Roy Cooper's Silence

The Times’ Nicholas Kristof has compared Mike Nifong’s actions to the Scottsboro Boys trial; on the other coast, Chris Reed of the San Diego Union-Tribune has labeled Nifong “America’s worst district attorney,” a figure who, by “ruining three students' lives to win re-election . . . deserves to be pilloried every day the rest of his life.” Citing Nifong’s myriad procedural irregularities, blogger Johnsville News has ridiculed North Carolina as a “banana republic,” a point made more directly in a recently posted cartoon. A debate raged for several days before Wikipidea deleted an entry for a new verb: “nifonged,” defined as “the intentional railroading or harming of a person or persons for one's own gain.”

Seeing their state reduced to a national “laughing stock,” in the words of prospective Nifong challenger Lewis Cheek, surely must concern North Carolina leaders. Yet to date, political self-interest, if nothing else, has dictated inaction. The accused players are not North Carolina residents; the arts and sciences faculty at their own institution has either remained silent or publicly denounced them; and the Duke administration has, at best, washed its hands of the affair. Powerful political interests within the state, meanwhile, seem to view Nifong as a figure positioned to right past wrongs, even if he has to violate canons of legal ethics to do so.

The checks that should restrain renegade district attorneys, obviously, failed to work in this case. Nifong assumed personal control of the investigation almost from the start, eliminating the usual first check: the police developing facts and concluding their investigation before determining that a crime occurred and passing that information on to the district attorney. (In yet another of this story’s many bizarre aspects, blogging from the scene, John in Carolina observed that Durham’s police chief, Steve Chalmers, “hasn’t been seen in public for months, although we’re told he’s following the Duke lacrosse case just as closely as the rest of us.”) The judge who supervised the case thus far, Nifong’s former boss, rejected pleas from the defense for a speedy trial and consigned countless defense motions to a black hole, refusing even to demand that Nifong respond to them. In Durham, judges are elected, and therefore responsible to the same constituency that renominated Nifong. If he’s done nothing else, Nifong has shown how even a weak candidate can win an election in the city.

Governor Mike Easley, meanwhile, has remained silent, and hasn’t been pressed for comment by the local media. It certainly seems worth asking the governor, who previously served as North Carolina’s attorney general, what criteria he used to appoint Nifong to last year’s district attorney vacancy, and whether he’s learned anything from the experience. Nifong, after all, had spent the previous five years in traffic court, hardly the customary home of talented prosecutors. While endowed with seniority, he sported a quite unusual background: he opted for law school only after a sojourn as a social worker; and, upon graduating from UNC Law School, had to volunteer in the Durham district attorney’s office before being hired to a salaried position (not the normal career path for the best legal minds). Perhaps his performance wasn’t so hard to predict after all. If I were Easley, I’d want to avoid comment on the affair as well.

This leaves the state’s attorney general, Democrat Roy Cooper. Like everyone else, it seems, in a decisionmaking position in this matter, Cooper’s political self-interest dictates allowing the case to lurch forward: he wants to be governor of North Carolina, and, in a closely divided state, needs the African-American vote to capture the 2008 Democratic nomination and then win the general election. To date, Cooper’s office has issued a standard reply: “In North Carolina, district attorneys are independent, constitutional officers elected by the people of their district, and not a part of the attorney general's office. In addition, the attorney general's office does not have supervisory authority over district attorneys.”

This statement is accurate—but not quite complete. The attorney general’s office includes one section, the special prosecutions division, which can handle prosecution of local cases. Cooper’s public information officer told me that the office doesn’t keep track of how many cases the special prosecutions division has handled; she gave a similar reply to a News and Observer reporter two years ago. A Lexis/Nexis search indicates that the division has tried at least a few cases since 2000. Moreover, the protocols for the attorney general acting (which aren’t available on-line) seem to have been written with this case in mind. Indeed, under the protocols, there are at least four grounds for the special prosecutions division to handle the case.

1.) Category I, section g: “When under the rules and regulations of the North Carolina State Bar the District Attorney's office should not participate in a particular prosecution.”

Nifong’s inflammatory public statements and his refusal to meet with defense attorneys to consider exculpatory evidence before seeking indictments almost certainly violated two provisions of North Carolina’s Code of Professional Responsibility—which prohibits prosecutors from making extrajudicial statements that will have a substantial likelihood of materially prejudicing public attitudes toward the accused and prevents prosecutors from avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” (The latter decision also violated common sense: I haven’t seen one commentator posit even a plausible explanation of why Nifong would not want to see what evidence the defense possessed, much less support the district attorney’s choice.)

The spirit of this provision also might apply to Nifong’s decision to ignore the Actual Innocence Commission’s guidelines and confine the photo ID session to suspects. Nifong’s actions certainly contradicted Cooper’s promises to North Carolina voters. When asked in 2004 by the News and Observer, “Do you support the efforts of the N.C. Actual Innocence Commission to prevent and correct wrongful convictions?,” Cooper replied enthusiastically: “I'm a member of the commission and have been to every meeting. We’re working hard to make sure that innocent people are not convicted.”

2.) Category I: “Although there is not always an actual conflict of interest in these cases, it is sometimes better from a 'public perception' standpoint to eliminate an appearance of conflict or some suggestion that the matter will not be handled properly. Having a separate prosecutorial agency assume responsibility for these types of cases is in the best interest of the proper administration of justice in assuring the public that the case will be handled properly and in the public's best interest.”

The appearance of a conflict of interest regarding Nifong’s electoral prospects has been well-documented: there seems to be no motive other than political for his decision to seek pre-primary indictments before the second round of DNA testing was in, given that he had earlier affirmed to the court that DNA evidence would identify the guilty parties. (The results of the second round of testing, which ultimately contained no match to the two players Nifong had earlier indicted, were not due until after the primary.)

There’s also a lesser-covered apparent conflict of interest: In the primary campaign, Nifong won the backing of an influential African-American attorney, Mark Simeon, who represents the second dancer, Kim Roberts a/k/a Pittman. Roberts a/k/a Pittman first made news in the case with an email to a New York publicity agent asking for help in how to “spin” affairs to her financial advantage, and Simeon has expressed interest in representing both Roberts a/k/a Pittman and the accuser in a civil suit. Quite beyond the fact that Nifong’s pursuit of criminal charges seems to assist Simeon’s intended civil action, an appearance of a conflict of interest certainly exists: Roberts a/k/a Pittman told a dramatically different version of events, one favorable to Nifong’s preferred tale, shortly after the district attorney secured for her a favorable bond settlement on an unrelated arrest—and Simeon endorsed Nifong’s renomination.

3.) Category I, section (e): “When the District Attorney or a member of his staff will be called as a witness to testify regarding contested facts touching upon the merits of a case.”

An important article by the N&O’s Joseph Neff reveals five public statements by Nifong unsupported by the available documents in the case. Richard Myers, a former federal prosecutor and UNC law professor, told Neff that defense lawyers can call the prosecutor as a witness when the prosecutor’s public statements contradict the facts of the case. To date, no documents have been made public upon which Nifong could have based the statements profiled in Neff’s article; defense attorneys have denied that any such documents exist.

