Durham-in-Wonderland

Cline Suspended

2012-01-27T17:12:00.005-05:00

[Update, Sunday, 5.33: Gov. Bev Perdue, who just announced her retirement amidst very poor poll numbers, will appoint Cline's temporary replacement.

Judge Hobgood's order indicated that probable cause for removing Cline existed for, among others, the following items from Sutton's affidavit:

Will bring news when available on whether WRAL will stream the Feb. 13 hearing.]

The dysfunctional world of the Durham DA's office continues. A hearing on her case will take place on Feb. 13, assuming she does not resign first. Given Cline's delusional approach to affairs over the past several months, I'm not counting on an early resignation.

WRAL has posted Franklin County Judge Robert Hobgood's order; based on his preliminary findings, Cline's chances in the Feb. 13 hearing do not appear good.

Hobgood starts with a summary of the Allen case: he notes that evidence existed for Cline to bring the case to trial, but also finds that Judge Hudson's dismissal of the case (because the state hadn't turned over evidence) was correct. Hobgood reports that it was "apparent" that Cline found this decision "extremely frustrating," and that thereafter, "signals began to appear that Tracey E. Cline was losing her ability to exercise professional restraint and civility toward Judge Hudson."

Hobgood dismissed a couple of elements of Kerry Sutton's affidavit, but found probable cause for 14 paragraphs in her affidavit, and suspended Cline (with pay) until the hearing is held.

[Update, 10.36pm: Ray Gronberg of the H-S reports that as of Friday evening, it was unclear who would serve as acting DA until a final resolution of Cline's case occurs.]

Politics of Grievance at Duke [Updated: The Group, and Tim Tyson, Strike Back]

2012-01-22T23:31:00.019-05:00

[Updated, Friday, 1.07pm: In the race-to-the-bottom among critics of the paper, none other than Tim Tyson--yes, that Tim Tyson--has weighed in on the matter. In virtually any other environment, Tyson would have no credibility to comment on public matters. This was, after all, a figure who so badly misjudged the lacrosse case that he participated, as a "teacher," in a candlelight vigil on behalf of false accuser Crystal Mangum (who he described as somebody's "sweetheart") a couple of hours before Mangum took the stage, in a highly . . . limber . . . fashion, in a local strip club.

But in the race/class/gender-dominated academy, a race-baiter like Tyson speaks pearls of wisdom. And so in yesterday's Chronicle, Tyson goes after Peter Arcidiacono, fuming, "Who appointed [Arcidiacono] to weigh the merits of black folks being allowed into the room?" I was unaware that tenured faculty members like Arcidiacono had to be "appointed" before they could engage in scholarly inquiry.

As with virtually all of Arcidiacono's critics, Tyson does not challenge the data that the paper of Arcidiacono, et al., uncovered. Instead, he resorts to the race-baiting attack lines: after disingenuously suggesting that he's not challenging the academic freedom of people who don't share his world-view, he does just that: "Duke’s treasure, the late Dr. John Hope Franklin, whose legacy Arcidiacono treads upon, provided research for Thurgood Marshall in the Brown v. Board of Education case. But there is no constitutional right to R-E-S-P-E-C-T, as Aretha might put it. BSA members who question 'the research’s intent, methodology, analysis and conclusion, in addition to its validity,' display a generosity and deliberation far exceeding those of this study."

Once again: Tyson does not challenge in any way the data that Arcidiacono, et al., presented, that black students at Duke disproportionately migrate away from more difficult (science and engineering) to easier (liberal arts) majors.

[Updated, Wed., 8.14pm: In what could be deemed the least surprising development of this entire affair, prominent members of the Group of 88 have sharpened their race-baiting credentials to attack the paper.

Karla Holloway, notorious for her decision to pass along fifth-hand, slanderous gossip against Duke students, at least when doing so furthered her on-campus agenda, tweeted that "Duke authors' unpublished study of race + Affirmative Action lacks academic rigor." Nowhere in her twitter feed has Holloway provided any specific criticism of the study's data; indeed, in another tweet, she even elected to use scare quotes when describing the paper as a study.

The existence of the paper, the Group of 88'er wildly implied, indicated that "Duke still struggles w/issues of diversity," as she appeared to demand that Duke administrators publicly speak out about a research study from Duke professors. (This position was particularly rich coming from Holloway, who during the lacrosse case had issued the bizarre demand that Duke administrators had to publicly support her, as a Duke professor, from criticism.) In what could qualify as a textbook case of the politics of grievance in action, Holloway leveled the inflammatory allegation that the paper--a paper, again, whose data she does not appear to have publicly challenged--"re-opens old racial wounds."

The message here was clear: professors willing to provide data--even if that data is accurate--that challenges Holloway's worldview will face ill-concealed accusations of racism.

Holloway also tweeted a link to the blog run by Mark Anthony ("Thugniggaintellectual") Neal, who ran a post by David Leonard criticizing the paper. Imitating Holloway's race-baiting tactics, Leonard asserted that the paper (whose data he, too, did not challenge) "has dangerous implications."

Meanwhile the Black Student Association has upped its pressure, delivering what the Chronicle terms a "list of demands" to the administration. The list includes--of course--hiring more black professors. The almost laughable inference here is that Duke's arts and sciences faculty--a faculty where many departments are dominated by Group of 88 members, and others have strong Group influence--somehow are insufficiently attentive to hiring African-American faculty. Anyone who believes such a claim would have to reside in some sort of fantasy-land.]

Watching the returns from Saturday night’s South Carolina primary, I was struck by a focus group of Florida GOP voters, who had response dials as they listened to Newt Gingrich’s victory speech. Their dials skyrocketed into positive territory when Gingrich spoke of his willingness to stand up to ill-defined anti-Christian bigotry—this in a majority-Christian country where more than six in ten voters say they’d be less likely to support a presidential candidate who was an atheist.

But Gingrich did not need data or factual evidence to bolster his claims. Rather, as the (basically sympathetic) Sheldon Alberts correctly analyzed, the speech was part of a “broader ‘politics of grievance’ strategy that Gingrich is executing — at the moment — better than his rivals.”

As expert as Gingrich might be at practicing the politics of grievance—and he’s a master—the former Speaker can’t hold a candle to campus “diversity” advocates, who all but originated the tactic. An excellent example came last week at Duke.

The affair started with an unpublished paper penned by Peter Arcidiacono, Kenneth Spenner, and Esteban Aucejo. (Arcidiacono and Spenner are professors at Duke.) The paper used Duke’s own data to show that groups of students who receive preferential treatment in the admissions process (African-Americans and “legacy” admittees) disproportionately migrate from more difficult (science and engineering) to easier (liberal arts) majors.

The paper was cited in an amicus brief in the Fisher case. In briefs filed with the Supreme Court, a key, and persuasive, argument of opponents of on-campus preferences—including, as I wrote about at MTC, my UPI co-author Stuart Taylor—is that not only do these preferences violate the 14^th amendment’s promise of all people receiving equal treatment under the law regardless of their race, but preferences don’t even benefit the people (minorities, in this instance) they allegedly were designed to serve. In this instance, the paper’s authors concluded that “attempts to increase representation [of minorities] at elite universities through the use of affirmative action may come at a cost of perpetuating underrepresentation of blacks in the natural sciences and engineering.”

As far as I can tell, no one has presented evidence that challenges the accuracy of the data that the trio presented. To reiterate: as far as I can tell, no one has presented evidence that challenges the accuracy of the data that the trio presented.

The paper first generated outrage from Duke’s Black Student Alliance. The H-S revealed that the organization e-mailed the state NAACP to complain that “the implications and intentions of this research at the hands of our very own prestigious faculty, seemingly without a genuine concern for proactively furthering the well-being of the black community is hurtful and alienating.” Newt couldn’t have handled the faux grievance angle better!

The e-mail further noted that the BSA had demanded “a dialogue” with the paper’s authors “that addresses our concerns about research’s intent, methodology, analysis and conclusion, in addition to its validity.” Yet as far as I could tell, the BSA did not challenge the accuracy of the data that the paper presented. I e-mailed BSA president Nana Asante to ask her if, in fact, she had any complaints about the accuracy of the paper’s data. She did not reply.

Even more boldly, the BSA suggested that some type of “acknowledgement or intervention took place, in the best interests of black students” by the Duke administration. I also asked Asante what type of administration “intervention” she and her colleagues envisioned. She did not reply.

To reiterate: as far as I can tell, the BSA did not challenge the accuracy of the data that the paper presented.

According to the H-S, the grievance crusade then moved on from the BSA to a group of black Duke alums. Seventeen alums wrote to the H-S to say that “we are deeply troubled and offended by the recent study emanating from faculty members at our alma mater.” The letter accused Arcidiacono, Spenner, and Aucejo of “slander” and having produced “both flawed and incorrect” research.

Yet, at least according to what was revealed in the H-S article, the letter didn’t actually identify any specific areas in which the paper was “both flawed and incorrect,” much less slanderous. It’s not even clear to me who the paper could have slandered.

To reiterate: as far as I can tell, despite their overheated rhetoric, the alums did not challenge the accuracy of the data that the paper presented.

The grievance demands triggered a joint letter from Duke provost Peter Lange and other Duke administrators (including Group of 88’er Lee Baker, now a Duke dean). The letter gave a generic defense of academic freedom. But it also included this extraordinary sentence: “We understand how the conclusions of the research paper can be interpreted in ways that reinforce negative stereotypes.”

The administrators did not identify which “negative stereotypes” they had detected, nor did they explain how “the conclusions of the research paper” could be “interpreted in ways that reinforce” these unidentified “negative stereotypes.” The administrators’ letter did not challenge, in any way, the accuracy of the data that the paper presented.

Apart from instances of academic fraud or outright racist/sexist/anti-semitic “research” claims by professors (the “work” of Northwestern’s Arthur Butz comes to mind), I can’t recall a single instance of a university’s administrators—much less a leading research university’s administrators—accusing professors at their school of producing scholarship that could “be interpreted in ways that reinforce negative stereotypes."

This administrative outrage, of course, is highly selective. Imagine the following counter-example. A couple of Duke professors pen a research paper noting (correctly) that opposition to marriage equality skews toward under-educated segments of the population. Duke’s Christian student organization, whose members oppose marriage equality but who see an association with poorly educated people as personally offensive to their religious beliefs, pen a letter wailing that “the implications and intentions of this research at the hands of our very own prestigious faculty, seemingly without a genuine concern for proactively furthering the well-being of the Christian community is hurtful and alienating.” The Christian students demand “a dialogue” with the paper’s authors “that addresses our concerns about research’s intent, methodology, analysis and conclusion, in addition to its validity.”

Does anyone believe that Duke administrators would respond to the Christian students with an open letter seeming to validate their complaints about the (accurate) scholarship, or that “we understand how the conclusions of the research paper can be interpreted in ways that reinforce negative stereotypes”? And if such a public letter were penned, does anyone believe that Duke administrators would not be facing a revolt from the Group of 88 and their allies?

To reiterate: as far as I can tell, no no one has presented evidence that challenges the accuracy of the data that Aucejo, Arcidiacono, and Spenner presented. But in the contemporary academy, which worships before the altar of “diversity,” accurate scholarship can be insufficient—and can even, as in this case, generate an implicit rebuke from a university leadership.

Hat tip--O.S.

Yet Another Cline Embarrassment (Updated)

2012-01-15T15:13:00.004-05:00

[Updated, Thurs., 5.56pm: "Ahab" Cline will continue her quixotic quest against Judge Hudson, the N&O reveals. Cline--the person who, it's worth noting, wouldn't recognize the truth if it bopped her in the head--wrote that "it is truth telling time" for Durham County.]

[Updated, Wed., 4.22pm: Durham attorney Kerry Sutton (who played a minor role in the lacrosse case) has filed an affidavit urging the removal of Tracey Cline as Durham DA. In the affidavit, Sutton accuses Cline of "habitual intemperance" and conduct "prejudicial to the administration of justice." Sutton, not unreasonably, characterized Cline's "inflammatory" filings against Judge Orlando Hudson as filled with "venom" and "paranoid" language, lacking in "fact or evidence, other than Ms. Cline's personal beliefs." Sutton goes into considerable length about how Cline's obsession with Hudson has both harmed the Durham DA office's reputation and consumed the Durham legal community's resources. (She also points out that the grammatically-challenged Cline also has a tendency to misspell "affidavit" in her legal filings.)

The N&O's Andrew Curliss reports that the gambit employed by Sutton is rarely used, and is believed to have resulted in the removal of only one DA in North Carolina history.]

Durham County’s minister of justice was last heard from penning a bizarre e-mail to the Herald-Sun in which she misspelled a judge’s name and asserted that “truth should be intimidated by the pressure of the powerful or the fear of failure.” This morning’s N&O exposes as false a central claim made by Tracey Cline in her quixotic crusade against Judge Orlando Hudson—that Hudson had demonstrated his anti-Cline bias by entering an August order before the prosecution even had the chance even to present all of its witnesses.

Reporter Andrew Curliss did what Cline failed to do—he actually investigated the seeming anomaly. And he discovered a benign explanation: “The clock at the courthouse that stamped the document was more than two hours slow that day.” In a situation that would seem more likely in a small town courthouse than in North Carolina’s fifth-largest city, the clock in the county clerk’s office seems to malfunction with some regularity. Curliss spoke to assistant county clerk Angela Kelly, who commented about the clock, “It is a machine that's plugged up in the wall that runs constantly. When things are filed, we stick it in there, and we always hope and pray it's correct. But there have been times when we notice that it's not correct."

Curliss confirmed Kelly’s recollection by checking into legal documents filed the next morning—which the clock erroneously stamped at 7.18am, rather than after 9.00am, when the clerk’s office actually opened. (Times public editor Arthur Brisbane might just call Curliss a “truth vigilante.”) The N&O website has a photo of the relevant filings.

Rather than assuming the worst and thereby leveling wild, unsubstantiated allegations against a sitting judge, Cline might have checked to see if there were problems with the clock in the clerk’s office, something that would have taken her only a few minutes to do. The N&O presented Cline with the information, but she declined comment, and thus did not take the opportunity to say that she would withdraw her charges against Hudson. Jim Coleman summarized the problem to Curliss: "She has made a serious allegation, and it warranted serious review by her before this filing. It is now just more evidence of a lawyer who is barreling down a hill totally oblivious to the damage she is causing to the judicial system. She is undermining confidence in the system. It's disgraceful."

Such cavalier disregard for the truth and professional behavior from his county’s “minister of justice” might be enough to cause “shame” and “anger” even from the likes of Duke professor William Reichert. But I suspect not.

The Reichert Rules

2012-01-13T13:52:00.006-05:00

Though Duke’s race/class/gender-dominated humanities faculty members embarrassed themselves in their response to the lacrosse case, faculty in the hard sciences and engineering behaved very differently. Indeed, only one member of the Group of 88, Ronen Plessler, came from any of the sciences or engineering departments.

That said, on the one occasion in which a science professor did try to imitate his “activist” colleagues—when “Counselor” Thomas Crowley hung his shingle for readers of the Herald-Sun—the result was humiliation and a quick backtrack.

Biomedical Engineering professor William Reichert should have learned Crowley’s lesson. In what’s described as a guest “commentary” in today’s Chronicle, Reichert begins by complaining about SportsCenter devoting excessive coverage to the Jerry Sandusky case, thereby disturbing his workout. This situation—not, it seems, Sandusky’s alleged crime, but ESPN’s coverage, from which for unknown reasons he could not avert his eyes—left him “stewing . . . for weeks and weeks,” until, finally, he elected to turn to the pages of the Chronicle. (Did Deadspin, known for its biting ESPN commentary, reject his submission?)

From the Sandusky affair, Reichert moved on to a . . . curious . . . recapitulation of the lacrosse case. He confessed that “senseless behavior,” which he did not specifically define, left him with feelings of “anger” and “shame.” Of what senseless behavior, then, did he speak? His colleagues’ rush to judgment and their abandoning the basic requirements of the Faculty Handbook? The local prosecutor’s violating myriad ethical standards? The Durham newspaper’s decision to turn a blind eye to the abuses?

None of these developments appeared to produce either “shame” or “anger” for Dr. Reichert—in itself a revealing insight into his character. His “shame” or “anger” came from the “behavior of students”—presumably the lacrosse players, rather than the potbangers, though Reichert is careful not to say so (perhaps for legal reasons?). Fortunately, however, there was a hero of the affair: Richard Brodhead, who showed “courage” in prematurely terminating the 2006 lacrosse season, fully aware of “the blow back [sic] that was sure to come.”

This claim is a little bit like Cathy Davidson’s reinvention of spring 2006 as a time of terror for black students on the Duke campus. Brodhead’s canceling the lacrosse season required no courage at all. Faculty “activists” were demanding it, the team itself had virtually no supporters on campus at the time, and then-BOT chairman Bob Steel considered it a necessary sacrifice for public relations purposes.

Brodhead, in short, received virtually no “blow back” for the decision, at least at the time. Indeed, the only way in which Reichert’s “blow back” claim makes any sense would be if he’s suggesting that Brodhead fully believed that the accused students were innocent but cancelled the season anyway, thereby anticipating a “blow back” once outsiders (even the biased New York Times) came to criticize the university for its guilt-presuming action.

A question: could it be that Reichert’s other title—“Associate Dean for Diversity”—accounted for his Group of 88-like interpretation of the lacrosse case?

Updates: Times, Cline, FERPA, Chafe

2012-01-12T16:49:00.005-05:00

[Updated, Friday, 1.03pm: Duke has filed its discovery requests in the McFadyen lawsuit. University lawyers are asking for potentially thousands of documents, including logs of Facebook accounts, e-mails to their teammates and their parents, high school grades, drafts(!) of class papers, tax returns, and medical records since 2001.

The document requests suggest that the university's legal strategy will focus on attempting to blame the lacrosse players for any damages they received, presumably by trying to detect stray items in Facebook posts or e-mails. The strategy is unsurprising: if the Brodhead administration's actions are indefensible, the university has little choice but to go after the plaintiffs. That said, it's still striking that as the same university that wants thousands of documents from its former students has been willing, thus far, to hand over only 27 documents of its own.]

New York Times public editor Arthur Brisbane, last seen searching out Wendy Murphy for guidance about how his newspaper should report sexual assault cases, posted a provocative item this morning asking if the Times should be a “truth vigilante.”

Brisbane said that his post was prompted by reader concerns about the paper’s repeating false candidate claims (such as Mitt Romney’s repeated assertion that Pres. Obama embarked on a tour to “apologize” for the United States) without reporters pointing out that these claims were . . . false.

Of course, it’s hard to give any credibility to someone, like Brisbane, who sees Wendy Murphy as an arbiter of truth. In any case, the Times’ indifference to repeating false items obviously predated the current campaign. The factual errors from Duff Wilson’s reporting remain uncorrected.

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Durham County’s “Minister of Justice” is back in the news this week. Tracey Cline, continuing her quixotic case against Durham judge Orlando Hudson, filed papers demanding Hudson’s removal from a yet another criminal case, on spurious grounds that he is biased against her office.

N&O reporter Andrew Curliss noted that Cline’s filing repeated factual errors that she’s made in previous legal documents (even if the office struggles with basic research, does anyone from the Durham DA’s office bother to read the newspaper?). At least, however, Curliss notes that Cline's 30-page submission was “much smaller than previous filings by her that attacked Hudson.”

BTW: Cline came second for worst prosecutor of the year, 2011, to John Bradley.

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I have a post at Minding the Campus using the recent example of former St. Joe’s basketball player Todd O’Brien to point out how universities too often abuse FERPA, using the law not as it was intended (to protect student rights) but instead as a shield to avoid public criticism.

That post suggested (and a browse through FIRE’s archive would confirm) that universities too often interpret FERPA far too rigorously. But the post also acknowledged the one high-profile instance in which a university ignored FERPA so as to serve short-term public relations interests—Duke’s decision to give the DPD keycard information on the lacrosse players—without a subpoena, and without telling the students or their parents. Intriguingly, among the handful of documents turned over to Bob Ekstrand in discovery was an email from Duke falsely claiming that the university had followed FERPA’s terms.

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Finally, Politico reports on a new PBS movie focusing on Bill Clinton and the former President's many, many affairs. Among the people quoted in the article--U.S. history's race/class/gender specialist, none other than William Chafe.

The Group of 88'er conclusion: Clinton's lack of control over his behavior was "terrifying." There's no indication whether Chafe will be endorsing a full-page ad in the Chronicle denouncing Clinton.

Hat tip--O.S.

Items from the Ekstrand Filing

2012-01-06T14:49:00.002-05:00

A filing by Bob Ekstrand in the McFadyen lawsuit has revealed some interesting material about Duke’s initial response to Crystal Mangum’s false allegations. Ekstrand filed in response to Duke’s . . . miserly . . . approach to discovery—the University has turned over only 27 documents—some of which, according to Ekstrand, were duplicates.

Ekstrand’s brief included examples of material already obtained in discovery—and provides a good sense of why Duke has proven so . . . reluctant . . . to hand over material.

By far the most significant item is a March 17, 2006 e-mail from Dean Sue Wasiolek, sent to an array of top Duke administrators, including John Burness, Larry Moneta, and Tallman Trask:

Here’s the latest update on this situation. Most important is that the students who reside in this house have been fully cooperative and are concerned that their names will be in the press. Since they have not yet been officially charged with anything, they have asked that should the realty company (or anyone else at Duke) be asked for those names, that we not give them out since this is still just an investigation. Scott Selig has called Allenton Realy and alerted them to this.
The Durham police are, in fact, investigating an alleged rape/kidnapping at 610 N. Buchanan. On Monday, March 13, two strippers were hired to perform at 610 N. Buchanan. About 30 men were in attendance, all members of the Duke Lacrosse team. One of the strippers appeared to be on drugs. the men decided to pay the women early, and then asked them to leave. They refused and the men paid them more. The one stripper ended up passing out either on a porch or deck in the back of the house and the men carried her to the other woman’s car. At some point later, the passed out woman interacted with Durham police at the Kroger on Hillsborough Road and made the allegations. I believe she was examined at Duke ED.
Last night the house was searched. The men volunteered to engage in DNA testing and to take lie detector test. I believe the DNA testing was done.
Mike Pressler and Chris Kennedy are well aware of this situation. The men have denied all allegations--they obviously admit to hiring the strippers.

The Wasiolek e-mail confirms that the senior Duke administration knew from the start that the lacrosse players had fully cooperated (even to the extent of the captains volunteering to take lie detector tests) with the police inquiry. Less than two weeks later, when Mike Nifong began his pre-primary publicity crusade, he suggested something else—that, in fact, that players had erected a “wall of silence” to frustrate the investigation.

Duke administrators were under no legal obligation to correct the record. (Whether they had a moral obligation to do so is another story.) But the Wasiolek e-mail confirms that senior Duke administrators knew from the start that not only was the DA violating standard procedure by speaking early and often about the case, but that one key element of his publicity barrage—the lack of cooperation by the players—was demonstrably false.

Yet this knowledge (which, at the time, very few people outside the lacrosse team, their families, and their attorneys possessed) that the DA was publicly lying about Duke students appears to have had no impact in how Duke administrators initially responded to the case. Why was that?

The other intriguing item from the Ekstrand filing is a deposition from Associate AD Chris Kennedy, a consistently first-rate figure throughout the case. (Kennedy was quickly marginalized from discussions about how Duke should respond to Mangum’s allegations.)

Kennedy’s deposition provided an insight into the mindset of senior Duke administrators. For instance, he recalled a March 24 or March 25 conversation with Tallman Trask, in which Trask said “something to the effect of he would be amazed or astounded . . . if there was anything to the allegations.”

Obviously, public statements from Duke administrators near this time—most particularly the Brodhead April 5, 2006 “letter to the Duke community”—appeared to operate from a radically different premise. Why was that?

Kennedy’s deposition also provided useful context on how two particular actions by Duke helped shape public opinion in the case. The first came in the extraordinary decision to cancel the March 25, 2006 Duke-Georgetown game less than two hours before the game was to start. In response to a question from Ekstrand, Kennedy said he couldn’t recall an instance in which Duke had canceled an athletic contest in response to criminal allegations against team members, and added, when questioned again, that “I thought that somebody from the outside—in light of the newspaper article that appeared that morning in the News and Observer,"Dancer Gives Details of Ordeal”—I thought that that would send the message that that was, in fact, an accurate account of what had happened.”

Kennedy was right. Indeed, in their non-apology apology, the New York Times sports editors cited the unprecedented cancellation of the game and then the season as one reason for the paper’s presumption of guilt in its coverage.

The second came in Brodhead’s infamous April 20, 2006 remarks to the Durham Chamber of Commerce, shortly after the arrests of Reade Seligmann and Collin Finnerty, in which the Duke president declared of his students, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

Kennedy was asked how the Durham community viewed this statement, and he responded, reasonably, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.”

Finally, the deposition offers a revealing vignette. Kennedy spearheaded the (successful) NCAA appeal for the members of the team to obtain an extra year of athletic eligibility. He wrote the appeal document, and passed it along to the Duke counsel’s office for approval. The counsel eliminated items dealing with the on-campus threats to the students and the behavior of the Duke faculty toward their own students.

A bit of revisionist history, perhaps.

Vote for Tracey!

2012-01-02T13:07:00.002-05:00

The competition (especially John Bradley) is stiff for worst prosecutor of the year. But Durham's "minister of justice" is definitely in the running.

Housekeeping matters: I tweet all my posts (both here and from Minding the Campus) on my twitter feed; follow me here.

Attorney Wilson Approaches the Bench

2011-12-28T17:19:00.003-05:00

Again proving that a man who represents himself has a fool for a client, Attorney pro se Linwood Wilson has filed a civil rights lawsuit against Kent (DE) County, Durham County, and no fewer than 31 individuals (ranging from his estranged wife Barbara to Beau Biden(!), the vice president’s son and the current Attorney General of Delaware). The former DA’s chief investigator, Christian singer, and ethical sinkhole alleges that his arrest for possible spousal abuse in fact involved malicious prosecution, concealment of evidence, conspiracy, supervisory violations, and fabrication of false evidence—all matters of which, it goes without saying, his service under Mike Nifong gave him intimate knowledge.

Wilson’s 92-page complaint, filed alongside 10 exhibits (totaling some 355 pages), takes 10 pages just to identify the various people that he’s suing. Attorney Wilson suggests a wide-ranging and multi-layered conspiracy of his wife, her alleged “paramour,” a Delaware police officer with whom she also allegedly was having an affair, his wife’s family, some of his wife’s friends and co-workers, some law enforcement officials in Durham County, and various law enforcement officials in Delaware—all working in concert to deny Linwood Wilson his constitutional rights. Remarkably, until the filing of this complaint, this vast conspiracy went undetected—not by the media, nor by state legislators in Delaware or North Carolina, nor by various watchdog agencies. How could this be?

In the real world, the chief purpose of the complaint seems to be less exposing a previously undetected “conspiracy” than humiliating Wilson’s estranged wife and her alleged “paramour,” Joseph Curtis. Attorney Wilson describes his wife as “a mentally troubled woman who had abandoned her marriage.” Indeed, she had “plenty of Zoloft at home,” yet was caught going to the pharmacy for more. Wilson recounts the following alleged event at a local Mexican restaurant: “Defendant [Barbara] Wilson drank a large double margarita (while taking Zoloft, Clonazepam, and Xanax) and got extremely drunk, telling Plantiff [Linwood] how she wanted to rip his clothes off and have sex with him on the table.” Attorney Wilson describes this evening as “the best [the marriage] had been in months.”

But, alas, Barbara Wilson was leading a double life, according to her husband. She was having an affair with her “paramour” at the workplace, while at their “marital home,” Barbara Wilson “sat next to her husband each night, wanted [sic] him to rub her feet and legs.” The “paramour,” meanwhile, “ran from Wilson’s marital home like a dog with his tail between his legs” when confronted by Linwood.

The gap between Attorney Wilson and Plaintiff Wilson is sometimes difficult to follow. For instance, in paragraph 48 of the complaint, Attorney Wilson speaks of “our marriage” (the marriage between Barbara and Plaintiff Wilson); at other occasions, he uses “I” rather than “plaintiff” to describe his recollections of alleged events.

Attorney Wilson claims that his client has suffered various injuries, including “economic” harm, presumably a result of the marriage’s breakup shattering the “Voiceovers by Wilson” business that the husband and wife planned to start. Attorney Wilson also claims that his client has “suffered irreparable harm to his reputation.” How? After the exposures of the lacrosse case, Linwood Wilson had no reputation to lose.

Attorney Wilson is particularly fond of the phrase “upon information and belief”—an approach used in civil suits when lawyers believe that something occurred but for which they do not, before discovery, possess hard evidence to substantiate. But in the Wilson complaint, virtually every “factual” claim comes not from any evidence he possesses but from his own . . . beliefs. To give a sampling from the complaint:

“Upon information and belief Durham Coca-Cola was already aware of the affair.”

“Upon information and belief . . . Barbara Wilson had been reportedly locking herself in her office at work and crying all the time.”

“Upon information and belief, a display of public affection occurred between Defendants Wilson and Curtis, in Curtis’ car on the way back from NCCU.”

“Upon information and belief, Barbara Wilson was the only one who got a raise in the past 2-3 years.”

“Upon information and belief, the ‘Delaware Conspiracy’ along with co-conspirators . . . from North Carolina, made a ‘rush to judgment’ and manufactured changes.”

“Upon information and belief, Defendant Reimann continued to conspire with Defendants [Barbara] Wilson, Curtis, and Delaware Sgt. Weaver.”

“Upon information and belief Defendants Whitfield and Wilson hacked Plaintiff’s computers at his residence and falsified evidence.”

