Monday, January 26, 2009

Review: Race to Injustice

The newest book on the lacrosse case is now out. Edited by University of Florida law professor Michael Seigel, Race to Injustice: Lessons Learned from the Duke Lacrosse Rape Case, in many ways captures the conventional wisdom of the case’s effects:

  • in the law, a willingness to address the shortcomings that the case exposed, coupled with a renewed emphasis on the dangers of prosecutorial misconduct and civil liberties violations;

  • in the academy and academic culture, an almost complete unwillingness to reconsider the dominant assumptions about race, class, and gender; or to ask hard questions as to how dozens of professors at a major university could have both rushed to judgment and then refused to reconsider their perspective as facts emerged undermining their initial assumptions.

Most of the law essays are well-written and very much on point. The essays on eyewitness identification procedures by Gary Wells, Brian Cutler, and Lisa Hasel and on grand jury reform by editor Michael Seigel particularly stand out.

Wells, et al. walk readers through the myriad improprieties associated with the lineup procedures employed by Nifong and the DPD, which they deem “profoundly flawed, dangerous, and nondiagnostic of the guilt or innocence of the accused individuals.” The authors note that the Nifong/DPD procedures went against the guidance of not only DPD official policy but also the standards laid down by the American Psychology-Law Society, the National Institute of Justice, and the North Carolina Innocence Commission. “Identification procedures matters most,” Wells, et al, write, “when there are reasons to believe that the witnesses’ memory is weak”—as in the lacrosse case.

The trio adds that beyond all the other Durham improprieties, “the repeated presentation of certain suspects’ photos is particularly egregious”—36 lacrosse players were shown to Crystal Mangum twice, over a two week-span. That this issue received relatively little condemnation, the authors speculate, is “precisely because [condemnation] seems so obvious.”

Seigel’s essay points out that “all of the procedures designed to protect individuals suspected of committing a crime in North Carolina failed to prevent this travesty of justice”—in part because even the best procedural apparatus “will not stop a prosecutor who, for whatever reason, is not bothered by the prospect of breaking the law and covering up his breach.”

Seigel wonders whether grand jury reforms might prevent such obvious miscarrirages of justice as the lacrosse case. He points to two possibilities. First: abolishing the hearsay rule, thus requiring accusers to testify before the grand jury themselves (the lacrosse case grand juries heard only from Sgt. Gottlieb and Inv. Himan, and Gottlieb has admitted that he told the first grand jury false information). Seigel speculates, probably correctly, that no grand jury ever could have come back with an indictment after listening to Mangum spin what would have been by that point version number six or seven of the “attack.” Second: allowing grand juries to hear from the defendants. It is inconceivable that the lacrosse case grand jury would have brought back indictments had the lacrosse players been allowed to testify.

That said, Seigel notes that these reforms have their own problems—most notably, they would dramatically increase the workload of the grand jury system. As an alternative, he suggests requiring preliminary hearings. This procedure might not have worked in the lacrosse case, but only because of the inherently corrupt nature of Durham “justice.” (The judge that would have heard the preliminary hearing was none other than Nifong’s ex-boss, Ron Stephens, who would later serve as a character witness after the ex-DA was convicted of criminal contempt.) But perhaps even Stevens would have been shamed into dismissing the case after seeing a Mangum performance on the stand. As a second alternative, Seigel proposes a beefed-up grand jury process, to apply only to sexual assault cases, because of the opprobrium associated with a rape indictment.

Other well-done law essays examine the role of DNA in the case (Paul Giannelli writes that “the DNA did its job. Unfortunately, Mike Nifong did not do his,” and says he can’t fathom what could have motivated Brian Meehan to violate legal and professional standards); the specifics of Mike Nifong’s prosecutorial misconduct (a thorough summary by Kenneth Williams); the toxic effects of pre-trial publicity (Andrew Taslitz); and the dangers of unjust imprisonment to those who can’t afford first-rate attorneys (Rodney Uphoff).

The only disappointing legal essay came from Indiana University law professor Aviva Orenstein, whose CV shows an expertise in feminist jurisprudence. Unlike, say, Wendy Murphy or Catherine MacKinnon, Orenstein at least has pondered issues such as due process and fairness for the accused in sexual assault cases. Yet her chief goal regarding the Duke case appears to be ensuring that people ignore any (legal) lessons from it. Indeed, she can’t even bring herself to use Crystal Mangum’s name—she alternatively describes the false accuser as “the accuser,” “the alleged victim,” and, at least once (p. 361), as “the victim.” And in her general discussions of sexual assault law, her essay too easily interchanged between “accuser” and “victim” (p. 358), as if any woman who makes an accusation of rape can be deemed a “victim.”