4.) Category IV: “A request for assistance may be granted, if the attorney general personally approves, by reason that the unique circumstances of the case justify participation by this Section to insure proper administration of justice.”

If ever a case had “unique circumstances,” it is this one: in effect, the North Carolina justice system has been placed on trial. There is, moreover, one specific unique aspect of the case: the possibility that the city of Durham might be held legally liable even before the case goes to trial.

Civil liberties lawyer Alex Charns, the attorney for an unindicted lacrosse player, has filed a series of Public Records Act requests from the Durham Police Department relating to production, over the department’s letterhead, of a “crimestoppers” poster. (This document was the genesis for the “wanted” poster that prompted the public “thank you” from the Group of 88 faculty.) Created at the very initial stages of the investigation, the poster stated that “the Duke Lacrosse Team was hosting a party” at which “the victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community. Durham Police needs your assistance in solving this case.”

Charns, not unreasonably, wondered “what happened to investigating a crime before a blanket accusation of guilt is made. Wasn’t it ‘Alice in Wonderland’ in which the verdict came before the trial, and the accuser acted as judge and jury?” Durham authorities have stonewalled him on producing material related to the decision behind the poster’s wording—which was quietly changed to remove claims of a crime definitely having occurred, though only after posters with the initial language had appeared around the area. It’s not clear how aggressively Charns will pursue his case: the fact that Durham officials haven’t been forthcoming with the documents he’s requested doesn’t speak well for the city’s position.

If all of these reasons exist for Cooper stepping in, why hasn’t he done so? Under the statute creating the special prosecutions division, the local district attorney must request state intervention. So North Carolina has established a system in which an ethically challenged prosecutor like Nifong effectively can police himself.

But there's nothing in the statute that prevents the attorney general from publicly urging Nifong to request state intervention. Or Cooper could be milder, and let it be known that he would approve a request to allow the special prosecutions division to take over the case. To sweeten the pot for the district attorney, Cooper could couple his remarks with a public suggestion that, in the interests of closure, the state bar should not pursue ethics complaints against Nifong once the case leaves Durham’s jurisdiction.

A cottage industry has developed around determining Nifong’s motives. The most recent entry came from Reason’s Jeff Taylor, who judged the district attorney “unhinged from reality.” The other point of view has been offered in a variety of public appearances by Newsweek’s Susannah Meadows, who has suggested that Nifong backed himself into a corner, prevented by his inappropriate initial statements and initial rush to judgment from dropping the case. If Meadows’ analysis is correct, then Nifong might be willing to take an out, even if, as is almost certain to occur, transferring the case to the attorney general’s office would form a preliminary step to dropping the charges. Of course, if Taylor’s speculation is right, then we’re back to relying on an elected judge in Durham ignoring political expediency to uphold the law by suppressing the procedurally tainted photo IDs.

“The system only works,” Reason’s Taylor correctly noted, if a prosecutor “puts the truth ahead of a conviction and works diligently to dig out that truth. In the case of Nifong, he is not even in the ballpark of a conviction and the objective truth of the matter does not seem to enter his calculation.” Nifong's actions corrupted this case almost from the start. The focus now should be to find a way, preferably within established procedures, to restore a sense of integrity to the process. Allowing this case to move forward as it has will only further tarnish North Carolina's national image.

[Originally published in Cliopatria.]

More Group of 88 Hypocrisy

There seems to be something of a tactical split developing among the Group of 88, the Duke faculty who issued a public statement in late March promising to “turn up the volume” and thanking campus protesters who had distributed a wanted poster containing photos of the lacrosse players while banging pots and pans outside one player’s residence, shouting, “Time to confess.”

None, of course, have removed their signatures from the statement, or expressed any concern about the procedural improprieties associated with how local authorities have treated three of their own institution’s students. The majority of the signatories seem to be following the path of William Chafe, who, after evidence emerged suggesting that at least one of the accused is demonstrably innocent, shifted without explanation. The old context? "Sex and race have always interacted in a vicious chemistry of power, privilege, and control." And "Emmett Till was brutalized and lynched in Mississippi in 1954.” The new? The heyday of Frances Willard.

But a smaller faction seems inclined to follow the lead of Houston Baker, who departed Duke for Vanderbilt with a series of emails suggesting that the lacrosse players are probably guilty of more than one rape. In this morning’s Durham Herald-Sun, Group of 88 member Karla Holloway, a professor English, similarly acts as if the case is just as Mike Nifong described it on or about March 29, when he was deeming the matter a hate crime and demonstrating to a national TV audience exactly how the accuser was choked (while neglecting to mention that it appears as if in all of her many versions of the incident, the accuser didn't mention having been choked).

In her letter, Holloway, who is currently chair of the Race Subcommittee of President William Brodhead’s Campus Cultures Initiative, complained about “the athletic spaces of Duke where it has become painfully clear that for some, the rules of the game are different.” Duke, she proclaimed, is a campus beset by the “problematic issues of race, respect, and equity” (it’s worth remembering, as I’ve noted before, that Group of 88 members are talking about a campus where a department chair could jokingly explain away the faculty’s overwhelming ideological imbalance by noting, “If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire.”) It might be that the Duke Chronicle was wrong when it chastised the Group of 88 for "listening" to a handful of students while ignoring the "several thousand others of us” undergrads who disagreed that “Duke breeds cultures of hate, racism, sexism and other forms of backward thinking.” But at this stage, the campus newspaper has more credibility on this issue than someone who signed the Group of 88's statement.

Holloway continued on how difficult this entire process has been for her. “Of course you want a chance to make your campus better,” she recently told the Herald-Sun, "but at what cost? When you are serviced to fix the problem and you are also the victim, it’s a double duty.”

Holloway holds an endowed chair in English. Moreover, I’m a bit dubious about how anyone who joined what David Brooks has termed Durham’s “witch hunt” by signing the Group of 88’s statement defines “victim.”

Holloway also informed Herald-Sun readers that “her committee has been working hard all summer, fully informed by many documents, including those from the President's Council on Black Affairs, the Duke University Black Alumni, as well as students, administrators and faculty members.” Yet today, when people e-mailed Holloway to ask about her letter, they received the following reply:

Thank you for your message. However, I will be away from the office and will not be reading email regularly until August. Until that time, the most reliable way to reach me is to post your correspondence . . . If your message is urgent or time sensitive, please contact the English Department Office.

Perhaps Holloway’s subcommittee isn’t working all that hard on campus this summer. (But then again, it doesn’t need to do so, since its conclusions appear to have been laid down by the Group of 88's statement.) Or perhaps Holloway is simultaneously toiling away on campus this summer while she’s out of her office and not answering her email until August—just as one of Nifong’s targets, Reade Seligmann, was simultaneously committing a crime while he was videotaped at an ATM machine a mile away. The last three months have shown that the law operates differently in Durham; perhaps physics does as well.