“Upon information and belief, Defendant Deputy Reimann was the source of information for Defendant Weaver, thus thickening the conspiracy more and more between North Carolina law enforcement and Delaware law enforcement.”

“Upon information and belief, it was common knowledge throughout the legal system in Dover, DE.”

“Upon information and belief, this is when the conspiracy was formed . . . to make it appear that Barbara Wilson was afraid of her husband (Plaintiff) and that he (Plaintiff) was crazy.” [As an aside, Barbara Wilson needn’t have entered into a conspiracy to have accomplished these goals: she simply could have told people to read this complaint.]

The strangest of these “information and belief” structures comes in paragraph 49, when Attorney Wilson writes, “Upon information and belief . . . Beth Greenman called Plaintiff [Linwood Wilson] and advised him that “If you don’t get Barbara away from [her alleged ‘paramour’] Joe he is going to ruin her and destroy your marriage.” The person who wrote these words was a party to the alleged call. This is his complaint. Is Wilson suggesting that he himself doesn’t know if the call occurred (the only reason for an “upon information and belief” construction)?

The anti-Linwood “conspiracy,” Attorney Wilson claims, intensified after his wife discovered that Linwood planned to involuntarily commit her for mental observation. At that point, Barbara Wilson decided to “flea [sic!!] the jurisdiction of North Carolina in order to avoid commitment proceedings.”

Attorney Wilson also appeared to have taken writing lessons from the grammatically-challenged Tracey Cline. Consider, for example, this head-scratching sentence: “Also none of it was relevant to Delaware since, according to Defendant Weaver himself, the fact that all this supposedly occurred in another jurisdiction, North Carolina, which Defendant Weaver had nothing to do with.”

Some of the “evidence” proffered by Attorney Wilson, alas, undermines the position of his client. For instance, Attorney Wilson recounts a conversation between Barbara Wilson and her husband, in which she told Linwood that she wanted the marriage to work, but that she had some “conditions.” That admission might sound damaging to Barbara, until Attorney Wilson reveals the wife’s conditions: that Linwood “was not to call her cell and ask where she was or what she was doing”; and that Linwood was not to “follow” her. If, in fact, the unemployed Linwood Wilson was following his wife around, or frequently calling her up asking her what she was doing, it would seem as if he was engaging in, at the least, emotional abuse; and, at the most, stalking.

In any case, Attorney Wilson says that his client immediately discerned that his wife wasn’t serious in hoping that the marriage would work—a conclusion he based on his “training and experience as a police investigator, private investigator, and District Attorney investigator, for over 38 years.”

Or take this charming anecdote from Attorney Wilson after his wife’s alleged “paramour” visited the “marital home” to check on Barbara Wilson’s well-being. Linwood Wilson admits to screaming at Curtis, “Don’t come into my home, push me out of the way, and disgrace me, my wife, or my home in this way or I’ll blow your f_king head off!” Again: a person charged with spousal abuse is admitting that he threatened to “blow [the] f_king head off” the man he believed was sleeping with his estranged wife.

As the marriage deteriorated, Attorney Wilson admits that his client refused to have sex with his wife, as the “Plantiff knew that would damage his case, if the marriage didn’t work out, from 20 plus years as a private investigator. A field in which Plaintiff had testified as an expert witness over 200 times . . . throughout North Carolina.” Demonstrating his client’s classless nature, Attorney Wilson passes along the fact that his wife “started using dildo’s” to pleasure herself.

The Linwood Wilson who comes through in this complaint is an enraged man, something of a control freak, clearly humiliated by his wife’s apparent infidelity. How he could escape sanctions for filing such a bizarre complaint remains to be seen.

Finally, perhaps the strangest or the many strange clauses from the Wilson filing was the following: “Defendant Eric Campen stated loudly in the lobby of the Durham County Sheriff’s Department and Courthouse in front of Deputy Tom McRae, several unknown deputies, about ten people in the lobby, one [sic] of whom was Victoria Peterson and Richard Porter, “You are a convicted felon! You will never get your guns back! You know better than to even try this!.” “I’ve seen your handy work on the computers, I know how good you are!” The truth is that Plaintiff Wilson has never been convicted of any felony and why was Campen tampering with evidence that he was not authorized to (computer). When Plaintiff Wilson and Richard Porter left the lobby of the Sheriff’s Department several unknown bystanders stated, “We didn’t know you were a convicted felon!” An obvious character assassination and deformation.”

Leaving aside the implausibility that the events occurred even remotely as Wilson described, and further leaving aside Wilson’s hilarious claim that a government official allegedly saying false things about him constitutes “deformation,” the vignette begs the question: what was Durham’s resident bigot and homophobe, Victoria Peterson, doing milling around the sheriff’s office lobby?

'Tis the Season . . . for the "Thugniggaintellectual"

2011-12-23T19:38:00.006-05:00

The lacrosse case unintentionally exposed the extent to which shoddy thinking passes for insight in the contemporary academy. Dozens of professors at one of the nation’s finest universities rushed to judgment based on highly incomplete information—and then when evidence emerged that contradicted their preconceived biases, they resolutely clung to their original opinions.

Such behavior had to raise questions about whether Group members—who, after all, represent the dominant pedagogical approaches in most humanities and social sciences departments—also poorly evaluated evidence in their own scholarship. Addressing that question was a central theme of the blog’s series of Group profiles.

Yet a closer look at what passes for scholarship among the Group also revealed some zany (to borrow an adjective from the current presidential campaign) assertions—such as Grant Farred’s claim that former Houston Rockets center Yao Ming represented “the most profound threat to American empire.”

A recent blog post ("'Santa Claus Is Coming to Town': Some Thoughts on Christmas and State Surveillance") from the self-described “thugniggaintellectual,” Group member Mark Anthony Neal, reached Farred-ian levels. Indeed, as one correspondent noted, it read as if it were intended as a caricature of the most ridiculous type of academic discourse.

The post opened with a warm holiday scene—the Neal family getting into the holiday spirit by listening to “Santa Claus is Coming to Town.” (The Temptations’ version, of course, given that in the Group member's “youthful nationalist days, it was easy to reject the idea that some ‘fat white man’ would be honored for providing gifts that hardworking black women and men, like my parents sacrificed to provide for their families.”) And as this happy scene proceeded, Neal’s daughter tossed in a comment: “Santa sounds like a stalker.”

This . . . insight . . . prompted Neal to pause and reflect on “the more troubling aspects of Santa Claus.” He ultimately concluded that his “daughter was on to something. Every holiday season millions of American embrace a seemingly innocuous symbol, that is in truth a powerful reminder of the reality of State surveillance in everyday life.”

Santa as a latter-day J. Edgar Hoover, all courtesy of a professor's child! Who knew?

It also seems that parents who invoke Santa in a desperate attempt to get their kids to behave need to turn in their ACLU cards—for, as Neal explained, “Santa Claus is but a user friendly symbol of the State’s capacity not only to engage in blatant forms of surveillance, but to essentially police behavior in the absence of actual surveillance . . . How many parents have exploited their children’s knowledge that Santa ‘knows when you are bad or good’ as a means of reigning in bad behavior.”

Neal then proceeded to more flights of fancy, moving on from surveillance to a critique of Santa-themed Christmas TV shows, which “portray Santa Claus as a benevolent patriarch. Benevolent, that is, as long as children (and presumably adults) adhere to some State sanctioned notion of normal and legal behavior.”

The “thugniggaintellectual” provided his own unique brand of insight into Santa’s “disruptive outlaw figures.” BurgermeisterMeisterburger in Santa Claus is Coming to Town, according to Neal, “reproduced anxieties” not about Nazism (don’t be fooled by the German-sounding name) but instead “about Soviet-styled Communism.” As usual with the Group, why let evidence get in the way of a good argument, in this case proving American society’s reflexive anti-leftism? Or take two of my favorites—the Miser Brothers of The Year Without a Santa Claus. In Neal’s reality, they “are used to gently chide the kinds of male flamboyance often associated with homosexuality(!!).”

Neal’s post concluded by meandering from his reflections on Santa to commentary about the “State sanctioned assassinations of Black Panther Party leaders Fred Hampton and Mark Clark.” Of course.

It’s easy, and wholly understandable, to laugh at this type of drivel. But it’s worth recalling Neal’s valued place within Duke. Indeed, the revelation of the “thugniggaintellectual” moniker came from Duke's public relations office itself; Duke Magazine published an interview with Neal in which he asserted that “my intellectual alter ego is thugniggaintellectual—one word . . .I wanted to embody this figure that comes into intellectual spaces like a thug, who literally is fearful and menacing. I wanted to use this idea of this intellectual persona to do some real kind of ‘gangster’ scholarship, if you will. All right, just hard, hard-core intellectual thuggery.”

Those remarks appeared in print just after the dean of students, in a public forum on the university’s response to the lacrosse case, worried that Duke students had created a "culture of crassness.” No worries about how a professor who said that he engaged in “hard-core intellectual thuggery” contributed to a “crassness” of discourse on campus.

But why bother confronting the hypocrisy of the academic powers-that-be when we can speculate on Heat Miser's sexual orientation?

A Few Updates

2011-12-18T17:35:00.004-05:00

[Update, Tuesday, 11.51am: The N&O reports that in an unpublished decision, a three-judge panel of the state Court of Appeals has upheld the conviction of Angel Richardson, even though DA Cline didn't turn over to the defense a statement that someone else claimed he had committed the killing until the trial was already underway.

In a remarkable piece of legal reasoning, the panel conceded that the evidence was exculpatory, and acknowledged that the Supreme Court's Brady standard (as well as, of course, North Carolina's seemingly toothless open file discovery law) requires turning over exculpatory material to the defense, but that there's nothing wrong with "the disclosure of evidence at trial, so long as disclosure is made in time for the defendant to make effective use of the evidence."]

A few updates on legal matters from Durham:

False accuser Crystal Mangum has been deemed mentally competent to stand trial for murder. Such a finding, it seems to me, best illustrates how low the bar for competency actually is—if Mangum isn’t seen as mentally imbalanced under the law, it’s hard to see who would be.

That said, the false accuser still has her defenders. Mangum co-author Vincent “Ed” Clark recently offered the following:

"The one thing I would want to add to this is that the story has been reported all wrong from the beginning . . . The narrative that Crystal lied about what happened that night is not true either. I was involved in the case from nearly the start. There are so many things that people don't know . . . the Duke case got used by a lot of people to score points in North Carolina . . . Unfortunately, reporter[s] and the general public are too lazy to do the work it takes to tell the real story. If you could just see, read or hear any of the interviews Crystal did with major media like NBC, CNN and the Daily Beast, you would have a completely different impression of what went on. Unfortunately, the attorneys for the players were very affective [sic] in killing any interviews Crystal did that made her look favorable . . . What I can tell you is that Crystal didn't make up being hurt. There were problems with the case but it didn't have anything to do with the information she provided . . . attorneys for the players[:] Many of them wereon the OJ [Brad Bannon as Johnnie Cochran??], Michael Vick and other similar cases . . . Racists [sic] idiots have no idea that the poor white boys in the case are and their parents have strong connections to the very media the hate[??]. The stress and lack of support for our own community really hurt Crystal. She has struggled to try and have a normal life but can't. Those clowns have hounded her for over five years. It has been said and unnecessary."

It’s worth pointing out: (1) none of the lacrosse players sued Mangum, as they obviously would have done if they had desired to “hound” her; (2) even the Queen of Bias, former SANE-nurse-in-training Tara Levicy, didn’t find any evidence that Mangum was “hurt”; (3) if the lacrosse players’ families had such strong connections to the media, how to explain the guilt-presuming media barrage in the early stages of the case?; (4) given that Mangum went on record with her rape-by-levitation theory, it’s hard to argue that anyone could deem any of her interviews credible.

But such comments offer a sense of the continuing reputational harm to the lacrosse players caused by Mangum’s false accusations and the Nifong/DPD misconduct.

--------------------

The ethically challenged Tracey Cline remains Durham County’s chief prosecutor, even though her behavior prompted this extraordinary in-court remark from her former boss, now-Judge Jim Hardin: “In respect to motions in this court, and any others, please ensure they are factual . . . Consider this a warning and a public admonition as to that.”

That said: despite the public admonition, Hardin allowed Cline to “withdraw” her motions asking for prison-visitor records, apparently as part of an attempt to dig for evidence to prove her wild claims of a “conspiracy” against her. And Hardin chose leniency even though, as Andrew Curliss noted, “Cline offered explanations for why she sought the documents that do not match up with records requests made by her office's investigator or in the motions she presented to Hardin."

Meanwhile, the N&O is reporting that a Durham attorney, Scott Cooper, has organized a grassroots legal campaign to remove Cline from office—as the State Bar has requested between 800 and 900 pages of files from five of Cline’s cases.

--------------------

Duke has filed a follow-up motion as the university continues its efforts to conceal as much as possible regarding its spring 2006 decisionmaking process. In the McFadyen lawsuit, attorney Bob Ekstrand requested material from the two public relations firms retained by Duke to craft the university’s public response to the lacrosse case. The requested material included items of considerable interest to any student of the case:

Burson-Marsteller’s public relations advice and communications with Duke University, its administrators, officials, employees, alumni, board members, regarding both “on” and “off-the record” statements to members of the press;

Duke University’s actions on April 5, 2006, including but not limited to […] the firing of former Head Coach Mike Pressler, President Brodhead’s television interviews, President Brodhead’s Letter to the Community, setting up a committee to examine the culture of the lacrosse team, setting up a committee to investigate the Duke administration and/or the decision to create any of the 5 committees announced by President Brodhead on April 5, 2006.

In a sometimes overheated reply, Duke’s attorneys described the subpoenas as an attempt to “harass the Duke Defendants” by prying into “confidential commercial information.” Somehow, I doubt that in future letters to prospective donors, Duke will describe itself as a commercial institution.

In the event, I suspect Judge Beaty will side with Duke on this matter—but his reasoning will be intriguing.

------------------

Finally, an issue unrelated to the specifics of the lacrosse case but one that touches upon some of the themes of the case.

A few days ago, the Suffolk (MA) County DA dropped all charges against New England Patriots wide receiver Julian Edelman, who had been accused of indecent assault by a woman he allegedly groped at a Halloween Party. Early press coverage, especially from the tabloid-ish Boston Herald, presumed if not guilt at the least a demonstration of extremely poor character.

When the charges were dropped, the DA’s office also released a video of the alleged “assault,” which the accompanying press release conceded showed what was, at most, “fleeting” contact between Edelman and the accuser—who neither the Globe nor the Herald deigned to name.

Perhaps, as occurred initially when the New York Times refused to identify Mangum after the exoneration, the papers didn’t want to do anything that might deter false-grope accusers from coming forward in the future.

More Words from Wahneema

2011-12-12T23:03:00.003-05:00

Followers of the “Duke Events” website and U-stream portal received a rare treat this semester: Group of 88 author Wahneema Lubiano took time away from her two “forthcoming” manuscripts (forthcoming at 14 years and counting) to answer questions on such topics as the “relationship between literature and Marxist theory” in Duke’s online office hours.

In the literature program, explained Lubiano, “we could be attending to the thought of Marx.”

But she also wants to “attend” to the “discourse” of everyday matters, such as a bus schedule. “My students,” revealed she, “wanted to be able to explain to their parents what the Literature program was about that was different from the English Department.” Her example: bus schedules as a text! “People need to know what time is, what durations of time are. You need to think about where it’s going . . . you need to think about what it means to get on a vehicle,” and to move to the relevant section of the bus. The bus schedule allows her students to think about “how we know something.”

To give a related example: my five-year-old nephew is very interested in bus (and subway) schedules for many of the reasons that Lubiano identified. Perhaps he should apply for a position as a tenured position in Duke’s Literature program?

To communicate a thought, Lubiano never uses one word where ten would do. She spends nearly six minutes “analyzing” an Obama speech to the Congressional Black Caucus (at 6.21 of the linked clip). After much verbiage, she comes to a conclusion that anyone looking at a typical political column could receive: that standard black political rhetoric often imitates the cadences and style of the Black church. Lubiano delivers this analysis while taking sure to note that she, herself, is a non-believer.

The host of the program responded to this string of banalities with a breathless reply, “Wow.” Wow, indeed.

In things like an Obama presidential speech, Lubiano continues, “None of these words are accidental choices.” No kidding.

Lubiano also describes her classroom style, where “I would talk about the discourses that come together.” Sports, for instance—which according to Lubiano, is “an incredibly elaborate discourse.” (She admits that she doesn’t “know anything about it,” but has no problem speaking about it in the classroom.) “You could think of football or food or cancer treatment as a collection of social texts”—all of these things, she says, illustrate the “social order.”

Lubiano excitedly recalled that she was “sitting up all night long preparing for class one day, and . . . I just made a sign: ‘I heart Occupy Wall Street.’” It must be nice to teach a class in which the prof’s prep work consists of drawing a sign to place in her “folio.”

The host says that Lubiano has “written quite a bit” about Anita Hill. “Quite a bit” in this respect would be relative—Lubiano has written an essay on the topic. And Lubiano (see at the 20-minute mark) is such an “expert” on this matter that she apparently believes that former Missouri senator John Danforth’s name was actually Danfort. The discussion about Clarence Thomas revolves around two (apparently randomly-selected) photos of Thomas, one with President Bush and one with Senator Danfort [sic].

Amazingly, Lubiano says that she sees part of her work as commenting on “political history”—and yet she appears to know no more about U.S. political history than a typical college student. She certainly has no research background in U.S. political history. But, keep in mind, her student Melissa Harris-Perry has claimed that devotees of "black feminist" scholarship can rely on "experiential knowledge" rather than actual facts. Appropriately, the session concludes with a question submitted from none other than fellow Group stalwart Karla Holloway, asking Lubiano to reflect on the legacy of Derrick Bell—a race-obsessed law professor whose work mirrored the Group of 88’s “discourse” (to borrow a Lubiano term).

Based on these 40 minutes, Lubiano views her job as pontificating about everyday phenomena, in a way that virtually anyone with a pulse could do. Why it’s taken her more than a decade to produce the two books that she claimed were forthcoming is beyond me.

By the way, this “Online Office Hours” program seems to be a regular spot for Group of 88 figures. Below is a screenshot from Group member Kathy Rudy’s September appearance.

It’s worth pointing out, by the way, that the above comments refer to the thoughts of a figure described (by an unnamed professor) as “one of the smartest people in America.”

POSTED BY KC JOHNSON AT 8:19 PM

LABELS: FACULTY
8 COMMENTS:

skwilli said...
I had a conversation with my dog yesterday that was waaaaay more interesting than anything Lubiano could ever say. Can any student taking one of her classes get their money back? Or how do I apply for a position in her department? I'm pretty sure I write just as well as she does, and I have many more interesting stories. How can Duke survive with crap like that?

12/12/11 7:41 AM
Anonymous said...
I hope parents of every kid even thinking about applying to Duke watch this. Before anyone writes a check to Duke Univ. they should know the pap that Duke is "selling."

12/12/11 9:00 AM
Anonymous said...
Almost like looking at "the people of Walmart." Also did you mean to say she has written 2 books?

12/12/11 9:27 AM
Anonymous said...
Just sent Duke my "88 cents" in response to their umteenth fund drive request. They can kiss my experiential backside.
My kid, and my meager funds, go to a real university where intelligence, production, honesty, hard work and integrity are words directly associated with the FACULTY! And taught daily to all the students. They don't harp on the evils of capitalism, the horror of racism, the disgrace of homophobia....they demand, live and teach by example....the value of hard work, the truth of real human rights, and the silliness of discrimination based on sexual preference. Shame on Duke for hiring and retaining these empty suit clowns. Cline would be a great Duke faculty member....she could teach Hooked on Phonics.

12/12/11 10:06 AM
Anonymous said...
I suppose it would politically incorrect to describe the arguments of these people as "fatuous"?

12/12/11 10:14 AM
Anonymous said...
If this is in any way indicative of the humanities and social sciences in American higher education, it's no wonder so many recent college graduates in this country are jobless. Before condemning Duke as an institution, however, it's worth noting that there are many excellent faculty teaching rigorous material in the physical sciences, engineering, economics, public policy, and others.

My son graduated from Duke in 2006 and majored in chemistry and economics. I got my monies worth. But I lament that my Alma mater employs, even promotes, such lunatic fringe. Our nation is experiencing unprecedented global competition. Society cannot afford to waste precious resources on self indulgent tripe masquerading as education.

12/12/11 1:50 PM
Lois Turner said...
The "People of Walmart" comment is spot on, and I suspect these two would take it as a compliment. No one expects middle aged college professors to look like, say, Helen Mirren, but this level of slovenliness and unprofessionalism as to personal appearance gives an awful impression of the university.

I note that the renowned Duke Diet & Fitness Center is "offering extra savings on new client seasonal rates" until December 19. Maybe someone should alert our dynamic duo of pie-loving profs.

http://www.dukehealth.org/services/diet_and_fitness/about/news/promotions

12/12/11 4:12 PM
Anonymous said...
I am ashamed of Duke. Period.

12/12/11 5:59 PM

Rev. Wells Departs Duke

2011-12-08T15:55:00.002-05:00

The Rev. Sam Wells, Duke chaplain, is leaving his post to return to England. Wells was a peripheral player in the lacrosse saga, but his performance was a deeply unfortunate one, given his status as a man of the cloth. Throughout the case, Wells implied that he viewed his ministerial functions as confined to students who conformed to the humanities' faculty preferred race, class, and gender status.

On April 2, 2006, Wells (as he later revealed to the H-S) shelved his planned sermon, and instead talked about the lacrosse case. (Many months later, in an e-mail to me, Wells claimed his sermon in fact wasn't about the case, an assertion that not only contradicted what he told the H-S, but made no sense, given the sermon's contents.) In his sermon, Wells implied that the lacrosse players had broken the “law” of the university, and he placed their actions in a “subculture of reckless ‘entitlement’, sexual acquisitiveness and aggressive arrogance goes against every aspect of this law. It commodifies and consumes the bodies of others, with no generosity, no patience, no searching for truth or beauty, and no regard to its social significance. It undermines the university because it corrupts the imagination on which the whole university rests. It breaks the university's law. It debases desire.”

“The last week,” he contended, “has exposed the reality that sexual practices are an area where some male students are accustomed to manipulating, exploiting and terrorizing women all the time—and that this has been accepted by many as a given.”

Such views got Wells a spot on the wildly biased Campus Culture Initiative; and also appear to have prompted him--after Mike Nifong's case imploded--to invite NAACP head William Barber to give a Sunday sermon at Duke. That invitation came despite (or, perhaps, because of?) the NAACP's flagrant biases against the wrongly accused Duke students, and unsurprisingly led to a sermon that tried to rationalize the NAACP's inexcusable handling of the case.

To my knowledge, the Rev. Wells never apologized for his response to the lacrosse case, either to the wider Duke community or to the specific Duke students whose words he (erroneously) targeted. Indeed, in an e-mail to the blogger John in Carolina, Wells, like Barber, tried to rationalize his behavior.

Cline Losing Her Grip (Updated)

2011-12-04T18:58:00.010-05:00

[Update, Tuesday, 2.31pm: Joe Neff reports that proceedings were adjourned because of an apparent bomb threat, but not before DA Cline offered a "dog-at-my-homework" excuse in the Peterson hearing:

Cline also said she was unprepared and had not read(!!) 800 pages of evidence given to her after Thanksgiving . . .
“I am here to say my sister still has rights, and there is no way you can have this district attorney represent my sister,” said Candace Zamperini, (Kathleen Peterson’s sister). “They are not prepared, they haven’t read the documents…..I will tell you, this district attorney’s office is not the district attorney’s office of Jim Hardin, where I got good representation.”

Cline does not appear to have given a reason why she didn't do her job and read the relevant documents; she seemingly assumed that, at worst, Judge Hudson would allow her to delay proceedings by removing herself from the case, and was caught unprepared when the judge refused her demand.]

[Update, Tuesday, 9.28am: Joe Neff's article in today's N&O is worth reading in full, if only for the sheer entertainment value. It ranges from the bizarre (the attendance of a figure who has argued that an owl(!), rather than Michael Peterson, killed Peterson's wife) to the ridiculous:

Fox patiently listened as Cline discussed more than a dozen cases from state appellate courts that she said supported her request. At one point, Cline mentioned a case that she hadn't read yet and asked the judge for time to read it. Fox said yes.
The packed courtroom sat in silence while Cline sat alone at her table, flipping through documents.
After 14 minutes, Fox broke the silence: "Are you still reading the case?"
Cline said she hadn't located the correct citation.

Bill Thomas, appropriately, summarized: "It was remarkable that she offered no evidence in support of these extraordinary allegations."]

[Update, Monday, 6.42pm: Joe Neff reports that Judge Fox dismissed all of Cline's filings, dismissing her reasoning as "woefully inadequate."

Here's how Neff described the courtroom scene: "Cline then gave a rambling half hour speech that roughly tracked her court filings and made no mention of Peterson: Hudson was retaliating against her because she failed to dismiss a murder charge in the case of Derrick Allen."]

[Update, Monday, 12.29pm: Reporting from the courtroom, Joe Neff brings word that Judge Fox is . . . skeptical . . . of Cline's bizarre claims:

“There’s a lot of verbiage in here that has nothing to do with anything,” Fox said of Cline’s 286-page motion and foot tall stack of exhibits. “The affidavits are not sufficient.”]

There were a couple of occasions in the lacrosse case in which Mike Nifong all but baited the State Bar to file prompt ethics charges against him. The first came just before Election Day, when the embattled candidate traveled to NCCU and all but turned the American theory of justice on its head, asserting, “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself [emphasis added] is an indication that a case needs to be tried.” The second coincided with the week of the Meehan hearing, during which Nifong offered myriad (often mutually contradictory) explanations as to why he hadn’t reported all the DNA test results. The first set of ethics charges against Nifong arrived a few days later.

Based on an article in today’s N&O by Andrew Curliss, Durham is rapidly moving toward seeing its second DA in less than a decade removed for ethical improprieties. Curliss’s piece traces Cline’s by-now-standard pattern of fabrications, but it also shows that the county’s “minister of justice” has been reduced to lying about seemingly trivial matters.

In recent months, Cline expanded her network of untruths from Judge Hudson’s courtroom to that of her (and Nifong’s) former boss, Judge Hardin. The topic of Cline’s false filings: prison visitation records. In her filings to Hardin, Cline (falsely) claimed that the two prisoners (Keith Kidwell and Angel Richardson) had filed motions to which she needed to respond. Yet neither man had filed such a motion, nor had their attorneys intended to do so.

So why did Cline mislead the court; and why would she have any interest in such a seemingly obscure matter as prison visitation records? Cline refused to speak to the N&O, nor did she respond to an e-mail from me requesting comment. But it appears as if she was not only lying to a judge but abusing the powers of her office either (1) to dig for material to help save her law license in any ethics proceedings against her; or (2) as part of her futile attempt to compile “evidence” substantiating her wild claims of an anti-Cline “conspiracy” between Judge Hudson, defense attorneys, and the N&O.

Cline had no good reason for desiring the information: the prison department spokesperson Curliss, "Why the DA's office is interested in whether Kidwell is seeing his pre-approved visitors, I have no earthly idea. It's our own internal policy, so it's ours to police."

Jim Coleman told the N&O that the State Bar will be concerned about "not only whether she is misrepresenting and abusing the judicial process, but also whether she is filing patently false allegations in pleadings and taking advantage of the immunity that she has (as a prosecutor). ... She really is undermining the integrity of her office." Coleman also predicted that Cline could face a contempt-of-court hearing from Hardin.

Curliss’ latest exposé follows on Cline’s moves late last week regarding a hearing tomorrow in the latest appeal filed by Michael Peterson, the former Durham mayoral candidate convicted of killing his wife. (Judge Hudson was scheduled to preside over the hearing.) Cline wants Hudson off the case, and the H-S reported Friday that Cline has subpoenaed as many as 53(!) people to appear at the hearing. As a fallback, she’s requested that the Attorney General’s office step in for her if Hudson isn’t removed. The AG’s office has said it will accept Cline’s request—but only if it can obtain a continuance to allow its attorneys to get up to speed on the case.

The AG’s position is a reasonable one, but the fact that a long-scheduled hearing might have to be delayed because of Cline’s increasingly unhinged behavior gives a sense of why the Bar needs to intervene sooner rather than later.

For a sense of how untenable Cline’s position has become, even the local legal academy’s most prominent apologist for prosecutorial misconduct, Irving Joyner, has deemed the DA’s conduct “strange” and noted that her filings were apparent “misrepresentations to a court.”

When an unethical Durham prosecutor has lost Irving Joyner, it would seem there are few local legal allies left.

“Students Are Not The Enemy of . . . Faculty Unless We Invite Them To Be”

2011-11-21T21:20:00.007-05:00

The past few days appear to have launched “Hypocrisy Week.” First, the New York Times public editor turned to Wendy Murphy—Wendy Murphy!—for guidance on how journalists should cover sexual assault cases. Then, the Chronicle of Higher Education turned to Cathy Davidson—Cathy Davidson!—to deliver a plea about protecting students’ due process rights on campus.

During the lacrosse case, Davidson distinguished herself for her “revisionist” interpretation of the Group of 88 statement, which she displayed in a January 2007 N&O op-ed. In a bizarre inversion of reality, the Group member claimed that the period between March 24 and April 6, 2006—when Duke administrators, professors, some students, and “activists” regularly denounced the lacrosse players—in fact featured a Duke campus with widespread, boisterous defenses of lacrosse players coupled with racist attacks on black women. “It was,” fantasized she, “as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women.” (In an e-mail circulated at the time, Davidson confessed that she penned the op-ed after consulting with a lawyer, and being informed that Group members could be vulnerable to civil suits.)

