Gagging in Durham

Fox News reports that Durham D.A. Mike Nifong is considering a gag order for the Duke lacrosse case. The request would have more credibility had the district attorney not made 70 public statements, many of them so inflammatory that an on-line forum archived them , in the weeks before the Democratic primary for county district attorney.

Having captured the nomination, Nifong has no continued political need to speak out; he is also confronting increasingly troubling revelations about his peculiar investigation. It turns out that when he “hinted” to Newsweek that the police file would show the accuser was given a date rape drug, it appears that he either (a) hadn’t read the file, which contains no toxicology report; or (b) deliberately misled the reporter. Thursday, defense lawyers filed a motion stating that the only mention of the accuser describing her alleged attackers came in the following note by a police investigator: “I asked her questions trying to follow up on a better description of the suspects, she was unable to remember anything further about the suspects.” So, Nifong either (a) didn’t turn over all case material to the defense, despite informing the court he had done so; or (b) dealt with an accuser who couldn’t give even a basic description of her alleged attackers, but then had no trouble doing so three weeks after the incident at a photo ID that blatantly violated state guidelines. And yesterday, another defense motion revealed that a previously unreported photo ID session (which also ignored state guidelines, in that it consisted solely of photos downloaded from the Duke lacrosse website) occurred on March 21, and police records from that session revealed that the accuser did not identify at least one of the arrested players, Dave Evans, as among her alleged attackers. As Ralph Luker reminds us, the latter two items come from the defense alone—though in the form not of leaks but of formal court motions, subject to sanctions if they contain demonstrably false statements.

Nifong’s desire for a gag order is unsurprising, given that he’s also under investigation by the state bar’s ethics committee and surely wants to avoid any further bad publicity while that process moves forward. The recent action of the North Carolina NAACP, however, is more troubling. Al McSurely, chair of the NAACP’s Legal Redress Committee, has said that the organization will ask for a gag order, which he euphemistically termed a "quiet zone/let's let justice work" motion. His justification, according to the Durham Herald-Sun, is that “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.” Leaving aside the question of why the NAACP didn’t desire a “quiet zone” when Nifong dominated the airwaves, the Constitution contains no mention of an accuser’s “legal rights to a fair trial”: the accuser has the power of the state on his or her side. Nor can an accuser’s legal rights somehow trump the very real constitutional protections possessed by defendants. The NAACP’s action, though unlikely to be approved, typifies the bizarre inversion of constitutional theory that has permeated this case, what defense attorney Alex Charns has termed Durham’s “Alice-in-Wonderland” style of justice. Jason Whitlock’s admonition is worth recalling: “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.”

At least the NAACP isn’t in the classroom. This week’s Chronicle contains a memoir of one spring term class that should shame the Duke administration. Author Elizabeth Chin spent the spring 2006 term as a visiting professor in Duke’s cultural-anthropology department, where she taught a course called “Girl Culture/Power.” The class, she reports, enrolled a good number of “well-off white women who were in the most elite sororities at Duke,” balanced against three men, “several heterosexual women of color [Chin doesn’t explain how she knew they were heterosexual or why this fact is relevant], and a handful of what I affectionately thought of as my radical feminists.”

While critical of the Duke administration—which hardly went out of its way to defend the lacrosse players’ rights—for not creating a “town meeting, teach-ins, and coordinated efforts in residence halls” to address the allegations against the players, Chin committed herself “to keep the classroom a safe space for all the students, while allowing people on both sides of the issue to hear and understand each other.” That the space was a whole lot safer for one side than the other became clear when an anti-lacrosse player rally coincided with one class session. Chin stopped class and instructed the students to go outside and listen. (There’s a good strategy for an easy prep.) “After a while,” she relates, “I noticed that, one by one, the sorority girls were going back inside.” (Many of the sorority “girls” knew members of the lacrosse team.) Chin continues: “When I went after them, their pain and frustration were obvious. ‘It's just not fair being targeted as a group,’ wailed one woman.” Wailed? Imagine the appropriate condemnation from faculty members like Chin if a male professor had used this verb to describe an upset “girl” in his class.

Chin’s response to the demonstration and its aftermath effectively assumed that the players were guilty, her view of the scandal was undeniably correct, and teaching diversity is the only conceivable approach in the classroom. Her view of an in-class “olive branch” over the lacrosse issue consisted of a “radical woman” admitting that she could have a common experience with a sorority “girl”: the “radical woman” stated that she, too, knew a man who “had raped someone.” (No rush to judgment about the lacrosse players there.) Leaving aside the question of whether it was an appropriate use of class time to peruse a demonstration with whose message the instructor sympathized (Chin gives no suggestion that she also cancelled class to observe the “innocent” demonstrations that occurred later in the term), Chin might have explored with her “radical feminists” why so many on campus, including the demonstrators, seemed to presume guilt—even at an early stage of the investigation, when the lacrosse players had all denied criminal wrongdoing, their captains had told the authorities they would take lie detector tests, and the procedural irregularities that have come to characterize Nifong’s inquiry already were becoming apparent. This question appears not to have occurred to Chin, who describes herself as a “good liberal.” Apparently she doesn’t see promoting civil liberties as the kind of activity in which a “good liberal” would engage.