Update: Ruth Marcus has an opinion piece in today's Washington Post that Prof. Holloway might want to use as a guide of how to approach an issue with an open mind. Marcus says she initially assumed the players were guilty, and makes it clear she still doesn't think much of the team members (this is a recurring issue: the tendency to assume that all players on the team are alike. As Reade Seligmann's recent court filing illustrates, this simply isn't true.)

Anyhow, Marcus goes on to admit that, unlike Prof. Holoway, she was willing to allow the facts to sway her opinion. "The paucity of physical evidence; the accuser's prior unsubstantiated rape charge; her changing stories that night; sloppy and unreliable identification procedures -- any of these alone, and certainly all of them together, make it hard to understand why the prosecution is going forward and impossible to imagine that it could win a conviction . . . Reade Seligmann's lawyer has presented evidence that during the post-midnight time frame in which the attack allegedly occurred, Seligmann called his girlfriend six times and another person twice (12:05 to 12:14); was picked up by a cab (12:19); used an ATM (12:24) and returned to his dorm (12:45). The lawyer tried to present this evidence to the prosecutor before the indictment but was rebuffed . . . In contravention of accepted practice, the photographs shown to the accuser included only members of the lacrosse team, no similar-looking 'fillers.'"

"The confluence of Nifong's political interests and the prosecution," Marcus continues, "is itself another reason for discomfort. He brought the first charges just before a primary in which the black vote played a key role." She admits that she, like an increasing number of people, finds the likely course of events "so troubling"--that Nifong "began with a dubious case and stuck with it as it became shakier."

[Originally published in Cliopatria.]

Turning on Nifong

Today’s hearing in the Duke lacrosse case did nothing to increase confidence in the integrity of the investigation. Mike Nifong admitted in open court that no toxicology report existed—despite having previously hinted to Newsweek that the accuser had been given a date rape drug. The district attorney added that, more than two months after indictments, one of the case’s two police investigators still had not prepared his notes. Nifong divulged an early meeting between the accuser and the two investigators for which no notes would be turned over (a decision backed by the judge, Nifong’s former boss). And one defense attorney stated that the new material contained reference to a third photo ID session—the first two of which, also confined to lacrosse players, yielded no identification at all, the third which violated several guidelines of the state’s Actual Innocence Commission.

With Nifong’s behavior at best explicable by incompetence and more likely by malfeasance, the press has started to look hard at the district attorney’s actions. Yesterday, the Winston-Salem Journal became the first North Carolina newspaper to demand Nifong’s removal, editorializing, “Nothing about Nifong's handling of this case indicates that the people of North Carolina and the defendants will get a fair trial so long as Nifong has anything to do with it. He should step aside, and the attorney general should take over.” On Monday, a smaller Tarheel State paper, the Rocky Mount Herald, commented with concern about how “court records in the case raise some troubling conflicts between affidavits and statements Nifong has made to the press.” A major story in Newsweek concluded, “Court documents in the case increasingly suggest that . . . the available evidence is so thin or contradictory that it seems fair to ask what Nifong could have been thinking when he confidently told reporters that there was ‘no doubt’ in his mind that the woman had been raped.” An op-ed piece lamenting “serious prosecutorial misjudgment, if not downright misconduct” appeared in the Los Angeles Times, while USA Today expressed skepticism about the prosecution. Even Ruth Sheehan of the Raleigh News and Observer, who in March 27 had penned a column determining team members guilty of rape, now believes that Nifong should be removed. “To think,” she wrote Monday, “that for a brief moment I actually pitied Nifong for the attacks on his handling of the case. What a joke.”

Sheehan cited Nifong for the rash of over-the-top early stories that earned much of the media a spot in Stuart Taylor’s “rogues’ gallery.” “Say all you want about the media's rush to judgment,” she noted, but “when a DA, especially one with Nifong's reputation for being a quiet, behind-the-scenes guy, comes out not only saying that a rape occurred, but that it was a brutal gang rape, in which the woman was strangled and beaten, you had to figure he had incontrovertible evidence. Apparently, he didn't.”

While it’s entirely appropriate to focus on Nifong’s misconduct, it’s a little too easy to blame him alone for how the media initially approached this case. At Lead and Gold, Chris Henry pointed out the timidity of USA Today’s editorial given the facts the paper had conceded: “USA Today wanted to appear fair-minded. It is bad form to ‘attack the victim.’ Unfortunately, they could only keep up those appearances by providing a partial, distorted picture of the state of the evidence. Their readers deserve better.” And John in Carolina, a must-read blog for how the media mishandled this case, pointed out that Sheehan’s worst column appeared the day before Nifong’s publicity barrage started; the News and Observer’s first story on the case described the accuser as a “victim” seven times, effectively conceding that a crime occurred; in early April, the paper, without explanation, published the infamous “wanted” poster so celebrated by Duke’s Group of 88; and the N&O public editor admitted that a March 25 interview that painted the accuser in fawning terms and presented a version of events different from at least three and perhaps all four stories she told police “really galvanized community protests and rallies”—an acceptable outcome, since “one role of a newspaper, surely, is to raise public awareness and effect change.” In this case, to borrow David Brooks’ phrase, the role was to help galvanize a witch hunt.

At the very least, however, most in the media have been willing to consider new evidence and abandon their preconceptions. While the News and Observer’s news editor continues to state that she’s “proud” of the paper’s work, one of her reporters, Joseph Neff, has published several recent articles that have broken new ground and, quite properly, have measured Nifong’s statements and actions against known facts in the case.

While the media has proven to be open to new facts, the same can’t be said for Duke—a development that’s starting to attract notice. MSNBC’s Dan Abrams, a Duke alumnus who has read the entire discovery file, commented in today’s Duke Chronicle that while "Initially I was very impressed with [how the administration of President Richard Brodhead] walked a very difficult line,” it’s now clear that “they probably could have done a little more to protect the students—not because they're Duke students—but because the evidence is so weak in this case.” Last week, Randall Drain, an African-American member of the class of 2005 who played lacrosse at Duke, termed himself “revolted” as “administrators and certain faculty members have flagrantly and wrongfully hung members of the Duke men's lacrosse team out to dry.” Drain blasted Brodhead for helping “to create an audience of hypocrites that may now choose to ignore the facts or ‘yeah but’ their way out of their past impudence.” By launching a campus culture initiative that explicitly refused to address “Duke University's abandonment and abuse of the lacrosse team," Brodhead "sent the message that only the lacrosse team need show remorse for their transgressions.”