Orenstein’s thesis:

I am concerned about deriving the wrong lessons from the Duke case. In hindsight, knowing that these innocent young men were subjected to a false accusation, it is tempting to over-read the Duke case as a cautionary tale about the dangers of legal reforms in sex-crime prosecutions. Over the last thirty years, changes to evidentiary rules and other legal doctrines have enabled women to come forward and testify about sex crimes with less fear and humiliation than in times past. For all the hardship that a man accused of rape may face, there are still powerful stories drawing on gender, racial, and socioeconomic stereotypes that make it difficult to convict even those guilty of rape.
How, then, should women who make “a false accusation” be weeded out before causing “hardship” to the men they falsely accuse? Orenstein’s essay is silent on the subject; such suffering, it seems, is a necessary byproduct to counter the “powerful stories drawing on gender, racial, and socioeconomic stereotypes.” But, of course, our entire system of justice supposedly is based on the premise that better nine guilty people go free than one innocent person go to jail.

In this respect, Orenstein’s essay reflects the fundamental flaw in feminist theory about sexual assault law. Feminists believe that “the problem with rape prosecutions is not false reporting, but underreporting.” And so they have championed what Orenstein delicately describes as “legal reforms in sex-crime prosecutions” to increase the likelihood that those charged with rape will be convicted of the crime, even if doing so requires weakening due process protections for the accused—under the assumption that more true victims will come forward if they believe they’re likely to win at trial. And so we have moved from a sexual assault system that, in the 1970s, was biased against the accuser to a contemporary system that is biased against the accused.

Orenstein also expresses concern with what she deems the troubling “narrative” associated with the case—“a tale of a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Such an image, she claimed, “can be traced back to the historical, generalized suspicion of women accusing someone of rape.” Yet Crystal Mangum, in fact, was “a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Should the lacrosse players and their attorneys have treated Mangum with kid gloves because she seemed to fit all the worst stereotypes of a false rape accuser, even if doing so increased the likelihood of their going to jail for a crime that never occurred? Again, Orenstein’s essay is silent on the subject.

---------

Seigel’s book also contains several essays that examine either the academic or the cultural legacy of the case. Most of these read as if caricatures of the race/class/gender-based scholarship that fueled the Group of 88’s fury.

Here’s University of Florida Law’s Sharon Rush (ironically, a former women’s lacrosse player):

Crystal Mangum did not deserve the maligning of her character by some of the partygoers or by many others who recounted what happened that night in Durham . . . Even though she lied about events in that evening, particularly the rape, it is worth exploring the damaging and hurtful assaults on her dignity in the process of exposing those lies.

Let’s be blunt here: Mangum is someone who, for more than a year, repeatedly lied with the goal of putting three people in jail for 30 years for a crime that never occurred. One wonders how those committed to “exposing those lies” should have treated her: perhaps the lacrosse players’ attorneys should have hailed her as an upstanding citizen of the Durham community?

Here’s University of Florida Law’s Michelle Jacobs, a specialist in critical race theory:

All of the risk factors that can lead to acquaintance rape, particularly of the gang-rape variety, were present that night [at the party]. Although theories explaining why college-age men rape vary, four factors can generally be used to identify a heightened risk for male sexual aggression: stereotypical views of male and female role orientation; membership in a male peer-support group; alcohol consumption; and lack of deterrence. It is clear that at least three of these factors were present in the Duke scenario.

Once again, bluntness is in order: there was no rape in the lacrosse case. So unless Jacobs is contending that the existence of these “risk factors” increases the likelihood of a false allegation of rape, it’s hard to see the relevance of her essay to an analysis of the lacrosse case.

Here’s University of Mississippi Law’s Michele Alexandre, a specialist in “feminist legal theory”:

The Duke lacrosse rape case is a story that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.

Again, let’s return to reality: a “woman of color” made a false accusation of rape against three “privileged” white men, and had her accusations not only taken seriously by local authorities, but saw these local authorities engage in grossly unethical practices to keep her case alive. Moreover, she received zealous, public support from dozens of the professors who taught these “privileged” white men, and, at least initially, from most of the mainstream media. This is hardly the record we would expect from a case “that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.”

