Thursday, May 04, 2006

The News and Observer Weighs In

Though I'm a minority among Cliopatriarchs on this score, I continue to believe that a considerable difference exists between criticizing procedural improprieties in an investigaton and rushing to judgment on the facts of the case, or failing to urge authorities to respect the due process rights of your own institution's students, as the Group of 88 faculty did at Duke.

This morning's Raleigh News and Observer raises the point about procedure as well, in its lead editorial. The first paragraph:

When someone lodges an official complaint that he, or she, has been the victim of a crime, the police and other authorities within the justice system are expected to respond with resourcefulness and determination. Yet their methods are supposed to be controlled by standards of fairness.
The editorial reviews several "disturbing" procedural elements of the investigation; the editors might have elected to publish this article before the election.

An even stronger procedural critique than the News and Observer comes from Stuart Taylor, a columnist and senior writer at National Journal. His column in this week’s Journal lays in out in more dispassionate terms than I have managed the “evidence of gross prosecutorial misconduct” in the investigation by Durham DA Mike Nifong. (Taylor also chastises the Duke faculty for its silence in the wake of such procedural abuses.) Taylor’s piece ranges from the photo array, characterized as “so grotesquely suggestive and unreliable that one expert compares it to ‘a multiple-choice test with no wrong answers’,” to the district attorney’s having “rudely spurned repeated requests by defense lawyers for a chance to show him exculpatory evidence.” “Such conduct,” Taylor maintains, “is not usually seen as grounds for disbarment. It ought to be.”

Taylor carries considerable prestige in Washington: his mid-1990s column that Paula Jones had a viable legal claim (which, as events developed, proved true) was a turning point in the Clinton scandals, prompting far more serious consideration of a case that, except in far-right circles, had previously been dismissed as legally absurd. Hopefully his weighing in on Nifong’s actions will have a similar effect.

The article contains two details I hadn’t previously seen reported: the specific statement of the forensic sexual-assault nurse, which is far milder than has been portrayed and contains no mention of the word "rape"; and the specific context for the “cotton shirt” comment that Tim Burke wrote about a few weeks back. In combination with the findings of the Coleman Committee report, Taylor’s article also casts considerable doubt on allegations that other team members used racial epithets on the evening of the incident.

Taylor added that “for weeks, Nifong made numerous inflammatory and racially charged statements expressing certitude that there had been a rape and holding up the lacrosse players to condemnation as a bunch of ‘hooligans.’ (He has more recently declined interview requests. Through his legal assistant, Nifong repeatedly declined to respond to my questions for this article, drafts of which I e-mailed to his office.)” Indeed, Nifong’s penchant for inflammatory statements became a major issue in his campaign (as well as possibly violating state bar ethics guidelines), and he promised to cease making such comments. But having been safely re-elected, Nifong almost immediately reversed course and returned to the airwaves: in the last 24 hours, he conducted interviews. With WRAL, a local TV station in Raleigh, Nifong didn’t deny defense claims that he declined to meet with attorney Kirk Osborn after the indictment when Osborn wanted to present exculpatory evidence regarding his client.

With MSNBC, the DA showed that he has learned from his previous mistakes—as when he assured the court that the first round of DNA tests would “immediately rule out any innocent persons.” He no longer promises too much, and there’s nothing in his current comments that cross any ethical lines. Instead, he hints at damaging evidence to come. For all we know, he has troves of such evidence, though he’s struggled to deliver on previous promises. And I suspect we won’t see either the DA or most in the Duke faculty attempting to respond to Taylor’s devastating assessment of the procedures employed in the case thus far.

[Originally published in Cliopatria.]

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