In a powerful letter in today’s Chronicle, another Duke alumnus, Greg Kidder, described how a “mere accusation set off an unforgivable rush to judgment in which the Duke faculty and administration willingly participated.” Kidder singled out the Group of 88’s statement and some of the more outrageous individual actions by faculty members: “Professor Houston Baker accused the team of hiding behind a ‘silent whiteness.’ Professor Peter Wood took the opportunity to complain about, of all things, attendance in his class. Professor Melissa Malouf suggested the ‘condoms theory’ to counter the exculpatory DNA results”—even though, of course, the accuser has claimed her attackers didn’t use condoms. This reaction, Kidder noted, “would perhaps be forgivable if the University community responded with equal vigor to defend the players after evidence on what did and did not happen was revealed. Yet instead of protests and media quotes, all we hear is silence and equivocation.”

He then asked some hard questions. “Why,” Kidder wondered, “are we in the Duke community leaving the accused players and their families to bear the burden of this injustice alone?” Only one Duke voice has answered Kidder’s plea: Professor of Law James Coleman, who in a just-published Sports Illustrated article continued to condemn the myriad procedural improprieties that have married Nifong’s handling of the case. I’ve heard from two reliable sources that Coleman’s opinions are shared by many on the Duke Law faculty—and it’s worth remembering that not one law professor signed the Group of 88’s statement, which deemed of little relevance “what the police say or the court decides.”

While Coleman continues his courageous dissent, silence, or worse, reigns among the nearly 500 members of Duke’s arts and sciences faculty, including the dozens of professors who taught members of the academically distinguished lacrosse team. Kidder wondered, given new evidence indicating that at least one of the accused, Reade Seligmann, is demonstrably innocent; highly suggestive evidence that no rape occurred at all; and “the recent accusations against the district attorney regarding truthfulness, where are the faculty members decrying the injustice that has been done to these students? Do all 88 professors still stand behind their signatures?”

I checked. The Group of 88’s statement remains proudly placed at the very top of the homepage of Duke’s African and African-American Studies program. It still contains no mention of alcohol as part of its condemnation. And not one of the 88 names has been removed.

So it seems that Ruth Sheehan has proven to be more open-minded than the Duke arts and sciences faculty. Kidder noticed: “as a proud Duke alumnus, the cowardice and opportunism of the Duke faculty and administration causes me to shake my head in disgust.”

Update, Friday, 12.51pm: NewsBuster points out that not all members of the media are willing to consider new evidence, citing the disturbing example of Harvey Araton.

And in a truly extraordinary development, even for a case as botched as this one: yesterday, defense attorney Joseph Cheshire gave a press conference stating that the newly turned-over documents contained another version of events from the accuser, this one claiming she was raped by five players, not three; and that there were four dancers at the party, not two. Cheshire was interrupted by Nifong's chief investigator, who informed the press that Cheshire was lying. The investigator, Linwood Wilson, then gave interviews to local and national media members stating, according to a Raleigh TV station, "that he personally read all 1814 pages of discovery documents and has not read that the alleged victim changed her version of the story."

This morning, Cheshire released the police report in which the accuser (as he had stated yesterday) claimed that she was raped by five players. This exchange appears to be part of a pattern profiled by Joseph Neff in one of the articles linked above, of out-and-out lies by Nifong's office.

[Originally published in Cliopatria.]

Nifong and the Blogs

Testifying to his p.r. savvy, it used to be said that the most dangerous place in Washington was between Chuck Schumer and a microphone. In the run-up to the Democratic primary, the most dangerous place in Durham was between Mike Nifong and a microphone. Between the initial reports of the alleged rape and the first indictments, the district attorney gave more than 70 interviews. Since securing his renomination, however, he has refused public comment, citing state ethics guidelines. Nifong has not explained why, after making 70 highly prejudicial statements, he suddenly decided to start adhering to Rule 3.8(f) of the North Carolina Rules of Professional Conduct, which requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Yet in a devastating story in this week’s Newsweek, co-authored by editor Evan Thomas, Nifong briefly emerged from his bunker—though only by e-mail. "None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source,” he asserted, “has changed the opinion that I expressed initially.”

This astonishing claim further confirms the wisdom of Duke law professor James Coleman. The former chief counsel to the House Ethics Committee recently demanded that Nifong be removed from the case, since he lacks the “professional detachment and unquestioned integrity” to “determine whether the evidence against the three students warrants further prosecution.” Indeed, Nifong’s comment should fortify the case for sanctions by the North Carolina State Bar: these remarks are those of a man incapable of fulfilling the requirement that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict . . . The prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt . . . Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.”

The timeline here is critical. “The opinion that [Nifong] expressed initially” came in his pre-primary publicity barrage, which began in late March and ended on April 10. Since he went silent, a plethora of evidence has emerged, but two items unavailable to him when he made his initial comments most clearly show the prosecutor’s bad faith.

On May 2, Reade Seligmann’s attorney made public a bank video showing Seligmann at an ATM machine while the alleged rape was occurring. Nifong had refused to meet with the attorney to consider this evidence before moving ahead with the indictment.

On May 13, the second round of DNA testing confirmed no match to Seligmann’s DNA and a direct match to the DNA of the accuser’s boyfriend. Nifong previously had affirmed to the court that “the DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

How could any open-minded prosecutor simply dismiss out of hand these two new pieces of evidence?

Nifong also used his Newsweek e-mail to lash out at his critics. After denouncing "media speculation" (the Seligmann video is posted on a TV station’s website, so I suppose watching it could be considered “media speculation”), he added that this plague of speculation “is even worse on the blogs.”

There are five bloggers who have provided extensive (10 or more posts) critical analysis of Nifong’s actions: John in Carolina; La Shawn Barber; Johnsville News; Jeralyn Merritt; and me. I’m sure all four us will feel appropriately chastised at having our work publicly questioned by someone as ethically pristine as Durham’s current district attorney.

Beyond agreeing about Nifong’s disgraceful behavior, the five blogs have taken different approaches. Johnsville News has offered painstakingly detailed legal analysis of the event; Merritt has concentrated on the case from a criminal defense attorney's perspective. La Shawn Barber has focused on what the case reveals about shortcomings by feminist and civil rights activists. John in Carolina has dissected the highly dubious decisions by editors and columnists at the Triangle’s leading newspaper, the News and Observer—such as reprinting the “wanted” poster so admired by the Duke Group of 88, about which the paper’s news editor now concedes, “We did not have the discussion internally we should have before making that decision”; or running one of the most reprehensible columns on the case, a March 27 effort by Ruth Sheehan. (After initially issuing regular denunciations of the lacrosse players, Ms. Sheehan, in the last 31 days, has joined Nifong in the “cone of silence.”) And my interest in the case, of course, stemmed from what now is the secondary scandal—the rush to judgment among Duke’s faculty and, to a lesser extent, its administration, a theme that Duke president Richard Brodhead seems determined to ignore in his examination of “campus culture.”

It seems inconceivable that any fair-minded person could read the Newsweek article—a piece given added weight by Thomas’ position as co-author—and not conclude that, were the legal system in Durham a fair one, the person most likely to see the inside of a prison by this case’s conclusion is Mike Nifong, for malicious prosecution. Indeed, as John in Carolina suggests, the article could be described as "Newsweek fires torpedoes at sinking Nifong." But after events of the last two months, there’s good reason for a fair-minded person to doubt the fairness of Durham’s legal system. This is, after all, a place with potential jurors who wanted Seligmann prosecuted "whether it happened or not. It would be justice for things that happened in the past"; and where Nifong’s procedurally irregular handling of this case clearly helped him politically.