The only academic/cultural essay that seems grounded in what actually occurred at Duke comes from Robert O’Neil, a specialist in academic freedom issues, former president of the University of Virginia, and director of The Thomas Jefferson Center for the Protection of Free Expression.

O’Neill has little sympathy for the Group of 88’s performance. He writes,

Controversy over the “Group of 88” ad would have been intense under any conditions. But the level of concern was substantially heightened by the release of a later [January 2007] statement, signed by many of the original 88 and by other Duke professors as well. Given the steady erosion of the premises on which the lacrosse players’ guilt had been based at the time of the original ad, many in the Duke community expected the sequel to include, at the very least, a substantial recantation. The second letter did slightly qualify the 88’s original position, stating that ‘we do not endorse every demonstration that took place at the time.” it also sought to provide a broader and less passionate context for the Group of 88 ad, insisting that the earlier text had been distorted and misunderstood. Basically, however, the sponsors declined to apologize or retract, and essentially reaffirmed the position they had advanced nine months earlier.

O’Neil also dismisses the claims offered by some Group members that the administration should have openly defended them against their critics, while adding (correctly) that “in one specific respect, the administration exceeded any conceivable pre-existing obligation to safeguard the interests of its faculty,” when the administration shielded the faculty from lawsuits as part of the settlement with the three falsely accused players.

In a few other areas, however, O’Neil seems excessively willing to give the Group the benefit of the doubt. He faults Steve Baldwin, for instance, for behaving in an “uncollegial” fashion in his criticism of the Group—while leaving without mention the (false) assertion by Women’s Studies professor Robyn Weigman that Baldwin had used the “language of lynching.” Certainly, by any standard, a public, written, false allegation of racism against a colleague would qualify as “uncollegial” behavior.

More problematically, O’Neil seems to imply that an academic freedom exemption exists to the faculty’s requirements on treating students laid down in the Faculty Handbook and the student bulletin. Duke is, of course, a private institution, and if it wants to say that faculty members engaged in race/class/gender-based research have an academic freedom exemption to advance their pedagogical agenda by publicly attacking students on the politically incorrect side of the race/class/gender viewpoint, the University has every right to do so. But, as now written, neither the handbook nor the bulletin contains such an exemption.

Finally, O’Neil paints an inaccurate picture of one element of the Group of 88 statement. He notes that the ad would have been improper had the signatories claimed to speak on behalf of Duke, but “nothing in the ad expressly claimed or even strongly implied departmental (much less university) endorsement. Even a casual reading of the text would have belied such nexus, given the critical tenor of the statements.”

Yet, of course, the wording of the ad unequivocally asserted official departmental endorsements. The bottom the text published in the Chronicle and then posted for 183 days on an official Duke departmental website contained the following passage:

We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology; Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages & Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of additional faculty and staff who signed on in support may be read at the AAAS website.

Moreover, as we now know, not even one of the departments listed as officially signing onto the ad ever formally voted on such an endorsement—an extraordinary violation of standard academic procedure, yet one for which the Duke administration appears not to have punished anyone associated with the ad.

One additional point on the book’s contents: the essays leave a glaring hole in coverage. How, one wonders, in the highest-profile case of prosecutorial misconduct in modern American history, did dozens of professors at a major university seem utterly indifferent to due process and almost eager to exploit their students’ difficulties? Perhaps, sadly, we’re at a point at which no one familiar with the academy even expects professors to defend due process if doing so contradicts the dominant assumptions on issues of race, class, and gender.

33 comments:

Anonymous said...

Excellent as usual K.C.

It's no mystery to me why academia gets a general pass in many of these studies. It's the for the same reasons politicians seem exempt from tough ethical scrutiny. Politicians are mostly lawyers and the laws are written by and for lawyers..

Similarly, scrutiny of the academy is overwhelmingly performed by academicians..

Go figure...

DM

Anonymous said...

...and so continues the ongoing

gang-rape of Duke, Durham and

the Victim by the Lacrosse Crowd.

Anonymous said...

Is Orenstein a Communist?

Anonymous said...

This analysis is a thing of beauty.

Thank you!

Anonymous said...

