Friday, January 21, 2011

Four Updates

In an expected move, Crystal Mangum will not be re-tried on the most serious arson charge that she faced. What message the jury’s original majority-acquittal vote sends to Durham is anyone’s guess.


In another unsurprising move, a new (albeit minor) demonstration of the continuing vise the Group of 88 and their allies exercise over Duke. The issue is the five-year review process for Blair Sheppard, dean of the Duke business school.

It would be hard to come up with an area of the academy further away from the Group’s race/class/gender vision than the business school. Yet the six-person review committee includes two Group members—Paula McClain (the political science professor who said she wouldn’t publicly call for Mike Nifong to respect due process in his treatment of Duke students) and Cathy Davidson (she of the fact-challenged, “revisionist” interpretation of spring 2006 events at Duke). A third member of the committee is the “vice provost for faculty diversity.” The administrator’s purview, of course, does not include pedagogical or intellectual diversity.

Does anyone want to bet against the proposition that the McClain committee will recommend the business school adopting new measures for certain types of “diversity”?


An item at least tangentially related to the civil suit. Ames et al v. County of Harford, Maryland et al is a lawsuit by various anti-abortion rights activists against police and municipal officials in Maryland. As in the lacrosse civil suits, the Maryland police and municipalities filed motions to dismiss the case, citing Ashcroft v. Iqbal, which they (like the Duke/Durham defendants) contended should shield them before discovery could commence.

In May, a district court judge dismissed the motion; and a Fourth Circuit appeals court panel has just upheld the decision, thereby allowing the suit to continue. Two passages from the district court decision that should resonate to anyone who followed the lacrosse case:

“The Court finds that the qualified immunity issue cannot be resolved at the current time because of the fact-dependent nature of the required inquiry and the undeveloped status of the record.” The Maryland case can’t hold a candle to the lacrosse case in this regard, given the reams of e-mails likely available from the Duke and Durham defendants.

And, as to the standard that the court should use, in cases like the lacrosse case and the Maryland case where claims of civil rights violations are involved: “Where, as here, the Defendants seek to dismiss the Plaintiffs’ civil rights complaint, this court ‘must be especially solicitous of the wrongs alleged’ and ‘must not dismiss the claim unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.’” [emphasis in original]


Finally, for those concerned about the lax editorial standards at The Atlantic, the letter to the editor form is here.

Sunday, January 16, 2011

With Malice Toward Some

When the lacrosse case first broke, politically correct members of the media (such as Selena Roberts) and race/class/gender faculty ideologues (most spectacularly the Group of 88) rushed to exploit it. And then the case to which they had attached their reputations imploded. It’s not hard to imagine Caitlin Flanagan speaking for them in the January Atlantic, as she seethed, “The [falsely] accused players’ improbable turn as victimized solid citizens was the most unpleasant result of the D.A.’s bungled case.”

Yet the lacrosse case was not the ostensible subject of Flanagan’s article. Instead, in an effort that has attracted widespread condemnation, Flanagan sought to apply a Group of 88-style race/class/gender analysis to the Karen Owen “thesis.” (In the words of the Chronicle’s arts and entertainment supplement editor, “Flanagan’s a hack and the worst kind of pundit; after years of her hysterical essays, this is common knowledge. But that doesn’t excuse The Atlantic for having printed pages of what is essentially deception, unprofessionalism and, in at least one instance, outright lies.”) Indeed, the piece was so poorly argued that even the Group of 88’s resident apologist, Prof. Robert Zimmerman, felt compelled to—albeit somewhat gently—criticize Flanagan.

One item in the article offers a particular insight into the almost malicious manner in which Flanagan approached her task—and in the process raises some troubling questions about standards at The Atlantic.

In an article ostensibly about Karen Owen’s “thesis,” Flanagan devoted 11.9 percent of her words to a very negative portrayal of members of the 2006 Duke lacrosse team. Of that total, 472 words focused in some way on thesis “Subject 1,” a lacrosse player. Here’s how Flanagan described him: “His blandly handsome face and powerfully built body had taken on the cast of a thug rapist and then of a hapless sex partner who couldn’t even keep it up long enough to satisfy an inexperienced co-ed.”

I e-mailed Atlantic editor James Bennet to ask why The Atlantic (which I regularly read) allowed one of its authors to include such a gratuitously insulting passage about anyone, much less a then-college student. Literary editor and national editor Benjamin Schwarz, who supervised the production of Flanagan’s article, replied that he didn’t consider the item above to be insulting(!), in part because The Atlantic didn’t identify “Subject 1.” In the internet era, finding Subject 1’s identity takes less than a minute; Schwarz’s rationalization doesn’t pass the laugh test.

