Saturday, September 30, 2006

Rachel Shack Speaks Out

In recent months, a minority faction of professors, with little or no resistance from the Brodhead administration, has waged an assault on not only Duke athletics but on the personal character of all Duke athletes. In an interview with the New Yorker, history professor Peter Wood expressed certainty that an athlete advocated genocide against Native Americans. The evidence for this startling claim? None: the remark came on an anonymous student evaluation form in a class that contained dozens of non-athletes. Shortly thereafter, cultural anthropology professor Orin Starn—writing in Mike Nifong’s house organ, the Durham Herald-Sun—asserted that “an arrogant sense of victimization and entitlement seems to have replaced any semblance of clear-thinking or self-reflection in Duke sports circles.” The athletes’ offense? Exercising their First Amendment rights to hold a rally defending the role of athletics at Duke, after months of attacks from professors like Starn.

This reflexive anti-athlete mindset peaked in a dubiously argued essay by English professor Karla Holloway, who previously had contended that the increased committee work occasioned by her role chairing the Campus Culture Initiative’s “race” subgroup made her a victim of the affair. “The ‘culture’ of sports,” explained Holloway, “seems for some a reasonable displacement for the cultures of moral conduct, ethical citizenship and personal integrity.” A Duke alumnus appropriately rebuked the Group of 88 stalwart:

You seek to indict the entire team and all white males, particularly athletes, because of the inappropriate language of one or two people. In other words, you seek to attribute the conduct of one person to an entire group and declare the group guilty. This type of justice is not tolerated in any other context. Why is it acceptable for the lacrosse team?

This case has featured a consistent pattern—encouraging in one way, deeply troubling in another—of the most impressive reasoning about Duke affairs coming not from the institution’s faculty but from its student body.

And so it is on athletics as well. In yesterday’s Chronicle, Rachel Shack, a Trinity College junior and women’s lacrosse player, penned a remarkable essay that offers more sound judgment on the role of athletics at Duke than the post-March writings of the combined membership of the arts and sciences faculty.

Shack’s essay effectively debunked the anti-athlete bias to which, sadly, all too many Duke professors adhere. She wrote:

I have been a lifelong Duke fan. When I was admitted to Duke, my dream became a reality. I was not recruited to Duke as an athlete. In the months following my acceptance, I decided that sports were too significant a part of my life to give up, so I tried out and walked on to the women’s lacrosse team, a team which has gone to the Final Four my first two years at Duke. Since my first day of practice, I have felt extremely privileged to be a part of such a special, driven, and talented group of women. At Duke, I have served on the Student Athlete Advisory Committee, a group which interacts with the Athletic Department as well as organizes and participates in several community service projects. I am a member of the first class of Baldwin Scholars, a program which stemmed from Duke’s Women’s Initiative, and which aims to change women’s leadership roles and attitudes on campus.

That being said, I am first and foremost a serious student, as are most student-athletes I know. I and my fellow athletes have enormous respect for the faculty at Duke. One of the ways we demonstrate that respect for our professors is hard work. Duke athletes work hard. Last year, 362 Duke student-athletes earned a place on the ACC Academic Honor Roll, which led the conference for the 18th straight year. A 2004 graduate of the Women’s Lacrosse team earned the prestigious honor of valedictorian as a mathematics and classics major.

Compare Shack’s rhetoric with the absurd statement of Group of 88 member Paula McClain, who pronounced herself “aghast” that Duke would even consider a program to give professors a more accurate sense of athletic culture by spending more time with individual teams; or the sophomoric remarks of two other arts and sciences professors, who ridiculed Duke’s “preprofessional athletes.”

The lacrosse player also delivered a stinging—and brutally effective—critique of the so-called Campus Culture Initiative, whose chief purpose appears to be to codify the intolerant attitude initially manifested in the Group of 88’s April 6 statement:

The professors of Trinity College of Arts and Sciences proclaim themselves open-minded, dedicated to helping their students examine all sides of the issues before releasing them into the world, well-educated and prepared to make their own choices and form their own opinions. However, recently published opinion pieces by faculty, especially faculty who are on the Committees of Campus Culture Initiative, contradict those values and open-mindedness. The Campus Culture Initiative Committees should be working to further unify athletics and academics, instead of alienating and castigating some of the most hard-working people on this campus.