"Perhaps, sadly, we are at a point which no one familiar with the academy even expects professors to defend due process if doing so contradicts the dominant assumptions on issues of race, class, and gender." Unfortunately, those who are in academe (whether at the elementary, secondary, or collegiate level) know that over the past thirty years this has become the case all to frequently. When the race or gender card is played (it has not been my experience that the class card is played as often), one finds oneself virtually powerless. RCD were as much victims of the Duke faculty and administration's willingness to be seen as oh so politically correct as they were a prosecutor's zeal to be elected. While one, I suppose, could make the claim that what else would one expect from a money-grubbing prosecutor (after all he wanted the job to increase his pension), there has always existed the view that academics view the world from a higher plain - what the lacrosse case did was to expose the academy for what it all to often is - a small minded group of petty individuals who seek to carve out their turf and fight viciously against anyone who dares to suggest that they are emperors with no clothes.
cks

Anonymous said...

As much as anything, this book tells me that higher education, and especially the more elite higher education, is hopelessly corrupt. When law professors are saying that their feminist theories trump due process, and when other professors insist that Crystal Mangum should have been seen as a credible witness because to do otherwise would have given into racial and class stereotypes pretty much tells me that the legal education of the present and especially the future is hopeless.

What we are seeing in higher education now is that a growing number of faculty and their media allies want ALL outcomes to be predetermined by the politics that accompany them. That was the message of the G88, and that is the message of much of this book.

One of the signees of the original G88 statement himself had been accused of sexual assault by a student. Duke's administration was able to intervene and make everything go away.

Yet, that was OK because of politics. Duke did not want to have one of its "stars" embarrass the university and point out its utter hypocrisy.

One hopes that the conduct of the Duke administration will be given more scrutiny in the future. For all of its weak endorsement (and afterthought, really) of "due process," the administration did everything it could to ensure that due process would not occur in this case. Such actions would have demanded integrity and commitment to the law by people like Richard Brodhead, Robert Steel, John Burness, Karla Holloway, and Larry Moneta. Instead, we got something else.

Anonymous said...

I have not read the book, but I have read KC's essay here. It appears to me, if KC is correct that all the essays are just using the LAX case to promote their own research. The essays are biased on both sides and add no value to understanding the case. All the essays do is add another line to the authors resume publication page. There is no critical thinking of the LAX case.

Anonymous said...

KC:

Thank you for the thoroughly informed, concise, and incisive review.

The one quibble (Duke's right to permit faculty exploitation of students' hardships based on race/class/gender) I had was revised as I was about to post this comment. I prefer your reformulation of that sentence.

Gary Packwood said...

CRITICAL THINKING

Anonymous 1/26/09 8:39 AM said...
...
...There is no critical thinking of the LAX case.
::
Anger studies professors and extremists are using the phrase 'critical thinking' as their method for viewing all history through the prism of race/class/gender and then using the word metanarrative or 'tall tale' to describes recorded history such as our civil war.

Critical thinking becomes a secret phrase used in their coded hierarchy. I have learned when I attend meetings with Anger Studies folk, I am not a member of their coded hierarchy.

Which Critical Thinking definition were you referencing with respect to the LAX case?
::
GP

Anonymous said...

The 2:02 comment is about what I would expect from the Duke/Durham crowd. In talking to people from Durham, I have found them to believe that they have the right to play by whatever rules they want, and that anyone who interferes is a "meddling outsider."

Interesting. We saw the same thing in the Scottsboro Boys case. Thus, the rules of Durham are the rules of Scottsboro. It is so nice that a couple of places can be known for racism and injustice. Enjoy your status, Durham and Duke University. You earned it.

Debrah said...

After reading this very complete analysis, I have no desire to read the book.

No doubt lots of effort and a degree of scholarship have been put into this book, but a whiff of the stench of Duke's Gang of 88 survives.

Orenstein is someone who will forever find it impossible to be objective about this subject matter. And few of her colleagues will ever object.

None of these people were on the scene as the case was unfolding as was KC.

None of these people have the background in analyzing and writing about major legal cases as does Stuart.

Until Proven Innocent is the definitive account of the Duke Lacrosse Hoax.

The Hoax started out as a false rape charge---something that would be difficult enough to combat in the public arena; however, the element that really inflamed the story was "race".

So many people loved it.

None more than those whose sole existence and livelihood inside the academy depend on pushing these outdated, overblown, embellished, and totally fabricated scenarios.

As if I needed a reminder, I recently witnessed a few of those in the academy, firsthand, who will do anything to avoid defending their lousy "scholarship".

Anonymous said...

