Saturday, March 31, 2012
Friday, March 30, 2012
In most of the country, “progressive” activists are known for their defenses of civil liberties and their (sometimes reflexive and overheated) criticism of alleged police and/or prosecutorial misconduct. This record often has led to “progressives” being attacked as soft on crime. But there is, also, an intellectual consistency in their positions on such matters that deserves acknowledgement.
In Durham, of course, everything is upside down, and in recent years, the “progressive” establishment—represented by the People’s Alliance—has emerged as a consistent, vociferous apologist for police and prosecutorial misconduct. The PA enthusiastically supported Mike Nifong’s election in 2006. The group’s closest ally on the City Council, Diane Catotti, did everything she could to squelch and then neuter the investigation into police misconduct in the lacrosse case. And the PA was in Tracey Cline’s corner in 2008.
So few should be surprised that in the Democratic primary for superior court judge, the PA has spurned Orlando Hudson in favor of ex-DA Cline’s chief deputy, Jim Dornfried.
The PA made its choice even though in their respective questionnaires, Hudson took a consistently more liberal position than did Dornfried. In responding to a question about a pending state constitutional amendment to make same-sex marriages, civil unions, and domestic partnerships of any type illegal, Hudson stated that the federal constitution should grant gay and lesbian couples a right to marry; Dornfried didn't mention the federal constitutional issue. In responding to a question about North Carolina's Racial Justice Act, Hudson strongly defended the law, citing North Carolina's Jim Crow heritage; Dornfried deferred comment on the matter. In a question about their respective backgrounds, Hudson spoke of his earlier work as an assistant public defender; Dornfried had been in private practice before joining the DA's office. Hudson also detailed his willingness to volunteer his legal skills to local law schools; Dornfried mentioned no such volunteer work.
But the PA ignored Hudson's seemingly “progressive” credentials, instead explaining its endorsement by hailing Dornfried’s work as Cline’s deputy. In his questionnaire to the PA, Dornfried cited the testimony of Durham’s resident ethics apologist, Judge Marcia Morey, to argue that Cline’s deeds did not harm the administration of justice--and thereby to implicitly challenge the decision to remove her from office.
(Dornfried, I should note, was answering a question that was framed in such a way to suggest the PA's fury at the decision to remove Cline: “District attorneys are elected by the people. How egregious must a district attorney’s conduct be before a trial judge may interfere with the people’s right to choose or replace their representative in criminal proceedings?”)
The cases in which Hudson and Cline tangled, as the PA understood, involved matters in which Judge Hudson had claimed that the DA's office violated the constitutional rights of accused criminals--usually a point of view that self-styled “progressives” embrace but in Durham is anathema to the “activist” left.
By the way, Dornfried is white, Hudson is African-American. And in his PA questionnaire, Dornfried identified our current President as “Barak [sic] Obama,” a misspelling that often appears on far-right websites. It appears we’ve finally found the issue—defending prosecutorial misconduct—upon which Durham’s “progressives” are willing to abandon their obsession with “diversity.”
Thursday, March 22, 2012
Brodhead obviously knows this: indeed, this type of social science research, in a less detailed form than what exists in the academy today, provided the underpinning for many of the civil rights decisions in the 1950s, 1960s, and 1970s. The only possible inference, therefore, to take from Brodhead's criticism is that at least on issues of race, this research strategy is acceptable only when it yields results that conform to the beliefs of the campus majority.
Arcidiacono adds some personal context which makes Brodhead's behavior even more troubling: "This squashing of divergent ideas also shows up in the administration's lack of defense of the study beyond issues of academic freedom and, more importantly, in the administration's lack of a substantive conversation with either myself or my co-authors. Personally, the latter is what I have found most disturbing about the whole controversy. As I have repeatedly made clear, I am happy to talk with anyone who has concerns about my work. I was disappointed when the Black Student Alliance (BSA) chose to go directly to the press rather than engage in a discussion with me--the called-for forum has not happened. But these are undergraduates. This is the president of the university. To publicly disparage my work without engaging in a conversation with me is not something I would have expected from Brodhead. To top it off, the speech alludes to administrators working on the issues raised in the paper with the BSA and yet there still have been no substantive discussions of the issues with the authors. Thank you God for tenure."]
Sanford resigned the Duke presidency in 1985 to launch a successful bid for the U.S. Senate. In the last quarter century, Duke—like virtually every elite university in the nation—has aggressively utilized racial preferences in admissions, while just as aggressively seeking certain types of “diversity” in faculty hires. Racial tensions doubtless remain at Duke and at all elite universities; entirely eliminating racism (or sexism or homophobia or ethnic/religious biases) is impossible. But there are few if any employers or institutions anywhere in U.S. society more “anti-racist,” to use the politically correct term, than Duke and the nation’s other elite universities.