Davidson’s latest stab at commentary came in response to the pepper-spraying of peaceful protesters at UC-Davis—which today led to the suspension of the campus police chief. Cal-Davis deserves all the criticism that it gets for this incident, and I agree wholeheartedly with the remarks of FIRE’s Greg Lukianoff on the issue. Yet there’s something . . . peculiar . . . about seeing Cathy Davidson standing up for due process, given what was (at best) her indifference when three of her own institution’s students faced the highest-profile case of prosecutorial misconduct in recent U.S. history. It’s even more remarkable to see her pen an article entitled “A Plea to College Presidents: Exercise Your Moral Leadership,” given the failed “moral leadership” exhibited by her own institution’s president in the lacrosse case.

Davidson, however, appears unable or unwilling to detect her hypocrisy. “Students are not the enemy of administrators and faculty unless we invite them to be,” writes the Group member. If nothing else, the Group of 88 statement invited dozens of Duke students to recognize that some of the most outspoken faculty members on campus viewed them as the enemy.

The Davidson essay is notable for another matter relating to academic hypocrisy. Over the past several weeks, I’ve heard of troubling instances in which CUNY faculty members have brought the Occupy Wall Street protests into their classrooms, including at least two occasions of professors “encouraging” their students to actually attend the protests. Davidson seems to see little problematic with such conduct, noting approvingly that she has “heard from faculty and administrators who see the Occupy activities as appropriate for thoughtful conversation and debate across a numerous departments, whether economics or ethics.”

It would be interesting to see how many professors who see OWS as a “teachable moment” had a similar reaction to the Tea Party movement, which in many ways was OWS’ mirror image from 2009-10. (I rather doubt that Davidson had such a reaction, for instance.) From defenders of the academic status quo, we often hear (correctly, in my opinion) that the partisan affiliation of professors, in and of itself, is irrelevant to the quality of education. But that argument becomes much harder to sustain when professors so blatantly bring their political sympathies into the classroom.

“Students are not the enemy of administrators and faculty unless we invite them to be.” Cathy Davidson certainly knows of what she speaks.

The Times Again Shames Itself

2011-11-21T00:11:00.006-05:00

The New York Times’ failure in covering the lacrosse case occurred on many levels. At the most basic level, of course, the paper’s handling of events could be blamed on the flawed and biased reporting of Duff Wilson, along with the fact-free “commentary” of Selena Roberts and Harvey Araton. At a second level, the paper’s record demonstrated a massive failure by the editors—from then-sports editor Tom Jolly upwards, to Bill Keller: once Wilson’s flaws had been exposed for the world to see, editors had no obligation to keep him on the story.

At a third level, however, the story represented a failure of the Times’ public editor, a position established in the wake of the Jayson Blair scandal to represent the readers and to champion journalistic integrity from within the paper. Then-public editor Byron Calame penned two columns on the lacrosse case. The first, which appeared in spring 2006, minimized even the factual inaccuracies that had marred Roberts’ early columns. The second, which came after the exonerations in spring 2007, denied any ideological bias to the Times coverage, and declined even to speculate on why the Times had gotten the story so wrong for so long. It was left to the AJR and the Chronicle to analyze the Times’ wreckage.

Yet even Calame’s poor performance can’t hold a candle to the most recent public editor’s column from Arthur Brisbane. The subject: how the paper should cover rape allegations. In formulating his suggested approach, Brisbane consulted with three people, each of whom was described as some form of victims’ advocate. One was Claudia Bayliff, project attorney for the National Judicial Education Program. A second was Marci Hamilton, a professor at Cardozo Law School.

The third was . . . Wendy Murphy.

That’s right. The public editor believes that reporters at the nation’s paper of record should take guidance on how to appropriately cover sexual assault cases from a figure who informed a national TV audience that she had “never, ever met a false rape claim”; and had, in her public statements about the highest profile sexual assault case of recent years:

asserted, without any evidence, that “there’s a very good chance there was a payoff” to false accuser Crystal Mangum and the second dancer, Kim Roberts;
implied, falsely, that the unreleased 1000+ pages of the discovery file, which contained Mangum’s psychological records and was sealed upon orders of the judge, might have contained “witness statements from the defendants’ friends—statements saying that a rape occurred just as [Mangum] described”;
fantasized, falsely, about the existence of “broomstick DNA” in the case;
reasoned that, contrary to North Carolina’s open-file discovery law, ex-DA Mike Nifong had a right to withhold evidence from the defense (one of the offenses for which he was eventually disbarred;
deemed Mangum’s ever-changing version of events as “minor inconsistencies”;
claimed, falsely, that President Brodhead had publicly asserted that “many” non-lacrosse players attended the party;
“bet,” on national TV, that one of the falsely accused players was “molested as a child”;
made no fewer than 18 false statements in the first nine months of the case alone.

A while back, Salon’s Alex Pareene used Murphy’s career to suggest that “there are, in the mass media, absolutely no consequences for blatant, constant lying.” Public Editor Brisbane’s column, however, reveals something even more shameful: that the public editor of the nation’s most influential newspaper could consider such a figure suitable to provide guidance to journalists.

"Power Without Responsibility or Conscious"

2011-11-18T09:40:00.007-05:00

[Update III, 3.47pm, Saturday: Two articles were posted on the N&O website earlier this afternoon. The first, by Joe Neff, notes that on Friday, Cline filed a 285-page(!) motion--described by Neff as "packed with passionate and personal attacks" against Judge Orlando Hudson--demanding the removal of Hudson from all Durham criminal cases. Cline further alleged a wide-ranging conspiracy to discredit her between Hudson, various Durham defense attorneys, and the N&O. The paper's executive editor, John Drescher, appropriately deemed the (unsubstantiated) allegation "crazy."

The second article, by Andrew Curliss, reveals that the State Bar has begun looking into Cline's behavior. Additionally, both Jim Coleman and former North Carolina chief justice Burley Mitchell sharply criticized Cline's behavior, noting that the issues raised by Cline--alleged errors by Hudson--would be handled through appeals, not by accusations of ethical misconduct. Of Cline's filing, Mitchell said, "I have never, never seen anything like it"; Coleman contended that "you don't discredit a judge in this intemperate way," adding that he was unaware of any comparable filing against a judge "in any context."

And, from the comments section, a reminder that in 2008, the Independent hailed Cline (whose J.D. comes from North Carolina Central, and whose B.A. comes from Livingstone College, in Salisbury, N.C.) as a "great attorney" who "could be an excellent role model for the young African Americans caught in the system." Those comments, by the way, came in an editorial in which the paper admitted that it was wrong to have endorsed Mike Nifong in 2006. How long will it be until Indy similarly retracts its praise of Cline?]

[Update II, 10.35pm: In an interview with WTVD-11, Jim Coleman notes, "This is as an extreme of a reaction by rulings of a court that I've ever seen, particularly because it's so personal. The basis for it appears to be rulings that can be reviewed on appeal and if the judge got it wrong, they can be reversed . . . There probably a lot of lawyers who had thoughts like this about judges, but I've never seen one actually put it in a pleading and filing it."]

[Update I, 12.40pm: Joe Neff tweets that the Cline filing was an "all out, one of a kind attack" on a judge. And I e-mailed Cline to ask why she didn't proofread her document before filing it; she did not respond.]

In a blockbuster article, the N&O’s Andrew Curliss revealed that embattled Durham County “minister of justice” Tracey Cline has filed a complaint with the North Carolina Judicial Standards Commission against Durham judge Orlando Hudson. Cline accused Hudson of acting with “BAD FAITH” (capitalization and emphasis in original) and deemed him guilty of “moral turpitude, dishonesty, and corruption.” The DA added that the existence of the complaint gives Judge Hudson a conflict of interest with the Durham DA’s office, and therefore he should hear no criminal cases until any ethics proceedings against him are completed.

In a rambling, 12-page document, Cline charged Hudson with having a vendetta based on her handling of the Derrick Allen case. She outlined her . . . reasoning . . . in this meandering sentence (grammatical and run-on errors all in original): “The District Attorney alleges, based upon information and belief, that this Honorable Court’s action of attempting to coerce the District Attorney into dismissing Allen and then for this Honorable Court to engaged in retaliatory conduct against the District Attorney and the District Attorney’s office after the District Attorney refused to dismiss that case are actions that constitute an improper or wrongful use of the power of this office by acting intentionally and with gross disregard for this conduct and in bad faith.”

Cline offered her “evidence” for Hudson’s alleged gross misconduct in three-and-a-half pages. She summarized what she saw as the basic facts of three cases (Yearwood, Dorman, and Allen) in which Hudson had ruled against her. Cline provided no new evidence to sustain her wild claims, most of which were thoroughly debunked in the N&O’s “Twisted Truth” series. Instead, she frequently resorted to citing unspecified, and unrevealed, “information and belief” (about her own cases!). Based on the arguments presented in her filing, virtually any high-profile ruling against a prosecutor could be deemed judicial misconduct.

The most striking aspect of the filing, however, came not in Cline’s decision to accuse a sitting judge of gross misconduct based largely on his having had the temerity to criticize her own unethical behavior. Rather, it was her decision to do so in a filing that appeared as if it were written by an ill-prepared high school student rather than a major county’s chief prosecutor.

A comedy of grammatical errors, the filing included numerous comma splices that (doubtless unintentionally) produced passages that differed from Cline’s desired meaning. Sometimes the DA seemed unable to write in complete sentences. (“Also a nurse saw the defendant looking at the deceased child’s vagina prior to there being any indication of sexual assault.” Or: “That the appellate courts have reviewed this case two times and each time did not overturn this conviction.” Or: “In that the agency was helping the family with counseling and trying to locate other family members.”) Mid-sentence, Cline frequently capitalized words (Game, Stayed, Interest) for no apparent reason. Occasionally, she ended sentences without periods. Sometimes, she used words Sarah Palin-style, as when she asserted that Hudson’s behavior “retards” confidence in the court’s application of the law.

Most embarrassingly, the filing was riddled with spelling mistakes. At one point, Cline referred to saliva as “salvia.” At another, she described the court system’s principles as the “principals” of the criminal court system. At still another, she feared that her rights were “striped away” by Hudson’s rulings. At yet another point, Cline charged that the legal system’s credibility was a “causality” of Hudson’s conduct. And consider this single-sentence paragraph, with the emphasis added: “This is power without responsibility or conscious.” Was Cline suggesting that Hudson had passed out while delivering his rulings?

Finally, ponder this borderline incoherent sentence, with which Cline began her introduction to the Yearwood case (run-on nature, lack of punctuation as in original): “Mother of 12 year old victim comes home at lunch hears her daughter scream out Mom help and goes to her bedroom to see her daughter crying, her panties torn on the floor, her dress torn and being held up trying to cover her body and the defendant is there buttoning his pants.”

In many circumstances—say, comments on a blog—there’s little, if any, expectation of the writer adhering to basic rules of grammar. But, in this instance, a sitting district attorney took the extraordinary step of registering a claim of ethical misconduct against a sitting judge. Yet this prosecutor, whose job includes the writing of legal briefs at the trial level*, couldn’t even take the time to have someone who knows how to write proofread her legal filing?

It should go without saying that, if removal proceedings aren’t already underway against Cline, this filing should force the State Bar to take a hard look at her fitness for office. As Curliss notes in his article, "Ethics rules for lawyers say they cannot 'engage in conduct intended to disrupt a tribunal' or engage in discourteous conduct 'degrading to a tribunal.' Ethics rules also require lawyers to bring actions based in law and fact, and that a lawyer cannot make a statement 'with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.'"

*--corrected

Duke & Penn State

2011-11-14T21:31:00.003-05:00

A couple of intriguing connections in the media coverage between the Penn State scandal and the Duke case crossed my desk in the past week.

The first comes in a well-done piece in the Chronicle of Higher Education on how the scandal might affect the university in the long term. The article contains the following passage:

It could be years before the legal case runs its course. In the meantime, the university needs to focus on the messages it presents to the world and figure out the right strategies to get those messages across, says John F. Burness, a visiting professor of public policy at Duke University, who was its chief spokesman during the 2006 lacrosse scandal.
"While Penn State is probably best known for its football program and iconic coach, it has a lot of academic quality across the board," he said. "In the long run, that won't be changed at all, and will very much help them get out of the current chasm they're in."

I suspect that Burness is correct, although at this stage I wouldn’t be confident in the prediction—in part because I’m not at all certain that Penn State has much of a reputation for “academic quality across the board,” in part because this affair has the potential to exact even more damage depending on how the civil lawsuits proceed.

That said, it’s worth using the Burness quote to note the difference between this scandal and that at Duke: at Penn St., there’s no evidence of any wrongdoing by any academic units. At Duke, by contrast, the scandal quickly called into question the “academic quality” of dozens of faculty members, who seemed unable or unwilling to unable to evaluate evidence that contradicted their preconceived race/class/gender worldview.

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Late last week, the Patriot-News, the major newspaper in the Penn State area, also examined the issue of the potential damage to the long-term Penn State “brand.” The article featured extensive quotes and summaries of previous university episodes of bad publicity (Duke, Texas A&M, and Virginia Tech) from Terry Hartle, a vice president at the American Council on Education (ACE). The council describes itself as “the major coordinating body for all of the nation's higher education institutions, seeks to provide leadership and a unifying voice on higher education issues and to influence public policy through advocacy, research, and program initiatives.” Given the obsession with certain types of diversity in contemporary higher education, it’s not hard to determine ACE’s reflexive position on “diversity” issues.

Hartle was paraphrased in the following way:

In all three cases, the universities organized themselves to determine the root causes of the crisis put policies and procedures in place to ensure it never happens again and fairly quickly re-established credibility and confidence with various public audiences.

It’s difficult to determine what Hartle could have been talking about when he suggested that Duke had done anything that resembled reforming its policies or procedures to ensure that something like the university’s response to the lacrosse case never occurs again. The university, of course, has spent lots of money in legal fees and settlements—but those efforts have, in part, been undertaken to protect the rush-to-judgment contingent among the faculty.

The university reappointed its president, and retained the same faculty hiring patterns that appeared to foster the rush-to-judgment attitude. It doesn’t appear that even any of the faculty members were punished in any way for their dubious and in a few cases unethical conduct. Indeed, several Group of 88 members have been promoted to deanships. Duke consistently has avoided any kind of investigation into why the administration and faculty so disastrously rushed to judgment and abridged their students' rights—the episodes that prompted the university to settle out of court with the falsely accused players and remain at issue in the unindicted players' suit. If a lacrosse-like case emerged at Duke tomorrow, it's hard to imagine things would play out much differently at the university than they did in 2006.

While I know little of the Texas A&M case, Duke appears to be the anti-Virginia Tech. While VT undertook a full inquiry, and changed procedures to make sure that a student like the shooter never again fell through the cracks, Duke appears to have taken the reverse approach. But, of course, for a university convinced that it must do nothing to reduce the emphasis on "diversity" in hiring patterns or regarding curricular matters, Duke's response comes as little surprise.

I e-mailed Hartle to ask him what he was talking about in his comments regarding Duke. He did not reply.

Assorted Legal Matters

2011-11-06T20:49:00.006-05:00

The City of Durham has filed its final brief in its mid-case appeal to the 4^th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.

To reiterate, here is how Judge Beaty has responded to the Durham argument:

Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.

Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.

The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”

But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.

Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.

This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.

Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.

----------------

One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.

Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.

In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.

At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”

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One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."

As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.

In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?

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The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.

In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."

Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.

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Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.

As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.

A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.

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Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.

But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.

In fact, the grand jury report said something quite different. Here’s the relevant excerpt:

“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.

In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.

[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]

Updates

2011-11-02T19:25:00.002-04:00

A few update items:

(1) Group of 88 extremist Grant Farred is back in the news, after the Cornell student government—with only one negative vote—passed a resolution (unsuccessfully) urging the Cornell administration to reconsider its decision to have Farred chair the Africana Studies Department’s search for a new department chair.

The genesis of the controversy was Farred’s 2010 decision to refer to two female African-American graduate students as “black bitches.” The chair of the student government’s Women’s Issues Committee, who sponsored the resolution, asserted that the appointment of Farred indicates that we don’t have the support of the University in reversing sexism on campus.” Note, of course, the presumption—asserted as unchallengeable fact—that “sexism on campus” at Cornell is so pervasive as to need to be reversed.

The co-director of Africana Studies, David Harris, dismissed concerns with Farred’s appointment, which he deemed an “administrative service” and which he—almost hilariously—implied gave Farred little power to shape the future direction of the department. (Harris is a 1997 Ph.D. with several book chapters and articles, but without a scholarly monograph. He has served as Cornell’s interim provost; his course list includes “Race and Policy”; “Research Seminar in Race and Ethnicity”; “The Demography of Race”; “Racial and Ethnic Identity”; “Introduction to Social Inequality”; “Elementary Statistics”; and “Race, Class, and Social Policy.”) Harris also denied that Farred’s role in chairing the search would make it harder for Cornell to recruit quality applicants. “We are a month away from deciding who we will bring in to interview and I have yet to hear people say [that] ‘I am concerned about coming here because of Grant,’” he said. “What I am hearing is that people are concerned about Cornell because of all the negative press … I think that has a much greater effect on our search.”

Harris’ statement confirms guidance I once received from a long-time mentor in the battle for academic freedom on campus: even in a campus dominated by the race/class/gender trinity, he reminded me, in the end, race trumps all. And certainly applicants to chair an Ivy League Africana Studies Department would recognize as much. So despite the oft-stated concern among the politically correct campus left with sexism, it seems entirely plausible that no applicants would have any trouble with Farred, despite his sexist statement—since, in the end, his status as a race-based demagogue is almost without parallel at Cornell.

And, not to belabor the obvious, it’s worth pointing out that no one at Cornell has even attempted to offer an explanation as to why the university would choose a figure who had slandered students at his previous university while deeming students from his current school “black bitches” to run such an important search.

(2) False accuser and accused murderer Crystal Mangum has been deemed mentally competent to stand trial—in some ways, a surprising ruling given the extent of her mental difficulties.

Additionally, the accused murderer’s request to reduce her bail was denied. Mangum, remarkably, had based her claim on a desire to see more of her children—the same children who were in the other room as she attempted to set fire to her previous boyfriend’s bathroom.

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(3) Finally, a follow-up on Lubiano-Chafe student/Group of 88 apologist Melissa Harris-Parry, and her remarkable argument that as a practitioner of “black feminist scholarship,” she can rely on “experiential knowledge” as significantly as actual evidence in constructing arguments.

A point from her recent book provides a sense of how such “experiential knowledge” works in practice. Among Harris-Perry’s other claims was the following, about the origins of the Group of 88 statement: “Less than a year after Hurricane Katrina revealed patterns of festering racial inequality and prompted national conversations about black citizenship, these eighty-eight members of the Duke faculty chose to frame the lacrosse scandal as a disaster. In the long shadow of Hurricane Katrina, this choice is an important clue to the multiple meanings associated with the rape accusation. In this context,‘disaster’ evokes a sense of unequal vulnerability to supposedly neutral processes. The faculty members were drawing a link between the abandonment of black citizens in the aftermath of Katrina and the sense of vulnerability that many black men, white women, and especially black women felt on Duke's campus.”

As with Harris-Perry’s general interpretation of the Group and its critics, the Katrina-Group statement traces its roots to the unsubstantiated claims of former Africana Studies chairman Charlie Piot. And, of course, linking the Group’s statement to Katrina provides a way of removing some of the tarnish from the faculty’s actions: if the Group’s protest derived from the horrors of Katrina, it would seem, the Group should be seen as noble critics of an indifferent or even racist American state.

There is, of course, only one problem with Harris-Perry’s claim: there’s no actual evidence to link the Group’s statement with Katrina. In the 15 sentences from the Group’s statement that appeared in the faculty’s own words, no mention was made of Katrina. In the e-mail sent by the statement’s author, Wahneema Lubiano, soliciting membership in the Group, no mention was made of Katrina. In the alleged statements from anonymous alleged students quoted in the ad, no mention was made of Katrina.

But, of course, Harris-Perry doesn’t need “evidence” to advance her arguments. She is, after all, a practitioner of “black feminist scholarship.”

MSNBC Analyst: Respect the Group of 88's "Feelings"!

2011-10-24T00:01:00.012-04:00

Few people have attempted to defend the Group of 88—perhaps because no credible defense of the rush-to-judgment faculty “activists” exists. Indeed, as the case to which they had attached their reputations imploded, nearly all Group members refused to comment on why they signed the April 2006 statement, which committed them not only to a common interpretation of the criminal case (something “happened” to false accuser Crystal Mangum) but also to a joint path forward (“turning up the volume” regardless of “what the police say or the court decides”).

The apologists generally have come from one of two groups: (1) those with a professional interest in cozying up to the Group; and (2) those with a personal connection to one or more Group members. Melissa Harris-Perry falls into the latter category—she’s a Duke Ph.D. (1999) who studied under Group of 88 stalwarts William Chafe and Wahneema Lubiano. Harris-Perry currently is a professor of political science at Tulane, where she heads the Project on Race, Gender, [ed: of course] and Politics in the South. The project’s inaugural event? A public lecture by none other than the Group’s own Karla Holloway.

Unlike nearly all members of the Group, Harris-Perry has some national visibility, thanks to her position as a frequent MSNBC commentator and a columnist for The Nation. In the latter capacity she recently penned an article that provided some insight into her race-obsessed thought process—exactly what could be expected from a Ph.D. student of Chafe and Lubiano. Her column accused white liberals of a “more insidious form of racism” than traditional, anti-black electoral racism for allegedly failing to back President Obama in the same percentages as they did President Clinton in 1996.

This absurd analysis was too much even for writers at traditionally left-leaning Salon. Joan Walsh, while quickly noting how much she considered Harris-Perry a professional friend, nonetheless gently observed that her friend “doesn’t mention any white liberals by name, nor cite polls showing a decline in support for President Obama among white liberals.” In other words: Harris-Perry had no evidence for her argument. (As will be seen, the Duke Ph.D. doesn’t seem to have problems with arguments lacking in empirical evidence.) Gene Lyons was less constrained by the trappings of collegiality. He argued that the Harris-Perry essay “resembles a photo negative of white racist thought . . . Turning everything into an issue of ethnic identity . . . appears to be Professor Harris-Perry’s stock in trade . . . Maybe academia isn’t the only place in American life where it’s possible to call people bigots and expect them to prove their innocence. But it’s definitely one of a very few . . . [I]f Harris-Perry expects people to defer to her Ph.D., she needs to raise her game.” And these criticisms, again, came from people generally sympathetic to Harris-Perry’s ideological goals.

But, even though I was an Obama supporter in 2008 and will remain so for 2012, Harris-Perry doubtless would dismiss me, too, as an insidiously racist white liberal. After all, I have publicly expressed horror with the Obama administration’s hostility to due process in higher education and my deep disappointment with the President’s indifference to the 2009 plebiscite that annulled the marriage equality law in my home state of Maine.

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Harris-Perry’s defense of the Group of 88 comes in her recently-published book, Sister Citizen: Shame, Stereotypes, and Black Women in America. Here’s how the Duke Ph.D. introduces the lacrosse case:

A woman lies about being sexually assaulted. The young men she accuses are assumed by both the press and the legal system to be guilty. A powerful institution bends to the public assumption of guilt and collaterally punishes a group of young men associated with the accused. The legal system eventually exonerates these young men. In the aftermath of the findings of innocence, the false accuser and those who uncritically accepted her honesty are subjected to public ridicule, just as they had earlier subjected the young men to ridicule.

The passage’s superficially neutral structure initially seems reasonable. Harris-Perry frames the case as the sum of two events: (1) the accusation and its response; and (2) the subsequent criticism (“public ridicule”) of Mangum and her validators.

Only by pondering a bit does Harris-Perry’s insidious (to borrow a word) false equivalence emerge. The initial event—the “crime”—did not occur. The second event—the embrace and exploitation of Mangum’s tale (including, although Harris-Perry carefully avoids mentioning it, by much of the faculty) despite increasingly solid evidence to the contrary—did occur. Yet Harris-Perry treats the two sets of reactions as equivalent: “the false accuser and those who uncritically accepted her honesty are subjected to public ridicule, just as they had earlier subjected the young men to ridicule.”

Even given Harris-Perry’s false equivalence, one might think that such a prominent public intellectual would be curious as to why many members of the media, the local prosecutor, and professors at Duke were so inclined to believe a false accuser. Or why a “powerful institution”—an institution of higher learning, no less, an institution supposedly devoted to pursuit of truth and knowledge—bowed to the mob.

Yet Harris-Perry offers no interest in these issues. Instead, she focuses on what she seems to see as the real victims of the case: her mentors and their pedagogical allies. She wants to know what motivated the critics of Mike Nifong and the Group of 88, and she wants to critically analyze their writings. Given that she sees racism everywhere, it doesn’t take a Ph.D. to figure out what she’s going to argue.

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Here’s how Harris-Perry introduces the handiwork of her onetime mentor, Professor Lubiano:

The social disaster [Group of 88] ad argued that the faculty had gained important insights about the case and its social and cultural meaning by listening to the testimonies of students. This epistemological claim was scorned as ridiculous when the weight of DNA evidence showed that Crystal Mangum was being dishonest about the sexual assault. These black women professors, their students, and their faculty colleagues were told to be ashamed of ever believing that their own experiences, beliefs, and feelings [emphasis added] were valid.

Leave aside the wildly incomplete nature of Harris-Perry’s description—that the most inflammatory aspects of the ad (something “happened” to Mangum; thanking the protesters for not waiting; committing to action regardless of what the police or court found; falsely claiming official endorsement from several Duke academic departments) came not from professors “listening to the testimonies of students” but in the voices of the signatories themselves.

And, even, leave aside the outright inaccurate nature of Harris-Perry’s description—the ad’s claims initially were “scorned” as “ridiculous” not because of evidence emerging that Mangum had lied, but because the signatories abandoned the academy’s traditional fealty to upholding due process.

Instead, consider the final sentence of the passage. In Harris-Perry’s world, the “feelings” of professors (or at least of “black women professors”) must be considered “valid”—because, as the Duke Ph.D. explains, “black feminist scholarship assumes that experiential knowledge has equal weight with empirical evidence.” How this rationale would excuse the Group members who weren’t black feminist scholars Harris-Perry never reveals.

In any event, despite Harris-Perry’s extraordinary downgrading of the importance of “empirical evidence” in the academic process, institutions of higher learning are supposed to pursue knowledge; they should not function as validators of “feelings,” even of “black women professors.”

That said, Harris-Perry’s rationale does represent an argument for “diversity” hires: academic qualifications can be deemed less important if the goal is to hire professors who will sympathize with the “feelings” of sensitive minority groups on campus, even if that means publicly attacking other students at the school. By these standards, Wahneema Lubiano—she of the perpetually-forthcoming manuscripts—is a potential Pulitzer Prize winner.

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Harris-Perry’s concern for the “feelings” of “black women professors” informs her criticism of Until Proven Innocent—although she can’t manage to faithfully reproduce the book’s critique of the academic culture that spawned the Group of 88. The book, she claims, argues against “taking race and gender seriously as objects of academic inquiry.” Neither the book nor the blog, of course, ever made such a claim. The blog did critically examine some of the poor scholarship produced by race/class/gender-oriented faculty at Duke; and both the blog and the book did contend, repeatedly, that groupthink oriented around these themes has become extremely powerful not only at Duke but at most campuses, and that the effects of this groupthink explain the “activist” faculty’s rush to judgment on the case.

UPI, Harris-Perry fumes, also termed the Group of 88 “ungrateful, unpatriotic, and dangerous to the impressionable students they teach.” It’s not clear how the book could have portrayed the Group as “ungrateful,” even if had such an intent. Nor did the book even remotely touch upon the Group members’ patriotism; it would have been absurd to have done so. And both the book and the blog quite consciously stayed away from the “impressionable minds” argument. Beyond the obvious—if Lubiano teaches anything like she writes, it’s hard to imagine her leaving much of an impression on anyone—that line of criticism, most closely associated with David Horowitz’s indoctrination claims, is one I have publicly, and repeatedly, rejected. Yet much like previous Group apologists, Harris-Perry seems determined to assume that anyone who criticized the Group must have operated from Horowitzian motives.

But, in the end, Harris-Perry sees her role less as fighting David Horowitz than in providing (in Lyons’ words) a “photo negative of white racist thought.” On paper, Stuart Taylor and I don’t present inviting targets. Harris-Perry concedes that we never targeted professors based on their race or gender: while we criticized black women such as Lubiano or Holloway, we were “equally virulent in [our] critique of white male professors such as William Chafe or Peter Wood.” And she further understands that we “reserve our most virulent attacks for Nifong, a white man.”

But when “empirical evidence” won’t do, it’s time to employ other approaches to insinuate racism. By noting that Nifong’s political interest in the case came in his appealing to the black vote, Harris-Perry contends that UPI “implicate[d] the corrupting influence of black political power.” The book’s critiques of both academic and local political culture, Harris-Perry concludes, “contain powerful racial implications.” Indeed, she implies, our words tried to leave “black women professors” on Duke’s faculty with a sense of “shame.”

Under Harris-Perry’s anti-racist framework, how would any criticism of Nifong, or the Group of 88, ever have been possible? The Duke Ph.D. doesn’t claim that UPI, in having “carefully trace[d] the professional résumés and personal conduct” of several Group members, got anything wrong in its analysis of their writings, or that the book wrongly argued that the Group members’ race/class/gender agenda explained their decision to exploit Mangum’s claims for their own ends on campus. Harris-Perry doesn’t dispute the findings of UPI (and many others, including the State Bar) that Nifong’s political ambitions were linked to his unethical behavior, and that the only way he could win (in both the spring and fall 2006 campaigns) was through obtaining disproportionate black support.