Anonymous said at 10:24 AM ...
The 2:02 comment is about what I would expect from the Duke/Durham crowd. In talking to people from Durham, I have found them to believe that they have the right to play by whatever rules they want, and that anyone who interferes is a "meddling outsider."

Interesting. We saw the same thing in the Scottsboro Boys case. Thus, the rules of Durham are the rules of Scottsboro. It is so nice that a couple of places can be known for racism and injustice. Enjoy your status, Durham and Duke University. You earned it.


It is one of the ironies of history that Scottsboro is located in the region of Alabama that in the Civil War supplied more volunteers to the Union than the Confederate Army. The Scottsboro of 1931 was more than 90% white and had no history of racial animus and unlike Durham in 2006, where whites suspected of being Dukies were assaulted on the streets, there were not in Scottsboro in 1931 any of the racist attacks on innocent passersby. Most or all of the violence spawned by the case was caused by the defendants' supporters in Northern cities and by Communist mobs in Europe.

In the Scottsboro Boys case, none of the primary figures were from anywhere close to Scottsboro. Neither the accusers nor the accused were even Alabamians -- the girls were from Tennessee while the boys were from Georgia. The alleged crimes took place on a moving train on its way from Chattanooga, Tenn. to Huntsville, Ala. The train happened to be stopped in Paint Rock, Ala., just inside Jackson County, of which Scottsboro was the county seat. If the train had been stopped two miles further up the line, the case would have been called "the Huntsville Boys". Instead, by this accident of history Scottsboro has become a (undeserved) byword for racism while Huntsville is known as "Rocket City" for the U.S. Space Center there.

RRH

Anonymous said...

This nauseating inability of "feminist" law professors to acknowledge one legal process for us all is also scary. The legal profession was built around a common understanding of legal principles. Feminist professors want one for womyn.

Situations like LAX can be aided and abetted by law professors that really believe the law ought to be different for some people. Whether to right perceived historical wrongs or "balance" something in one group's favor, they don't care about the individuals involved.

I can't believe my taxes go to underwrite this.

Anonymous said...

On another note: Business Week just did a story on rental rates for homes in major metros across the country. Accompanying the snippets were photos from those metros of cityscapes or representative homes.
I did a double-take.
For the Raleigh area, guess which house they picked?
You got it: an all-too-familiar bungalow on Buchanon Street

Jamie said...

According to Orenstein, the troubling narrative in this case was "a tale of a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both."

The supporters of the LAX accused supposedly said, okay, let's be very suspicious of her claims because of that stereotype?

Hardly. Mangum's stories were wholly illogical, physically impossible. If Mangum's claims had held together at all, neither her blackness, femaleness, occupation, previous drug use, criminal record, nor the state of her panties would have lessened at all the vigor with which the LAX players would have been prosecuted. The players were almost prosecuted even though Mangum's story was manifest nonsense, and the accused would surely have been convicted in "fair Durham".

The stereotyping, the fascination with the narrative, was entirely on the other side: no matter how preposterous Mangum's versions became, this event was prized in many quarters as a gripping tale of a band of testosterone-soaked rich white athletes who were to a man lying, and who were ready to use their incredible, nearly limitless white male rich-guy influence to cover up their foul doings, thereby cheating Mangum, certain segments of Durham, and a whole bunch of other narrative-readers, of "justice".

Anonymous said...

Thanks, again, to K.C. for dissecting the latest supposedly academic publication trying to use the Duke LAX case to promote papers by Professors of Angry Studies. No matter how loud the screams, they cannot justify their pseudo-science by whining about the mistreatment of Crystal Gail Mangum. What a "Poster Child" for the creation of positive dialogue among us all about the issues involving race, gender, society and, especially, rape ?

One Spook said...

Wow ... these are some excellent comments by and large. CKS ... I'd take you out to dinner in a heartbeat if your husband doesn't object ... I truly enjoy reading your comments.

Others are somewhat troubling. One comment states "None of these people have the background in analyzing and writing about major legal cases as does Stuart." and that is woefully uninformed. Michael Seigel is an imminently qualified legal editor and writer and most of the writers involved are similarly qualified and well published.

Another comment I find curious is "I have no desire to read the book." This reminds me of the stereotypical little girl who covers her ears and sings when she hears something she doesn't like.

How on earth can anyone formulate a viewpoint on a subject without reading that view? I'm reminded of a friend of mine who refused to read anything Marx wrote, arguing, "I'm not a Communist, so I'm not going to read Marx!"

Amazing.