Moreover, during the administration of President Richard Brodhead (2005-), the university’s most significant racially-oriented episode involved not racism toward African-American students or professors but a racially-charged crusade directed by members of the school’s African-American Studies Department against a group of falsely accused white Duke students. Apart from a single statement from Provost Peter Lange rebuking an outright racist screed from then-Duke professor Houston Baker—and a vague, tardy, and ultimately toothless apology from Brodhead—there’s no evidence that anyone from Duke’s administration ever addressed this faculty behavior, or ever rebuked those Duke professors whose private biases led them to ignore their obligations to their own institution’s students.
In his March 22 address to the faculty, Brodhead chose to speak about “the issue of race and inclusion in Duke's history, our recent progress, and the nature of the work that lies ahead.”
Those expecting that the choice of this theme meant that Brodhead would critically self-examine his and his administration’s failure to address the shortcomings exposed by the lacrosse case would be sorely disappointed. The race-baiting of spring 2006 wasn’t mentioned, perhaps because doing so would have forced Brodhead to ask uncomfortable questions about how so many Duke faculty members had addressed “the issue of race and inclusion in Duke’s [recent] history.” It would, for instance, have been very difficult for the president to have reconciled his Faculty Address boast that “this university has had a commitment to making Duke a place of access, opportunity and mutual respect for all” [emphasis added] with the conduct of the Group of 88 (or sympathetic faculty such as Orin Starn, Peter Wood, and Tim Tyson) during the lacrosse case.
Nor did the president display any willingness to consider whether the use of racial preferences in admissions or the obsessive emphasis on certain types of “diversity” in faculty hiring remain tactically wise or morally acceptable in the 21st century world. Once again, the posing of uncomfortable questions was not on Brodhead’s agenda, especially if asking such questions might trigger a faculty revolt.
Instead, the president offered a reflexive defense of “diversity” policies as they have been practiced at Duke (and other elite universities) over the past generation. No surprises there. But the stated motivation for his remarks did raise eyebrows. He selected his topic, he claimed, because of three recent events, the first of which was the “controversy over a piece of unpublished faculty research that appeared to disparage the choice of majors by African-American undergraduates.”
Brodhead thus joined Provost Lange and a host of other senior administrators in publicly criticizing (and in the president’s case, willfully misinterpreting) a piece of research from Duke two professors, Peter Arcidiacono and Kenneth Spenner; and Esteban Aucejo, a Duke graduate student. That paper, as I noted before, used Duke’s own data to show how African-American students (whose admissions test scores were far lower than those of whites or Asian-Americans who enrolled at the university) disproportionately migrated, after arriving at Duke, from majors (the hard sciences, engineering) widely considered as more challenging. As with virtually all other critics of the Arcidiacono, et al., paper, Brodhead did not challenge any of the paper’s data.
Brodhead’s discussion of the paper was nothing short of stunning. After an almost apologetic defense of the principle of academic freedom as applied to faculty research, the president all but seethed with rage when discussing the paper: “I can see why students took offense at what was reported of a professor's work. Generalizations about academic choices by racial category can renew the primal insult of the world we are trying to leave behind—the implication that persons can be known through a group identity that associates them with inferior powers. A further insult was that the paper had been included in an amicus brief submitted by opponents of affirmative action urging the Supreme Court to hear the case I mentioned earlier regarding admissions policies at the University of Texas.”
The last sentence is, perhaps, the most extraordinary of Brodhead’s entire address, and, indeed, one of the most extraordinary statements I have ever seen a university president make. The president of a major research university, in a formal address to his university’s faculty, expressed regret—deeming it an “insult”—that research from his own university’s faculty (research whose accuracy he did not challenge) was included in an amicus brief for a critical case before the Supreme Court.
So much for the idea that a central purpose of a research university is the dissemination of knowledge in pursuit of the truth. The president’s message could not have been clearer: those who dare to pursue research that challenges the (campus) majority’s agenda on race can expect a public shaming—regardless of whether the data those researchers uncover is accurate or fairly presented.
Brodhead concluded his address on a more personal level. “The single front,” said he, “where I myself feel the greatest frustration regards senior leadership positions at Duke.” He noted that among his eight senior administration appointments, he had named two African-Americans, one Asian-American, and one woman. But, he lamented, “the number of women on my team . . . is fewer than I would wish.” And he offered his awareness that “including African Americans in the top academic leadership of this university is a piece of unfinished business.”