It seems that using “empirical evidence” to point out the above facts constitutes inappropriate racial insensitivity. In Harris-Perry’s world, because of the moral justness of their cause, race/class/gender faculty on campus—or those who pander to black voters outside the ivory tower—must be sheltered from criticism. Any other course, alas, might disrespect their “feelings.”

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At its most basic level, Harris-Perry’s book reinforces one of the basic critiques of the academy featured in this blog. In the case, Harris-Perry’s race-obsessed, evidence-thin analysis most closely resembles that of the Committee for Justice for Mike Nifong. Yet while the Committee is widely, and appropriately, viewed as a laughingstock in the legal community, Harris-Perry and her pedagogical allies are mainstream voices in the academy, and dominate most humanities and some social science departments.

And that outcome, to borrow a phrase, is nothing less than shameful.

The Peterson-Burnette (and Cline, in 2012?) Slate

2011-10-16T20:48:00.007-04:00

[Update, Tuesday, 10.28am: Durham Committee on the Affairs of Black People-endorsed candidate Solomon Burnette writes in: "Many folks have seemingly problematic histories. perhaps you should ask where myself [sic] and Ms. Peterson stand on the issues critical to this election, doing yourself and your readers a service. issues relating to education, immigration, affordable housing, and unemployment are important in this election and i, for one, have a history of engaging these issues in Durham as an artist, activist, and an academic. Ad hominim [sic] attacks are often a way to avoid critical questions. Cheque [sic] out my platform at www.solomonburnette.com."

It seems to me that a conviction for robbing Duke students, plus a written call for race-based vigilante justice, goes well beyond a "seemingly problematic histor[y]"; indeed, as I pointed out in the post, such a "history" would be disqualifying for any political committee with a rudimentary sense of ethics. Nor am I clear how pointing out such a candidate's "problematic" background constitutes an "ad hominim [sic]" attack.

That said, if I were in Endorsee Burnette's shoes, I too would want to speak about immigration (a topic, obviously, on which the Durham City Council has no policy role) rather than my background of written vigilante threats against innocent people and criminal activity against members of the Durham community.]

The N&O continues its detailed—and deeply disturbing—explication of how “justice” is practiced by Durham County “minister of justice” Tracey Cline. Andy Curliss’ articles today reveal a district attorney abusing her office through over-charging (in the hopes of pressuring defendants to accept plea bargains) and taking exceedingly weak cases to court (in apparent fidelity to Cline’s conception of her job as a “victims’ rights” advocate).

Prosecutors around the country over-charge to obtain plea bargains, but the N&O’s reporting indicates that Cline has employed the practice in an unusually blatant (and ethically dubious) fashion. And regarding the idea of bringing people to trial whose cases long before should have been dismissed, Cline’s conduct has been even less defensible. An analysis by N&O reporters found that Durham’s conviction rate on felony trials is the lowest of the state’s ten largest counties. Perhaps that’s because of cases like the below:

Torico Edwards . . . was acquitted by a jury after 30 minutes of deliberation on charges he broke into a home and stole a necklace.
Jurors said it was clear Edwards was at a shopping mall at the time of the crime
"The prosecutor," said juror Jade Russell of Durham, "really didn't prove anything."

Forcing likely innocent defendants to go through the expense and emotional punishment of a trial to give the “victim” a sense of justice is not an appropriate use of the judicial system. But in Tracey Cline’s office, it’s par for the course.

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Cline doesn’t come up for re-election till next year, but despite the record of unethical behavior laid bare by the N&O, she would seem to have little to worry regarding an endorsement from the Durham Committee on the Affairs of Black People. As demonstrated in the committee’s recent City Council endorsements, skin color appears to be the committee’s sole criterion. Indeed, by the standards of the Durham Committee’s 2011 endorsements for City Council, Tracey Cline is a paragon of reasonableness and justice.

In this year’s City Council races, even Durham’s resident savant of political correctness, (white) Council member Diane (Nifong ’06!) Catotti, couldn’t snatch the Committee on the Affairs of Black People’s endorsement. But two of the three choices distinguished themselves as extremists even among the ranks of extremists in the Durham of 2006-7.

Victoria Peterson, co-chair of Mike Nifong’s citizens’ committee, distinguished herself during the lacrosse case by (a) participating in a march organized by an ADL/SPLC-designated hate group, the New Black Panthers Party; (b) urging participants at this march to burn down the lacrosse captains’ house; and (c) personally threatening Mary Ellen Finnerty during Nifong’s ethics trial, resulting in Peterson’s ejection from the proceedings.

But those events only constituted Peterson’s highlights. She began the case by insinuating that Duke Hospital had conspired to produce false DNA results and ended it by marching with Nifong to jail, carrying a sign testifying to Nifong’s “goodness” and “integrity.” Peterson also crusaded for accused murderer Crystal Mangum, rudely interrupting the judge at pretrial hearings on Mangum’s arson charges.

(Peterson, I should note, spreads her hate around: talking about gays and lesbians, who she suggested are all cross-dressers, the Durham Committee’s endorsee claimed that as a result of the “gay lifestyle,” “many of them are infected with diseases,” and if “they are not infected with diseases . . . they will be, even women.” Despite the typically anti-gay views of North Carolina’s African-American community, these views are extreme.)

Imagine if, after an allegation of black-on-white crime prompted a visit from the KKK, a future City Council candidate had shared the platform with the KKK Grand Dragon. How, we might speculate, would the Durham Committee have reacted to one off its rival committees endorsing such a candidate?

Then there’s the Committee’s endorsement of Solomon Burnette, NCCU Class of 2007. That name should ring a bell to people who followed the case closely. Burnette came to NCCU after experience with the other side of the criminal justice system—he spent more than a year in jail, following a conviction for robbing two Duke students at gunpoint.

After the attorney general exonerated the three falsely accused players, an enraged Burnette took to the pages of the NCCU paper. In “Death to All Rapists,” Burnette issued an ill-concealed call for vigilante justice. “The ‘facts’ of the case,” proclaimed the Durham Committee endorsee, “should not matter to us because even if we are unsure of sexual assault, these supremacists have admitted to sexually, racially and politically denigrating these women.” Burnette’s analysis of the case: “White people still rape us and get away with it. The only deterrent to these legally, socially and economically validated supremacist actions is the fear of physical retribution.” The column subsequently vanished from the paper’s website, but remains available through the Wayback Machine.

Again, imagine the Durham Committee’s reaction if a political committee endorsed a white convicted robber who then had written an op-ed recommending vigilante justice against two black people?

Burnette and Peterson seem unlikely to win seats on the Council; even in Durham, the bigot vote doesn’t seem quite large enough to bring their candidacies over the top. But the fact that the Durham Committee endorsed them should permanently discredit the organization.

Accountability, Ct'd.

2011-10-10T22:06:00.003-04:00

A major theme of this blog has been the lack of accountability, especially for the professors who betrayed the academy’s traditional fealty to due process or who mistreated their students. Indeed, the opposite of accountability has occurred, as Group of 88 members (Farred, Baker, Payne) were hired away for more lucrative positions elsewhere; another Group member, the dissembling Cathy Davidson, even received a nomination from the Obama administration to a minor federal post. At Duke, several Group members received appointments to deanships and other administrative positions.

Along those lines, take a look at the list of 2010 and 2011 teaching award winners at Duke. Of the four teaching awards designated by the administration (which, of course, includes several Group members), seven professors were selected in 2010 and 2011. Three of the seven—Mark Anthony (“thugniggaintellectual”) Neal, Laura Edwards, and Margaret Greer—signed the Group of 88 statement.

And the selection for the 2011 University Scholar/Teacher of the Year, which “recognizes an outstanding faculty member for his or her dedication and contribution to the learning arts and to the institution”? None other than William Chafe.

That would be the same William Chafe who: (1) suggested that the whites who kidnapped, beat, and murdered Emmett Till provided the appropriate historical context for interpreting the lacrosse players’ behavior; (2) compared events of the Duke students' party to Hurricane Katrina; (3) as Nifong's case collapsed, falsely implied that his criticism focused entirely on excessive alcohol use by Duke students; (4) in early 2007 refused to apologize and reaffirmed his support for the Group statement; and (5) wildly (and, as he subsequently admitted, without possessing any evidence) charged “bloggers who have targeted the ‘Group of 88’” of “sending us e-mails and making phone calls wishing our deaths and calling us ‘Jew b-’ and ‘n-b-’.”

A figure with that record is Duke University's 2011 University Scholar/Teacher of the Year.

Point/Counterpoint

2011-09-27T23:14:00.004-04:00

The civil suits are largely on hold—thanks to a legally-debatable decision by Judge Beaty to delay discovery while Durham’s attorneys (who have, to date, billed the city for nearly $5 million, according to the AP) appeal to the 4^th Circuit. Attorneys for the falsely accused players have now filed their response to the city’s legal theories.

Summarizing the Case

The Durham brief (filed in late July) summarizes events of the case in an almost comical form, as if what occurred was little more than a routine police investigation beset by no procedural improprieties: “Stripper[] Crystal Mangum alleged that she had been raped at that party. Durham police investigated her allegations—meeting with witnesses and working through the district attorney’s office to obtain DNA evidence. After ten days of investigation, State Prosecutor [sic: District Attorney] Michael Nifong became involved in the case. He was fully briefed by City investigators as to the available evidence. Nifong later sought, and obtained, indictments against Plaintiffs. Plaintiffs were briefly arrested following indictment, and then immediately released while the investigation continued. The charges and indictments were later dismissed.” Indeed, according to the Durham attorneys, the “factual allegations [in the case] do not give rise to a plausible inference of malice.”

And here’s how the Durham brief describes the no-fillers-allowed photo array: “On April 4, 2006, Sergeant Gottlieb showed Crystal Mangum additional photograph arrays of Duke lacrosse players,” who had, by this point, been publicly identified by Nifong and the DPD as suspects.

The falsely accused players’ response frames the context more appropriately: “The Complaint describes one of the most notorious episodes of police, prosecutorial, and scientific misconduct in modern American history. It details the sustained, coordinated actions of police and City officials to fabricate evidence, conceal evidence of Plaintiffs’ innocence, inflame the community with false public statements, and mislead the grand juries, resulting in the unlawful arrests of Plaintiffs without probable cause.”

Ignorance Is Bliss

In what attorneys for the falsely accused players correctly deem “the City Defendants’ ‘blame Nifong’ approach,” the Durham brief goes to considerable length to suggest that ex-DPD officers Mark Gottlieb and Ben Himan can’t be held liable for their improper behavior—and that any misconduct that occurred resulted from the decision of “State Prosecutor” Mike Nifong.

[An aside: With this wording, which appears throughout the brief, the Durham attorneys invent a new position in Durham County, whose voters apparently elect not a district attorney but something called a “State Prosecutor.” The reason for the sleight-of-hand is obvious—to downplay the actions of Nifong as head of the police investigation, actions for which he (and the police officers with whom he collaborated) are unequivocally liable; and instead to repeatedly label him an employee of the state, which has immunity under the 11^th amendment.]

For instance, Durham wishes away the Gottlieb/Himan role in the meeting with Nifong and ex-lab director Brian Meehan, since neither “of the City investigators knew anything at all about DNA testing, let alone the industry customs and standards regarding the proper reporting format of such results. Indeed, Plaintiffs’ allegations make clear that State Prosecutor [sic: District Attorney, or at this stage of the case, lead police investigator] Nifong—not the City investigators—decided not only who would test the DNA, but how those results would be explained to the public, shared with the defense, brought before the grand jury, and presented to the Court.”

The falsely accused players’ attorneys dismiss this argument out of hand, given that “the detectives did not need to be experts in DNA testing to understand the simple conclusion that Plaintiffs’ DNA did not match that found on the rape kit items and, thus, that Plaintiffs could not have raped Mangum in the manner she claimed—a conclusion they already had reached in their investigation.”

Similarly, Durham cites Himan’s admission to Gottlieb and Nifong that no evidence existed to indict Reade Seligmann (“with what?”) to suggest that their officer corps acted without malice. Yet, as the players’ attorneys point out, this isn’t the message the DPD communicated with the grand jury, and so “the fact that the detectives and Nifong were candid with one another about the lack of inculpatory evidence and abundant evidence of innocence does not negate the allegations of malice when each of them took actions to conceal this fact from others.”

And in a line that would draw laughs from anyone remotely associated with the case, Durham concludes that Gottlieb’s myriad instances of misconduct resulted not from his (documented) malice toward Duke students, but instead was “explained by the seriousness of Mangum’s claim.” (This is about the only time at any point in the case that I have encountered an implication of ex-Sgt. Gottlieb as overly conscientious.) Countered the players’ brief, “Even if . . . Gottlieb thought that Mangum was credible and actually believed that she was raped, that still would not justify his actions in ignoring evidence of Plaintiffs’ innocence and trying to frame them for the alleged crime.”

In fact, it seemed at times as if the Durham attorneys shared with their star client a tendency to mislead by omission. The players’ brief caustically observed that “nowhere in their entire brief do the City Defendants mention Gottlieb’s ‘supplemental case notes,’ which Gottlieb fabricated months after the indictments in an attempt to cover up inconsistencies and contradictions in Mangum’s actual statements regarding the incident. Such actions are hardly consistent with the claim that the detectives were simply making a ‘good-faith effort to investigate an allegation of a serious crime,’” as the Durham deems Gottlieb’s (mis)conduct.

According to the Durham standard, it seems, as long as the police deal with a “serious” claim of wrongdoing, they can behave according to virtually any standard. This line of argument is bizarre.

The city’s defense of Cpl. Addison for his parade of false, yet wildly inflammatory, statements against the lacrosse players is even stranger. The Durham brief suggests that as Addison did not participate in the actual investigation, the players can’t show that he knew his statements were false. And if he didn’t know his statements were false, he can’t be held to have acted with malice. This claim, alas, seems to prove the falsely accused players’ case, for if Addison knew nothing about the case, then he “had absolutely no basis for his false media statements that Mangum was ‘brutally raped’ at the party, that the players living at the house (one of whom was [David] Evans) had refused to cooperate with the search warrant, that there was ‘really, really strong physical evidence’ of a crime, and that some or all of the players knew about the attack and were obstructing the investigation, let alone for his ‘Wanted’ poster stating that Mangum was ‘sodomized, raped, assaulted and robbed’ in a ‘horrific crime’ during the team’s party.”

Contradictory Claims

The Durham brief manages to term exculpatory evidence as somehow supportive of a crime. For instance, the brief notes that “the following day, complaining of pain, Mangum told medical personnel at UNC Hospital that she had been attacked the prior day.” The brief doesn’t indicate where this “pain” allegedly was (Mangum’s back), nor that she hadn’t indicated any pain in the back the previous evening, nor that her goal appeared to be to get access to more prescription pain medication, nor that this follow-up trip to a different hospital (where she told yet another different story) would have seemed to a reasonable observer more evidence of Mangum’s mental instability. (The false accuser, by the way, is now facing a mental competency hearing in her murder trial, and the H-S implies that she’s been transferred to a state mental institution.)

And here’s how the Durham brief describes Mangum’s initial interaction with Gottlieb & Himan: “Repeating her earlier allegations, [emphasis added] Mangum told the officers that three men had raped her, and provided physical descriptions.” Mangum, of course, didn’t repeat her “earlier allegations,” since before (or after) March 16, 2006, she never offered a consistent version of events. And the Durham brief doesn’t mention that at least one of her “physical descriptions” from the March 16 meeting didn’t match any player on the lacrosse team, while those descriptions also didn’t even remotely resemble at least two of the people ultimately charged.

Durham’s Alleged Invulnerability

The Durham brief repeats the same argument already rejected by Judge Beaty—namely, that the city has no legal liability because the grand jury indictment “broke any causative link between the City Defendants’ investigative actions and Plaintiffs’ post-indictment arrests.” Indeed, Durham fumed, “the district court never considered” the issue. The players’ attorneys coolly replied that Beaty’s “opinion below devoted five pages to this issue and rejected the City Defendants’ argument because they are alleged to have misled the grand juries.” For nearly half-a-million dollars, you’d think Durham could get more thorough litigators.

In a troubling concession for Durham justice, the city’s attorneys also maintain that it doesn’t matter if Gottlieb and/or Himan lied to the grand jury (as Gottlieb, by his own admission, did): neither they nor the city can be held liable for their behavior.

In their reply, lawyers for the falsely accused players gently observe (quoting from multiple cases) that “case law establishes . . . that the chain of causation is not broken, and a police officer is not relieved of liability, where—as here—the officer is alleged to have ‘misrepresented, withheld, or falsified evidence’ that influenced the grand jury’s, or another independent decision-maker’s, decision to indict or bring charges. In such a case, a ‘prosecutor’s decision to charge, a grand jury’s decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial—none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.’”

Intriguing Claims

(1) The Durham brief maintains that the city has immunity, “because its insurance policies [which, if they exist, would mean that the city waived immunity] do not cover the conduct alleged here.” Yet, the lacrosse players’ attorneys “have identified numerous contradictory statements by the City regarding its insurance coverage, which demonstrate not only that the City does appear to have such coverage, but that summary judgment cannot be granted on this issue prior to discovery.”

(2) The Durham brief also claims that Gottlieb and Himan can’t be held liable for conspiring to produce a false DNA report, since “the DNA report was compiled after Plaintiffs Seligmann and Finnerty had already been indicted—so it could have had no effect on those indictments.” Of course, the duo’s initial meeting with Nifong and Dr. Meehan—in which, by the accounts of Gottlieb, Meehan, and Nifong, they discussed the DNA evidence that would appear in the report—occurred before any indictments, on April 10, 2006.

(3) The Durham brief includes this curious clause: “Corporal Addison is alleged to have made certain statements between March 24 and March 28 as the ‘Durham police spokesperson.’” Are the Durham attorneys suggesting that Addison didn’t, in fact, make the statements? That he lied when he identified himself to reporters as the acting department spokesperson? That he made some statements but not others? Who knows—the brief never says.

In any event, Durham concludes that “a reasonable officer [would] believe, at the time of Addison’s statements . . . , that [he was] not violating any constitutional right.” (Durham’s new motto: Durham, Where Police Officers’ Slander Doesn’t Violate Any Constitutional Right.”) Judge Beaty’s ruling disagreed, noting that “a reasonable official would have known that it violated clearly established constitutional rights to deliberately make false public statements regarding a citizen in connection with an unlawful arrest of that citizen.”

(4) The Durham brief admits that the April 4 photo array was “suggestive,” but contends there was nothing wrong legally with Gottlieb and Nifong conspiring to run a photo ID outside Durham’s procedures, without any fillers, and after Mangum had already failed to identify two of the people ultimately charged. Indeed, the brief breezily continues, “No reasonable police officer would know that . . . arranging a suggestive photo array violated a constitutional right if the resulting identification was not entered into evidence at trial.” In other words: in Durham, it’s OK to arrest people on rigged ID’s, and then simply not produce the evidence of the riggings at trial. And even more chillingly, Durham maintains that “Plaintiffs’ right [and, by inference, the right of all Durham citizens] to be free from ‘malicious prosecution’ is thus hardly ‘beyond debate.’”

This assertion drew a stinging reply from the players’ attorneys. Quoting Beaty’s ruling , they noted that “’there is no question’ that the right not to have ‘government officials deliberately fabricate evidence and use that evidence against a citizen’ was ‘clearly established’ in 2006. For good measure, the players’ brief quotes a 1^st Circuit case, Limone v. Condon, which observed, “Although constitutional interpretation occasionally can prove recondite, some truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” That Durham appears to believe otherwise is remarkable.

(5) And finally, in an attempt to get police supervisors and former City Manager Patrick Baker off the hook, the Durham brief offers the following howler, regarding a late March 2006 meeting between Baker, ex-Police Chief Steven Chalmers, and the police investigators: “even if Baker and Chalmers ‘ordered’ the investigators to ‘expedite’ the case, the much more likely ‘obvious alternative explanation’ is that they were attempting to bring the case to closure, rather than to convict innocent people.” So that’s what was going on—it’s more likely than not that Baker and Chalmers were pressuring Gottlieb and Himan to close the case and ensure that no criminal charges were filed.

Nothing in the exchange between attorneys for Durham and the falsely accused players changes the basic conclusion from Beaty’s March ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution."

Updates, Including an Extraordinary Passage

2011-09-22T15:15:00.004-04:00

[Update, Friday 9.09pm: A blockbuster piece in today's N&O detailing the degree to which DA Cline twisted the truth in her public "town hall" denouncing the N&O series. Using Cline's own words, the article (penned by Andrew Curliss and Joe Neff) demonstrates that Cline, at best, has convinced herself of self-serving versions of events that aren't true; and, at worst, is simply incapable of telling the truth.]

A few case-related items in the news:

First, Andrew Curliss reports that Frankie Washington—whose conviction was tossed out on grounds that Durham authorities denied his right to a speedy trial—has filed a lawsuit against not only the city of Durham but also embattled “minister of justice” Tracey Cline. As a district attorney, Cline possesses virtually total immunity for decisions made as a prosecutor. But the suit, filed by the Bob Ekstrand, accuses Cline of libel and slander, based on her recent public statements reiterating her absolute, seemingly faith-based, belief in Washington’s guilt. (Cline had no comment on the suit.)

The suit asks both for money and for an independent oversight board for the DPD. Curliss reports that Durham Mayor Bill Bell said that the city would consider reform steps even before a court order—but given that Bell and Durham politicians did nothing when the massive misconduct associated with the lacrosse case was revealed, it’s hard to imagine any forthcoming action from the Washington case, either.

Second, the Daily News caught up with ex-BOT chairman Bob Steel, now (after his . . . sterling . . . performance running Wachovia) a deputy mayor in New York City. Thanks to an executive order from Mayor Bloomberg, top city officials must live in the city unless they receive a waiver, which Steel did not. Yet the Daily News caught up with Steel at what the paper described as his “extravagant Greenwich [CT] mansion”—at which his wife, four dogs, and Porsche, Mercedes, and Lexus all reside.

When the Daily News reporter dropped by, Steel’s wife claimed that he was at his other residence in the city, only to have Steel then appear “wearing golf shoes, shorts, and a preppie sweater.” Steel, naturally, denies any wrongdoing, and claims that his primary residence is in New York.

Finally, the Atlantic is a publication of unusually high quality. How, then, to explain the following passage, from an article about prominent African-Americans’ personal confrontations with racism?

Duke Professor Wahneema Lubiano, who was introduced to me by a brilliant college professor as "one of the smartest people in America," [triple emphasis added] internalized a racist comment and it shifted the course of her life. In the early seventies, in Pennsylvania, in high school, she took the National Merit Scholar's test and placed as a semifinalist. But when she went to the guidance counselor, he suggested she go to secretarial school. "And I believed it," she said. "I went home crying but I believed it." Lubiano ended up going to the University of Pittsburgh but she left after freshman year. "I dropped out, thinking, 'You're too stupid to do this,'" she said. "The damage had been done." She didn't return to college for ten years.
When she went back she went to Howard University and it changed her life. "I was surrounded by really smart black people who were pretty casual about it," she said. "It's not like you walked into a class and sat down and said, 'This is a miracle there are so many smart black people here.' No, you normalized it, it was routine. And in that way it was really nurturing because being smart was routine." For someone with tremendous mental capability and a self-esteem so fragile that it could be broken by a slight comment from a white man she respected, Howard was a life-saver. "By the time I finished with Howard I could go to grad school at Stanford because I was ready."

At least the so-called “brilliant college professor” had the good sense to offer such a breathtaking description on a not-for-attribution basis, to avoid any personal embarrassment. But perhaps this item will provide a new excuse for Prof. Lubiano’s perpetually-forthcoming manuscripts: her sheer brilliance prevents her from getting her thoughts down on paper.

Hat tip--T.S.

Cline the Dissembler

2011-09-17T16:03:00.003-04:00

In an interview with the H-S, Duke Law’s Kathryn Bradley correctly noted that Tracey Cline’s holding a “town hall”/political rally wasn’t in and of itself an ethical violation, given that she planned to discuss trials that had already ended. That said, the peculiar nature of Cline’s decision was unavoidable: “Duke’s Bradley questioned whether Cline was speaking as Tracey Cline, the elected district attorney of Durham, or if she was speaking as Tracey Cline, who didn’t like what was written about her . . . During the meeting, Cline seemed to indicate it was both.”

Just because something might not be unethical doesn’t mean it makes any sense.

Moreover, Cline obtained little but some more embarrassment from her decision to escalate the fight with the N&O. A DIW reader who went to the “town hall” reported the following breakdown of attendees:

8 odd members of the media
7 members of the office of the public defender
3 ada's (all arrived late, one left early)
3 young ladies (purpose of attendance unknown)
2 members of the sheriff's office (both arrived late)
1 police officer
1 minister (a supporter who tipped out after praising her)

If Cline anticipated a swelling of grassroots support, her plan backfired.

Moreover, in an event designed to discredit the “Twisted Truth” series, Cline twisted the truth. She charged that the N&O had misrepresented the record by reporting that she never testified before the jury in the Frankie Washington trial. But, as Joe Neff pointed out, the court records showed that the N&O, not Cline, was correct.

So the embattled DA misrepresented the truth even at her own gathering.

Cline’s handling of the N&O series—which revealed a prosecutor who has only a loose relationship with the truth—seems to have robbed her of whatever credibility she retained, a potentially fatal blow for any prosecutor.

Put yourself, for instance, in the position of a judge handling the appeal of Angel Richardson. In this case, Cline admitted wrongdoing. She violated the Brady rules by failing to turn over, until the trial already had started, police notes that indicated someone else had claimed to have committed the murder. Cline (who, like her predecessor Mike Nifong, boasted of her policy of turning all files, not merely exculpatory ones, over to the defense) claimed that the error was inadvertent, and subsequently defended her decision in court filings.

That document prompted a blistering response from Anne Petersen, Richardson’s attorney, in a filing yesterday posted by the N&O. Petersen termed as “ludicrous” and “inane” Cline’s claim that she should be absolved of her responsibility of handing over the exculpatory evidence on grounds that the defense team could have obtained this information on its own. (By running a classified ad in the H-S, perhaps?) Petersen accused Cline of having “misrepresented the record” (where have we heard that before?) in an attempt to minimize the significance of the DA’s non-disclosure. And Petersen dismissed Cline’s almost comical point that her non-disclosure was irrelevant on grounds that “overwhelming” evidence existed against Richardson. This “Cline Doctrine” (which amounts to saying that Brady doesn’t apply when the prosecutor has decided that she has strong evidence against the accused) would be a far more extreme restriction on criminal defendants’ civil liberties than anything the Supreme Court has promulgated since the Court’s shift to the right in 2005.

Normally, a defense attorney describing a prosecutor’s arguments with such strong terms as “inane” might cause a judge to suspect that the argument is overheated. But Durham isn’t a normal situation, and given Cline’s behavior (including her town-hall appearance), a description of her as misleading the court or offering ludicrous arguments seems perfectly reasonable.

And that situation applied even before this morning’s extraordinary item from the N&O’s John Drescher, in which Judge Orlando Hudson told the N&O that—despite Cline’s protestations to the contrary—he held her “responsible” for her misrepresentations in the Derrick Allen case.

It’s hard to dispute Drescher’s conclusions: “Durham District Attorney Tracey Cline has a problem with facts . . . in communicating in broad strokes, she pays little attention to detail, as if it doesn't matter. She has her story, and she's sticking to it, the facts be damned . . . Cline says she would never lie in court. Let's give her the benefit of the doubt and say her memory has failed her from time to time, as it apparently did Wednesday night . . . But in the end, she's the district attorney for Durham. She is an officer of the court. She is responsible for what she says. The facts matter, regardless of how fast Tracey Cline speeds past them."

And, it goes without saying, Cline continues to deflect comment on whether she will release the 2007 conversation with Michael Biesecker, in which she offered her opinion on the strength of the evidence in the lacrosse case.

Tracey Cline's Philosophy of Justice (Updated)

2011-09-11T22:46:00.010-04:00

[Update II, Thursday, 9.56pm: The behavior of Cline at her "town hall"/campaign rally was bizarre even by her usual standards. First, doors to the courthouse were locked when the event began at 5.30pm, because Cline appears not to have informed the sheriff deputies who handle security at the building about her plans.

Second, at least according to reports in both the H-S and N&O, Cline appears to have ranted against the N&O series without offering any new lines of defense, beyond those that already had been deemed bankrupt in the N&O series.

Third, she did make one specific claim of error against the N&O--only to be proved wrong by the relevant court transcript. Reports Joe Neff,

Cline criticized the Sept. 4 story that focused on her handling of the case of Frankie Washington.

"The story says I testified in front of a jury? Never happened."

The trial transcript indicates otherwise. The jury was called into the courtroom, Cline took the stand, testified and stepped down.

The jury was later dismissed.

Finally, and by this point unsurprisingly, Cline did not comment on what she said about the lacrosse case in her 2007 interview with Michael Biesecker. She did not respond to an e-mail from me asking for her rationale in not bringing up the interview at her . . . truth-seeking . . . event.]

[Update, Tuesday, 11.18pm: In her e-mail exchanges with the N&O, Tracey Cline demanded that the paper send reporter Andrew Curliss and various other figures to what she described as a "town hall" (actually, as she outlined it, more like a Cline political rally) to defend the paper's work. The paper's editors "respectfully" declined Cline's idea, but indicated a willingness to engage, and suggested instead that Cline and Curliss both appear on a neutral forum, such as WUNC. Cline indicated no interest in such an option, nor did she respond to the paper's repeated requests to comment on her 2007 remarks about the lacrosse case to the N&O's Michael Biesecker.

What, then, appeared in Sunday's Herald-Sun? The advertisement below.