In UPI, as in this analysis, together with stating his own observations, KC quoted statements; cited writings; and dissected both ideological and pedagogical positions of the major players in the events of the lacrosse hoax.

When he was recently pointed to this book, KC stated that he would immediately read it and comment.

That action stands in rather stark contrast to the position of some of those who have criticized Johnson's positions while admitting that they've not read either his book or this Blog.

Amazing.

This review was outstanding and the final sentence is, while quite disturbing, profoundly eloquent and correct.

One Spook

Anonymous said...

From KC's blog:

"Seigel wonders whether grand jury reforms might prevent such obvious miscarrirages of justice as the lacrosse case...
That said, Seigel notes that these reforms have their own problems—most notably, they would dramatically increase the workload of the grand jury system..."

There's another obvious "reform" that would help: When district attorneys, police officers, city officials, etc. are found to have broken the law during a conspiracy to frame the innocent, hold them accountable. Nifong, Gottlieb and several others should be looking at serious jail time for their misdeeds. This would be right both to punish criminal abuse of power and to deter others who might be tempted to try the same thing.

By contrast, those others who might be tempted will look at this case and say "You know, they were pretty much caught red-handed in some of the nastiest subversion of justice anyone's ever seen, and basically got away scot-free. I guess following the law isn't really required."

Anonymous said...

One Spook:

Thanks for the offer - I enjoy reading your comments as well! I know all to well that when a small group of pc are able to intimidate their colleagues by playing a race or gender card, there is little that the rest of a faculty can do if they are worried about being able to pay their bills or be certain that they even have another position to go to. (Any hint of racial or gender discrimination can sink someone's career faster than that iceberg sunk the Titanic). Although I am sure that there were those on the faculty who knew that the charges were a crock and that the lacrosse players were no better nor no worse than any other students at Duke, they failed as a group to speak out. This is what Hannah Arendt meant by the banality of evil. When one stands by and does nothing, then one implicitly supports the evil (in this case the framing of three innocent young men)by the police, the prosecutor, a lying woman who saw a chance for a payday, a nurse who chose to push her own agenda, and a faculty and an administration (as well as the BOT). It is never easy to be the lone person crying out that injustice is occurring - but if we have learned anything at all, we should learn from this (as we should also have learned from the actions of the Nazis)that each and every one of us have a responsibility to make certain that such evil cannot and does not happen again.
cks

Anonymous said...

Why aren't members of the duke lacrosse team bringing a lawsuit against the duke 88 for slander and defamation? They certainly have an argument for such a lawsuit.

Anonymous said...

There's another obvious "reform" that would help: When district attorneys, police officers, city officials, etc. are found to have broken the law during a conspiracy to frame the innocent, hold them accountable. Nifong, Gottlieb and several others should be looking at serious jail time for their misdeeds. This would be right both to punish criminal abuse of power and to deter others who might be tempted to try the same thing.

Unfortunately, in the system of justice today, the foxes eternally guard the hen houses. Gottlieb, Himan, Nifong, Levicy, and others belong in prison, but no one is going to prosecute them. That is the the reality of "justice" today.

Anonymous said...

No essay included on nursing ethics?

RoseMontague said...

I enjoyed your review of the various essays in this book. The review however, misses the point of the book as a whole.
Seigel: "I expect that the reader will agree with some of the chapters in this volume and disagree—perhaps vehemently—with others. That, at least, is my intention,because that is the nature of the academic enterprise."

It seems to me that Seigel has accomplished exactly what he intended for this book.

Anonymous said...

Because O'Neil wrote the following ...

"nothing in the ad expressly claimed or even strongly implied departmental (much less university) endorsement. Even a casual reading of the text would have belied such nexus, given the critical tenor of the statements."

... I have to believe that he didn't even attempt a casual reading of the text. That's like saying the Constitution is silent about Legislative powers. O'Neil must not be a strict constructionist! It is also counter-intuitive.

Why would O'Neil even mention that the "Listening Ad" implicated entire Duke departments unless he had heard it from somewhere? In that event, he should have been looking for it, and that makes his having missed it completely inexplicable.

How could he have missed that giant plug for all those Duke departments and programs? I did a word count on the plug, and it came out to 92 words that O'Neil completely whiffed on.

********************

Q: What did the civically-engaged Philantropist ask the Good Samaritan?

A: You boon too?

********************

One aspect of the Duke Hooker Hoax is neatly encapsulated in the Baldwin/Weigman episode. Because of political correctness, Baldwin was forced to apologize for being right, and Weigman was able to bask in being wrong.