NOTES: For Cliopatriarchs in the Triangle, I’ll be appearing Wednesday morning, at 8 A.M., on WPTF, to discuss the case with John Locke president John Hood. I had previously criticized Hood’s take on the case; he responded here. In that same piece, I had criticized Vin Cannato for a Wall Street Journal comment he made on the case. Vin recently emailed me, however, to point out that I had misinterpreted him, and that his remark was directed against Nifong’s behavior. My apologies.

[Originally published in Cliopatria.]

Coleman Tears Down the Wall

n spectacular fashion, by Professor of Law James Coleman has shattered the Duke faculty’s “blue wall of silence” regarding Mike Nifong’s myriad procedural improprieties. The former Democratic chief counsel to the House Ethics Committee called in this morning’s News and Observer for a special prosecutor to replace Nifong: "I don't think he's showing detached judgment. I personally have no confidence in him." Coleman added, correctly, “I think any decent prosecutor in North Carolina could handle this case. It's important to have somebody that people respect, someone who has no dog in the fight. It has to be resolved in a way that people have confidence in the outcome." He specifically pointed out that he was not urging dismissing the charges. Yet, in practical terms, it’s hard to imagine any prosecutor other than Nifong pursuing this case.

Coleman singled out for criticism the highly irregular photo ID session (which, according to a recent defense motion, was actually one of between three and six ID sessions, all of which were confined to photos of the lacrosse team, violating the guidelines of NC’s Actual Innocence Commission, which calls for at least seven “filler” photos for every suspect). The session began with the officer in charge of the case (also violating commission guidelines, which call for an uninvolved law enforcement officer to preside over eyewitness IDs) telling the accuser that the photo array contained photos of people who were at the lacrosse party. As Coleman noted, "The officer was telling the witness that all are suspects, and say[ing], in effect, 'Pick three.’ It's so wrong; it had to be done for a reason other than identification."

Coleman’s comments are even more significant given his status as the sole member of the Duke Law School faculty to have served on the Actual Innocence Commission. It would, therefore, be difficult to accuse him of misrepresenting the commission’s recommendations. Perhaps Coleman’s remarks will start people questioning why AG Roy Cooper hasn’t urged Nifong to follow Coleman’s advice—or what standards Governor Mike Easley used when he appointed Nifong as interim Durham D.A.

Even had he been inclined to do so, Coleman could not have properly spoken out before this time: he was charged with investigating the lacrosse team’s behavior, and only recently has Duke president Richard Brodhead acted upon the Coleman Committee’s recommendations and reinstated the team. As I’ve noted before, the Coleman Committee is the one representative of Duke that has acted with fairness in this entire affair: the committee’s report presented both the bad and the good aspects of the lacrosse team’s behavior; noted that the behavior for which the team was condemned was quite common on the Duke campus; and based its findings on hard evidence, rather than unspoken prejudice.

But the obligations that prevented Coleman from speaking out earlier surely didn’t apply to the other 510 members of the faculties of law or arts and sciences. And nothing prevents them from speaking out now. It has been, after all:

--81 days since Nifong obtained a court order demanding DNA samples from the lacrosse players solely on the basis of group membership, without a preliminary investigation to determine whether each individual player was even at the party;

--64 days since Nifong, contradicting his affirmation to the court, announced that the players would not be exonerated by a negative DNA test;

--58 days since Nifong sent police to the Duke campus, to question Duke students outside the presence of their counsel;

--55 days since Nifong, in apparent violation of the NC Bar’s ethics guidelines stating that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused,” refused to meet with Reade Seligmann’s attorney to consider exculpatory evidence, which included a videotape of Seligmann someplace else when the crime allegedly was committed;

--33 days since release of the photo ID transcript—the sole evidence used to directly implicate Seligmann—that, as Coleman points out, was “so wrong” that it “had to be done for a reason other than identification”;

--29 days since the indictment of a third player, Dave Evans, who the accuser had described as having a mustache, even though he never had a mustache;

--5 days since the release of the initial statements of the second dancer, the accuser’s “driver,” and the first police officer to interview the accuser, as well as a defense summary of the medical report, material that should have confirmed Nifong’s case (indeed, formed the heart of it) but instead almost all contradicted it.

I don’t think it’s naïve to assume that most professors see one aspect of our job as standing up for our students when they need us, as long as doing so is consistent with our own judgment and beliefs. All of the items above related to the dubious procedural aspects associated with this case; speaking out against Nifong would not have required any Duke professor to set aside the faculty’s newfound zeal for temperance, or to defend in any way the lacrosse players’ behavior. Yet to my knowledge, before Coleman, none spoke up.

The Duke faculty, however, has had no problem with speaking out about the case—as the statements of the Group of 88 and the even more inflammatory remarks of Houston Baker, Orin Starn, and Peter Wood suggest. But ensuring that their own students were treated fairly by local authorities wasn’t, apparently, a concern. Would this “blue wall of silence” have occurred had the figures on the receiving end of Nifong’s seemingly unethical behavior been students whose race, class, and gender profiles appealed to the contemporary professoriate?

It’s perfectly appropriate that Duke might use this affair to examine the role of alcohol in its campus culture; and if the school wants to make all students pledge temperance, that’s fine with me, provided the new rules are applied equally to all students. Yet, with all due respect to Durham’s latter-day WCTU activists, it seems to me that both the Duke administration and its professors are determined to ignore the single most significant element of this affair, from the standpoint of Duke’s academic culture: why, with a case Nicholas Kristof has compared to the Scottsboro Boys trial as a miscarriage of justice, did the faculty stand silently by—or worse—as three of their own students were targeted?

James Coleman has shown quite a bit of courage throughout this affair. I’m not sure that adjective would apply to the behavior of many other members of the Duke faculty.

Update, 6-14: Coleman supplemented his interview with a searing letter to the editor. After beginning with the charge that "up to now, virtually everything that Nifong has done has undermined public confidence in the case," he contends that, after having reviewed the photo ID transcript, it seems to him "that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so. Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case. Someone with professional detachment and unquestioned integrity must review the case and determine whether the evidence against the three students warrants further prosecution. That would serve the best interest of the alleged victim, the three defendants and public."

Disgrace in Durham

On 3 May 2006, the late local news on Raleigh’s television stations broadcast a video of Duke lacrosse player Reade Seligmann at a Wachovia ATM terminal—at the same time he allegedly was committing a crime more than a mile away. The next day, Durham County’s racially divided electorate narrowly renominated the district attorney who had brought charges against Seligmann, Democrat Mike Nifong. Ironically, Nifong and television viewers first saw the video at the same time; for reasons that remain unexplained, the district attorney had spurned defense offers to provide him the tape and other exculpatory evidence.