The ad doesn't mention that the N&O already declined a "town hall" request, just as Cline appears to have declined the N&O's offer to appear on WUNC. Nor does the ad give any indication that Cline even communicated this new, date-specific "offer" to the N&O. The ad contains no indication of its funding source. Did Cline pay for it out of her own pocket? And what must the State Bar think of this bizarre move? A prosecutor holding "town hall" meetings to criticize a series that indicted her by using her own words doesn't strike me as terribly temperate behavior.]

A problem with prosecutors misleading the court and the public comes in the difficulty of keeping the “revised” story straight. In the lacrosse case, Mike Nifong experienced this problem when he discussed why he didn’t turn over all the DNA evidence to the defense. By the end of the affair, he had offered nearly a dozen (sometimes mutually contradictory) explanations.

It nonetheless was pretty surprising to see that Tracey Cline could not proceed even six minutes before offering contradictory statements on whether she advised Nifong about the case. And these contradictions didn’t even take into account whatever she told to the N&O’s Michael Biesecker in 2007; a 2008 statement from Durham attorney (and DA candidate) Keith Bishop that Nifong and Cline had met with a client of his to discuss the case; and a 2008 note from a figure inside the DA’s office, that Nifong “utilized a small inner circle of advisers, known informally around the office as his “Cabinet,’” which included Cline, and which “met at least weekly for approximately one hour prior to the regular staff meeting of all ADAs and staff. They advised Nifong on sensitive matters and undertook the most sensitive duties in the office. The laborious process of copying, reviewing, and organizing the voluminous discovery in the lacrosse case was not outsourced due to confidentiality concerns; instead it was performed by and under the supervision of, these most trusted advisers of Mr. Nifong.”

--------

Lacrosse matters comprised only around three percent of the July 28 interview between Cline and N&O journalists. The N&O’s series speaks for itself, and didn’t depend in any way on material gleaned from the Cline interview. But the discussion, which lasted more than two hours and which was posted at Cline’s request, provided an extraordinarily revealing look into Cline’s approach to her job and her general philosophy.

Cline stated that she tells all her prosecutors that at all stages before a case goes to trial, they need to step back and look at the facts, lest they miss anything that might contradict their theory of the case. Yet, at other points in the interview, Cline made perfectly clear that this strategy does not guide her approach to handling cases. Speaking of the prosecutor in the second person, Cline implied that “true justice” was “trying every case where you know the defendant is guilty beyond a reasonable doubt.” [emphasis added]

Most prosecutors would seem to focus on cases with strong evidence of guilt, such as confessions, good eyewitnesses, DNA matches, or other compelling “evidence” to ensure a guilty verdict. And when these elements don’t exist, a good prosecutor might want to ask some hard questions about the quality of the case or whether the police arrested the right person (or, in the case of a sexual assault claim, whether a crime even occurred). But not Cline. “Courage,” to her, comes in trying other cases, “cases that do justice to the community and the victim.” [emphasis added]

In short, Cline seems to see herself as essentially a victims’ rights advocate, but one armed with the powers of the prosecutor. If she believes the victim—regardless of whether any objective evidence exists to sustain this belief—the case should go to the jury. During the lacrosse case, it had been widely rumored that Cline had instituted this policy for sexual assault cases; now, it appears, her belief-even-without-corroborating-evidence philosophy applies to all cases in Durham County.

Cline, by the way, curiously denied that her approach constitutes a philosophy. Rather, she said, “it’s the way it should be.” Take a listen:

Perhaps reflecting this philosophy of bringing cases to juries that in fact never should have been tried, the N&O uncovered data suggesting that in 2010, only 30 percent of Durham County’s felony trials ended in convictions on the felony charge; and over the past five years, Durham County had the lowest rate of convictions of North Carolina’s 10 largest counties. The N&O’s Andrew Curliss explained the paper’s methodology to Cline, noted that the figures came from the relevant statewide agency, and asked her an obvious question: was she aware of the plunging percentages in convictions? Incredibly, this data appeared to be news to the DA. But Cline’s first response was to deny the N&O’s figures (without citing any of her own). Here’s the clip:

One problem with Cline’s true-believer approach—once the prosecutor has decided, for whatever reason, that the defendant is guilty, the case must go forward, evidence be damned—is that it invariably leads to a shading of evidence, even on minor matters, to confirm the preconceived belief. Consider this brief excerpt regarding the Yearwood case (allegation of a man trying to sexually assault a 12-year-old girl, only to have the mother allegedly walk in)—but in which no DNA evidence match existed to the defendant.

The N&O has posted the transcript of the 911 call (the mother talks to the 911 operator and in the background to her daughter). But Cline believes that the mother also was talking with the alleged perpetrator in the background—a description of events that would corroborate the theory of the case that the mother walked in on the sexual assault, with the startled perpetrator continuing to lurk. Take a listen:

The N&O also has posted an excerpt of the police interview with Yearwood, in which he admitted that he was present at the house (looking for yard work) but passionately denied having done anything inappropriate with the girl. When the police arrested him, Yearwood was drunk and belligerent. But at a pre-trial conference, Cline told the judge that Yearwood was so drunk he could scarcely give a coherent statement—at best a highly misleading statement, at worst a lie.*

When asked about this behavior by Curliss, Cline simply reiterated that Yearwood was drunk (which no one had denied—the issue was whether he was so drunk as to not have been able to give a statement) before hilariously claiming that the N&O excerpt constituted not a “statement” but a “conversation” with police—as if the judge ever would have suspected that Cline was drawing such a highly technical distinction. This clip lasts a few minutes, but is quite interesting:

This is the case, by the way, in which Cline gave highly misleading statements about the nature of the DNA evidence, which contained no matches to the alleged perpetrator. Pressed by Curliss on these statements in the interview, she didn’t see that she had done anything questionable.

Cline’s true-believer approach was also on display when she discussed the Frankie Washington case (lack of a speedy trial, in which a plausible alternative suspect existed) with N&O journalists. Washington didn’t match the description initially given of the suspect. He was identified not through a lineup but instead by driving him in a police car and having the victims look at him from 20 feet away. The N&O reporters asked Cline whether this was a good ID tactic. She appeared unable to process the question, however, and, Perry-esque, simply stated that the tactic was legal:

With this highly dubious ID as her most significant evidence, Cline went to trial. And even through—as observed in the N&O series—it’s at the very least reasonable to believe that someone else, a convicted criminal, committed the crime, Cline has refused to send the available evidence for DNA testing. She reasoned that she knew that Washington was guilty. Evidence that might contradict that belief seems most undesirable, as is clear in this clip (which lasts a few minutes):

In some ways, however, the most depressing portion of the interview came in this brief excerpt, when Cline outlined the standard to which she (and her prosecutors) should be held. Always telling the truth? Upholding basic ethical guidelines? Following regular procedures? Not exactly—take a listen:

Perhaps this item will provide her re-election slogan: “Tracey Cline: Doing the Best She Can.”

*--corrected, regarding pre-trial rather than in-trial statement

Cline on Nifong & Lacrosse Case: “I Think I May Have Generally Given Him Suggestions"

2011-09-09T17:54:00.003-04:00

The N&O has released audio of a lengthy (more than two hours) discussion between DA Tracey Cline and N&O journalists. Virtually the entire interview dealt with the ethical breaches revealed in the “Twisted Truth” series. But for 5 minutes, 32 seconds, the two discussed the lacrosse case. Here’s the audio excerpt:

Four particularly striking items from the interview.

First: As you’ll see if you listen to the above, Cline is very, very careful about what she says. After N&O reporter Andrew Curliss initially brought up the topic, she almost snarled, biting out, “What do you mean, my role in the Duke lacrosse [case]?” She then repeatedly paused (a couple of times for a significant period), cut herself off, and retreated to generalities.

Second: Contradicting both the DNA evidence and the attorney general’s findings, Cline described the case as “acquaintance rape situation.” In an acquaintance rape claim, of course, both sides acknowledge that sexual contact occurred, and the only question at play is a matter of consent.

Third: While Cline consistently refused to give a direct opinion on Crystal Mangum’s various tall tales, Curliss noted (correctly) that her description of a prosecutor’s role—a willingness to try hard cases despite a lack of evidence, as long as the prosecutor believes in the “victim”—is almost identical to how Nifong described his motivation in the lacrosse case. Curliss then noticed that Cline was smiling, and asked her why. She coyly responded, “I’m just smiling.”

Fourth: Further confirming her reputation for slipperiness with the truth, Cline managed to offer differing descriptions about three aspects of her role in the case—again, in less than six minutes. The contradictions:

Whether She Had Any Involvement in the Case

Cline claimed that she never talked to Nifong about why he took the case, even though, as the chief sexual assault prosecutor for the county, the case normally would have been assigned to her. Cline further claimed that the case simply “didn’t come to my desk.”

But earlier in the interview, she conceded that the case “was originally going to be mine,” and that, originally, the case did come to her desk. She admitted that she had been the prime mover behind the ethically dubious NTO (which operated under the premise that even lacrosse players for whom the state had no evidence were even in Durham that evening could be required to give DNA).

Whether She Discussed the Case with Nifong

When asked directly about whether she spoke to Nifong regarding the case, Cline confessed, “I think I may have generally given him suggestions,” although she refused to reveal the content of those discussions. But then, less than a minute later and after a lengthy pause, she seemed to deny that she had spoken to Nifong about the case: “If he had asked my opinion, I would have given it to him.”

Whether She Would Have Tried the Case with Nifong

At the start of the discussion, Cline seemed to concede that she would have served as second chair at trial, recalling that “Mike had asked me if the case went to trial if I would help him, because he hadn’t tried a case in a long time.” But then, less than two minutes later, she denied that she would have served as second chair, telling Curliss, “I don’t think so.” She offered no explanation for why this was so, or who would have served as second chair in the trial if she had not done so.

A critical point: this interview occurred on the 28^th of July. According to the e-mail stream released by the N&O, at the time of this discussion, Curliss hadn’t uncovered the tape of a 2007 exchange between Cline and the N&O’s Michael Biesecker, in which Cline apparently commented on the lacrosse case. What did she say? Would her 2007 remarks contradict what she told the N&O reporters in 2011? And why has she refused to respond to at least five requests (two from the N&O and three from me) to release the tape?

The Cline Files

2011-09-08T13:52:00.005-04:00

As a follow-up to its series explicating ethical breaches by Durham DA Tracey Cline (which I analyzed here), the N&O has released a treasure-trove of primary sources—e-mail exchanges, an extended audio clip—between its journalists and Cline. As in the lacrosse case, the N&O deserves kudos for its willingness to place copious source material (in the case of this series, court reports, legal briefings and arguments, and police reports) on-line, so readers can test the series' accuracy.

For those who have followed the lacrosse case, by far the most significant item from the 59 pages of e-mails is the following:

Although she would have served as second chair to Mike Nifong had the lacrosse case ever made it to trial, Cline has never made a public statement about the evidence in the case. This audio excerpt, therefore, has the potential to be a bombshell. Cline ignored two requests from the N&O regarding discussing the clip. And she has failed to respond to three e-mails from me asking if she planned to authorize the clip’s release, and, if not, what she told N&O reporter Michael Biesecker in 2007.

For residents of Durham County, the entire e-mail thread is significant. The e-mails reinforce—rather than undercut—the N&O’s portrayal of a prosecutor who, at best, places winning above factual accuracy to such an extent that she (1, below) repeatedly, and publicly, misrepresents key pieces of evidence. The e-mails also show a chief prosecutor who has (2, below) difficulty with basic spelling and grammatical rules; and who seems (3, below) unable to engage with data that contradicts her pre-conceived viewpoints.

In the e-mails, Cline repeatedly told the N&O that she had an attorney—but she just as repeatedly refused to divulge the attorney’s name. If, in fact, this unnamed attorney counseled her to release these e-mails, she should sue for malpractice.

T. Cline, Esq., Paragon of Ethics (Cont'd.)

2011-09-08T13:37:00.004-04:00

At Tracey Cline’s demand—and despite a caution from N&O reporter Andrew Curliss that she might want to reconsider, given their content—the N&O released its reporters’ and editors’ e-mail exchanges with the Durham County “minister of justice.” Far more important than the strange spelling and grammatical errors common in the elected DA's writings, the e-mails reinforce, rather than rebut, the N&O’s portrayal of a prosecutor who too frequently bends the truth to advance her case.

Consider, for instance, these two troubling examples from the e-mail exchanges. First, Cline misrepresents physical evidence:

Curliss responds:

And then Cline misrepresents DNA evidence:

Again, Curliss has to set the record straight, in the process revealing a troubling "evolution" of Cline's public statements:

By the way, the e-mails also feature this Gottlieb-esque development from the DPD, as seen in this Curliss e-mail to Cline, about a DPD officer penning way-after-the-fact notes:

In Durham, it appears, some things never change.

Tracey Cline: Durham's Rick Perry? (Cont'd.)

2011-09-08T13:26:00.016-04:00

Tracey Cline is the chief prosecutor for Durham County. Her job requires—among other things—a degree of intellectual facility. Chief prosecutors must write briefs, and think quickly on their feet in developing and articulating oral arguments.

Starting this spring, Cline stated that she would only communicate in writing with N&O reporter Andrew Curliss. And so e-mails flew back and forth between Cline and Curliss, as well as other N&O journalists and editors. In response to the “Twisted Truth” series, Cline demanded that the N&O make public all of these e-mails. Curliss tried to give her an out, noting that the e-mails featured her making factually erroneous statements. But Cline insisted.

Below are some excerpts from the e-mails. Everyone has typos in e-mails. But Cline repeatedly makes basic spelling mistakes—such as:

Cline also favors wild run-on sentences—the sort of writing that I often see from poorly-prepared freshmen, but would never expect from a chief prosecutor:

And I have absolutely no idea what Cline meant in this sentence:

Cline also tends to play the victim card—even as she noted in her interview with the N&O that she didn’t want to suggest she was a victim:

Politico recently ran a column with the blunt headline, “Is Rick Perry Dumb?” The e-mails suggest that Durham’s current DA is in Rick Perry’s intellectual league.

Tracey Cline: Durham's Rick Perry?

2011-09-08T13:09:00.002-04:00

One of the most extraordinary videos of a politician I have ever seen was this interview of Gov. Rick Perry.

Asked a simple question, Perry not merely was unable to provide a coherent response, but he couldn’t intellectually engage with (or even process) data that contradicted his pre-ordained belief. It was almost as if Perry thought the interviewer was speaking Hebrew.

Listening to Cline’s July 2011 discussion with N&O journalists reminded me of the Perry interview. Cline’s chief complaint—which she also expressed several times in e-mails to the N&O—involved a claim that in March 2011 articles about the Derrick Allen case, the N&O hadn’t revealed that the state had turned over bench notes regarding SBI testing to the defense.

This complaint would have been serious, if true. But not only had N&O articles mentioned the fact twice, N&O staffers read to Cline, during their meeting, the relevant sections from the paper’s stories. Much like Perry in the abstinence clip, Cline reacted as if her interviewers were speaking a foreign language (except for when she said she had no complaint about Judge Orlando Hudson making the same alleged error of which she was accusing the N&O). She repeatedly pressed the N&O reporters and editors to see her point of view. They confessed they were unable to do so—and understandably, since Cline’s “view” was incomprehensible. Here’s the section of the interview:

Based on this . . . reasoning . . . Cline concluded that the “Twisted Truth” series had done her a grave “injustice.” She penned a rambling e-mail demanding that the N&O send reporter Andrew Curliss, plus the paper’s editors, to a Cline-arranged “town hall,” at which she would invite “the victims in the crimes of alleged misconduct,” representatives from the DPD, and local politicians. (In other words, she planned to arrange a Cline political rally.) The N&O editors declined, but expressed a willingness to have Curliss appear alongside her in a neutral forum, such as a moderated discussion by the WUNC public radio station. Cline didn’t indicate any interest in such an option.

T. Cline, Esq., Paragon of Ethics (Cont'd.)

2011-09-04T16:24:00.008-04:00

[Update, Tuesday, 5.11am: The third and final part of the series portrays a "minister of justice" who routinely flouts not merely the Supreme Court's Brady requirement (which mandates that all exculpatory evidence be turned over to the defense) but also North Carolina's open file discovery law (which mandates that all material be turned over to the defense). As with the first two parts of the series, Cline blames everyone else (the police, unnamed people in her office, procedures in her office that she claims to have changed, poor cooperation in one case with the FBI) for her failure to uphold legal ethics.

Viewing the articles through a lens most favorable to Cline, the series portrays a prosecutor who sees her role not as a "minister of justice" but as the representative of victims of crime, and who believes that her sole role as elected D.A. is to obtain convictions, by whatever means necessary. Through a more realistic lens, the series shows Cline to be fundamentally unethical, a prosecutor who believes that the rules don't apply to her.

One final note, on the similarities and differences between Nifong and Cline. Anyone who followed the lacrosse case will recognize the similarities--the willingness to mislead judges, bizarre rationalizations of negative DNA evidence, withholding exculpatory evidence while simultaneously (and sanctimoniously) proclaiming in public about having turned over all files.

But there's a very significant difference, as well. Cline, in this series, comes across as someone whose basic goal is to win at all costs, while breaking myriad rules in the processs. But there's no indication that she ever interfered in a pre-indictment police investigation--her rule-breaking always appears to have begun after indictments occurred--or that she has exploited a case for immediate political gain, as Nifong did. So there's something of a difference in motive, even as both chief prosecutors exhibited fundamentally and deeply unethical approaches to their position.]

[Update, Monday, 11.07am: The second part of the series should send chills to anyone who followed the lacrosse case. The case involved a claim of sexual assault against David Yearwood, in which then-ADA Cline misrepresented DNA findings to the court and withheld evidence from the defense attorney, all while she was claiming to go above and beyond the legal requirements by providing "open-file" discovery. Sound familiar?

A couple of passages to capture the flavor of Andrew Curliss' exposé, which I recommend in its entirety: "Cline told a judge that 'contact was insufficient' to capture Yearwood's DNA. She said the tests couldn't determine whether saliva found in the child's vaginal area belonged to the girl or to Yearwood. But the crime lab's work was clear about Yearwood: No forensic evidence, such as hair or fluids, connected him to the alleged crime, according to interviews and SBI records."

More: "Cline said she believes that she spoke accurately but that she relied in some instances on information that was available to her but is not in any record."

And a Nifongesque touch: "Long-settled law in the United States requires that defendants receive information the state gathers if it could be favorable to the defendant or if it would undermine, or impeach, a witness. Cline said in hearings during the Yearwood case that she went beyond that, giving 'open file' access. But records Yearwood's lawyers have not previously seen have recently emerged. The SBI's lab report and notes, as provided to Yearwood for his trial, are 12 pages. The SBI says its file is 71 pages. Investigators scraped Yearwood's fingernails, but he has no reports about testing on them. In one hearing, Cline said the police had dusted for fingerprints in the home, mentioning as many as 20 prints. But she said they couldn't be evaluated because they weren't 'workable.' No reports about fingerprinting were provided to Yearwood."

Tracey Cline was going to be Nifong's second chair if the lacrosse case had gone to trial. It's quite clear, based on the above, that she would have had no problems with his unethical handling of the case. The question now is how much she advised him, in private conversations, to follow his unethical course.]

The voters of Durham County elect a district attorney with a record of public, ethically-dubious behavior. Now possessed of more power than ever before, the “minister of justice” only intensifies the unethical conduct.

The two sentences above could apply to either of the last two district attorneys elected in Durham. Mike Nifong is, fortunately, disbarred, and can’t harm people anymore. Tracey Cline is, alas, still dispensing her brand of “justice” in the Triangle.

A blockbuster story, by Andrew Curliss, in today’s N&O shows Cline to be, at best, utterly indifferent to legal ethics; at worst, she is someone determined to break the rules on a consistent basis in order to win in court. The article’s thesis: “In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers. . . . Cline's conduct is under scrutiny for similar behavior in at least five cases other than Washington's that are in various stages of the courts, according to documents and interviews.

Today's article focuses on the Court of Appeals dismissing the conviction of Frankie Washington, on 6th amendment grounds. (That’s extraordinary in and of itself—though technically all defendants have a right to a speedy trial, the courts almost never enforce those rights.) The article shows that, in handling the case, then-ADA Cline was at best negligent and at worst lied outright on the witness stand (Washington’s attorney had called her to testify to ask why it took so long for the case to trial). Cline tried Washington on a procedurally dubious eyewitness ID, without forensic evidence, and without looking seriously into evidence that another man, a convicted criminal named Lawrence Hawes, actually committed the crimes.

Even now, almost incredibly, Cline refuses to ask the SBI lab to compare the DNA evidence in the case to Hawes’ profile, which they have on file. Why? "It was clear to me that Frankie Washington was the person who did it."There was never any doubt in my mind that he committed the offense."

Evidently, Tracey Cline “knows” the truth, evidence be damned. Does that sound familiar? But what more could be expected from a "minister of justice" who invited Mike Nifong to her inauguration?

Curliss also interviewed several jurors from the case, all of whom didn’t know the charges had been dismissed. They recalled that when deliberations had begun, considerable disagreement had existed, but that they had eventually based their decision to convict largely on the basis of eyewitness ID. Yet the police had never even included Washington as part of a lineup—instead, two witnesses, sitting in the back of a police car, got a look at Washington from a distance of 20 feet. Incredibly, Cline seemed to have no problem with sending someone to jail based on such police conduct: "Frankie Washington has very smooth skin around his eyes, extremely, very distinctive eyes," she said. "It was clearly a legal show-up."

The State Court of Appeals, more reasonably, wrote, "We are troubled by the Durham Police Department's use of a highly suggestive show-up procedure to identify defendant as the perpetrator of this crime."

The Court of Appeals opinion overturning Washington’s conviction is brutal in its description of the DPD’s behavior and Cline’s indifference to legal norms: “The circumstances of this case are unprecedented,” the court wrote, in that “even with more than four-and-one-half years of time to prepare its case, the State failed to completely analyze the evidence as ordered.”

More important, “the record contains overwhelming evidence that the actual reason for the delay in this case was not a neutral factor, but rather, was repeated neglect and underutilization of court resources on the part of the Durham County District Attorney’s Office.” Evidence was “not submitted to the SBI lab for analysis until 4 August 2005, which was more than three years after these items were collected.”

“The record reveals that during the prosecution, the State was given notice of evidence tending to establish the guilt of another person already in custody, yet the State failed to request that the SBI make appropriate comparisons of the evidence to this person.”

The opinion noted the Court’s concern with “the fact that the victims in this case were permitted to participate in several in-court identifications nearly five years after the date of the crime.”

And then the opinion zeroed in on Cline: “At trial, Assistant District Attorney Cline testified that it can take ‘years’ for the SBI to fully test an item. This assertion, however, is simply unsupported by the evidence of record.” Cline’s stunning response to the Court? “In an interview, Cline did not recall[!!] her testimony at the trial."

In a series of interviews and e-mails with Curtiss, Cline offered varying explanations/excuses for her behavior. “I would not sit in a courtroom and lie. I wouldn't," she said. "That is not who I am. And anybody that knows me will tell you that.” That a person who invites to her inauguration the only DA in Durham's history convicted of lying to the court, and who then cut the salaries of the people in her office most associated with championing legal ethics, can claim to be a truth-teller to the core is almost laughable.

On another occasion, Cline seemed to blame the system, almost as if violations of constitutional rights are inevitable and unavoidable, and a prosecutor doesn't have any independent role in upholding ethics: “Every day we go to court - or in every jurisdiction in North Carolina, South Carolina, probably all the 50 states - there's evidence that's thrown out because of constitutional violations. There's confessions that are thrown out. There's evidence that's suppressed. Everything. This happens every day because of a violation of someone's constitutional rights. And, to be sure, sometimes the guilty people go free."

A few broader points:

(1) Events in Durham since 2006 are Example A of the dangers of elected district attorneys. Based on the results of the 2006, 2008, and 2012 elections, a majority of Durham voters are indifferent to electing chief prosecutors who are, in turn, at best indifferent to adhering to basic legal ethics. The result is almost predictable—a D.A.’s office run by people who can’t tell the truth will invariably trample on defendants’ rights.

(2) Washington’s fate—and the fates of the other defendants who have suffered from Cline’s unethical behavior (and that of the DPD)—brings into relief the folly of how groups like the NAACP and supposed progressives such as Irving Joyner and Diane Catotti approached the lacrosse case and its aftermath. Rather than realize that it was likely that the behavior of Nifong (and Cline) and the DPD likely had threatened the rights of other defendants, they chose to function as Nifong apologists—thereby losing the chance to push for a full-scale review of how the DPD and the prosecutors associated with the lacrosse case had behaved in other cases.

(3) Will the State Bar inquire into Cline’s behavior?

Reminders

2011-09-02T00:44:00.004-04:00

A few items from the last week serve as reminders of the lacrosse case.

First, a teaser from yesterday’s N&O front page, highlighting an article to appear Sunday (that I’ll blog) on Mike Nifong’s ethically-challenged successor, Tracey Cline.

Second, college football fans might have read about the arrests of two of LSU players (including the starting quarterback) for assault. LSU’s current athletic director is former Duke AD Joe Alleva—who demonstrated a rather uneven record in the lacrosse case: he shifted from initial public support for the lacrosse players to sudden silence, even as faculty members starting publicly going after student-athletes. All the while, he remained on the job despite being involved in a boating accident that resulted in alcohol-related charges against his son, before moving onto LSU at a higher salary.

Alleva’s comment on the football players’ travails? According to the Times-Picayune, “For his part, Alleva said the current problems facing the football team are "frustrating," but added that he understands how to handle delicate off-the-field issues from his experience around an alleged 2006 Duke lacrosse rape case that sparked controversy during his time as athletic director at the school.

“There's a lot of similarities in this situation," said Alleva, who has been at LSU since 2007. "I think it's always disappointing when student-athletes don't behave the way they're expected to."

A “lot of similarities” exist between the situations? Really? In the LSU case, no one appears to be denying that a fight occurred and that people were injured, though the players’ attorney has stated that his clients are innocent. (The lawyer has been careful not to deny that the players participated in a fight.) In the Duke case, on the other hand, the players’ attorneys consistently said that no crime occurred, and no physical evidence existed of any injury.

In the LSU case, the prosecutor and police appear to have behaved ethically—and, indeed, seem to have bent over backwards to ensure cooperation with the players. In the Duke case, on the other hand, both the prosecutor and the police cast legal ethics aside in an attempt to obtain convictions.

In the LSU case, there’s no evidence of race/class/gender-oriented faculty exploiting the situation to advance their pedagogical agendas (perhaps because one of the accused is a non-wealthy African-American, albeit one who owns no fewer than 49 pairs of shoes). In the Duke case, on the other hand, activist professors aggressively exploited the case, initially relying solely on the version of events presented by Mike Nifong—though most, in the 2007 clarifying statement, reaffirmed their rush to judgment even after Nifong’s case imploded.

In the LSU case, the accused players appear to have acted well outside the norm for LSU students (most LSU students, it would seem, don’t engage in bar fights). In the Duke case, on the other hand, the lacrosse players—along with hundreds of other Duke students, and thousands of students nationally—attended a tasteless spring break party; and—along with nearly 20 Duke groups over the course of the 2005-6 academic year, including some athletic parties—hired strippers.

Well, one similarity exists between LSU and Duke: Joe Alleva was the AD in both situations.

-----------------

And finally, consider this item from Cara Buckley in the New York Times, on the aftermath of the DSK dismissal of charges: “Experts said rape crisis centers usually see a drop in reported cases in the aftermath of high-profile sexual assault cases, especially those in which the prosecution failed, like the case against Duke University lacrosse players.”

Nifong clearly “failed,” but this doesn’t appear to have been Buckley’s meaning about “the prosecution.” In the lacrosse case, of course, Crystal Mangum's varying allegations were thoroughly investigated by the North Carolina attorney general's office. The special prosecutors' investigation used medical, DNA, and electronic evidence--as well as numerous interviews with Mangum, the two men euphemistically termed her "drivers," and lacrosse players who attended the party--to determine that the people Mangum accused were actually innocent, and that no physical contact of any kind between her and the accused could have occurred. Mangum, they concluded in a public report, had either lied or had come to believe her claims (which included, in their final version, an assertion of the rape occurring while she was suspended in mid-air) because of her serious, and longstanding, mental problems.

This process, obviously, was not the "prosecution" having "failed," given that the prosecutor's job is to achieve justice, not to obtain a conviction. Buckley—or her interviewees in the “victim’s rights” movement, whose viewpoint the article reflected—appear actually to maintain that any high-profile sexual assault claim, no matter how flimsy, that doesn’t yield a conviction, by hook or by crook, leads to diminished reports of sexual assault.

On another front, I invite readers to answer this SAT-style question: which of the following is NOT like the other?

a.) The DSK case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could conclude that a sexual assault likely took place;

b.) A recent case involving two ex-NYPD officers, which yielded conviction on minor charges and in which the officer’s defense against rape was the highly implausible contention that he lay down in bed with a drunk woman to whose apartment he had been called but didn’t sexually assault her;

c.) The William Kennedy Smith case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could (though I’d argue shouldn’t) conclude that a sexual assault likely took place;

d.) The Duke lacrosse case, in which no sexual contact of any kind occurred, and in which a state investigation was able to conclusively conclude that each of the accuser’s myriad tales was false.

I suspect that most test-takers would respond “d.” Yet Buckley’s article, reflecting the viewpoints of victims’ rights advocates, lumped the four cases together. And so either (a) given the disparity between press coverage of Mangum’s initial charges and of the players’ exoneration, many people, including potential rape victims, recall the event as initially portrayed, a likely sexual assault (thus implying continuing harm to the falsely accused players’ reputations); or (b) Buckley, whose article contained no quotes from any defense attorneys, buried the lede—that victims’ rights groups, for their own reasons, choose to link the lacrosse case with cases in which some doubt about guilt is actually plausible, in a manner that almost would have to raise suspicions that something must have happened in Durham.