If Brodhead’s personal pain about the insufficient “diversity” in the upper ranks of Duke’s administration is as genuine as his Faculty Address rhetoric suggests, an immediate step to address the issue is available to him: He could, today, submit his resignation as Duke president. That move would give Duke’s trustees the opportunity to bring more “diversity” to the school by replacing him with a female or minority leader for the university.
But I strongly suspect that Brodhead’s personal commitment to “diversity” doesn’t quite extend that far. Publicly sliming two members of his faculty is, it seems, so much more satisfying.
Monday, March 19, 2012
Wednesday, March 14, 2012
Tuesday, March 13, 2012
Last Sunday’s N&O featured a penetrating piece by Andy Curliss—featuring new reporting about a case about which, it seemed, we knew most everything—analyzing the rise and fall of ex-DA Tracey Cline.
Among other nuggets, Curliss recounts a conversation between Bill Thomas and Cline, just after it was discovered that a central element of Cline’s allegations against Judge Hudson (that he decided a case before hearing all the evidence) was, in fact, based on a faulty timeclock at the Durham court.
"Tracey, no," Thomas recalled telling her. "This needs to stop. What you need to do is withdraw your motion entirely, and apologize to the judge and end this."
Cline told him she wouldn't.
"I'm totally convinced I'm doing the right thing," she said, according to Thomas.
Thomas: "You are destroying your career. Please stop."
Cline, of course, did not stop.
Curliss also had an excellent article summarizing what exists in the public record regarding the former DA’s involvement in the lacrosse case—discussing which she (at best) stretched the truth and (at worst) outright fabricated during her initial 2008 campaign. Cline’s . . . inattention . . . to the truth was not enough to deter The Independent, which hailed her as “a great attorney who has already shown that she can manage a large caseload,” a woman who “could be an excellent role model for the young African Americans caught in the system.” (For good measure, the paper also falsely asserted that Cline had put “to rest questions that she was involved in Nifong's lacrosse prosecution.”) In the same editorial, the paper’s editors reminded readers that they had endorsed Nifong in 2006.
At no point since 2008, even as Cline’s career imploded, did the editorial board see fit to reconsider its judgment, at least in public.
It’s not clear when the next election for Durham DA will be (the timing depends on Cline’s appeals). But whenever it is, one thing is clear: Durham voters should vote for whoever is not endorsed by The Independent.
The N&O also had a somewhat odd story about a play written by Paul Downs Colaizzo, who reveals, “The Duke case was the phenomenally scary and dramatically universal inspiration for my play.” (In the interview, the author does not refer to false accuser Crystal Mangum by name, instead describing her as the “alleged victim,” an early sign of the sort of message his play seems to send.) In the Colaizzo play, the false accuser is white, some sexual contact between the false accuser and the accused occurs, and no reviews that I have seen mention either a demagogic district attorney exploiting the case for re-election or the accused student’s faculty doing to same to advance their on-campus goals—differences that raise questions about what sort of similarities could possibly exist between the lacrosse case and the play. For reasons that are not clear, N&O correspondent Rebecca Ritzel did not appear to question Colaizzo on any of these items.
But here’s Colaizzo explaining the connection between the play and the case to the N&O: "These cases happen where the victims are telling the truth, and athletes get out of control on college campuses. The idea of power goes to their head, and women become objects instead of people. Things may have turned out one way (in Durham), but the ambiguity is where the universality of the Duke case lives."
In other words: the Duke case wholly contradicted his preconceived notions, but Colaizzo appears to have seen no reason to reconsider those preconceived notions. Was Wahneema Lubiano a consultant to the play?
Finally, one important, if underappreciated, theme of the lacrosse case was the importance of judicial independence. As in many states, in North Carolina, judges are elected. And the two judges in the case who had to face Durham voters—Ron Stephens and Kenneth Titus—made rulings that (purely coincidentally, they doubtless would say) looked the other way about Mike Nifong’s abuses. Stephens infamously even testified on Nifong’s behalf as a character witness in the criminal contempt trial, though he didn’t join his colleague Marcia Morey on the witness stand in the ethics hearing. Only when the case moved to a judge—Osmond Smith—who didn’t have to fear the electorate that nominated and elected Mike Nifong (and would subsequently elect his chief assistant) did we see fair rulings from the bench.
The job of judges should be to uphold the law, and the state and federal constitutions, even when doing so (as occurred with Judge Smith’s actions) runs against majority opinion. But too many judges, like Stephens and Titus in the early stages of the lacrosse case, take a different approach to their duties.
