Tuesday, June 13, 2006

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."

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