On the latter point, in sentiments recalled the extremism of former SANE-nurse-in-training Tara Levicy, Buckley reports, "None of the women’s advocates interviewed expressed doubt in Ms. Diallo’s claim that she was assaulted." Ideological blinders work wonders.

The latter two items testify to the lasting reputational damage to the falsely accused players caused by the unethical actions of Nifong, the DPD, and figures such Levicy and Dr. Brian Meehan.

Durham & NYC

2011-08-22T23:34:00.007-04:00

[Update, Tuesday, 3.45pm: On the Atlantic site, Andrew Cohen praises Vance's decision. His conclusion: "No one ever said the criminal justice system is pretty, or perfect, or capable of always delivering a narrative that has a clear beginning, middle, and end. There is no legal right to a happy ending -- or even a dispositive one. The leavening truth here is that the Constitution worked pretty much the way it is supposed to work in these circumstances. Under the Supreme Court's precedent in Brady v. Maryland, prosecutors have a duty to share with defense attorneys any exculpatory evidence they find. This the prosecutors did, to their eternal credit. Moreover, a district attorney has an ethical obligation not to try a case he or she doesn't believe can be won. This, too, the district attorney considered."

Cohen had a far different take, however, on the lacrosse case, writing in June 2006 that discussion about Mike Nifong's procedural misconduct meant that, in the media, “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” The lacrosse players, he claimed in apparent ignorance of the first month of the case, benefited from “race and money and access to the media.” And when the victims of a rush to judgment were college students rather than the former IMF head, Cohen's interpretation of legal ethics went as follows: “We haven’t seen all of the evidence, haven’t examined all of the testimony; haven’t had the privilege of seeing the case unfold at trial the way it is supposed to.”]

As I’ve noted previously, there were significant differences between the lacrosse case and the allegations against French politician Dominique Straus-Kahn: in the DSK case some type of sexual contact occurred; and even his version of events reflected poorly on the former IMF head's character.

It turned out, however, that the most significant difference between the two cases involved the office of district attorney. With the exception of an ill-timed public statement early in the case, Manhattan DA Cyrus Vance, Jr., followed both ethical guidelines and normal investigative procedures. Mike Nifong, of course, did not. A few items from the dismissal motion filed by Vance’s office:

Prosecutor’s Duty

Vance's office spelled it out in the dismissal motion:

Nifong, by contrast, spoke of false accuser Crystal Mangum as “my victim,” and as late as Dec. 2006 ignored basic ethics and described his role as purely a gatekeeper: “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.” These comments came several weeks after what was perhaps his most chilling remark of the entire case, when he claimed that not the evidence nor even his beliefs but instead divisions within the community sufficed as a cause to bring the case to trial.

Continuing the Investigation

Consider these passages from the motion, describing the Manhattan DA office’s continuing investigation:

This investigation included a critical analysis of the medical evidence:

Nifong, by contrast, preferred willful ignorance; he claimed that, until his case imploded with the Dec. 2006 Meehan hearing, neither he nor anyone from his office asked Mangum anything about the case. And neither he nor his office appear to have challenged the ever-changing testimony of former SANE-in-training Tara Levicy.

If Vance and Nifong differed, some elements of the political and intellectual community evident in Durham carried over into New York.

Sunday's New York Times reported that "Bill Perkins, a state senator from Harlem, who like Mr. Vance, is a Democrat, stood alongside black and female leaders and urged Mr. Vance to press forward with the case . . . Mr. Perkins and others framed the case as a possible instance of a powerful white man getting off for something he did to a poor immigrant woman. . . . Councilwoman [Letitia] James said that if the case was dismissed over credibility issues,'it would have a chilling effect on all rape victims, and it would send a message to all rape victims that unless you are a perfect rape victim, you should not even bother to come forward.'"

There’s little reason to believe that James or Perkins will suffer any political repercussions for their indifference to due process; but if they do, they could discuss survival strategies with one of the most vociferous apologists for the DPD’s procedural shenanigans, City Councilor Diane Catotti, who remains in office, and seems likely to win re-election this fall.

Alas, the Durham Democrats have removed from their website the 2006 photograph of a beaming Catotti standing by her endorsed candidate for her city’s minister of justice, Mike Nifong. But even without the photo, based on her record in the lacrosse case, those who presume guilt in sexual assault cases and are indifferent to procedural misconduct by authorities have no better friend than Catotti.

Durham "Justice"

2011-08-17T13:18:00.004-04:00

An explosive story in today's N&O, suggesting that the familiar patterns--concealment of evidence, lax ethics in the police and prosecutor's office--remain firmly in place in Durham. In this case, the behavior had a deeply unfortunate consequence: for the second time in nine months, a murder charge was dismissed on procedural grounds. Judge Orlando Hudson found "that the state and/or its agents have destroyed the evidence," violating the terms of the Brady decision.

Read the entire story, by J. Andrew Curliss, here.

A few noteworthy items:

--Durham County's "minister of justice," the ethically-challenged Tracey Cline, declined to comment, or offer any explanation to the public as to how her office has repeatedly run afoul of basic procedural guidelines.

--Hudson has promised "a very interesting order" outlining his findings.

--Cline couldn't even manage to get the small lies correct, as seen in this vignette regarding the victim's sister, Latifah White. From Curliss' article:

White had been testifying while wearing sunglasses, an accommodation allowed because Cline said she was legally blind. But in the midst of her testimony, the sister told the judge she was removing her glasses.

"Dorman is looking at me," [the supposedly blind White] said. She removed the glasses and stared at Dorman from the witness box.

Can anyone really be surprised that DA Cline isn't overseeing an ethically pristine office?

Moneta & Holloway

2011-08-11T19:36:00.005-04:00

The contemporary academic majority worships the trinity of race, class, and gender. Class is clearly the third wheel—unsurprisingly given that most tenured professors are well-off financially and secure in employment, and therefore don’t have a personal connection to the preferred ideological viewpoints on the issue.

The competition for primacy between race and gender, however, is less clear-cut. In a matter like the lacrosse case, where the preferred viewpoint on class, race, and gender all dictated a rush to embrace false accuser Crystal Mangum’s wild claims, the result—as we all saw with the Group of 88’s activities—can be vicious. But the rape of Katie Rouse, a white Duke student, by a local black man was met with utter silence from the Group. As I noted at the time, they seemed desperate to avoid making a politically difficult choice.

One Duke administrator, on the other hand, seemed positively eager to demonstrate that when push comes to shove, race trumps even gender. Larry Moneta responded to the attack on Rouse by issuing a statement casting blame on the victim. As he informed a local TV station:

Rouse has filed a federal lawsuit against Duke, claiming that the administration’s actions created for her a hostile educational environment. She took a leave from Duke shortly after the attack, and eventually left the university altogether, though under disputed circumstances. The initial complaint, filed by Bob Ekstrand, and Duke’s response go over the events of the case, but the two documents feature several notable items:

(1) Ekstrand claims that Duke administration never sanctioned the (African-American) fraternity at whose event Rouse was sexually assaulted.

(2) Both sides concede that Duke’s Stephen Bryan e-mailed senior administrators after Rouse was attacked—and highlighted the race of her attacker. In its response, Duke declines to explain what motivated Bryan.

(3) Ekstrand’s complaint alleges—and Duke’s response doesn’t seem to dispute—that Duke maneuvered (a cynical person might say manipulated) its internal procedures in fall 2007 to get Rouse out of the university. Then-dean Diane McKay (who’s now at Princeton) met with Rouse at the time to discuss Rouse’s desire to take some time off, and encouraged Rouse to write an e-mail stating a desire to transfer. Duke then took this e-mail as an indication that Rouse had voluntarily withdrawn from the university, rather than (as Rouse seems to have intended) a desire for additional voluntary leave as she recovered from the rape.

(4) Ekstrand tries to claim that university administrators had a legal obligation to follow the student handbook—a losing argument in light of Judge Beaty’s unfortunate decision in Carrington. Duke makes clear the documents have no legal weight at all, instead asserting “that Duke University published and made available its Undergraduate Student Bulletin and its Community Standards publications.” The bulletin, in short, isn’t worth the paper upon which it’s printed.

(5) Duke claims that deciding in Rouse’s favor would constitute a “denial of due process”(!) to defendants such as Moneta.

(6) One item in Duke’s response raised eyebrows: “Defendants admit that Crystal Mangum is an African-American Durham woman who falsely accused Duke lacrosse team members of rape.” [emphasis added] This admission appears to contradict a key element from the filings of former Duke attorney Jamie Gorelick, whose departure as the university’s lead counsel in the civil suits continues to lack credible explanation. Gorelick’s filings, it’s worth remembering, strongly implied that the judgment of former SANE nurse-in-training Tara Levicy was correct, and the findings of the AG’s report were wrong.

Duke, therefore, is simultaneously claiming that Mangum’s claims were false and that Levicy’s “medical” findings that corroborated Mangum’s rape claim were true.

-------------

During the lacrosse case, English professor (and a Duke. law faculty member who lacks a J.D.) Karla Holloway demonstrated an . . . unusual . . . conception of ethics in the legal arena. Abandoning the academy’s traditional fealty to presumption of innocence, she signed a statement affirming that something “happened” to false accuser Mangum. She then publicly criticized the Duke women’s lacrosse players who did stand up for presumption of innocence. And, after Mike Nifong’s case imploded, she penned a mass e-mail passing along wild sixth-hand gossip designed to make the falsely accused players look bad.

And yet the NIH has invited this same Karla Holloway to participate in a forum on . . . ethics.

Was Larry Moneta unavailable?

Rob Taylor Cracks the Case

2011-08-05T22:28:00.002-04:00

At this stage, nothing about the lacrosse case should in any way surprise me—but then someone like Rob Taylor comes along. Taylor, who runs a crime-related blog out of Greenville, South Carolina, was invited by Frontpage to participate in a forum on the Casey Anthony trial. The panel’s other members: Alan Dershowitz, Bill Anderson, and Ben Shapiro, a Harvard Law grad and Los Angeles lawyer.

After a reference to Nancy Grace’s appalling coverage of the Anthony trial, the forum moderator mentioned Grace’s even more appalling treatment of the lacrosse case. But Taylor would have none of it.

“The accused in that case [emphasis added],” he huffed, “aren’t innocent. Innocent people don’t gangbang hookers, they don’t stiff hookers and they don’t hurl racial slurs at them.” Dave Evans, Reade Seligmann, and Collin Finnerty—“the accused in that case”— were guilty, Taylor wildly continued, of “criminality and immoral behavior . . . three guys stiffed a hooker and got burned . . . My point here is that though they weren’t guilty of rape they were not innocent. They hired two hookers (not strippers), didn’t get the color they wanted and when an argument ensued started calling them the ‘n’ word. Justice prevailed – but they brought this on themselves when they hired and fought with two drug addled hookers.” The falsely accused players, Taylor concluded, are “degenerates whose degeneracy led them to be the victims of other degenerates.”

(The FrontPage moderator vehemently rebuked Taylor for his comments, though the magazine nonetheless printed Taylor’s wild assertions.)

I concluded that, perhaps, Taylor had obtained secret and heretofore-unrevealed evidence about what transpired at the party, since I couldn’t imagine that someone at this stage would be so willfully inaccurate in a public forum. So I wrote to Taylor, identified my background and connection to the case, and asked him for the evidence upon which he based his opinions. I pointed out that the known evidence contradicted Taylor’s version of events in at least five ways:

(1) That despite Taylor’s assertion that “though they weren’t guilty of rape they were not innocent. They hired two hookers,” Seligmann and Finnerty played no role in the planning of the party, much less the decision to hire the strippers;

(2) That despite Taylor’s assertion that the allegedly “innocent people” had elected to “gangbang hookers,” there was no evidence, including the negative DNA tests, of any sexual contact of any kind between Crystal Mangum and Seligmann, Finnerty, or Evans (or to any lacrosse player);

(3) That despite Taylor’s assertion that “though they weren’t guilty of rape they were not innocent. They hired two hookers (not strippers), didn’t get the color they wanted and when an argument ensued started calling them the ‘n’ word,” unimpeachable electronic data confirmed that neither Seligmman nor Finnerty were even present at the house when one player hurled a racial epithet at the second dancer, Kim Roberts;

(4) That despite Taylor’s description of Roberts as one of “two drug addled hookers,” no evidence exists that Roberts was a hooker, or that she was “drug addled” or in any way incapacitated; and

(5) That despite Taylor’s assertion that “they hired two hookers,” no evidence exists that the player who hired the strippers (who was, of course, not one of the falsely accused players, despite Taylor’s claim to the contrary) actually intended to hire not strippers but hookers.

It’s difficult to paraphrase Taylor’s response, so I’ll print it below, with the profanity as in the original:

Are you kidding? I have $500 for you (if you're married) and you go tell your wife now that you want to hire strippers from an escort service. [As none of the people at the party were married, I’m not sure what point Taylor is attempting to make here—ed.] Then go to a strip club with real strippers and ask them to insert something in themselves without having the bouncer beat you half to death.
This is what my comments were about - common fucking sense. These kids hired hookers. That's who you hire from escort services and there are no "strippers" who work frat houses [Taylor appears unaware of the nearly two dozen Duke parties in the 2005-6 academic year that hired escorts—ed.]. You know that. You're pretending not to because it's convenient.
I didn't say this or that individual did a specific act - I said if you hire drugged out hookers and they know where you live you should remain on good terms with them. You're little boyfriends are lucky that Mangum - who as it turned out was an insane murderer - didn't kill one of them and you and I both know she was probably planning that before she killed her old man. They put themselves in danger just like people who buy weed in Prospect park do. In your rush to defend them you pretend they weren't doing anything wrong or that they themselves weren't committing crimes. Like underage drinking or HIRING ESCORTS. They were not guilty of rape - but they weren't innocent. That word should means something in our society but it doesn't because degenerates like yourself are so eager to deflect judgement from society they work to promote the illusion that morality is subjective.
Now for your question when Anderson mentioned the case I went to other crime blogs and read the archived police and witness statements. Then I used common sense. I'm from jersey - I met strippers and I currently have a couple of tipsters who work in the sex industry. I know the deal. You can Google and find the same sites I went to.
Now let me lay a real truth on you. You teach at some college that's a step above Essex County Community. I have a Masters from Wesleyan University.Neither of these things matter[emphasis in original] and the fact that you're an academic with time to run a blog about old cases is not as impressive as you would think. I get paid to do this - I make a living writing on the web etc. I don't get paid to debate with random weirdos on the web (except in that Frontpage piece). I don't know who you think you are, but the sense of entitlement that drives you to think I need to answer to you is the similar to the one that makes idiots think hookers don't have ways of getting even with them. Contemplate this.
I get it. You want to promote the book you slapped your name on which is no doubt about this case. [I actually have published six books; and have done no promotional work for the lacrosse book in more than three years—ed.] But before you insert yourself into this moment on the web I can tell you that it's my policy to ignore and/or mock people who are condescending in their emails. Also I publish them along with their contact info. [My contact info. is already public, on both the blog and my personal website—ed.] Now if you want to rethink what you wrote and contact me in a more respectful manner I might trade a cordial email with you. But right now I'm going to tell you I'm working, and you need to get a real job hippy because it's the middle of the goddamn day and you're trolling me via email.
If you don't like what I said leave a comment at Frontpage. Who are you think I'd want to engage you personally? I moved out of NYC (The Bronx - where real men live) because I don't like New Yorkers. Not interested in talking to any now. [Though I work in New York, I’m actually a resident of Maine. I presume Taylor doesn’t like Mainers, either—ed.]

Sifting through this extraordinarily angry and defensive response, it would be easy (and not altogether inaccurate) to dismiss Taylor as full of sound and fury, signifying nothing. That said, a few items stand out:

(1) Taylor consumed quite a few words (618, to be exact) to say what could have been said in one sentence (i.e., “I can say whatever I want about the case, and refuse to provide any documentation for my remarks.”)

(2) Why? One theory: Taylor recognized that he needed to walk back the most obviously false (and almost certainly defamatory) item of his Frontpage screed—his assertion that the three falsely accused players (1) hired “hookers”; (2) participated in a “gangbang” with one of these “hookers”; and (3) hurled a racial slur at both Roberts and Mangum.

Yet Taylor’s denial—“I didn't say this or that individual did a specific act”—is absurd. He clearly referred to “the accused,” the “three guys,” who “though they weren’t guilty of rape . . . were not innocent.” Rather than retract his demonstrably false statements about Seligmann, Finnerty, and Evans, Taylor simply asserted that he didn’t say what he said—even though there’s a permanent record of his remarks.

Indeed, by admitting that he had researched the case, including police reports, before penning his incendiary remarks, Taylor has sacrificed any claim of ignorance about the case. Instead, he all but admitted that he defamed the three falsely accused players—“the accused”—with actual malice.

(3) Even if only 1 percent of the American public shares both Taylor’s ignorance and his indifference to facts, that would total more than 3 million people—suggesting the massive, and likely permanent, nature of the harm caused to the falsely accused players by the misconduct of Nifong, the DPD, and DNA Security.

Legal Filings

2011-08-02T17:13:00.003-04:00

In perhaps the least surprising legal development of the case, a unanimous three-judge panel from the North Carolina Court of Appeals affirmed a lower court's judgment that DNA Security had cause to fire former lab director Brian Meehan.

The court's description of Meehan's activity was blunt. Though his lab's tests indicated not one but two vital findings: "(1) there was no match between any of the specimens provided by the lacrosse players and the alleged victim; and (2) the alleged victim had recent sexual contact with multiple men who were not among the specimens provided," Meehan's "report obscured findings that exculpated the charged players." By using "opaque" language "instead of explicitly stating both conclusions," Meehan produced a report that "obscured the actual test results"--not even mentioning the critical second finding, and mixing in the first finding with additional irrelevant details.

The appeals court found that Meehan had no grounds to dispute his dismissal for just cause, given that he had, under oath, "explicitly stated that he knowingly violated his company's protocol and procedures." Meehan's dubious conduct, in turn, directly harmed his company's bottom line, since "DSI's business model depended on the reliability of the scientific research and its reports used by courts or law enforcement personnel for determining the probable guilt or likely innocence of those being tested." The contract between DSI and Meehan stated that the lab director could be fired for misconduct, and Meehan's behavior fit the bill: "Plaintiff's misconduct involves intentionally obscuring evidence and submitting an incomplete report in a court of law when clear explanation of the test results would have exculpated individuals wrongly charged."

The opinion also quotes at length from Brad Bannon's brutal examination of Meehan at the Dec. 15, 2006 hearing, and includes the following classic Meehan rationalization of his report: "I don't have a legal justification for it or a reason, okay."

-----------

In a partial setback to the three falsely accused players, Judge Beaty declined to certify their appeal of one aspect of his March ruling, namely his finding that as the City could not have delegated its policymaking authority to Nifong, the claims against Nifong in his “official capacity” are claims against the State (forbidden by the 11th amendment), not the City, and therefore "the City cannot be liable under § 1983 for 'official capacity' claims against Defendant Nifong or for alleged conduct by Nifong as a 'policymaker.’" In other words, Beaty found in a bit of torturous reasoning, Nifong had no lawful authority to take over personal command of the police investigation, and even though the city allowed him to do so, no legal claims can be filed against the city for its improper behavior.

Yet Beaty's ruling was something of a mixed bag on this point. He noted that: (1) the players would have an opportunity to appeal this aspect of his decision after the trial; (2) civil rights claims against the city continue to go forward on other grounds; and (3) perhaps most importantly, repeating an item from his March ruling, "the City is still responsible for its own policies that result in Constitutional violations by City employees, even if the City employees were acting in coordination with or at the direction of Nifong." In other words: unless the city can establish that its police officers refused to follow Nifong's unconstitutional orders (which, at least in the case of Sgt. Gottlieb, clearly was not the case), Durham is still on the hook.

---------------

Beaty's ruling also took note of a lengthy filing by Durham to the 4th Circuit, in which the "defendants have attempted to raise additional issues on appeal, beyond the limited denial of qualified immunity." (In a debatable ruling in June, Beaty delayed discovery for the city defendants while this appeal goes forward.) That filing, as reported in the H-S, featured little more than the city's fantastical interpretation of the case, in which city officials did nothing much wrong and the case was handled pretty well.

Also, in the only-in-Durham world: the head of Durham's Department of Social Services director was fired, in part--according to the H-S--because she did not vigorously contest a judge's decision to award temporary custody of two of false accuser/accused murderer Crystal Mangum's children to their biological father.

Remarkable.

Holloway & The Potbangers, Together Again

2011-07-16T16:37:00.006-04:00

So many different groups demagogued the lacrosse case to advance their own particular, and not necessarily otherwise complementary, agendas. Mike Nifong could use the case to consolidate his primary and general election victories. Bob Ashley could use the case to boost the Herald-Sun's appeal to Durham African-Americans. Sgt. Gottlieb could use the case to further his dislike for Duke students. The Times sports page could use the case as exhibit A of dangerous male athletes. The Group of 88 could use the case to demand curricular and personnel concessions for their race/class/gender agenda. Trinity Park activists (whose list-serv helped facilitate the infamous potbanger protests) could use the case to hammer Duke for alleged negligence in curbing student partying in their neighborhood.

These differing groups all took the same basic approach to the lacrosse case. But there's scant evidence that most members of the Group of 88 cared much about student partying. And the Trinity Park activists--while perhaps ideologically sympathetic to the Group's curricular beliefs--didn't go to bed at night worrying about new faculty lines, or finding ways to require Duke students to take more required race/class/gender courses.

With each of these groups, however, having made common cause in bolstering the tall tales of Crystal Mangum (and taking a hit to their reputations in the process), it appears as if the lacrosse case has created new alliances. How else to explain the following announcement on the Trinity Park list-serv, regarding an event tomorrow from Group of 88 extremist Karla Holloway:

MEET THE AUTHOR: KARLA FC HOLLOWAY
Sunday, July 17, 3 p.m. - 4:30 p.m.
Main Library, 300 N. Roxboro St.

Dr. Karla FC Holloway, James B. Duke professor of English at Duke University, will read from her book, Private Bodies, Public Text: Race, Gender and a Cultural Bioethics. Using historical examples, from the Tuskegee Study and Henrietta Lack to the more contemporary examples of Terri Schiavo and those hospitalized during Hurricane Katrina, Dr. Holloway demonstrates how [of course--ed.] race and gender play pivotal roles in medical research and treatment. A book signing will follow the reading.

One outside member of the list-serv caustically responded, "Be sure to bang your pots and pans in support of the presumption of innocence." (This suggestion is a good one, given that Holloway has never made a public appearance defending her extremism throughout the lacrosse case.) Trinity Park resident Sue Jerrell, however, would brook no condemnation of Holloway. "Move on," declared she. "There are so many truly horrific injustices out there that could really use a champion."

Given Holloway's . . . unusual . . . interpretation of due process and the presumption of innocence, I'm not exactly sure how she qualifies as a "champion" in fighting injustice.

hat tip--G.M.

Updates

2011-07-13T18:43:00.003-04:00

A few items of note:

1.) Jamie Gorelick and her Washington law firm, Wilmer Cutler Pickering Hale and Dorr, have withdrawn from representing Duke, after garnering millions in fees from Duke or its insurers.

All things considered, this development is probably a victory for the unindicted lacrosse players. Several people I know worked for the 9/11 Commission, and I teach US diplomatic history, so I followed the affair quite closely, and was consistently impressed with Gorelick. While her civil case filings weren't intellectually compelling, that had more to do with the difficulties of her client than her legal acumen.

Gorelick's oddly-timed departure also triggered an odd public accounting. In a response to a request from the H-S, the university's spokesman declined to explain what happened. But Gorelick herself gave a statement to American Lawyer. It reported, "Several motions filed on behalf of defendants Duke University and Duke University Health System Inc. have successfully narrowed the focus of the case to the point it makes sense for the two North Carolina firms that have been part of the defense team to assume control of the matter, says Wilmer public policy and strategy chair Jamie Gorelick."

The significant "narrowing" occurred with the court's accepting Gorelick's argument that the Duke student bulletin and faculty handbook aren't worth the paper on which they're printed, and in no way should be construed as legally binding on the university. But the university is still on the hook, of course, for myriad other matters (FERPA, the escapades of Tara Levicy, a failure to supervise its employees).

The combination of Duke's non-response to the withdrawal and Gorelick's bizarre talking-point response has to raise a few eyebrows.

2.) One very minor case mystery--the identity of the father of false accuser Crystal Mangum's two children--has been revealed. He's Richard Ramseier, who has petitioned a Durham court for custody of the children. The judge not unreasonably quizzed Ramseier on where he's been for the last decade. (The father said he was in the Navy and then had spent some time in California, where he had some financial problems.)

Given that Mangum is currently in jail for a murder charge, it's hard to imagine that a court could find her the fitter parent. But, then again, this is the Durham justice system we're talking about.

3.) U.S. Rep. David Price--Durham's congressman, a former Duke poli-sci prof, and the man who pointedly refused to criticize Mike Nifong at the height of Nifong's misdeeds--will receive the 2011 John Tyler Caldwell Award for the Humanities, awarded by the North Carolina Humanities Council.

Joining Price on the dais is none other than Richard Brodhead, who will deliver the Caldwell Lecture in the Humanities.

4.) I barely followed the Casey Anthony trial, but based on Ms. Grace's past work, wholly endorse this judgment from Frank Bruni on Nancy Grace: "She doesn’t serve the cause of victims with such histrionics. She serves the cause of Nancy Grace. And she succeeds only in trivializing everything — and getting ratings. A record 5.2 million viewers turned to HLN on the judgment day. Apparently many of us share her appetite for gross caricatures of good and evil, and come out of this as graceless as she."

5.) Finally, a couple of long-term correspondents passed along to me news of Yao Ming's likely retirement. I'm sure that former Group of 88 extremist and current Cornell lightning rod Grant Farred is puzzled by the lack of attention paid to Yao's departure. After all, as Farred noted, Yao represented "the most profound threat to American empire.” Perhaps we'll soon see Pres. Obama and the House Republicans squabbling over which side deserves credit for ridding the nation of such a profound threat.

A Few Items

2011-07-06T14:03:00.004-04:00

Duke has just announced a new batch of trustees, including a judge on the 4th circuit--Allyson Duncan (Duke Law '75). The appointment presumably will require a double recusal--not only will Duncan need to recuse herself from any and all lacrosse case appeals, but I would assume she'd have to recuse herself, within the BOT itself, from any and all discussions of the lacrosse case. She was a Bush nominee.

Commenting on the DSK case in the Washington Post, Paul Farhi notes how the mainstream media has refused to name his accuser--even as she files a lawsuit against the New York Post. Alan Dershowitz (correctly) comments on the unfairness of this approach, and the article also (correctly) observes how, in an internet era, accusers' names can generally be easily found, making the anonymity policy even less defensible.

And then there's this absurd analysis from June Cross, in The Root: "Even in 2011, it seems, black women who accuse powerful men of rape have to lead lives above reproach. The Duke University lacrosse-team rape case from 2006, and the St. John's College case before that, bear witness to what happens when a young black woman of questionable repute charges rape against privileged men. But the life circumstances of marginalized women force them to make different life choices.

Crystal Mangum's problem wasn't her "marginalized" status--it was the fact that the physical evidence, in myriad ways, contradicted each and every one of her various tall tales.

Finally, the incomparable Dorothy Rabinowitz in the Wall Street Journal praises Manhattan DA Cyrus Vance for his willingness to reconsider the DSK case in light of the accuser's credibility falling apart. She correctly notes that Vance's open-mindedness came as "no small shock in a society accustomed to prosecutors whose instant response to the discovery of facts that undermine their case is to dig in all the more aggressively—recall the Duke University lacrosse case, or the notorious child abuse cases of the 1980s—with assurances that the case against the accused is stronger than ever."

Rushing to Judgment

2011-07-01T22:25:00.006-04:00

[Updates, 4 July, 5.22pm: Two Daily Beast pieces worth noting. The first, from Harvard Law professor Alan Dershowitz, uses the DSK case to analyze the problems with the public's response to rape allegations in general. Virtually Dershowitz's entire essay could apply to the lacrosse case, none more so than the following: "Special sex prosecutors and special rape prosecutors are often agenda driven. Too often they believe they’re on a mission and treat the alleged victim in a way that’s different from how they handle any other crime. They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty. I believe there’s been a Nancy Grace aspect to this case. The prosecution presented its case in public as if there were no doubt about the alleged victim’s credibility or the complete guilt of the alleged offender."

Second, from DSK defender Bernard Henri-Levy. I'm dubious about the more general defense of DSK's character associated with Henri-Levy's earlier comments on the case. But his essay contains one very important item, in his reflection upon a letter by Bill Keller, the retired executive editor of The New York Times, in which "he said he was 'struck' and 'puzzled' by the fact that '57 percent of the French public' and, in particular, '70 percent of the Socialists' seemed to embrace the cause of Dominique Strauss-Kahn, whereas 'one might expect' them 'to be ideologically empathetic to an African hotel maid.'"

That comment unintentionally offers insight into the Times' decision to so heavily slant its lacrosse case coverage in favor of Mike Nifong and Crystal Mangum. It's no secret that the non-Murdoch media leans to the left, to such an extent that "one might expect" them "to be ideologically empathetic to an African"-American alleged student. Perhaps this is why, early in the case (see UPI, p. 120), Times editors made the conscious decision to downplay evidence of innocence in the paper's coverage.