The importance of judicial independence amidst a hostile electorate was reaffirmed this week by the Kennedy Library, which announced that former Iowa state supreme court judges Marsha Ternus, David Baker, and Michael Streit will receive the 2012 Profile in Courage awards, "presented annually to public servants who have made courageous decisions of conscience without regard for the personal or professional consequences."
The Library indicated that the judges were chosen for the prestigious award "in recognition of the political courage and judicial independence each demonstrated in setting aside popular opinion to uphold the basic freedoms and security guaranteed to all citizens under the Iowa constitution."
Sunday, March 04, 2012
There were clear differences between the paths taken by Mike Nifong and Tracey Cline to their forced removal from office. Nifong was fundamentally corrupt, unethical to the core. An effective, if sometimes overly blatant, racial demagogue, he was motivated not by ideology but by pure personal advancement. If he had served as Durham DA in the 1950s, it’s easy to imagine him trying to frame innocent black students to appeal to racist sentiments among his white-majority electorate.
As to the performance of his duties: Nifong’s handling of the Mangum allegations could be used as a test for a legal ethics class, since he seemed intent on violating as many distinct ethical procedures as he possibly could in a single case. In this respect, his previous experience was particularly dangerous: he knew the rules well enough to know exactly what procedures needed to be overridden, and he had enough support on the bench (chiefly from Judge Ronald Stephens) to almost get away with it. A caricature of a small-town bully (a trait he ably demonstrated during his tenure at traffic court), he expected that he could live by his own rules, and defied anyone to try and stop him.
The great unknown of Nifong’s career is whether this type of misconduct led to him helping to convict any innocent people during his tenure as an ADA. His supporters never seemed interested in exploring this question.
Ideas did seem to matter to Cline. She made feints to anti-racism (with her seemingly baseless allegation of racism against an earlier employer—good enough to gain Victoria Peterson’s loyalty) and feminism (as ADA, she developed the deeply dangerous policy of allowing sex crimes cases to go to trial, regardless of the evidence, as long as the prosecutor believed the accuser). But as DA, Cline’s seemed mostly animated by an extreme version of victims’ rights, to the extent that she saw her office not as the “minister of justice” but as a victims’ advocate.
In Saturday’s N&O, Barry Saunders wrote that he had been a victim of a crime more than a decade ago, “when Cline as assistant DA, represented ‘me, the people’ after some night-skulking skunk broke into my house while my then 10-year-old son and I were in bed. Cline personified professionalism and commitment—even though she did get angry at me for showing sympathy toward the defendant from the witness stand and possibly causing the jury to go easy on him.”
But Cline was not supposed to have “represented” Saunders, or any victim of crime—as a district attorney, she was supposed to have represented the people. Did her inability to recognize this distinction account for her overly emotional (delusional?) response to Judge Hudson, with her claims that his decisions were “raping” the victims of crime? She certainly wasn’t helped by her obvious intellectual limitations. For a DA of a county Durham’s size to file motion after motion riddled with spelling and grammatical errors was simply embarrassing.
Cline, moreover, almost certainly obtained her position through prevarication. Amidst the 2008 primary campaign, as the N&O delicately put it, “Cline maintain[ed] that she had no involvement in the lacrosse case, although defense lawyers for the exonerated players and testimony from State Bar disciplinary proceedings against Nifong challenge that.”
We likely will never know the full extent of Cline’s involvement in the lacrosse case—she won’t even grant the N&O permission to release a tape of the off-the-record 2007 discussion she had on the case. Nifong, meanwhile, has every incentive to maintain the fiction, lest Cline appear as a witness against him in the civil suits. That Cline’s story strains credulity puts it mildly: to believe her requires accepting that after recommending the constitutionally-suspect NTO against all white lacrosse players, solely on the basis of their group identity, she had no subsequent involvement in the case—even though she was the office expert in sexual assault cases, and even though she worked alongside Nifong throughout the period (when the case was the talk of Durham), and even though she would have served as second chair during the trial.
That move sent quite a message about Cline’s commitment to integrity, but it was sadly consistent with the values of the office she was about to take over. A few months ago, a DIW commenter who said he had tried a few cases against Cline offered the following persuasive insight: “The culture of the Durham DA's office, as shown time and time again, is to win cases at all costs. Nifong and Cline built their careers in that office, and they both treat criminal cases as personal wars.”
This dismissive attitude toward legal ethics—and, indeed, to the truth—best manifested itself in the extraordinarily dubious judgment of Judge (and former Durham ADA) Marcia Morey. This sitting judge testified (not once, not twice, but three times) on behalf of the ethical standards of Nifong and Cline.