********************

MOO! (Meaning these are my opinions only) Gregory

Anonymous said...

K.C. Johnson wrote:

"The trio adds that beyond all the other Durham improprieties, 'the repeated presentation of certain suspects’ photos is particularly egregious'—36 lacrosse players were shown to Crystal Mangum twice, over a two week-span. That this issue received relatively little condemnation, the authors speculate, is 'precisely because [condemnation] seems so obvious.'”

I disagree with the authors' speculative answer. It is not "obvious" to a layperson that showing a photograph a number of times to an eyewitness would be dangerous. In fact, it would probably seem an appropriate thing to do for most people. "Here, take another look. It might jog your memory."

The problem, of course, is that memory doens't get better, and the repetitive nature of the viewings might trigger a false memory (i.e. the eyewitness might remember the previous picture and not the culprit), or the witness will begin to feel pressured into making an identification.

My speculation is that most of the people in Durham, Duke and North Carolina who might have "condemned" the procedure were conspirators in spirit with the framing of the innocent students. Or they were afraid of PC repercussions. Early on, only a brave few, such as Joe Neff and Professor Johnson, actually condemned these "obvious" procedural defects.

*******************

Did Professor Seigel mention the possibility of requiring a transcript -- or at least a recording -- of the grand jury proceedings? That is a simple, cost-effective way to put liars on notice that they will be found out. Most courthouses are now completely wired for sound, and they keep tons of recordings in the event a transcript is requested. In other words, the machinery is already in place. In smaller NC counties, they can use a little Sony taperecorder.

Something has to be done about the Durham Grand Jury system. I seem to recall about 83 True Bills (and 0 No Bills) issued during the afternoon that Collin and Reade were indicted. That came out to about an indictment every 5 minutes assuming the usual cigarette and coffee breaks.

A Constitutional safeguard should require a little more time and effort than an ATM transaction.

In Illinois, every alleged felon has the right to demand a preliminary hearing. This right is not over-used because defense attorneys know that a request for a preliminary hearing is likely to piss off the prosecutor -- thereby reducing the likelihood of a sweet negotiated plea.

Both of these simple protections, I believe, would have derailed the Duke frame. MOO! Gregory

One Spook said...

MOO Gregory writes @ 7:10 AM:

"How could he [Robert O'Neil] have missed that giant plug for all those Duke departments and programs? I did a word count on the plug, and it came out to 92 words that O'Neil completely whiffed on."

I wondered about that too. The most common extant version of the "Listening Statement" seems to be a .jpg file image of the ad. The subject 92 words appear at the bottom of the ad in very, very fine tiny print.

Perhaps Mr. O'Neil, who began his teaching career in 1963, needs stronger glasses ...

"Sometimes a cigar is just a cigar."

One Spook

Anonymous said...

Dearest One Spook,

The author also had an editor. Did they both need glasses? Was the former President of the University of Virginia without adequate resources to purchase a magnifying glass? Could he not have asked for assistance?

I do agree that it is strange in that the evidence of his omission is right before our 20/20 vision. Only Nifong or an 88er would try something like that, I suspect. Yet, it is curious because he was obviously looking for it -- based on how he wrote the paragraph -- but not hard enough to actually find it.

********************

On another note, I have to side with the "I don't need to read the book" or Diva side of that argument. I understand the aphorism about books and their covers, but that was never meant to apply to books, or their covers, and in any event, I appreciate aphorisms as much as I need a hole in my bucket in the bottom of the sea. Here are my reasons:

1. I do not want to put one cent into the pocket of anyone who has written the following about the Duke Lying Hooker case:

"The Duke lacrosse rape case is a story that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies."

2. I don't want to add to a trend of respectable writers and thinkers collaborating with "critical" (read: uncritical) thinkers. It gives the uncritical writers credence and a market.

3. Books are subject to the sharp wit of the New York Times Book Review, just as films are subject to the whims of the film critic, and restaurantuers tremble under Zagat's gaze. This is commonplace for books, films and lunch because, unlike human beings, books, films and lunch do not have due process rights. I can easily discern whether I'm dealing with a book, a film, a human being or lunch.

4. Necessary time triage.

5. I agree with Debrah that, "Until Proven Innocent is the definitive account of the Duke Lacrosse Hoax." And that book was written by authors who actually lived and sweated the words.