More problematic is why Flanagan devoted any attention to Subject 1, or any of his teammates. (She wrote that it was “impossible” for her not to do so—an argument by assertion.) By Flanagan’s own admission, the turning point in Owen’s experience came when Subject 2, a tennis player, allegedly treated Owen shabbily. Yet Flanagan’s article gave no sign that the author conducted any additional research into the personal background of Subject 2. (Flanagan didn’t specifically mention any of Owen’s other subjects at all.) About Subject 1, on the other hand, she tracked down references in police reports of the lacrosse case. Here’s what Flanagan wrote:

In fact, the man identified as Subject 1 in Owen’s PowerPoint was a member of that very team, present and accounted for at the ugly party and named in several of the police reports garnered about the night. Player Dan Flannery said that when he “tried to apologize and reason with” one of the strippers in a bedroom of the house, Subject 1 may have been with him, and David Evans told police that Subject 1 at one point followed the women out into the street.

This passage is peculiar for a couple of reasons. First, most reasonable people would deem what the reports say about Subject 1’s conduct (at a party he played absolutely no role in organizing) to be basically commendable: he tried to soothe Kim Roberts’ anger after another team member treated Roberts crassly; and he helped transport the mentally imbalanced and possibly drug-addled Crystal Mangum to Roberts’ car. Yet Flanagan managed to insinuate, without saying anything concrete, that Subject 1 might have behaved inappropriately. Second, Flanagan tossed out references to other lacrosse players (Flannery, Evans) who had no relationship of any type to the Owen affair and who were mentioned nowhere else in Flanagan’s article. To Benjamin Schwarz, I wondered what possible rationale could exist for their inclusion; he responded that I could write a letter to the editor.

Since Flanagan seemed so intent on researching Subject 1’s background, it’s curious that her extended coverage of him neglected to include any of the positive references to his character available in the public record: that he was a strong student; that he showed considerable courage in speaking out publicly, before the tide turned, on behalf of his falsely accused teammates; and that in fall 2006 he spent considerable time registering voters in Durham and volunteering in the campaign to oust rogue prosecutor Mike Nifong. These items, of course, didn’t conform to Flanagan’s negative portrayal of Subject 1, so Atlantic readers never found out about them.

It’s not as if Flanagan is a neo-Puritan, determined to condemn anyone whose behavior on sexual matters would be out of place at BYU or Liberty University. She oozes sympathy for false accuser Mangum, whom she describes as one of “two desperately poor women, one of them a mother of two, both with lives shaped around more sorrow and misery than the average Duke lacrosse player could begin to imagine.”

We know that Flanagan pored through lacrosse-case police files in her research about Subject 1. Therefore, the Atlantic writer was exposed to several items about Mangum’s economic status: that she (allegedly) was a full-time student at a local university; that she had two private drivers to ferry her to and from work and, it seems, to other appointments; and that she had regular access to a doctor and to prescription drugs, suggesting that Mangum (unlike tens of millions of Americans) probably had some form of health insurance. I suspect that few, if any, Atlantic readers would consider an (allegedly) full-time student with personal drivers and health insurance to be “desperately” poor.

There are ways to portray Mangum as a victim (chiefly by suggesting that she fell through the cracks of the nation’s mental health system, perhaps by noting that she seemed to have problems with alcohol or prescription drugs), but neither of those narratives would have advanced the class-based argument about the lacrosse players that Flanagan wanted to make. So Mangum was described as desperately poor despite the conflicting evidence, and Atlantic fact-checkers either didn’t care or looked the other way.

But by far the most disturbing aspect of Flanagan’s article involved a basic issue of journalistic ethics. Flanagan’s entire assault upon the character of Subject 1 hinged upon one verifiable item: that Owen and the lacrosse player actually hooked up. If not, the player was the victim of not one but two cruel hoaxes—one solely on his character (Owen), the other briefly alleging criminal behavior (Mangum).

Based on the PowerPoint’s details, it seems to me likelier than not that Owen and Subject 1 did hook up (the details of the affair, of course, could very well be a product of Owen’s imagination). Yet I always had assumed that magazines like The Atlantic attempted to verify facts when possible, rather than simply going on hunches. So I asked both Bennet and Schwarz why the magazine—and again, The Atlantic isn’t a tabloid; it purports to have high journalistic standards—did not have someone contact Subject 1, if not to give him a chance to respond to Flanagan’s character assault then only to confirm that he in fact knew Owen.

Bennet didn’t respond; Schwarz (twice) declined to answer the question. So the magazine refused to explain why its representatives never even attempted to confirm what turned out to be a critical item in Flanagan’s article. For Flanagan and The Atlantic, it seems, this aspect of Owen’s story was too good not to be true—journalistic ethics be damned.

The Atlantic is one of the two magazines (National Journal is the other) whose articles I often have assigned in my classes. Having been exposed first-hand to the publication’s lax editorial standards, I certainly won’t repeat that mistake.

Wednesday, January 12, 2011

Why the Civil Suit Matters

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.

Tuesday, January 11, 2011

A Curious Comment

This anonymous item, from the common thread: "Robert King Steel (Board Chair of Trustees in 2006) has been heard in and around Greenwich, Connecticut of late, claiming 'he knows something happened in the house that night.'"

If true, the ex-Board chairman's remarks could be considered a breach of the falsely accused players' settlement with Duke. But, of course, this is nothing more than an anonymous comment. I tried to reach Steel for a comment, but his office indicates availability only through the first-class mail.

Accordingly, I'm urging the person who left the comment to contact me directly, at