I’ve received a few questions on the status of the civil trial; my response would be that the civil case exemplifies what happens when one side (in this case Duke and Durham) has everything to gain and nothing to lose by delay. Even if the case makes it to trial and Duke/Durham prevails, it would be a loser for the duo, since the trial’s revelations almost certainly would place them in a terrible light.
Quite beyond bringing sunlight to corrupt Durham institutions, however, the civil suit has practical importance to the falsely accused players, of which I was reminded again when reading a post by PR guru Jack O’Dwyer. O’Dwyer’s post ostensibly analyzed the media’s response to the sexual assault charges against FIU baseball player Garrett Wittels and two of Wittels’ friends. Yet the Wittels case has almost nothing in common with the lacrosse case (beyond the fact that both sets of allegations seemed, initially, quite implausible). In the Wittels case, neither side denied that sexual contact of some type occurred. In the Wittels case, no one has alleged that the prosecutor acted unethically, or that the police used an improper lineup. The FIU president hasn’t suspended the baseball season, or fired the baseball coach; and FIU faculty members haven’t signed a guilt-presuming public statement or participated in protests outside Wittels’ house. Nor is the local paper (in this case, the Miami Herald) using its coverage to frame the case against Wittels.
Nonetheless, O’Dwyer decided to write about the lacrosse case—using as his source, for reasons that he never explained, the Wilson/Glater New York Times article. O’Dwyer seemed unaware that both Times executive editor Bill Keller and then-sports editor Tom Jolly had, many months after the fact, apologized for the Times’ coverage.
Having relied upon this discredited version of events, O’Dwyer informed his readers that Nifong “said he was hit with a ‘stonewall of silence’ by the Duke team” without ever mentioning that this public claim was false (the captains voluntarily gave statements and DNA samples; nearly two dozen lacrosse players subsequently gave statements to SBI investigators).
And O’Dwyer informed his readers that “semen of one of the Duke students was found beside the toilet at about the same spot where Mangum said she had spat out semen from someone who orally raped her. Semen of another Duke student was found on a rag in the hallway near his bedroom. Mangum claimed that someone had wiped her vagina with a rag” without mentioning that neither sample included DNA from Mangum, as would have occurred had any of Mangum’s myriad, mutually contradictory tales have been true.
And O’Dwyer informed his readers that found ‘blunt force trauma’ that was ‘consistent with the sexual assault that was alleged by the victim’” without mentioning that the subsequent AG’s inquiry found no objective evidence to substantiate Levicy’s claims—a finding aided, of course, by the fact that Levicy had not noted any “blunt force trauma” in her contemporaneous written report.
Of Nifong’s misconduct (his ethically improper public statements; his ordering the police to run a new lineup confined to suspects, in violation of DPD rules; his lying to the court; his violating North Carolina law by failing to report all results from the DNA tests) O’Dwyer wrote only, “Various irregularities were also found in the way [Nifong] presented the case.”
There were villains, however: O’Dwyer chastised the lacrosse players’ attorneys for “having conducted a massive PR campaign aimed at discrediting Nifong and Mangum." Yet the public statements of the defense attorneys rarely mentioned Mangum’s character, not least because Mangum’s chosen profession, arrest record, and use of large amounts of prescription drugs were all in the public record. Moreover, O’Dwyer conveniently overlooked how Nifong gave more than a dozen interviews (with local, state, and national media) before the attorneys for the lacrosse players spoke to any reporter; and that Nifong’s publicity barrage continued right up until a lengthy late December 2006 interview with the New York Times. In O’Dwyer’s world, these comments apparently get a pass, but defense attorneys should have remained silent.
In a subsequent conversation, O’Dwyer informed me that, in his opinion, the case needed to go to trial, and dismissed Nifong’s ethical offenses as trivial. O’Dwyer’s position, carried to its logical conclusion, would mean that anytime anyone accuses someone of any criminal wrongdoing, the case must go to trial—regardless of the credibility of the charges, and regardless of whether the authorities commit misconduct in handling the case. You don’t have to be a card-carrying member of the ACLU to see this as an extreme approach to criminal procedure.
O’Dwyer also wildly claimed that “the Establishment” had acted to squelch the case. Who, exactly, constituted this “Establishment”? After all, at a local level, most people would consider the D.A. (in this instance, Nifong), the city’s newspaper (in this instance, the Herald-Sun), and the city’s largest university and employer (in this case, Duke) to constitute “the Establishment.” Yet in the lacrosse case, the prosecutor broke myriad rules to keep Mangum’s case alive, the local newspaper did everything possible to rationalize Nifong’s behavior, and the local university’s administration and outspoken faculty members bent over backwards to portray their students in the worst possible light. Meanwhile, at the national level, I would assume nearly everyone would consider the New York Times as the manifestation of the “Establishment” media—and the Times aggressively framed the case in the most favorable light possible toward Nifong, most spectacularly through the error-laden article upon which O’Dwyer placed such reliance.
But, nonetheless, in O’Dwyer’s imagined version of reality, “the Establishment” was on the side of the falsely accused lacrosse players.
No revelations from the civil suit likely could ever sway someone like O’Dwyer. And, in fairness, most people, including most who didn’t follow the case closely, accepted the findings of the AG’s investigation. But there will always be a small percentage of society, as seen in the O’Dwyer post, that decline to live in the reality-based community, or that cling to bizarre conspiracy theories—showing the continuing harm that the misconduct of Nifong, DNA Security, and the Durham Police caused to the falsely accused players. And, for good or ill, it’s through a civil suit that the falsely accused players (and their unindicted teammates) can receive some compensation from those whose misconduct harmed them.