6. If I thought an "essay" was required on the needed reforms to the Durham Grand Jury system, I would rather write it myself.

These are my arguments for now, as I am faced with some time triage issues. Take care, One Spook and all! MOO! Gregory

One Spook said...

MOO Gregory:

I agree with your comments about the availability of eye and magnifying glasses at the University of Virginia.

You also made a good argument for not buying the subject book.

My comment was directed toward reading what others write, not buying books that they write.

But, I still admire your "MOO comments" and wish that you'd edit your most brilliant analysis of the "Listening Statement" and post it.

I had it on my Blog for over a year, but I deleted the Blog.

Thank you.

One Spook

Anonymous said...

Moo Gregory does make a good point - there is only so much time that one has regarding reading. Just reading DIW, Liestoppers, and JinC and then formulating responses takes an enormous amount of time (well worth-while) - and then one also has other papers, magazines, journals, books, television programs to watch and, oh yes, a job and family to occupy one's time.
I too feel a certain reluctance to put money in the pockets (and thereby confer a certain legitimacy) to books that perpetuate the false charges or infer that there were good reasons for the actions of the police, prosecutor, Duke faculty and administration. While I do not particularly want said books featured in the local public library, if push comes to shove and I feel that reading beyond the summaries and critiques posted are necessary (there is the point that one should always be thoroughly grounded in the positions and views of all involved) then I will avail myself of that resource.
cks

halides1 said...

Bad as it is, the original “listening” statement might, at the time, be very charitably ascribed to overzealous faculty who merely got caught up in the heat of the moment. The “clarifying” statement and the way Steve Baldwin was treated leave no doubt as to the bad intentions of the G88. Steve gave a departmental seminar here a year ago. The contents were good organic chemistry, but it was also presented in a way that undergraduates could take something away from the talk. Steve also interacted with a number of the faculty here. Based on his visit among other things, I can say unequivocally that he is collegial, and he is a good citizen of academic chemistry. He must be a fine departmental colleague. Steve is also a self-described liberal and is politically correct in the old-fashioned, honorable use of the term—meaning someone who avoids language that demeans minorities, etc.

Even someone without independent knowledge of what Steve is like can find fault with O’Neil’s analysis. Faculty should not criticize their own students in public. My philosophy instructor, Dr. Placher, implied that it would have been better to defend them publically (at least over procedural improprieties) and rake them over the coals privately, and that is as good a formulation as any that I have heard. Duke would have done itself proud if it had acted in loco parentis, as Steve indicated. By attacking him on grounds she must have known were specious, Robyn Wiegman avoided the more pertinent discussion about the right and wrong ways to treat the Duke three.

Attorney and cofounder of FIRE Harvey Silverglate described the faculty who pilloried the three players as “feckless.” He went on to say, “it is unbearably sad that Professor Baldwin, having used a perfectly apt metaphor for how the unapologetic faculty members should be treated, then saw fit to kneel down at the altar of political correctness and issue the ritual apology.” About the faculty allied with Professor Wiegman, Mr. Silverglate said “they kept silent about their outrageous conduct toward three students, and instead proceeded to torment the professor who showed the moral courage to seek to call them on it.”

Chris

Anonymous said...

One Spook, you are correct. I would read the book if I did not have to subsidize certain of the authors. In that we certainly agree! MOO! Gregory

P.S. I very much enjoy reading all of your fantastic posts.

Anonymous said...

Another day, another mind jammer.

Today the Jan/Feb Duke Magazine arrived.

Four alumni trustees were nominated by the executive committee of the board of directors of the Duke Alumni Association. One, Paula Crown, has been a trustee since 2001 and is being nominated for a second term.

Of interest is the in 1988 she was "instrumental in establishing the Lester Crown Endowment for Lectures in Ethics."

Duke board of trustees and ethics seem a bit incongruous to me. One might surmise that the Lectures aren't well attended. At least not by the administration, Klan of 88 or others in Durham.

Anonymous said...

I am not a big fan of the grand jury system, although I'm staunch supporter of trial by jury. I prefer the system where the prosecutor files a criminal complaint; then the defendant has the option to have a probable cause hearing, also called a preliminary hearing. The victim would be called to the stand and then it could be determined if there is probable cause to continue to trial. Perhaps Mangan could have satisfied a judge for probable cause, but maybe not. A dismissal at the probable cause hearing saves a lot of judicial and legal resources, not to mention the stress and strain on the defendant.