foundation) publicly ridiculed the lacrosse players’ “arrogant sexual prowess,” or suggested that one of them advocated genocide against Native Americans, or sent out a mass e-mail hinting at a secret witness that would implicate many of them in making racial slurs.

Should Duke be legally liable for its failure to enforce its own policies against those professors? No: the institution’s “policies must be balanced against principles of academic freedom.”

Imagine if Grant Farred, Peter Wood, and Karla Holloway (the trio who made the remarks above) had directed their unsubstantiated character assassinations against Duke students of preferred race, gender, or sexual orientation. Does anyone believe that Duke would have cited “principles of academic freedom” to defend such remarks? (The Group of 88 would have swung back into action, perhaps with another “shut up and teach” forum.)

And yes, the Duke brief admits, Duke’s student bulletin prohibits harassment of any type, including on basis of race or gender; and yes, Duke students might have distributed “wanted” posters around campus with the lacrosse players’ photos on them, and publicly accosted the players as they tried to walk around campus.

Should Duke be legally liable for its failure to enforce its own anti-harassment policies against those students? No: the lacrosse players never “suffered any physical injury” as a result of the harassment.

Imagine if roving mobs of Duke students had directed their efforts against undergraduates of the preferred race, gender, or sexual orientation. Does anyone believe that Duke would have elected not to enforce its anti-harassment policies against the offenders, or suggested that it had no legal liability to act because the harassed students never “suffered any physical injury”? (The Group of 88 would have demanded campus-wide “sensitivity training” and an administrative purge in around five seconds.)

That a double standard exists in the contemporary academy would surprise no one familiar with the work of FIRE, the academic free speech organization that has made a national reputation exposing such dubious academic conduct. It is, nonetheless, startling (and quite rare) to see a University publicly present its double standard in such stark terms.

Given that some Duke parents spend upwards of $200,000 for four years of tuition, it would be refreshing, if only in the interests of full disclosure, for Duke to amend its recruitment items to inform parents that while the University might seem to promise that students won’t be harassed, and that professors will treat them with respect, when a politically correct crusade comes along, all bets are off.