The Seligmann video represented the most spectacular example of the peculiar method in which Nifong has handled allegations that three Duke lacrosse players raped an African-American exotic dancer on the early morning of March 14. Although virtually all recently revealed evidence has cast strong doubts on the accuser’s claims, the exact series of events remains murky. Two things, however, are now perfectly clear. Nifong’s inquiry has disregarded basic legal and procedural norms, while exposing shortcomings in feminist-inspired elements of rape law. And Duke’s faculty has abandoned their own institution’s students to the mercies of a power-hungry local prosecutor.

The central figure in the story has been Nifong, who gave more than 70 interviews, often highly prejudicial in tone and content, in the days following the alleged attack. Stuart Taylor, columnist and senior writer for National Journal, bluntly accused the district attorney of “gross prosecutorial misconduct.” To the Kansas City Star’s Jason Whitlock, Nifong’s actions provided “an updated re-enactment of To Kill a Mockingbird,” with the race of the defendants reversed.

That Nifong considers himself unrestrained by clear North Carolina guidelines became evident early in the case. Ignoring the state bar’s Rules of Professional Conduct, which strictly limit the type of public statements a district attorney can make during an investigation, Nifong publicly compared the severity of the dancer’s allegations to a recent triple murder in Durham, personally demonstrated how the attack allegedly occurred, and cited concerns that “Duke students’ daddies could buy them expensive lawyers” so they would be “treated differently by the court system.” Having prejudged the case, the district attorney then bypassed common practice and personally oversaw the police inquiry. He even obtained a court order for all 46 white players on the team to give DNA samples, which he claimed would “immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” When the results implicated not the players but instead the accuser’s boyfriend, Nifong said he no longer needed DNA to try the case.

These early irregularities paled in comparison to the photo identification session used by authorities. Despite state recommendations that the police supplement photos of each suspect with at least seven “fillers” to discourage false identifications, the array contained only members of the lacrosse team. In what one legal commentator termed “a multiple-choice test with no wrong answers,” the accuser identified Seligmann, along with teammates Collin Finnerty and Dave Evans. Though state guidelines forbid prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused,” Nifong refused to meet with defense attorneys, who claimed to possess cellphone records, receipts, photographs, and witness testimony showing that Seligmann was not present at the time of the alleged rape and that Evans, contrary to the accuser’s claim, did not have a mustache. A Newsweek reporter noted that the material “would seem to indicate it was virtually impossible that Seligmann committed the crime.” The process nonetheless lurched forward; the players were suspended from school and forced to post $400,000 bonds.

North Carolina law allows the state attorney general to assume jurisdiction over a criminal case when local authorities ignore or violate their ethical responsibilities. But despite Nifong’s troubling pattern, Democrat Roy Cooper has failed to act against a prosecutor whose re-nomination enjoyed strong support from state party leaders. (Given political realities for North Carolina Democrats, it’s hard to imagine that Cooper would have stood idly by had Nifong targeted local African-Americans rather than out-of-state white males.) So, barring the unlikely—a thorough investigation by his colleagues in the state bar—the public probably will never learn exactly what accounted for the district attorney’s conduct.

Ideology, however, clearly played some role in Nifong’s actions. Unusually for someone who becomes a high-level prosecutor, Nifong has a background as a social worker, and his handling of the Duke case reflects assumptions common to that left-leaning profession. Like extreme feminists who have theorized that women never lie about rape, he has appeared emotionally attached to the accuser’s version of truth, even as contradictory evidence proliferated. The district attorney has also creatively employed a key product of feminist legal theory, rape shield statutes. Though ten years ago police in a neighboring town dropped charges filed by the accuser that she was gang-raped, and the accuser’s father has publicly stated that no rape occurred, North Carolina’s rape shield law requires that the defense prove the earlier rape did not occur—an almost impossible task, given the passage of time—before bringing up the incident.

In the weeks before the primary, Nifong encountered heavy pressure to secure indictments from two constituencies vital to his renomination—African-Americans and local residents distressed by Duke’s prevalent alcohol culture. (Higher-than-expected backing from Durham blacks allowed Nifong to slip past his main primary challenger by just over 800 votes.) Under normal circumstances, Duke’s faculty might have countered this public rush to judgment. After all, Nifong’s behavior has contradicted many of the values that the academy supposedly cherishes—such as respecting established procedures; supporting a spirit of fair play; and seeking to analyze all available evidence dispassionately. But in a faculty dominated by the analytic triumvirate of race, class, and gender, Duke professors declined to defend the due process rights of a group of white males who played a sport associated with the elite. A vocal minority even seemed to assume the worst about their students.

English professor Houston Baker publicly demanded the “immediate dismissals” of “the team itself and its players,” repositories of “violent, white, male, athletic privilege” who claimed a “license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain.” History professor Peter Wood complained about the players’ “lack of engagement in classroom activities and discussions” in his course, which emphasized such themes as “Red Power” in Native American history. Hinting that players might have withheld evidence implicating guilty teammates, Wood darkly wondered, “At what point does team loyalty become blind obedience?” His teaching assistant described the players as exhibiting “aggressive body language,” a charge convenient for its vagueness and utter subjectivity.

These sentiments received their highest-profile display three weeks before Seligmann’s indictment, when 88 Duke faculty and administrators signed a public advertisement, which subsequently was posted on the website of Duke’s African-American Studies program. Affirming a commitment to “turning up the volume,” the Group of 88 thanked protesters who had distributed “wanted” posters containing photos of the team and had banged pots and pans outside the residence of lacrosse players while shouting, “Time to confess.” The professors’ minds were made up: “What the police say or the court decides,” the signatories declared, would not affect how they interpreted the “social disaster.” The group heralded an African-American student for commenting that “it is dangerous to wait for the conclusion of the criminal investigation because the community, in strong numbers, have raised their voices of what this means to the history of the University.” Facts, proper procedure, or fair play apparently have no role in the signatories’ single-minded pursuit of “justice.”

A university-commissioned report embarrassingly rationalized the position taken by the Group of 88. Duke, the report’s authors asserted, needed to balance a commitment to defending the due process rights of its (white, male) student-athletes against the fact that “in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn’t seem to ‘get it.’” In other words, professors wanted to use the alleged crime to bolster their critique of contemporary American society, even if doing so contributed to the rush-to-judgment mentality against their own students.

As the likes of Baker, Wood, and the Group of 88 dominated campus rhetoric, the majority of Duke’s faculty remained silent. To my knowledge, at this point not even one full-time professor at Duke has publicly questioned Nifong’s procedural irregularities. Indeed, the only faculty member who criticized the district attorney’s actions was a visiting (non-permanent) professor of political science, Chris Lawrence. Such is the result, it seems, of a faculty characterized by ideological and intellectual homogeneity. This is, after all, the same college whose former philosophy department chairman joked in 2004 that Duke employed few non-leftists because J.S. Mill held that conservatives aren’t very smart.