In New York, both the Times and the tabloids would have crucified a sitting judge who repeatedly placed the prestige of her office behind unethical prosecutors. In Durham, Morey’s conduct passed without editorial notice, and while such an approach could be expected from the hopelessly biased Independent, what can excuse the silence of the N&O editorial board and that of the post-Ashley H-S? Morey, it seems, represents The Durham Way, a fact so obvious that it appears it doesn’t even deserve a mention.
In a February interview with the Independent, Morey lamented, “Durham needs and deserves a better reputation." "I'm tired,” continued the Nifong/Cline ethics witness, “of going to meetings in other cities where people are saying, ‘There's always something going on in Durham.’”
With a sitting judge repeatedly testifying on behalf of unethical prosecutors, how could anyone in other cities think there's something wrong with what's going on in Durham?
Friday, March 02, 2012
The removal from office of former Durham district attorney Tracey Cline occurred in a tightly-reasoned 14-page (single-spaced) order by Judge Robert Hobgood. The judge took seriously the Cline lawyers’ First Amendment claims—but ultimately rejected them, and in a way that seems almost certain to withstand Cline’s promised appeal.
Hobgood’s findings of fact consisted primarily of two types of material: (a) a recitation of the facts of the Cline-Hudson dispute accepting as true Cline’s version of events (and her recollections of various conversations with Judge Orlando Hudson); and (b) a list of Cline’s 21 most outrageous statements, culled from her various court filings against Hudson.
The 21 statements, Hobgood noted, “are not supported by the facts and have brought the office of the Durham County District Attorney into disrepute.” And Cline’s written assertion that Judge Hudson was “corrupt” was “not only false,” but was “inexcusable” and indicative of “actual malice” in the performance of her duties.
In his conclusions of law, however, Hobgood divided these 21 statements into two types. Sixteen of the twenty-one, he wrote, “may well fall under the umbrella of protected speech under the First Amendment.” [emphasis added] In a damning conclusion for the fate of Cline’s law license, Hobgood added that these 16 statements “unquestionably” violated the State Bar’s Rules of Professional Conduct, and were also “abusive and repetitive.”
But, nonetheless, as in his factual findings regarding closed-door details of exchanges between Cline and Hudson, Judge Hobgood was willing to give Cline (or in this case, her attorneys) the benefit of the doubt. He therefore did not dismiss out of hand the Cline team’s arguments that her “caustic” statements should be viewed through the prism of her First Amendment rights.
That left five Cline statements: that Hudson had committed “misconduct . . . involving moral turpitude, dishonesty, and corruption”; that Hudson was guilty of “kidnapping the rights of victims and their families”; that Hudson had committed “intentional malicious conduct”; that “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct”; and that Hudson needed to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”
Hobgood found, not unreasonably, that these statements constituted a “false, malicious, direct attack” on Hudson, to which Hudson (because of the Code of Judicial Conduct) could not respond. The statements, moreover, were “not supported by any facts in the records or which can be reasonably inferred from the record.” Hobgood noted that the Supreme Court decisions cited by Cline’s attorneys regarding the First Amendment protections for public officials explicitly carved out an exception: that, as Garrison v. Louisiana held, the “knowingly false statement made with reckless disregard of the truth, do[es] not enjoy constitutional protection.” Cline’s First Amendment argument had come up short, and as a result she is out of a job.
Two additional, though implicit, items from Judge Hobgood’s order. First, he appears to have given no serious weight to the argument of Nifong apologist Marcia Morey, who maintained that Cline’s behavior was a mere “distraction to the administration of justice.” Given that Judge Morey had previously claimed that she considered Nifong truthful, she has no credibility on matters of ethics, and Hobgood’s decision not to honor her opinion was appropriate.
Second, Hobgood did include one paragraph that appeared to respond to testimony offered by Durham attorney Bill Cotter (who I know and like) on behalf of Cline. Cotter presented perhaps the most effective defense of Cline offered at the hearing. He didn’t try to defend the truth of Cline’s stories (as Cline’s attorneys did), or even the bizarre nature of her behavior. Instead, he suggested that the Cline-Hudson dispute should be characterized as a personal squabble, rather than something that rises to the level of professional misconduct.
But, as paragraph 42 of the Hobgood order noted, Cline did not confine her squabble to Hudson.
In short, a district attorney, acting in her official capacity through an affidavit filed under her signature, accused a member of the public with having been held in contempt of court—though this accusation was a lie. There was no possible First Amendment protection for this assertion. Nor could it be excused as part of a personal squabble between Cline and Judge Hudson. Instead, the false statement appeared to be part of a pattern of Cline lashing out—the facts be damned—against anyone who she perceived as frustrating her agenda.
In the end, then, neither the First Amendment nor an appeal to personal disputes of courtroom politics could save Cline.