[Updates, 2 July, 1.40pm: The Times today--showing an intent to explore the news that was sadly lacking in its Duke case coverage--brings more information, suggesting that the Nifong/Vance comparison might be more apt. Today's article reveals that a debate occurred as to how fast to press for an indictment, with the ultimate decision to rush ahead with an indictment (and to make public comments about the reliability of the "victim") before the investigation was anywhere near complete. That decision, obviously, was a grave mistake. See Ann Althouse's post for more on the effects of these actions; but also this counter-intuitive post from Feministe observing that, at the least, Vance's office turned over exculpatory information promptly to the defense, in sharp contrast to Nifong's handling of the Meehan report.

Two other matters: One, a question from the previous thread, asking me for what I considered Nifong's chances to be of his regaining his law license in 2012. My answer: his chances are very, very, very remote.

Two, see the comment in this thread from an "Edward G. Nilges" for evidence of how the unethical actions of Nifong and the DPD continue to harm the falsely accused players, and thus why the civil suit continues to matter. Even if only 1% of the American public is as ignorant as Nilges, we're talking about more than 3m people.]

The New York Times appears to have suddenly discovered the importance of evaluating the accuser’s credibility when reporting on sexual assault cases. Last night, the paper broke the story that the rape case against former IMF head Dominique Strauss-Kahn has been badly weakened (fatally undermined?) by enormous gaps in the accuser’s credibility. To get a sense of just how enormous, here’s the prosecutors’ letter on some of the problems.

One can imagine how the Times’ Duff Wilson (who was promoted after his coverage of the lacrosse case) would have reported the news: “Although DA Cyrus Vance, Jr. discovered big holes in the case, including the fact that his accuser is a serial fabricator, there is also a body of evidence to support his decision to take the matter to a jury.”

Vance’s decision to affirm for the cameras a stronger case than he actually possessed was Nifongesque. And comparisons to the lacrosse case, which have appeared frequently in the last 24 hours, are hard to avoid.

That said, the comparison can be overdrawn, in at least two respects. First: while the decision to arrest clearly was made before anything resembling a comprehensive police investigation occurred, there’s no evidence (to date) that DA Vance personally corrupted the inquiry, as occurred with Nifong and the DPD. Second, and perhaps more important: the media critique of DSK’s personal characteristics seems largely correct. Regardless of the legal demerits of the case, this affair doesn’t seem to have been a case of character assassination, in sharp contrast to the lacrosse case.

In this respect, the more appropriate comparison might be the Garrett Wittels case. In late December, to widespread national coverage, the FIU baseball star was arrested in the Bahamas, charged with rape. To their credit, unlike the Duke administration, the FIU administration upheld the presumption of innocence and didn’t suspend Wittels; and, unlike the Group of 88, “activist” faculty at FIU didn’t choose to publicly go after one of their students. (A handful of hacks did try to exploit the case, offering bizarre arguments in the process.)

Wittels always maintained his innocence, and his accusers’ story always seemed less than plausible. Last week, all charges against the player and his two friends were dismissed, amidst signs that his accusers had lied as part of a scheme to exploit money. Yet the turn of events generated far less coverage than the initial allegations against Wittels; and the false charges had an effect—Wittels went undrafted in the MLB draft, apparently because of “character” concerns.

The Wittels and DSK cases do serve as reminders that the lacrosse case isn’t the only evidence against the “women-never-lie” claim of sexual assault.

Accountability

2011-06-13T15:18:00.000-04:00

The lack of accountability is a major theme of the lacrosse case and its aftermath. Whatever else could be said about rogue ex-DA Mike Nifong, the State Bar eventually held him accountable, and stripped him of his law license. That action, in turn, triggered an accountability session for the ethically challenged Linwood Wilson, who was fired from his job as DA investigator as soon as Nifong lost his position. And, with the company he founded facing a loss of accreditation, Dr. Brian Meehan eventually lost his job as well.

Compare that record to the academy and to the media. In the academy, if anything, participation in the witch-hunt is a career advancer. Several prominent members of the Group of 88 either left Duke for better jobs (Farred, Baker, Payne) or were promoted within Duke to deanships. The administration even forked over a large legal settlement to the falsely accused players in part to shield individual faculty members from legal liability.

And then there’s the media. Bob Ashley stayed on as the Herald-Sun’s editor until his retirement this past January. Likewise with the Times’ Bill Keller, who kept his position for years until recently stepping down. Duff Wilson is still at the Times, where he was promoted to cover the tobacco and pharmaceutical industries. His on-line bio adds that he’s “currently a member of the board of directors and executive committee of the nonprofit group Investigative Reporters and Editors,” and has taught investigative reporting.” (The site doesn’t feature his syllabus, but based on his Duke reporting, presumably Lesson Plan One is, “Always Trust Whatever the Prosecutor Tells You.”)

But none of these figures can compare to Nancy Grace, subject of a glowing profile (coupled with a photo of Grace in a stylish black leather jacket) in Sunday’s Times. The article, by Brian Stelter, noted that Grace’s current network, HLN (the successor to Headline News), has reoriented itself (and boosted its ratings) around Grace’s guilt-presuming coverage of high-profile trials. It doesn’t mention just how wrong-headed Grace’s trial coverage has been in the past.

And the MSM wonders why younger people increasingly trust The Daily Show for hard news?

The Daily Show - Duke (Non) Rape Case
Tags: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

Beaty's Levicy Dilemma

2011-06-10T12:11:00.003-04:00

More than five years after rogue ex-DA Mike Nifong and his subordinates in the DPD obtained indictments, the discovery process has begun in the civil suits. Ironically, however, only some of the Duke defendants are currently subject to that discovery.

The reason? Durham is appealing Judge Beaty’s ruling allowing the lawsuit to proceed, on the grounds that the city has governmental immunity against the lacrosse players’ claims. In other words: the city can violate its own procedures to frame innocent citizens, and should have no civil liability for its actions.

Very broadly reading the terms of the 2009 Ashcroft v. Iqbal decision, and citing a host of other cases of which the only absolutely on-point was a 2002 holding from the Middle District of Alabama that obviously isn’t binding precedent in North Carolina, Judge Beaty granted Durham’s request to delay discovery for (at the very least) many months, as Durham’s longshot appeal winds its way through the federal court system.

On the surface, Durham’s legal strategy makes no sense, especially given its political leaders’ constantly complaining about the cost of the lawsuit to them. But at a practical level, the Durham approach is unsurprising. First, the more time that elapses before discovery, the more opportunity for the DPD to “lose” evidence, or for DPD officers to claim that they don’t recall what happened in spring 2006. Perhaps more important, dragging the case out for as long as possible means that the political enablers of the hoax (such as Diane Catotti, the Nifong-supporting city councilor who strove mightily to neuter the commission intended to investigate the DPD) will get more time before having to justify their conduct to the electorate.

One element of Beaty’s discovery order, however, provides some insight into how he (at this very preliminary stage) views the case. In his rulings on the motion to dismiss, Beaty dismissed claims of malpractice against Duke and former SANE nurse-in-training Tara Levicy on the grounds that Levicy had no legal obligations relating to care to the public. (Her only legal obligations in this regard, Beaty asserted, were to false accuser Crystal Mangum.) This finding struck me as odd, since Levicy’s primary role in this case was not to provide medical care of any type to Mangum, but rather to gather evidence and offer analysis that the state might use in any prosecution.

In his discovery order, Beaty backtracked—at least intellectually—from this finding, and has now decided to lump Levicy in with the Durham defendants. The allegations against Levicy, he wrote, are "so intertwined with the claims against the city” that no discovery relating to Levicy or Duke Hospital can proceed.

In the short term, this finding is a tremendous victory for Duke: if Durham succeeds in its longshot appeal, and either the 4^th Circuit or the Supreme Court holds that qualified immunity applies even when city employees attempt to frame innocent people, then Tara Levicy or records relating to her dubious conduct will never face the plaintiffs’ attorneys.

In the long term, however, this finding poses terrific risks for Duke, since Beaty appears to be conceding that the allegations on the table (before, it’s worth reiterating, any discovery has occurred) demonstrate that a Duke employee was inextricably “intertwined” with the hoax. If he’s consistent with that finding, it will be much harder down the road for Duke to separate itself from the misconduct of Durham employees.

Durham: Don't Let Lacrosse Players Appeal

2011-06-08T14:54:00.000-04:00

Both the city of Durham and attorneys representing the falsely accused lacrosse players have appealed portions of Judge Beaty’s ruling in the Evans case. The two sides, however, have exhibited differing strategies of appeal. Durham is claiming that not only was Beaty’s ruling incorrect, but also that the city should be allowed to indefinitely delay the discovery process as its (longshot) appeal works its way through the court system. As for the lacrosse players’ appeal? In a filing from yesterday, Durham is claiming that they shouldn’t be allowed to appeal at all.

The issue involves Durham’s late March 2006 decision, as documented by former Sgt. Mark Gottlieb, to ignore the police department’s command structure and instead to turn over command of the police investigation to rogue DA Mike Nifong. In his ruling, Beaty said that the city had no legal authority to have done so, and therefore the city can’t be held liable for punitive damages. (Nifong was a state employee; states can’t be held liable for punitive damages in federal lawsuits under the 11^th amendment.) Attorneys for the lacrosse players are seeking to appeal this portion of the ruling, noting correctly that this interpretation amounts to a get-out-of-jail-free card for unethical entities like the DPD—they could simply turn over future police investigations to Nifong’s ethically-challenged successor, Tracey Cline, and thereby shield the city from punitive liability.

Durham wants Beaty to refuse to certify the lacrosse players’ appeal, thereby ensuring that no higher court even would hear it. In its filing, Durham concedes that the DPD violated state law by allowing Nifong to take over the investigation: “North Carolina law clearly does not permit a City to delegate its final policymaking authority to a state official, and bars a state official from acting on behalf of any governmental entity other than the state.” But, the city muses, as it couldn’t legally have taken the action that it did, in fact Nifong wasn’t really in charge of the investigation after all—the DPD, and the rogue ex-DA himself, were essentially just pretending that he was running things.

Beaty accepted this line of reasoning in his ruling—in part, it would seem, because the facts of this case were so unusual and because he permitted the falsely accused players’ civil rights lawsuit against the city to move forward on other grounds.

It’s worth remembering—as Ray Gronberg pointed out in today’s H-S—that former city manager (and current city attorney) Patrick Baker is on record claiming that the command-structure procedures employed in the lacrosse case is normal for Durham. He wrote in 2007 that “the police are a part of the prosecution team and as such it is not unusual for the investigators to work closely and coordinate their [work] with the prosecutor.” Of course, in this instance, the prosecutor was running the police investigation, well before any indictments were obtained.

Edwards Indictment

2011-06-03T13:41:00.005-04:00

[Update, 6 June. 4.40pm: And, in another intersection between the Edwards affair and the fringes of the lacrosse case, check out this sensational co-authored piece by Joe Neff, detailing the plea bargain negotiations between the Edwards team and the Justice Department.]

Former North Carolina senator and two-time presidential candidate John Edwards was indicted today, on six counts related to his cover-up of an affair with a campaign aide. The charges were filed in the Middle District of North Carolina, and so it's little surprise that Edwards has reached out to the area's best criminal defense attorneys: both Wade Smith and Jim Cooney are members of the Edwards defense team. Cooney told American Lawyer that he took the case in part because of his longstanding ties to Edwards, dating from the time when Edwards was among the state's leading plaintiffs' attorneys.

Though Edwards' behavior was undeniably unethical (he arranged for massive payments from a 96-year-old wealthy friend and donor to his mistress, all while publicly denying the affair and the woman's resulting pregnancy), it might not have been illegal. In any event, the prosecution will be a precedent-setter, one way or the other.

This is, by the way, the second occasion in which the Edwards campaign intersected with the fringes of the lacrosse case. In 2004, during his first presidential bid, Edwards ran as a Southern moderate. But in 2008, he reinvented himself as a far-left, anti-poverty crusader. As part of this effort, in early 2007, the Edwards campaign hired as its official blogger Amanda Marcotte, known for her intemperate rhetoric and extremist views.

Though Edwards, a North Carolinian and former law partner of Wade Smith, had remained silent on the lacrosse case, Marcotte had lots to say. Among her insights: "Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it?"

Once her words attracted public attention, Marcotte deleted them from her blog.

Marcotte eventually departed the Edwards campaign after an outcry over her anti-religious rants. And, of course, Edwards eventually departed the presidential race, after losing in Iowa and New Hampshire, and then getting crushed in Nevada and South Carolina.

Catalino Hat Trick Propels Maryland

2011-05-28T20:53:00.004-04:00

Maryland upset Duke, 9-4, in this evening's national semi-final; the list of the Terps' top stars included senior Grant Catalino, who scored three goals, including goal that broke the game open in the third quarter, when Maryland led 5-3.

The last name should be somewhat familiar to those who followed the lacrosse case closely. Grant is the younger brother of Mike Catalino--a freshman on the 2006 Duke team who revealed his enormously high-quality character after Crystal Mangum voiced her false accusations. In fall 2006, Mike played a leadership role in trying to register Duke students to vote (despite the opposition of the Duke administration), and then gave considerable time to the Recall Nifong-Vote Cheek effort. In short, he did exactly what professors (outside of the Group of 88, of course) would have wanted from the unindicted lacrosse players--work for positive change within the system.

Congratulations to the Catalino family, which (with Duke's win last year) now has the potential to have sons on back-to-back national championship squads.

The Power of False Accusations

2011-05-17T13:34:00.002-04:00

In this Sunday’s Washington Post, reporter Tom Jackman relayed the horrific tale of what happened to Sean Lanigan, a teacher in the Fairfax County Public School System. A 12-year-old girl in one of his classes falsely accused Lanigan of sexual misconduct, and his life has never been the same.

The affair read as an almost textbook case of a false accusation. The girl, who appears to have serious emotional problems, had troubles with Lanigan before the allegation. (She had bullied students, and Lanigan had called her on it.) She made the charge—resulting in Lanigan’s arrest—without the lead detective, Nicole Christian, ever interviewing her. Nor did the police determine whether her claims were even physically possible. The story that produced Lanigan’s arrest involved a claim of sexual misconduct on tumbling mats in the equipment room, but Jackman reports that “several witnesses said the tumbling mats couldn’t even fit in the equipment room.”

The girl at least partially recanted her tall tale on facebook, and at a preliminary hearing, but the prosecutors decided to go forward anyway. After the state presented a case that could charitably be described as lacking in evidence, jurors acquitted Lanigan in 47 minutes; one of the jurors was crying in outrage that the case had been allowed to proceed. Jackman portrays Detective Christian as a latter-day Inspector Javert—and also points out that, in a highly unusual move, the local prosecutor chose to dismiss another case that she investigated as it was going to trial.

Yet despite the acquittal, the Fairfax schools have treated Lanigan as if he were guilty. The school district couldn’t fire him, but it did prevent him from returning to his old school, and in the 2010-11 academic year, he was only allowed to teach half-time. Administrators drew up a lengthy behavior contract for him, seemingly based on an assumption that the girl’s allegations had some merit. And the school district has thus far refused to pay his $125,000 legal expenses, even though Virginia law allows public employees who are falsely accused on the job to have the state cover their attorneys’ fees.

Apart from the obvious—that a false allegation of sexual assault, once made, can never truly be undone—what’s the relevance of the Lanigan case to the lacrosse case? In a column yesterday, Jackman commented on the Post’s refusal to identify the false accuser. The decision seemed eminently reasonable: the United States has a long tradition of sealing juvenile records, and the idea of identifying a minor would seem consistent with this philosophy.

But then Jackman broadened his comment, to examine the issue of the media identifying adults who level unsubstantiated allegations of sexual assault. Here’s what he had to say:

This issue has long been batted around in journalism, most recently in the case of the woman who accused the Duke University lacrosse players of raping her. Even after the case against the players was dropped, the mainstream media mostly did not name her. She came to prominence as a sex crimes victim, the media automatically protects such victims’ anonymity, and just because suspects weren’t convicted (for a variety of reasons) doesn’t always mean the crime didn’t happen.
[Then the Duke accuser, Crystal Mangum, was arrested recently for murder, and all bets were off.]

This passage is highly problematic, for three reasons.

First, it inaccurately relates how the media handled identifying Mangum. It’s quite true that the two newspapers whose pro-Nifong handling of the case was widely discredited—the Herald-Sun and the New York Times—declined to identify Mangum after the attorney general exonerated the players. But, of course, the N&O, leading paper in the Triangle (and on the case itself) immediately identified Mangum after the exoneration. So too did the New York Post, in a front-page photo and story. So too did local TV stations. So too did at least some newspapers that carried the AP.

Second, the passage illuminates the illogical nature of the media’s generally refusing to name false (adult) accusers. Victims’ rights advocates contend that naming sexual assault accusers will discourage real victims from coming forward. Even assuming that the media should withhold information to accommodate the assertions of victims’ rights advocates, it would seem that their argument would demand that all newspapers publish the names of false accusers. After all, if publicizing names will discourage people from coming forward, shouldn’t everyone want to discourage false accusers from making their false claims?

Third, and by far the most important, is Jackman’s assertion—in a clause bracketed by explicit reference to Crystal Mangum—that “just because suspects weren’t convicted (for a variety of reasons) doesn’t always mean the crime didn’t happen.” It’s the height of irony to see a reporter who sensitively and comprehensively relayed the story of a false accusation’s poisonous effects toss in a line that suggests—without any evidence to back it up—that maybe, just maybe, the attorney general’s report was wrong, and that what was publicly revealed about the Duke case doesn’t “mean the crime didn’t happen.”

It seems that, despite the best efforts of so many people, the meme of “something happened” persists.

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On another note entirely: I have a piece up at MTC on how two faculty members at the UVA Law School responded to a politically correct false accusation. Upholding due process was not first on their minds.

Known Unknowns

2011-04-21T14:52:00.003-04:00

Former defense secretary Donald Rumsfeld defined the concept as “things that we now know we don’t know.” It didn’t help him much in planning the Iraq war, but I thought I would more usefully apply it to the items raised by Duke’s factual response, the first time the University has gone on record regarding the specific allegations against it.

FERPA

(1) When did senior administrators become aware that—in violation of FERPA—Duke Police Officer Gary Smith provided the lacrosse players’ keycard information to the Durham Police?

(2) What was the rationale employed by Duke’s senior administrators in electing not to inform dozens of their own students that a Duke employee had violated their FERPA rights? Is this “wall of silence” (to borrow a phrase) the normal approach Duke takes when its employees violate the FERPA rights of its students?

(3) As to why Duke remained silent when a court proceeding took place regarding Mike Nifong’s attempt to subpoena the keycard information he already possessed, the Duke filing suggests the University’s reasoning (substitute “FERPA-protected material” for “NTO application”): “Duke University Defendants . . . further deny that they had any authority or obligation to rebut or correct any assertions in any NTO application regardless of the truth of the allegations.”

Former SANE-nurse-in-training Tara Levicy

(1) When did senior administrators at Duke learn—as they concede in their filing—that Levicy had examined Mangum even though Levicy was not yet credentialed as a SANE?

(2) When did Levicy’s supervisors first realize that Levicy’s stories constantly shifted, always in ways convenient to Nifong and contrary to the written record of her exam? Why did they not take steps at the time to properly supervise their rogue employee?

(3) What transpired at the June 2006 meeting between Levicy and Nifong? Were any other Duke employees (perhaps Levicy’s immediate supervisor, Theresa Arico?) present?

(4) Is it normal practice at Duke Hospital to allow someone (like Levicy) who hadn’t even been a nurse for a year to enter the SANE program?

The Duke Administration

(1) What steps, if any, did former BOT chairman Bob Steel take to correct the record regarding something the Duke filing implies he never said—his statement to the New Yorker that the season was cancelled not to protect the lacrosse players or to punish them for their alleged misdeeds, but because “we had to stop those pictures. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done”?

(2) During his tenure as president, how many other athletic events had President Brodhead canceled because members of the team had engaged in underage drinking—which the filing suggests was (contrary to Steel’s “Kinsley gaffe”) one of the two reasons Duke cancelled the March 25, 2006 lacrosse game?

(3) What contemporaneous evidence exists to sustain the second proffered explanation for this extraordinary decision—Brodhead’s alleged concern with the safety of the lacrosse players? Why didn’t he mention this alleged concern in his statement announcing the cancellation?

(4) Duke’s filing concedes that a Duke employee (Sam Hummel) likely used Duke equipment to photocopy a “wanted” poster containing the lacrosse players’ photos, while at the same time maintaining that this action constituted protected speech and not harassment. Would Duke have adopted the same conception of its anti-harassment code if the photographs xeroxed by Hummel were of minorities?

The Group of 88

(1) When did Brodhead and other Duke senior administrators learn that—in violation of Duke rules—official university funds had been used to pay for an advertisement denouncing Duke students? What steps, if any, did the university take to discipline the sponsors of the advertisement, the African-American Studies program?

(2) Given that Duke administrators surely knew of AAAS’ unprofessional behavior by December 2006, why nonetheless did the Trustees (unanimously!) elevate the program to departmental status?

Officer Christopher Day

(1) What pressure, if any, did his supervisors or Duke administrators place on Day to “modify” (as he eventually did) his March 14, 2006 operations report, which (accurately) portrayed false accuser Crystal Mangum as spinning fantastic, mutually contradictory tales?

(2) Why is the Duke filing so coy about exactly who might have interacted with Day between March 14 and March 30, and what reasons he might have had to have “modified” his operations report?

Duke’s Legal Strategy

(1) In its defense of Tara Levicy’s going rogue, how aggressively will Duke’s attorneys attack the integrity of the AG’s investigation? In particular, will they continue down the path offered in their filing of portraying Levicy as an objective truth-teller, even as the AG’s report established that “the SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence”?

Joe Neff Honored

2011-04-19T12:03:00.001-04:00

Along with the N&O's Mandy Locke, Neff was named recipient of the 2011 Michael Kelly Award.

Mangum Indicted

2011-04-18T15:34:00.000-04:00

For murder, reports the N&O.

Duke's Factual, Semi-Factual, & Non-Factual Response

2011-04-15T17:41:00.009-04:00

After the failure of the university’s efforts to have the civil rights lawsuit against it dismissed, Duke has filed its lengthy factual response to the unindicted lacrosse players’ complaint. Its general approach: deny anything for which there’s no open record; blame others (Nifong, the Durham Police) by inference regarding areas in which the facts can’t be denied.

Two general points: first, this response wasn’t due until June 14. I’m sure the fact that Pres. Brodhead is currently in China, and therefore unreachable by the local media, had nothing to do with Duke’s decision to file its response a bit early.

Second, it’s important to remember on what issue—thanks to Judge Beaty’s ruling—Duke doesn’t have to deny or shift blame: the university’s failure to enforce its own written policies regarding treatment of the lacrosse players. On this question, the university can breathe a sigh of relief that it’s not located 247 miles to the southwest—since, if it were so located, it would fall within the jurisdiction of the 11^th Circuit. And, as this recent filing from FIRE points out, in the 11^th Circuit, universities are legally obligated to enforce their own student bulletins and faculty handbooks, rather than treat them as mere scraps of paper.

As if to reiterate the point, Duke’s filing notes (in an oddly-worded passage), “Duke University denies that the language from the Faculty Handbook . . . sets forth Duke University’s policy regarding policy.”

When, if ever, will the university communicate this information to prospective parents?

A summary of the major elements from the University’s 252-page filing:

The Group of 88 Statement

“Duke University denies that the full-page, paid announcement that ran in The Chronicle, and that identified 88 individuals and contained unattributed quotations, made anything ‘clear’ about what its authors or sponsors believed about the evidence of rape. Duke University admits that the cost of running the announcement was paid, in part, with funds from departments within Duke University.”

For the first time, Duke has officially admitted that University funds paid for the Group of 88’s ad. The use of “in part” is intriguing: is Duke suggesting that private individuals partly financed the ad? If so, who were these people?

In any event, consider the significance of this admission. Not all the lacrosse players were on full scholarships. So Duke has now affirmed that some of the players’ own tuition moneys were used to produce an ad that publicly condemned them—an ad placed in violation of Duke rules, moreover. When considering where to send your son to college, what parent could ever even conceive of such behavior from an institution that gladly accepted your tuition check?

Tellingly, the university can’t bring itself to accurately describe the ad. It’s true that the ad did contain “unattributed quotations” that allegedly came from Duke students. But the statement also contained thirteen sentences in the voices of the signatories, not in the form of “unattributed quotations,” as well as an additional sentence falsely claiming that five academic departments at Duke endorsed the ad. What’s the purpose of describing the statement in a misleading fashion? To elide over the fact that those 13 sentences included a clear, unequivocal statement that something “happened”—not “allegedly happened”—to false accuser Crystal Mangum?

In any event, this mis-description continues Duke’s legal strategy of misrepresenting the lacrosse players’ claims to such a wild extent that it would have to undermine the university’s credibility with Judge Beaty.

Former SANE-nurse-in-training Tara Levicy

The university’s response concedes that Levicy had not, in fact, received her “certificate of completion” from her SANE training course until after she conducted her examination of Crystal Mangum—and that, therefore, she was a SANE-in-training when the botched exam occurred. Indeed, on p. 34, the University, for the first time, states it explicitly: “Tara Levicy was a registered nurse who was working as a staff nurse and as a SANE in training in the Emergency Department at Duke University Hospital.” [emphasis added] So why did the hospital allow her, without supervision from a credentialed SANE, to examine Mangum? Imagine how this case might have differed if the hospital had followed established procedures on this matter.

Moreover, the Duke response concedes how woefully inexperienced Levicy actually was at the time she examined Mangum: “DUHS and Nurse Levicy admit that Nurse Levicy began working in the Emergency Department at Duke University Hospital in February 2005. DUHS and Nurse Levicy further admit that this job was Nurse Levicy’s first nursing job following receipt of her nursing degree in December 2004. DUHS and Nurse Levicy also admit that Nurse Levicy began her SANE training in August 2005, and that her certificate of completion was effective on March 2, 2006, although she did not receive the certificate until the late afternoon of March 14, 2006 [which, of course, was after she examined Mangum].” Again, imagine how this case might have differed if Duke Hospital had a competent, professional SANE nurse instead of an inexperienced, ultra-feminist SANE nurse-in-training examine Mangum.

As to other allegations, the university affirms, over and over and over again, that “Nurse Levicy likewise denies that she made any statements to members of the Durham Police Department or to investigators working with then District Attorney Nifong that were inconsistent with the examination of Ms. Mangum.”

Based on the record of the case, Levicy’s stories undoubtedly shifted, always in ways convenient to Nifong and contrary to the written record of her exam. This passage would seem to represent an effort by Duke to shift the blame, setting up a claim that Levicy told the truth to Sgt. Mark Gottlieb and ex-Nifong investigator Linwood Wilson, but that they, in turn, lied (blunt force trauma, Mangum wasn’t sure about whether her attackers used condoms) about what she told them. Given that the Gottlieb/Wilson version of what Levicy told them was completely consistent with what Levicy told the defense attorneys in their interview with her, this strikes me as a difficult argument to make.

One other point: the university’s filing confirms for the first time the long-rumored extent of Levicy’s cooperation with the investigation. “Nurse Levicy admits that she met with or conversed with members of the Durham Police Department on a limited number of occasions and responded to questions from investigators . . . Nurse Levicy further admits that she met with former District Attorney Nifong in June 2006 and responded to his questions about the sexual assault examination.” The university’s filing contains no details about what transpired at this mysterious meeting, during which Nifong (it seems) took no notes. Nor does the university’s filing reveal how many the “limited number of occasions” were in which Levicy chatted with DPD officers—chats that do not appear to have been recorded in the official case discovery file.

Beyond these blanket, and almost comical, denials, Duke appears to be using an element of Beaty’s ruling (that Levicy owed a duty only to Mangum, and not to the public) to shield Levicy’s examination from any meaningful inquiry: “It is a violation of the Health Insurance Portability and Accountability Act for the Duke SANE Defendants to disclose any of Ms. Mangum’s protected health information. Absent a court order authorizing such disclosure, the Duke SANE Defendants are unable to respond. Therefore, the allegations seeking information relating to Ms. Mangum’s protected health information are denied.”

Under this conception of the law, a SANE nurse could lie at will about an exam, and there would be no way to challenge her in a civil suit.

Levicy was Right, and the AG’s Investigation Was Wrong

Perhaps the most bracing element of Duke’s filing comes in repeated claims that the Attorney General’s investigation—upon which the declaration of innocence was based—improperly characterized the medical evidence, and that, as a result, objective medical evidence did exist that Mangum was raped. These assertions are nothing short of astonishing.

Two examples:

The Attorney General’s report stated, “No medical evidence confirmed [Mangum’s] stories. The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” [emphasis added] But Duke now claims that “Nurse Levicy specifically admits that she remains both objective and neutral during such examinations.” [emphasis added]

“Nurse Levicy further admits that she told Investigator Himan that there were signs during the sexual assault examination that were consistent with sexual assault. Nurse Levicy specifically denies that she made any statements to members of the Durham Police Department that were inconsistent with the examination of Ms. Mangum.” Once again, the AG’s report stated, “The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” Duke claims that Levicy was right, and the AG was wrong.

The FERPA Claim

The filing represents the first time that Duke offered any explanation as to the area of the lawsuit where it seems extremely vulnerable—that it provided keycard information, in violation of FERPA, to the DPD; and then it stood idly by as Nifong tried and failed to get (retroactive) court approval for that information.

“Duke University specifically denies that DukeCard reports were ‘illegally’ supplied by Duke University.” Why? Because “Duke University, Deputy Counsel Hendricks and former Director Drummond specifically deny that they had any knowledge that DukeCard information had been provided to members of the Durham Police Department.” As I understand FERPA law, willful ignorance doesn’t count as a defense.