Given the faculty’s reaction to events, it’s little surprise that most outside of Durham probably accepted Nifong’s public characterization of the team as “hooligans”—or worse. The work of a Duke committee chaired by Law professor James Coleman, former (Democratic) chief counsel of the House Ethics Committee, was widely expected to confirm the faculty’s stereotypes. And the report did find the expected: in a campus known for excessive underage alcohol consumption, team members drink a lot of beer, especially at out-of-season team social functions.

Otherwise, however, the Coleman Committee uncovered virtually nothing bad about the lacrosse players. The committee found no sexist or racist behavior by the team, despite a structure that granted anonymity without cross-examination to any and all who wanted to level such allegations. (Even though their behavior was being investigated, the players were not invited to testify before the committee.) In fact, the committee report revealed copious examples of commendable conduct by the players, ranging from very high rates of community service to unfailing politeness toward athletic staff.

The Coleman Committee also revealed that far from being the slackers alleged by Wood or Baker, more than half the team made the ACC’s 2005 academic honor roll, a higher percentage than any other school in the conference. The committee interviewed 10 Duke professors who had taught significant numbers of lacrosse students. All but Wood offered positive comments. One professor observed that “the lacrosse players were willing to defend unpopular positions in class”—a potentially dangerous habit among an ideologically intolerant faculty.

While the Coleman Committee’s findings indicated that the reactions of figures such as Baker, Wood, and the Group of 88 came from little more than unthinking prejudice, little hope exists that Duke president Richard Brodhead will address this issue in his current exploration of “campus culture.” In fact, Brodhead’s administration has consistently shirked any obligation to defend the players’ due process rights. Shortly after Nifong launched his public crusade against the players’ character, Duke spokesperson John Burness criticized team members for hiring lawyers, and urged them instead to speak freely to the district attorney. The leaking of an obscene email from an (unindicted) lacrosse player, which played off a scene from the film American Psycho, led Brodhead to force the resignation of lacrosse coach Mike Pressler. A Duke report later conceded that many considered the move as a public abandonment of the team. Shortly thereafter, Nifong sent police to question students in their dorm rooms, outside the presence of their counsel, but Brodhead declined to protest this flagrant violation of normal legal procedures. And in mid-May, the university’s Office of Alumni Affairs published a feature article on the case that failed to mention the Coleman Committee’s findings about the team’s positive academic or social performance, but provided ample quotes from the team’s two most outspoken faculty critics, Peter Wood and Houston Baker.

When this crisis began, few could have foreseen that Nifong would discard all semblance of legal propriety in his investigation. But the reaction of Duke’s faculty was, sadly, all too predictable. Indeed, a striking subtext of the whole affair has been the open contempt in which faculty at elite colleges and universities, professors like the Group of 88, seem to hold many of their students, who are guilty of being upper-middle or upper class; joining fraternities and sororities; participating in intercollegiate athletics; concentrating on their careers rather than the life of the mind; drinking too much; and holding ideas deemed inappropriate on issues relating to race, class, and gender. There’s nothing new in academics grousing about students. But at a school like Duke, save for a few superstars, faculty members derive some of their prestige from teaching at an extremely “selective” school. How strange it must be for people like Baker, Wood, and other members of the Group of 88 to be surrounded by students many of whom they seem deeply to dislike, while depending on the “intake” of more of these students for institutional status.

While their actions might have been predictable, the professors’ indifference to their own students’ rights has had a devastating impact on this case. With no local balance against his worst tendencies, Nifong has proceeded to violate one state guideline after another. In this respect, the statement of the Group of 88 correctly asserted that a “social disaster” has occurred at Duke. That disaster, however, came in the behavior of Nifong and the Duke faculty, who, I fear, will look back on their response to this case with shame.

[Originally published in NAS Forum.]

Kristof

Nicholas Kristof from behind today's Times firewall:

"As more facts come out about the Duke lacrosse scandal, it should prompt some deep reflection," about not just racism and sexism, "but also about the perniciousness of any kind of prejudice that reduces people — yes, even white jocks — to racial caricatures. This has not been the finest hour of either the news media or academia: too many rushed to make the Duke case part of the 300-year-old narrative of white men brutalizing black women . . . Let's look at facts . . . One of the defendants is Reade Seligmann, whose cellphone made at least seven calls between 12:05 and 12:14," which is "a pretty good alibi . . . Poring over a half-dozen police reports and witness reports filed in court in dribs and drabs, the latest just a few days ago, . . . as I see it, [Nifong] may be the real culprit here," since he "may have had a motive for prosecuting a case that wouldn't otherwise merit it: using it as a campaign tool . . . Unfortunately, many in the commentariat started by assuming that the lacrosse players were thugs. Prof. Houston Baker, who is now leaving Duke, demanded that the university dismiss the coaches and players as a response to 'abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed among us.' . . . So let's take a deep breath and step back. Black hobos shouldn't have been stereotyped [in the 1930s], and neither should white jocks today."

First David Brooks, now Kristof. No cracks yet in the "blue wall of silence" that has characterized Duke's 500-plus person faculties of law and arts and sciences, not one of whom has publicly questioned the procedural improprieties that have marred this case; and no indication at all that political or legal authorities in North Carolina are willing to step in and restrain Nifong. But perhaps things are changing.

[Originally published Cliopatria.]

Comings and Goings at Duke

Coming: The men’s lacrosse team, which will resume play in spring 2007. For an interim period, while a national search for a new coach occurs, the team will be led by former All-American and assistant coach Kevin Cassese, who appears to have been an inspired choice. (At the press conference introducing his appointment, Cassese became the second Duke administrator, faculty member, or coach—after women’s lacrosse coach Kerstin Kimel—to publicly express support for the players targeted by Durham D.A. Mike Nifong.) By this point, it’s clear that any response from Duke other than restoring the program would have given legitimacy to what has been, to date, a thoroughly illegitimate investigation by Nifong’s office. The state NAACP protested the move, arguing that Duke president Richard Brodhead needed to review the findings of his investigatory committee. Yet that committee, chaired by former (Democratic) House Ethics Committee counsel James Coleman, explicitly recommended the program’s immediate restoration. It seems as if state NAACP President William Barber II hadn’t read the report before issuing his press release.

Going: Anything remaining of Nifong’s reputation for competence. The district attorney has sought subpoenas for Duke identity card data to track the location of all 47 lacrosse players, plus two other Duke students, in the hours before and after the alleged incident. Nifong is just now asking for information regarding the movement of the three players against whom he brought indictments weeks ago? (It’s worth recalling that when Reade Seligmann’s attorney offered to share this information voluntarily with Nifong, the district attorney refused.) And even though three weeks ago he issued a statement eliminating the other 44 players as suspects, Nifong is now, again, effectively treating them as such? Since some of this data comes from Duke itself, and Nifong has stated publicly that the other 44 players are no longer under investigation, it is incumbent upon the institution to join in the defense attorneys’ efforts to quash the subpoena.