In her recently published article, “Coda: Bodies of Evidence,” Duke professor Karla Holloway makes the point that important groups of students, such as African American women, have been marginalized in the wake of the Duke Lacrosse rape case. I understand their conflicted sentiments in recent times. However, adopting her suggestion to downsize or eliminate the sports programs at Duke would, paradoxically, deprive others’ of their civil rights: Title IX serves as an important social function in creating access for women and minority men to colleges that would otherwise not be available. Sports and the “ethic of sportsmanship” not only add to the moral standing and character of the university, they are an integral part of the full educational experience. Learning to work well and cooperating with people from different backgrounds, leading a team, and working towards a common goal are all values directly translatable to the classroom and should be encouraged instead of criticized. Professor Holloway borrows the expression, as if it were a negative, “defeat also tests the character of the fan, for the true fan must remain loyal even during the bad times.” That is very true, and especially pertinent right now. Within the athletic department, those words are reflected by how many different teams support each other on the field and off, especially now that we are recovering from a “bad time.” However, this support and appreciation should not come just from within the athletic department. All who support Duke, including and especially its brilliant professors who share their knowledge with all of us, should and must remain loyal to what Duke has always stood for: excellence in academics and athletics, and the student-athletes who directly contribute to the excellence in both.

There’s no place for someone like Rachel Shack—or Reade Seligmann—in the Duke of Orin Starn or CCI powerhouses Peter Wood and Karla Holloway. At some point, the trustees will have to choose what kind of Duke they desire. Shack’s essay points them in the proper direction.

Friday, September 29, 2006

Weighing the Scales

Few recent issues have generated more intense debate in higher education than David Horowitz’s “Academic Bill of Rights.” Horowitz has frequently cited public opinion polls to bolster his contentions about professors using their classrooms to indoctrinate students. He also has maintained that he seeks only to ensure more ideological balance among the nation’s faculty.

Led by the American Association of University Professors (AAUP), major academic organizations have furiously opposed the ABOR concept. They have suggested that academic quality can’t be measured by public opinion polls, nor should balance constitute an end unto itself. Surely, ABOR critics have reasoned, colleges and universities need not offer a pro-Nazi viewpoint in a class on the Holocaust, not should they spend time in an evolutionary biology course exploring creationism. However “balanced,” such results would be antithetical to the purpose of higher education.

In one of the lacrosse case’s many ironies, Duke president Richard Brodhead has channeled the arguments of David Horowitz to rationalize his institution’s behavior over the last six months. A recent article in the Chronicle revealed the administration’s satisfaction with a Duke-commissioned survey showing support for Brodhead’s policies (at least as those policies were described in the poll, questions for which weren’t released). In a July letter responding to Friends of Duke University, meanwhile, the president implied that his policies receiving “critical comments from a great variety of points of view, including diametrically opposite ones,” confirmed the wisdom of his approach.

Generating complaints from “diametrically opposite” sides represents an odd way of measuring a policy’s merit. In the early 1960s, for example, Duke’s administration doubtless received criticism from those with “diametrically opposite” viewpoints on how aggressively the campus should embrace civil rights. With the benefit of hindsight, Brodhead surely wouldn’t suggest that his predecessors’ moderate policies on civil rights represented the best possible option—even though they attracted concerns from “diametrically opposite” perspectives.

The president more overtly celebrated “balance” in his Chronicle interview, praising the “wide level of recognition that the University is taking this [affair] seriously and in a balanced way.” The Texas populist Jim Hightower once remarked, “There’s nothing in the middle of the road but a yellow line and dead armadillos.” Hightower’s quip recognized, if in exaggerated form, that on some issues, a “balanced” approach can be morally bankrupt. Indeed, many might contend that Hightower’s maxim should apply to events at Duke since March. After all, as Duke Law professor Erwin Chemerinsky agreed, no case in the last 15-20 years has featured this extent of procedurally irregular behavior that was publicly apparent by this stage of the process.

It might be fairer, however, to evaluate Brodhead on his own terms. Does any way exist in which the president could credibly assert that Duke has responded to the lacrosse affair “in a balanced way”?

1.) The president’s own remarks

Brodhead told Friends of Duke, “Those of us in positions of responsibility have acted as best we could to make two points: that what the players were accused of was, if true, a heinous act; and that it would be equally unjust to prejudge their guilt in the absence of proof and certainty.” Yet less than 2.5 percent of the words in either of Brodhead’s major public statements on the lacrosse case (April 5 and June 5) even remotely suggested that “it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty.”

This rhetorical “imbalance”—to continue employing the president’s criterion—unsurprisingly led the media to portray Brodhead’s remarks as one-sided condemnations of his students. For instance, at a Durham Chamber of Commerce meeting on April 20, two days after the indictments of Reade Seligmann and Colin Finnerty, WRAL-TV quoted the president as saying, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.” And what, exactly, did Seligmann do that was “bad enough”? He attended a team party that he played no role in organizing, and he drank some beer. If that is “bad enough” to merit widespread public condemnation and suspension from school, does Brodhead extend this standard to estimated 75-80 percent of students who consume alcohol and, I presume, occasionally attend a party?