Who at Duke improperly supplied the information? “Duke University admits that on or about March 31, Gary Smith provided DukeCard information to Sergeant Gottlieb for some of the members of the 2005-2006 Duke University men’s lacrosse team for the period of time from March 13, 2006 until March 14, 2006.” And “Duke University admits that it did not notify the lacrosse players, their families, or their lawyers of the disclosure.” Nor did Duke notify the Court, as it considered (and rejected) Nifong’s subpoena for the information. Why not? The University’s filing doesn’t say.

Odd Denials & Legal Niceties

“The Duke University Defendants and the Duke SANE Defendants further deny that President Brodhead or anyone else at Duke University suppressed or concealed any exculpatory information.”

The emphasis here would be on the word “any.” Of course Duke “concealed” some exculpatory information—to take an obvious example: the knowledge that, as Nifong and the DPD were waging their p.r. campaign accusing Duke students of having constructed a “wall of silence,” Duke knew that the captains (including one of the Carrington plaintiffs, Dan Flannery) had voluntarily given statements and DNA evidence to Durham. Yet the university remained silent. It might very well be that Duke considers this concealment legally irrelevant (and the university might be right). But to deny that the university “concealed any exculpatory information” is absurd.

“President Brodhead denies that he took no steps to enforce Duke’s anti-harassment policy and further denies that he condoned harassment of the players.”

The key words in this sentence are “no” and “condoned.” Duke’s statements could be legally true if (hypothetically) Brodhead placed an e-mail in his draft file, but never sent it, urging faculty and students not to harass the players—he would have taken a “step” to enforce the anti-harassment policy, but the “step” would have been a useless one. It’s pretty obvious that Brodhead didn’t actually do anything to stop either the in-class or on-campus harassment of the players, and it’s quite striking that even Duke doesn’t claim that its president acted in any meaningful way to stop the harassment of dozens of the university’s own students.

The remainder of the passage depends on how duke defines “condoned.” Take an obvious example—the Group of 88’s statement, through which dozens of Duke faculty members, basing their opinion solely on what Mike Nifong provided them, publicly affirmed in what they considered the highest-profile venue on campus that something “happened” to Crystal Mangum. That statement falsely claimed, in violation of Duke policy, that five academic departments had officially endorsed it. Yet Brodhead never compelled a retraction, nor did he order the African-American Studies Department to take the statement off its official duke.edu webpage. Duke appears to be claiming that Brodhead’s in the clear as long as he didn’t himself sign the statement, thereby “condoning” its contents, and that his administration’s failure to do its job didn’t constitute “condoning.”

“President Brodhead denies that any statements from him were designed to ‘impute guilt’ to the players or to ‘inflame’ public opinion against them.”

The key word in this sentence is “designed.” Brodhead’s April 5, 2006 statement—which didn’t even contain a token mention of the presumption of innocence—clearly “imputed guilt,” since it urged people to withhold judgment only until arrests occurred. The presumption, therefore, was that the arrested parties were guilty.

As to the claim that the statement wasn’t designed to “inflame” public opinion against the players: is the University really going to claim that its president, an English professor, didn’t understand how this statement would play in public opinion?

Obvious, but Damning, Admissions

“President Richard Brodhead admits that he played an active role in Duke University’s response to the rape allegations against members of the lacrosse team, and that he consulted with former Chairman Steel and members of the Duke University Board of Trustees in connection with the controversy. “

This admission was all but mandated by former BOT chairman Bob Steel’s ill-considered April 2007 e-mail, which affirmed, “Throughout the past year President Richard Brodhead consulted regularly with the trustees and has had our continuing support. He made considered and thoughtful decisions in a volatile and uncertain situation. Each step of the way, the board agreed with the principles that he established and the actions he took. As we look back and with the benefit of what we now know there is no question that there are some things that might have been done differently. However, anyone critical of President Brodhead should be similarly critical of the entire board.”

“Duke University admits that officers of the Durham Police Department informed officers of the Duke University Police Department that Ms. Roberts made a 911 call.”

This statement is damning for what it doesn’t say. One of Mike Nifong’s most dastardly deeds came in his late March 2006 (false) assertion that the DPD didn’t know Roberts made the 911 call. That left the impression that the lacrosse players were virulent racists, since two innocent black women, walking past the house, had been subjected to racial slurs. By the time the truth came out about Roberts, the damage was done. For the first time, this filing states that Duke knew that Roberts made the call. Tellingly, the filing does not reveal when Duke knew about Roberts. Did the university know before March 29, 2006, when Nifong made his false statement to the press? And if so, why did the knowledge that the DA was lying both about the players not cooperating with the police investigation and about the source of the 911 call not influence how the university approached the issue?

“Dean Wasiolek further admits that she had reason to believe that the accuser was not credible.”

No neutral party observing the Duke administration’s actions between March 25, 2006 and April 18, 2006 would ever believe that a key figure in formulating the administration’s response “had reason to believe that the accuser was not credible.”

“Duke University admits that the quote [‘We had to stop those pictures. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done’] attributed to former Chairman Steel appeared in the New Yorker. Duke University denies that the quote accurately conveys former Chairman Steel’s statement.“

Why, then, didn’t Steel, at the time, write a letter to the editor, or issue a press release to make this point? Or could it be that former BOT chairman Steel only came to the conclusion that he was misquoted after Nifong’s case imploded? It strains credulity to believe that the New Yorker misquoted Steel and he did nothing to correct the record.

“Dean Wasiolek admits that she gave the name of Wes Covington to then Senior Associate Director of Athletics Kennedy as a name of a local attorney that players could contact. Dean Wasiolek further admits that she was complimentary of Mr. Covington and referred to his experience as a former Assistant District Attorney.”

Covington, of course, was the “fixer” whose intent appeared to be to end the case quickly and quietly, by giving Gottlieb access to any and all the players. The university’s filing repeatedly denies that any connection existed between Covington (who has since died) and Duke.

“Duke University, President Brodhead, and Deputy Counsel Hendricks admit that on March 28, 2006, the four lacrosse co-captains met with President Brodhead. Duke University, President Brodhead, and Deputy Counsel Hendricks further admit that other representatives of Duke University, including Deputy Counsel Hendricks, were present, as well as the co-captains’ own attorney. Duke University still further admits that some representatives of Duke University were interviewed by members of the Durham Police Department as part of the Durham Police Department’s investigation into the rape allegations, and they answered questions posed by the members of the Durham Police Department.”

This is Duke’s description of the meeting at which Brodhead blandly—and, obviously, falsely—assured the captains that anything they told him would stay within the walls of the room.

“Nurse Levicy, the Duke University Defendants, and the remaining Duke SANE Defendants further deny that they had any authority or obligation to rebut or correct any assertions in any NTO application regardless of the truth of the allegations.” [emphasis added]

Wow.

When There’s No Written Record (Yet), Duke Denies

“Dean Wasiolek denies that she advised the members of the team that they should not consult with an attorney. Dean Wasiolek further denies that she advised the members of the team that they should not tell their parents about the rape allegations.”

“Duke University and Executive Vice President Trask deny that they ever claimed the existence of a ‘student-administrator privilege’ and further deny that they misled the plaintiffs into providing statements that were contrary to their attorney’s advice.”

To my knowledge, no tape recordings exist of any of the discussions that Duke denies above. But the problem with these denials is obvious: contemporaneous witnesses with whom the lacrosse players spoke verify the players’ version of events. (If the lacrosse players had first mentioned any of these conversations not right after they occurred but instead in, say, March 2007, that would be a very different matter.) So Duke will have to ask the court to believe that in March 2006, the lacrosse players made up—for no apparent reason—versions of conversations that would prove damning to Duke once the case imploded.

Odd Clauses

“President Brodhead admits that he did not meet with the lacrosse players’ lawyers to review ‘evidence.’”

The use of “scare quotes” in this sentence is bizarre. Is Duke really intending to suggest that the lacrosse players’ attorneys—some of the most highly-regarded attorneys in the state—were offering to share tainted “evidence” with Duke? If not, why use the quotation marks?

“Duke University and Richard Brodhead admit that Richard Brodhead has served as President of Duke University, including during the period from March 13, 2006 (the date of Plaintiffs’ party) to the present.”

This description of March 13, 2006—which the university’s attorneys repeat over and over again in their filing—appears to be a not-so-subtle dig to suggest that the lacrosse players were to blame for what happened to them for attending the party in the first place. Yet by not qualifying the remark with “some of,” the statement is legally inaccurate and therefore inflammatory. Several plaintiffs, most notably Brad Ross, did not attend the party. In what way could the event be described as Ross’ party?

“Duke University denies that it has no rules or policies ‘with respect to the hiring of exotic dancers to perform at student parties.’”

This statement is particularly odd—first, because no such rule appears to have existed in the Duke Student Bulletin of 2005-6 (a document, of course, which Duke maintains it didn’t have to follow anyway); and second, because having made the claim, the university’s filing doesn’t even attempt to identify the previously unknown rule and/or policy it claims existed.

Here’s how the Duke filing describes the DNA evidence improperly withheld in Brian Meehan’s report: “The Duke University Defendants and the Duke SANE Defendants further admit that evidence has also been presented at those legal proceedings that would tend to show that Ms. Mangum had engaged in sexual activity with multiple males.” [emphasis added] “Tend to show”? Does the University have another explanation for the DNA findings?

“Duke University further admits that on March 25, President Brodhead decided to forfeit the next two lacrosse games, in part as punishment for the wrongdoing [‘which at a minimum included unlawful underage drinking and the provision of alcohol to minors’] which the players admitted, and in part because of concerns for the safety of the players.” He did? If so, why didn’t he mention the latter point in his cancellation statement? And with regard to the former, why did he begin his statement not with the (now-alleged) reason for the cancellation but instead with the following: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke. The criminal allegations against three members of our men’s lacrosse team, if verified, will warrant very serious penalties.

(A note for the record: Brodhead’s March 25, 2006 statement was his most due-process friendly one until the late fall of 2006.)

Regarding the potbangers’ rally: “The Duke University Defendants admit that some individuals who were employed by Duke University engaged in their constitutional right of free speech by participating in gatherings such as the one that occurred on Sunday, March 26, 2006.” Regarding the “wanted” poster: “Duke University admits on information and belief that a poster with the photographs of the Duke University men’s lacrosse team was created and distributed by Sam Hummel, who is a former employee of Duke University.” And regarding the more general anti-lacrosse players’ attitude on campus: “Duke University admits that it follows a practice of academic freedom and that faculty and students are free to exercise their individual First Amendment right to free speech.”

Duke’s affirmation of “constitutional right of free speech” would ring a little less hollow if such a clause were contained in the university’s anti-harassment code. But no such qualifier exists. Imagine if, for instance, “some individuals who were employed by Duke University” chanted the N-word outside a house rented by black Duke students. Does anyone really believe the University would suggest that such behavior didn’t fall under its anti-harassment code, and instead was an example of the “constitutional right of free speech”?

Unexplained

Duke’s response essentially makes no explanation to the allegations that higher-ups pressured Duke officer Christopher Day to modify his March 14, 2006 report, which correctly stressed the evidence of Mangum’s unreliability. Duke concedes that at least three administrators, however, knew of Day’s report by March 15, 2006.

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So we have learned that: University funds paid for the Group of 88’s ad; Duke believes the AG’s conclusions about the medical evidence were wrong; senior administrators knew of Officer Day’s report almost instantaneously but did nothing to disseminate it either publicly or to the lacrosse players’ attorneys; and Duke as an institution, along with its senior administrators, believe they have no obligation to act when they know of factually erroneous legal filings regarding their students. And all of this has come before any discovery has occurred.

No wonder Duke was so desperate to have this case dismissed.

Mangum's Alleged Victim Dies

2011-04-13T23:17:00.002-04:00

WRAL reports that the man false accuser Crystal Mangum allegedly stabbed has died.

Mangum will presumably face new charges next week. She is currently being represented by none other than an old friend of Mike Nifong's, Woody Vann, who had previously labeled Mangum "a very credible, believable person." Of course, this is the same Vann who in June 2006 dismissed Jim Coleman's (accurate) critique of Nifong and bizarrely claimed that the defense attorneys were "satisfied" with Nifong's performance as prosecutor.

The whole affair is very sad, all the more so given that a different outcome in her arson trial (or a more robust sentence from the judge in the case) would have ensured that Mangum never would have met Reginald Daye.

Mangum supporters issued a statement last night appearing to blame Duke Hospital for Daye's death.

There's no word on whether Bob Steel's million-dollar-man, Tim Tyson, stands by his description of Mangum as "somebody’s daughter and somebody’s sister and somebody’s mother and somebody's sweetheart."

Words from Wahneema

2011-04-11T15:20:00.004-04:00

A while back, I did a series on the Group of 88’s scholarship—or, in some cases, lack thereof—pointing out the usually-extreme, often-comical ways in which Group members interpreted events through the race/class/gender prism. At the time, I pointed out that the author of the Group’s statement, Wahneema Lubiano, had an . . . unusual . . . approach to publishing, in that she had received a tenured position on the Duke faculty without having produced a scholarly monograph. Instead, she listed two monographs as “forthcoming” (which means that a professor has completed the work and has a contract with a press). These manuscripts have now been “forthcoming” for a breathtaking 14 years, and still have yet to see the light of day.

Lubiano has published a handful of articles, though—in a great irony—her career’s most influential work probably is the Group of 88 statement itself. Nonetheless, while Duke appears to have bent its rules to give her tenure, even Lubiano had to produce a dissertation to receive a Ph.D. degree (from Stanford). A reader recently sent me a copy of the document. It’s short for a dissertation (a little over 200 pages of typewritten, double-spaced text, with generous margins), and ideologically exactly what you’d expect from Lubiano. The dissertation, prepared for the Department of English, analyzes a handful of African-American novels, the best-known of which include Ellison’s Invisible Man and Morrison’s Song of Solomon.

Lubiano’s dissertation advisor was an English professor named Sandra Drake. Remarkably, Drake obtained a position from Stanford’s English Department even though she doesn’t have a Ph.D.—her most advanced degree is an M.A. from San Francisco State University, an institution that few would consider a first-tier graduate school. (Drake's Stanford bio doesn't list a Ph.D. degree, though I have been told she received one after she began teaching at Stanford.*) Nor was she a publishing powerhouse—her first (and, according to her on-line bio, only) monograph appeared ten years after Stanford hired her, or after she would have received tenure. Drake specializes in literature of the Black Diaspora, with a particular focus on “women’s writing and comparative feminist studies.” In other words: race, class, and gender, all rolled into one.

Lubiano’s dissertation—“Messing with the Machine: Four Afro-American Novels and the Nexus of Vernacular, Historical Constraint, and Narrative Strategy”—features the combination of only-in-academia beliefs and impenetrable prose that would characterize the few publications she would pen over the next quarter century. Here’s an excerpt from the opening paragraph of the dissertation, with the run-on structure as in the original:

And it does seem easy to give into the temptation to think that one “knows” or understands already books about people who live, as the narrator in Invisible Man puts it, a “public life,” and in many ways anyone part of the Afro-American culture does lead a public life, is part of a group “known” (to the public’s gaze) more in the mass than in the particular, the idiosyncratic. Consideration of the “literariness” of these texts might seem, to some readers, almost superfluous because knowledge of the oppression imposed on the culture which forms the (con)text seems to make closer scrutiny of form, of structure, frivolous.

Yet, Lubiano maintains, her chosen texts of study “make a form of political weapon.” (Invisible Man as a politically-oriented text? Who knew?!) She criticizes the “dominant vision of reality” (which she asserts is “colored by racism,” and which leaves African-American culture “marginalized”). And she notes how her own views on reality have been informed by “post-structuralist theorizing,” although, she adds, she doesn’t intend to use post-structuralism in her own analysis, but instead would focus on her own preferred approach of “meta-realism.” That would allow her to expose how “the deconstructive potential of that vernacular lies in its use as textual strategy and in the attitude toward language that it embodies.”

For Lubiano, “altering reality within the sphere of influence of a dominant culture instead of simply representing it complicates the discourse.” But, of course, “altering reality” allows the scholar to read into the text whatever preconceptions (about the pervasiveness of racism, in the case of Lubiano’s dissertation) he or she brings. Who needs evidence when you can simply “alter[] reality”? Lubiano isn’t worried about such a problem, in any case, because her dissertation’s approach allows her to move beyond the great enemy of the contemporary academy: “assumptions that hide their dependence upon white, European and American, middle-class contexts.”

Much of the dissertation consists of the type of literary criticism that has come to dominate contemporary English Departments. But occasionally, Lubiano overtly and more clearly editorializes. She seems to chastise the black middle class for not doing enough to “talk [with] and understand” the black lower-class. And she excludes from her study “Afro-Americans who deliberately and self-consciously choose to live their lives totally within the cultural matrices or another or other group(s).” (Some people might call that “assimilation.”) Lubiano also praises the work of two of her future colleagues among the Group of 88—Houston Baker and Frank Lentricchia. The dissertation’s title, in fact, is taken from a Lentricchia essay that attacks liberals for their allegedly insufficient radicalism.

In her analysis of Song of Solomon, Lubiano writes that among the questions she will examine is, “What is going on?” What, indeed.

*--correction

Reflections on the Beaty Rulings

2011-04-04T00:01:00.009-04:00

[Update, 2.07pm, Monday: Zach Tracer has an excellent summary in the Chronicle, with quotes from a Durham spokesperson and Duke Law prof Thomas Metzloff. The analysis of Metzloff (someone who I know a little & respect a lot) on the Durham aspect of the lawsuit, in light of the Beaty rulings: “This is still, even without punitive damages, potentially high-stakes litigation for the city."]

A few comments about last week’s rulings from Judge Beaty. In general, the rulings seemed like very good news for the falsely accused students and a very bad development for the triumvirate of Durham, Nifong, and DNA Security. For Duke and the unindicted lacrosse players, the results were more of a mixed bag. Given that Duke’s pre-March 31 strategy of avoiding good-faith negotiations was based on an apparent confidence in achieving total victory at the motion to dismiss stage, this outcome wasn’t good news for the university. A final broad point: though I disagree strongly with one aspect of Judge Beaty’s ruling (regarding his broadening of the Love precedent), his three memoranda were remarkably thorough and well-reasoned, and suggested he understands the case well.

Durham’s Setbacks

The basic facts of the criminal case aren’t much in dispute. A woman with a history of criminal behavior and severe mental problems made wild allegations against some Duke students. The Durham police, after improperly turning their investigation over to Mike Nifong, obtained indictments under dubious pretenses (a wildly flawed photo lineup, withholding exculpatory DNA tests from the defense and the court, misleading or outright false testimony to the grand jury). The case eventually collapsed under its own weight, as the false accuser, Crystal Mangum, repeatedly changed her story, and the unethical Nifong desperately tried to alter his timeline and charges to fit whatever story Mangum happened to be offering. The AG’s inquiry eventually concluded that the accused students were innocent, that no objective medical evidence existed to sustain any criminal charges, and that Mangum was an unreliable witness.

Those facts come close to a textbook case of malicious prosecution, and considerable available evidence already confirms this narrative. So Durham’s filings focused on three other arguments: (1) Even if true, these facts can’t sustain a civil suit, because a grand jury indicted the lacrosse players; (2) Even if true, these facts can’t sustain a civil suit, because Nifong ran the investigation, and he’s an employee of the state, not the city, and under the 11^th amendment, the state can’t be sued in federal court; (3) Even if true, these facts can’t sustain a civil suit, because someone else (Duke employees, Dr. Meehan) is to blame.

Argument (3), as Judge Beaty pointed out, isn’t relevant for the motion to dismiss stage. Argument (2) he rejected out of hand, pointing out that while he functioned as a de facto police detective, Mike Nifong (and his underling, Linwood Wilson) didn’t enjoy absolute immunity. And Argument (1) prompted the most passionate section of last week’s rulings:

Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution.

Durham/Nifong/DSI will have another bite at the apple, of course, when Beaty considers motions for summary judgment, but it seems—having lost the constitutional arguments—highly unlikely that they’ll prevail at that stage.

Duke’s Victories

Duke already has settled with the three falsely accused players for, according to Raleigh Metro, an eight-figure amount—not exactly an approach a university that doesn’t fear legal liability takes. That said, there’s no evidence that the institution has made any changes to address the kind of problems that mandated this massive settlement.

In the Carrington rulings, Duke’s most clear-cut victory also represented a tremendous setback to student rights throughout the 4^th Circuit. Citing the precedent of Love (which involved a far, far narrower set of allegations), Beaty dismissed a breach of contract claim to hold Duke liable for failing to enforce the terms of its faculty handbook (all students must be treated with respect) and student bulletin (harassment against students won’t be tolerated). He argued that, under Love, documents like the bulletin and handbook aren’t contracts. In other words: universities can use them to enforce judgments against students, but when universities don’t live up to their provisions, students have no legal recourse. And since it would be hard to imagine a more clear-cut case of lack of respect (the Group of 88 statement with false assertions of departmental endorsements, the Houston Baker letter, Tim Tyson protesting outside the captains' house) or harassment (both in-class and on campus) than the lacrosse case, Beaty’s ruling fortifies and expands the Love precedent, and essentially means that students anywhere in the 4^th circuit are out of luck on this line of response when activist faculty or favored elements in the student body go after them.

(By the way, historians aren’t supposed to make predictions, but I’ll offer one here: Duke won’t amend its student bulletin or faculty handbook to make clear to current and prospective parents that the university can violate these documents at will, if enforcing their provisions would require the administration to alienate activist faculty members on campus.)

Two other aspects of Beaty’s ruling reflected current law, but his findings seemed intellectually counterintuitive. First, he dismissed one claim against Duke on grounds that in North Carolina “no basis to support the contention that a sexual assault nurse examiner owes a duty to the general public, or to individuals who are members of the public who may subsequently be targeted during a police investigation,” on grounds that the SANE nurse has a “primary duty to the patient.” Yet in our legal system, the SANE essentially functions as an agent of the state, with a job of collecting and interpreting evidence for possible use in trial. If, in fact, such a figure owes no duty to the general public, then perhaps the general public should assign to SANEs a less significant role in criminal prosecutions.

Second, Beaty dismissed another claim against Duke on grounds that, under relevant case law, students have no expectation of privacy regarding their keycard information. This finding reflects the Supreme Court’s strained interpretation of privacy rights, but my sense is that most students would find it jarring to discover that they have no privacy rights regarding the electronic record of when they come and go from their dorms.

Duke’s Defeats

Duke’s defeats outweighed their victories—in what senior administrators must have regarded as a premature April Fool’s joke, Beaty allowed multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision to proceed against the University and its employees. His ruling also offered a rather . . . negative . . . review of how the Duke faculty approached the case.

On one fraud claim—which comes out of Duke’s having given the DPD access to its students’ keycard information without a warrant, in apparent violation of FERPA; and then lying about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—Duke seems extremely vulnerable. (Duke has never explained why it didn’t notify the lacrosse players that the university had improperly shared their student data with the DPD.) And whether the university being held civilly liable for violating FERPA would prompt some federal accompanying actions remains an open question.

On the medical front, Beaty’s rulings clearly focused attention on former SANE-nurse-in-training Tara Levicy, whose willingness to constantly alter her story to fit Nifong’s needs played such an important role in keeping the case alive. He dismissed claims against Levicy’s supervisors—but they weren’t the figures who obviously committed misconduct in this case. And, perhaps most troublingly for Duke, his ruling invited the plaintiffs to establish a connection between Duke and Levicy’s unusual behavior.

Administratively, Duke itself and President Richard Brodhead as an individual remain potentially liable for fraud and negligent supervision—meaning that depositions and discovery will commence, presumably to include Brodhead’s emails. And Beaty suggested that the negligent supervision claim could provide the avenue he seemingly blocked by dismissing the breach of contract claim to examine why the administration stood aside meekly as activist faculty members chose to exploit their students’ difficulties.

A final point: in dismissing a claim for intrusion upon seclusion against Duke administrators, Beaty offered this appraisal of activist members of the Duke faculty: “The Amended Complaint alleges conduct by faculty members [which was based on information that is entirely in the public record] that is certainly questionable.” Another prediction: Duke won’t be broadcasting this evaluation to prospective parents anytime soon.

What Discovery Should Reveal

The path laid out by Beaty’s rulings strongly suggested that—one way or the other—the discovery process will provide answers to a few lingering questions from the case, namely:

(1) When, precisely, did senior members of the Durham Police Department (and City Manager Patrick Baker) elect to allow Mike Nifong to assume personal command of the police investigation? Why did they do so? And why did they not step back in to establish normal processes when Nifong ordered the DPD to violate its own procedures and run a suspects-only lineup?

(2) When, precisely, did senior members of the Duke administration, including Brodhead and former BOT chairman Bob Steel, learn of former SANE nurse-in-training Tara Levicy’s involvement in the case? And why did they not step in to establish normal processes when Levicy started violating regular SANE procedures by changing her story to fit Nifong’s tale and providing the police with information not contained in her written report?

(3) When, precisely, and for what reason did Duke establish its students’ presumption of innocence as one of the two pillars of the university’s policy, as Brodhead subsequently, and misleadingly, claimed? We know that one senior administrator, Larry Moneta, told Samantha Ekstrand on tape that he did not believe the players were innocent; and we know that in his April 5, 2006 open letter, Brodhead made no mention of a presumption of innocence. By June, he would do so: had university counsel grown concerned with the possibility of civil suits?

Linwood Wilson

Proving yet again the aphorism that a man who represents himself has a fool for a client, Counselor Linwood Wilson’s filings failed to persuade: between the three lawsuits, Wilson is still facing nine separate claims.

Duke’s Defenders

Perhaps the most revealing—and, unintentionally, critical of Duke’s position—reaction to Judge Beaty’s rulings came from Duke’s official spokesperson and a Duke apologist.

Duke spokesperson Michael Schoenfeld commented, "The few claims remaining are substantially narrowed, as we had hoped." [emphasis added] It’s quite true that Beaty “narrowed” claims against Duke. But the “narrowing” consisted of his eliminating mid-level (or in one case all) administrators, while leaving the university itself still potentially liable and the overall claim entirely unaffected; or his eliminating Durham but not Duke from one fraud claim.

Duke, as we learned from the AIG lawsuit, has already spent millions of dollars on attorneys. If a ruling that kept the university potentially liable for multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision is the outcome for which the university leadership “hoped,” what kind of outcome had these high-priced lawyers predicted to Brodhead and the Duke Trustees?

Duke alumnus and apologist Beau Dure, meanwhile, produced a post establishing “fair and balanced” bonafides that would make Glenn Beck proud. After a token expression of sympathy with the falsely accused players, Dure asserted that “the people you’d typically meet as an undergraduate have little left to face in court other than Count 11”—an odd formulation, since virtually none of the claims involved people “you’d typically meet as an undergraduate.” The post incorrectly implied (but didn’t state outright) that my initial area of interest was in exposing the media’s rush to judgment on the criminal case—whereas, obviously, my initial focus in the case was exclusively in exploring the motivations for what Judge Beaty termed the “questionable” behavior of the Duke faculty. The post also minimized the Group of 88 statement with this almost hilarious line of argument: “I did show the ad once to a neutral party, who wondered what the fuss was all about.” (Adopting this approach, allow me to pass along the following: I showed Brodhead’s April 5, 2006 statement to a fellow rider on the G-train, who wondered what the fuss was all about.) Some might think that a former Duke student would be troubled by his university affirming that Duke should have no legal obligation to ensure that faculty treat all Duke students with “respect” and that all Duke students shouldn’t be harassed, even though the faculty handbook and the student bulletin appear to promise such a standard. But Dure—as, I suppose, a good Duke apologist must—seemed almost giddy about this development.

Dure focused, however, on a peculiar claim: after implying but not quite stating explicitly that Duke’s activist faculty suffer from the effects of groupthink, Dure offered the unsurprising observation that the DIW commentariat (which he darkly described as a “mob”) exhibits symptoms of groupthink. (Dure also, oddly, claimed to have commented at DIW “back in the day” only to have been “shouted down” by DIW commenters, though a blogger.com DIW search, and a Google search for “'Beau Dure’ Durham Wonderland” revealed no comments by Dure on DIW.) In any event, as anyone even remotely familiar with the blogosphere knows, blogs do a lot of good things, but providing comments sections that feature all points of view in significant numbers generally isn’t one of them. University faculties, on the other hand, purport to have higher standards than blog commentariats, especially in ensuring diverse viewpoints among the professoriate.

So is this what it’s come to in this case? The university’s spokesperson says Duke “hoped” for an outcome in which multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision would go forward; and a Duke apologist compares the intellectual diversity of his former university’s activist faculty to that of a blog’s commentariat.

Mangum Arrested (Yet Again)

2011-04-03T13:03:00.002-04:00

False accuser Crystal Mangum was arrested, yet again, reports WTVD-11:

Officers say they were called to the scene of a stabbing at a home located in 3000 block Century Oaks Drive, early Sunday.
When police arrived they say they found a 46-year-old male who had been stabbed in the torso.
The man was taken to Duke University Hospital for treatment of his serious injuries.
Officers say they later arrested Mangum, 32, in a nearby apartment.
Mangum is charged with assault with a deadly weapon with intent to kill inflicting serious injury. She is being held at the Durham County Jail on no bond.
Investigators say Mangum is the victim's girlfriend, and believe the stabbing occurred during an argument.

Will the Group of 88 rally to her defense? After all, in her apologia for the Group of 88's ad, Cathy Davidson reached out to Mangum, lionizing her as a figure deserving sympathy, "a single mother who takes off her clothes for hire partly to pay for tuition at a distinguished historically black college."