Going?: Brodhead’s ability to manage politically charged campus crises, after an account critiquing his conduct while dean at Yale, his position before coming to Duke. Author Michael Rubin contends that in the case of former Yale lecturer and former naval reserve officer James Van De Velde, Brodhead deliberately took actions—cancelling Van De Velde’s classes at the last minute before the spring 1999 term started, discouraging a subsequent investigation into the university’s handling of the case—that suggested to fair-minded outside observers that Yale believed Van De Velde could very well have murdered his senior thesis advisee, Suzanne Jovin. Nearly eight years later, the murder remains unsolved, and though no reason exists to believe that Van De Velde committed it, his academic career was ruined. As Rubin notes, “That [Brodhead] repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice . . . at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation.”

The release of Rubin’s article coincided with Brodhead’s highly peculiar remarks accompanying the reinstatement of the lacrosse team, comments that went out of their way to place the players in the absolute worst light possible. This already had seemed to be the administration’s party line, as seen in Robert Bliwire’s Duke Magazine article, which contained quotes from the team’s three most ferocious faculty critics and only one student, an anti-lacrosse team African-American whose views appear to be highly unrepresentative of the student body as a whole.

Two items typify a pattern that’s evident throughout the president’s lengthy statement. First, Brodhead noted, “As you probably know, initial reports circulated through the media advanced the case against the students; more recent reports have made the case in their favor.” This sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the quality and quantity of evidence presented in both waves of reports was about the same, so we’re pretty much back to square one, and since the conventional wisdom is that most women don’t lie about allegations of rape, the accused are probably guilty.

In fact, what Brodhead terms the “initial reports [that] circulated through the media [which] advanced the case against the students” have proven, in many cases, to be completely false (such as Nifong’s assurance that DNA evidence would identify the guilty, or his “hinting” to Newsweek that the players used a date rape drug). Moreover, none of these “media reports” contained any documents related to the case. Instead, they consisted of Nifong’s statements—remarks, it turns out, that almost certainly violated the state bar’s ethics guidelines on a prosecutor’s acceptable public comments.

Meanwhile, what Brodhead terms the “more recent reports [that] have made the case in their favor” is an unusual way to describe things. Yes, the video of Reade Seligmann at an ATM machine while he supposedly was committing a rape someplace else is posted on a media website, as is the transcript of the photo ID that ignored state procedures, as are defense legal motions outlining the wildly contradictory statements to the police made by the accuser and the second exotic dancer. But primary sources aren’t usually considered “media reports,” and certainly are not equivalent to the items referenced in the first half of Brodhead’s sentence.

If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, “As you probably know, initial reports circulated through the media, many of which have subsequently proved untrue, advanced the case against the students; more recent reports, documents, and other forms of evidence have made the case in the students’ favor and also raised concerns about the procedures followed in the investigation.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.

Another Brodhead comment: “Though it did not confirm the worst allegations against this team, the Coleman Committee documents a history of irresponsible conduct that this university cannot allow to continue.” Again, this sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the Coleman Committee didn’t find evidence confirming “the worst allegations against this team”—i.e., that three of its members raped someone, which is clearly the “worst” allegation against the team—but otherwise had nothing good to say about the players.

In fact, the committee found clear evidence that members of the team violated alcohol-related laws in a percentage disproportionate to their numbers, but added that the issue was a problem for hundreds of other Duke students. The committee also noted that the team members had very strong academic records, an impressive rate of community service, and showed no evidence of sexist or racist behavior on campus.

If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, “Though it confirmed that team members had a history of irresponsible alcohol-related conduct that this university cannot allow to continue, the Coleman Committee also documented impressive academic, social, and athletic performances by most lacrosse players.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.

While the president went out of his way to avoid any mention of positive items regarding the lacrosse team, he proved remarkably generous in discussing the local leaders who have targeted the Duke students. Brodhead expressed his gratitude for “the Durham leaders who have recognized that truth and justice are common values, things we must pursue and uphold together.”

One wonders to which specific “Durham leaders” Brodhead was referring? Perhaps City Manager Patrick Baker, who, after learning that several Durham policemen initially were skeptical of the accuser’s claims, personally spoke to each member of the Durham Police Department. He claimed that he was not pressuring the officers to get behind Nifong (and shore up the city’s position from a potential lawsuit down the road) but merely showing that “it’s proper for a city manager to know what's going on with his subordinates.” Or perhaps Brodhead had in mind Durham’s legal leader, Nifong. Yet yesterday came the latest from the discovery file about Nifong’s unusual conception of “truth and justice”: the accuser had performed earlier in the evening of the incident before two other clients; the accuser initially contended that the second dancer assisted with the rape; and the second dancer initially stated that she was with the accuser for all but less than five minutes on the evening in question, only to subsequently change her story after being arrested and having the district attorney waive a $15,000 bail bondsman payment she faced. Nifong mentioned none of these items in any of his 70-plus media appearances on the case before the primary, nor in his filing for search warrants, where he described the alleged assault as having lasted for 30 minutes.

If the president had wanted to place events regarding “Durham leaders” in the highly negative context he used when describing his own institution’s students, Brodhead could have remarked, “While we understand truth and justice are common values, things we must pursue and uphold together, Durham leaders must also understand that cardinal principles of pursuing ‘truth and justice’ are adhering to traditional investigatory procedures and evaluating all evidence fairly.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s said can sometimes be as important as what’s left unsaid.

In today’s Daily News, former New York Times legal correspondent and Kennedy administration federal prosecutor Sidney Zion gives a superb description of Brodhead’s behavior:

Against this backdrop [of prosecutorial misconduct], Brodhead this week did what he clearly considered to be a magnanimous gesture. In reinstating the team, he said he was "taking a risk." Richard the Brave.

Uh-huh. And then he laid out conditions: The lacrosse team would be on probation; the players would have to respect new rules of behavior. I have no argument with these rules, having to do with drinking, etc., but coming from Brodhead, they were a new way to spell chutzpah.

The fundamental rule he should have imposed was on himself and his college: Respect the presumption of innocence and never impose collective guilt.

To be fair, the situation that Brodhead has experienced is an extraordinary one. In Nifong, he has dealt with a prosecutor who seems, at least regarding this case, to be lacking in both ethnics and competence. On campus, he has confronted the combination of a sizable rush-to-judgment faction of the faculty (the Group of 88) and what could be termed Duke’s “blue wall of silence”—the unwillingness, to my knowledge, of even one of the more than 500 professors on Duke’s arts and sciences or law faculties to publicly question Nifong’s myriad procedural irregularities.

Brodhead concluded his remarks by noting, “This university will be judged not by the events that happened here but by how we face them and learn from them. I am committed to drawing the lessons of recent events, and it’s my hope that by doing so, we will make a great university better.” That standard, it seems to me, is a fair one. It also is one that Brodhead is, increasingly, showing little indication of meeting.

[Originally posted at Cliopatria.]