2.) The work of the Campus Culture Initiative

Here, too, few signs of “balance” exist. The CCI has four subgroups, chaired by:

  • Karla Holloway (race), who informed the Herald-Sun that she was a victim of the affair, since it has increased her committee work; and who recently suggested that for defenders of the players, “white innocence means black guilt” and “men’s innocence means women’s guilt,” since “innocence and guilt have been assessed through a metric of race and gender.”
  • Peter Wood (athletics), who claimed, without substantiation, that a lacrosse player in his class advocated genocide against Native Americans; and who, after appearing to slander Reade Seligmann in a June article, has five times (most recently yesterday) refused to provide any evidence to corroborate his claims.
  • Anne Allison (gender/sexuality), who, on April 6, joined Holloway and 86 colleagues in signing a statement saying “thank you” to protesters who had branded the lacrosse players “rapists” and had distributed around campus a “wanted” poster containing the players’ photos.

The head of the fourth subgroup, Phil Cook (alcohol), “balances” Holloway, Wood, and Allison only in that he has taken no public position on the lacrosse case.

As important, the CCI’s scope is inherently “imbalanced.” Like all other “investigations” announced by Brodhead in his April 5 speech, it avoids examining the most glaring aspect of Duke’s reaction to the lacrosse incident: that despite the academy’s traditional commitment to due process, procedural regularity, and dispassionate analysis of all available facts, in late March and early April and relying solely on Nifong’s version of events, dozens upon dozens of Duke professors rushed to publicly condemn the lacrosse players. All the while, they remained silent about the district attorney’s increasingly blatant procedural abuses. How can any examination of “campus culture” ignore exploring the causes and effects of this one-sided response?

3.) Overall faculty reaction

Since March 28, nearly 100 members of Duke’s arts and sciences faculty have publicly condemned the personal character of lacrosse players, in most cases solely on the basis of the players’ group identification. In that same time frame, zero members of Duke’s arts and sciences faculty have, in any way, publicly said anything positive about the personal character of even one member of the lacrosse team.

An extraordinary letter from a Duke alumnus spoke to this faculty imbalance. The letter termed “particularly painful . . . the degree to which members of the Duke faculty have labored to condemn the lacrosse team with what at times appears to be a cruel disregard for the likelihood that no rape occurred.” This case “shouldn’t be about identity politics; it should be about what did and did not happen.”

The alumnus concluded:

Two Duke students and one former student have been charged with extremely serious crimes they almost certainly did not commit. If they are indeed innocent, then they have been the victims of a horrible lie, a merciless media storm, and callous condemnation from the faculty at their own university . . . I have seen almost no expression of public concern for their wellbeing from anyone in the Duke administration or faculty. How can this be justified? If, and when, they are “proven innocent,” which is the standard President Brodhead has set for his support, will there be any regret for the one-sided condemnation? Or will exculpatory facts continue to be disregarded because they are relevant only in the courtroom and are not as powerful as “cultural facts”?

In a university reaction that Brodhead has described as “balanced,” who among the Duke arts and sciences faculty has called upon his or her colleagues to consider the letter-writer’s questions?

There is, alas, one way in which Brodhead’s policy has helped achieve “balance” in Durham. Over the past six months, we have learned that:

  • When dealing with Durham residents, local authorities adhere to General Order 4077, which requires five filler photos per suspect and informing witnesses that a lineup might or might not include suspects; for “balance,” when dealing with Duke students, local authorities violate the order in multiple ways.
  • When dealing with Durham residents, local authorities respect Rule 3.8(f) of the state bar’s ethics code, which orders prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused”; for “balance,” when dealing with Duke students, local authorities ignore the rule.
  • When dealing with Durham residents, local authorities follow Rule 3.8, comment 2, of the state bar’s ethics code, which holds 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”; for balance, when dealing with Duke students, local authorities ignore the rule.

As John in Carolina noted yesterday, “Whatever any of us think of Durham’s DA Mike Nifong and Duke’s President Richard H. Brodhead, we can agree on this: neither man has said a single public word critical of the other.” Is this the type of balance that should define Brodhead’s presidency?

Thursday, September 28, 2006

Who Is Kim Brummell?

This post begins with a pop quiz: Which of the figures below published a plea for more widespread use of “DNA evidence,” to determine the outcome in cases where “the evidence is not clear showing innocence or guilt”?