Chin would be proud, however, of how the Washington Post and New York Times have addressed Durham matters; as Stuart Taylor noted, “Many members of the national media have published grossly one-sided accounts of the case.” A Post column by Lynne Duke relies on “facts” that are not only, at best, assumptions, but also contradict much of what is now known about the case. It’s absurd to say, based on the evidence that now exists, that the case is “some ways reminiscent of a black woman's vulnerability to a white man during the days of slavery, reconstruction and Jim Crow, when sex was used as a tool of racial domination.” Commentator Julianne Malveaux even more oddly added that as "African American women are not systematically valued in our society,” the accuser is getting "no benefit of any doubt." If nothing else can be said about this case, it’s that the accuser has received the benefit of the doubt. Indeed, the state went so far in giving the accuser the benefit of the doubt that one prominent legal analyst, Andrew Napolitano, has predicted that the case could end with Nifong’s losing his license to practice law.

And in a piece behind the Times firewall, Harvey Araton cited plans by the women’s lacrosse team to wear armbands expressing sympathy with the accused men’s players at this year’s Final Four (held on May 26) and a request by the Duke athletic staff that the women’s basketball players not comment in interviews about the lacrosse case at this year’s women’s Final Four (held on April 2) to claim that “a basketball team with a majority of African-American women was in effect censored while the lacrosse gals, 30 of 31 of whom are white, are apparently free to martyr their male lax mates.” This seems like a compelling argument—if only it were factually correct. Actually, as Newsday reports today, the Duke athletic staff made the exact same request (not to comment publicly on the case in interviews with the media) of the women’s lacrosse “gals” (funny how Araton describes them as “gals” and the basketball players as “women”), and they honored the request. Araton produces no evidence that the basketball team wanted to wear armbands sympathizing with either the lacrosse players or the accuser, or were “censored” in any other way beyond receiving the same request that was given to the lacrosse team about not speaking publicly.

Specifically targeting the women’s lacrosse players, Araton wonders how “cross-team friendship and university pride [could] negate common sense at a college as difficult to gain admission to as Duke,” with the women’s players “staking their own reputations” on the case’s outcome. By making such a claim, of course, it could be said that Araton is staking his own reputation on his critique. It might be that the women’s lacrosse players have been paying attention to events in Durham that have occurred since the basketball Final Four; it’s unclear if Araton has done so. Perhaps they noticed that even though Nifong promised that DNA evidence would positively identify the guilty, the tests for 45 of the men’s team came back negative and the test for the 46th was inconclusive. Perhaps they noticed that, after being arrested with a warrant alleging he committed a 30-minute crime on March 14 (i.e., after 12.00am), Reade Seligmann produced electronic and video evidence showing that starting at 12.06am, he was either text-messaging his girlfriend, in a cab, or at an ATM machine a mile away. Or perhaps they noticed that the accuser identified another arrested player, Dave Evans, as having a mustache, which he did not, and, apparently, initially didn’t identify him at all. Maybe their willingness to evaluate new evidence and respond accordingly explains how those “lacrosse gals” were selected for “a college as difficult to gain admission to as Duke.”

Araton concludes his column by noting, “When behavioral codes intersect with the vexing subjects of sex, race and class on campuses like Duke’s, there are still many more questions than answers. Today, if I could ask just one, it would be directed at the Duke basketball women. What do they think of those sweatbands the women’s lacrosse team was planning to wear?” New York Times columnists have access to the internet (on which the women’s basketball team roster is easily found) and the ability to use e-mail and the telephone. If Araton considered this question so important, why didn’t he simply ask the women’s basketball players? Could it be that he feared the answers he received might contradict the Times’ take on the issue, which even as milquetoast a public editor as Bryon Calame has faulted for making decisions where sometimes “fairness suffered a bit,” referring “to an application for a search warrant as if it were somehow a court finding of fact,” and inexplicably downplaying Nifong’s possible political motivations? Since I too have internet access, I e-mailed Araton to ask him.

Professor Chin, no doubt, would share Araton’s outrage at the conduct of the women’s lacrosse team at last night’s Final Four. Coach Kerstin Kimel has emerged as one of the few heroes of this affair, breaking what could be termed the university’s “blue wall of silence” to become the first Duke administrator, professor, or coach to publicly say anything positive, in his or her own voice, about the men’s lacrosse players’ academic, athletic, or personal qualities. Her team seems to share her sentiments. To show solidarity with the three men’s players targeted by Nifong, women’s team members wore sweatbands with the players’ numbers, or with the men’s team slogan, in their semifinal game against Northwestern. (Despite outshooting Northwestern by double digits, Duke lost in overtime, 11-10.) After the game, Kimel said that any attention the team received for the wristbands paled in comparison to “watching your friends be arrested; watching your fellow students not support fellow students; watching professors not support students.”

My sister was a three-year starter for the Columbia women’s basketball team, and I got to know many of the players quite well; I also taught a good number of women’s swimmers at Harvard and women’s soccer players at Williams. Despite Araton's insinuation, female college athletes have never struck me as a group likely to go out of their way to stand up for males that they believed were sexist. I suspect Professor Chin would have a different view: when a sorority “girl” suggested in class that the players “might” be innocent, Chin believed that those “affectionately thought of as my radical feminists” could only interpret the remark as saying that the student protected “white privilege uncritically.” But in a jurisdiction whose district attorney appears to believe that basic state procedures don’t apply to him, and on a campus that in the past 75 days has experienced the effects of faculty “groupthink” at its most pernicious, another phrase from Chin’s ideological arsenal seems appropriate to characterize the lacrosse players’ course of action. At the Final Four, it might be said that the women’s team displayed the courage to speak truth to power.

[Originally posted in Cliopatria.]