  1. Defense attorney Joseph Cheshire, in his letter demonstrating that Mike Nifong’s chief investigator, Linwood Wilson, had not read the discovery file.
  2. Duke Law professor James Coleman, in his call for Nifong to step aside for a special prosecutor, to restore public faith in the process.
  3. National Journal senior writer Stuart Taylor, in his column eviscerating Duff Wilson’s transparently slanted New York Times article.
  4. The co-chair of Nifong’s citizens’ committee.

The answer: (4), Nifong citizens’ committee co-chair Kim Brummell, on page 23 of Reality Has Spoken (Conquering Books, 2005).

Some might consider it a mystery how a figure who so passionately attested to DNA’s significance could wind up co-chairing the citizens’ committee of a district attorney who appears to believe—provided you ignore his occasional affirmation to the court—that DNA can never “immediately rule out any innocent persons.” But Brummell is a woman of many mysteries. For instance:

  • Where does she live?

A late August article in the N&O noted that Brummell was a registered voter in Granville County. And four Herald-Sun letters published over the summer all listed her residence as Oxford.

Yet after becoming associated with the Nifong Citizens’ Committee, Brummell started saying she was from Durham.

  • What is her profession?

An August article by John Stevenson in Nifong’s house organ, the Durham Herald-Sun, claimed that Brummell is “a corporate security officer and writer.”

Yet the N&O described Brummell only as a “freelance writer.” And in her own listing, she states, “I am currently working towards a degree in Criminal Justice and is [sic] in the process of optioning off and seeking a literary agent for my first screenplay that I have written. I have served five years in the US Army and is [sic] currently employed part-time with Federal Express.”

  • Does she also write under the nom de plume, “Supporter of Justice”?

In late August, the Recall Nifong-Vote Cheek campaign received the following email:

Hi. If you all are about wanting a DA that is a protector and not a divider [sic]. What the heck you think Nifong is doing with this victim in this case? He’s protecting her rights as a victim. That’s what a DA does [sic]. If she was not pleased at the way he has handled this case, it would probably be dropped by NOW. Why vote for a person who don’t [sic] want the job? It’s no guarantee that Mike Easley not going to re-elect [sic] Nifong again. Have you all read at least some of those 1800 page [sic] documents? I think you might want to wait and take a look and then you probably will start blaming things on nuses [sic], doctors, investigators, etc...All these people makes [sic] a criminal case, not just the DA office. You people better wake up!

Supporter of Justice

As RN-VC spokesperson Beth Brewer noted at the time, the email address for “Supporter of Justice” was “the same as the one used by Kim Denise Brummell when filing for her PAC.” It also, I discovered, is the same email used for Brummell’s PayPal account.

Are Brummell and “Supporter of Justice” one and the same person? Emails from both Brewer and me asking this question went unanswered.

Yet the [sic] factor suggests it is so. A recent 100-word letter in the Durham Herald-Sun from the citizens’ committee co-chair denounced “Duke University President Ricahr [sic] Brodhead.” Speaking of Ryan McFadyen, Brummell fumed, “The words he used in midst of sexual assault allegations are not to be taken lightly at all, nevertheless [sic] cute.” She added that the players’ allegedly “disrespectful behavior speaks for much divide [sic] itself.”

Perhaps in the future, Brummell might seek proofreading assistance from Alex Rosenberg, Wahneema Lubiano, or their Group of 88 colleagues—who, I’m sure, would gladly continue doing all they can to facilitate Nifong’s efforts.

Brummell joins the more widely known Victoria Peterson in heading up Nifong’s citizens’ committee. Since April, Peterson has attracted attention for suggesting that medical officials tampered with the DNA evidence. She then shared the platform with the leader of the New Black Panthers party, which both the SPLC and the ADL have branded a hate group. Previously, Peterson had expressed some novel views on homosexuality, such as her contention that if gays and lesbians “are not infected with diseases . . . they will be, even women.”

Brummell, for her part, has made no attempt to conceal the reason she’s backing Nifong. “If Mike Nifong was to lose the election,” she recently wrote, “there would be a slimmer chance of this [lacrosse] case going to trial.” Brummell hailed the district attorney as a “defiant prosecutor” who is focused on “bringing shame and humiliation to the privileged, while opening the public’s eyes to the underprivileged in what might stand as truth once he presents his case.”

Nifong’s reaction that a figure with such opinions was co-chairing his citizens’ committee: “I was very pleased. It made me feel good.” So spoke Durham County’s “minister of justice.”

By the way—it’s not all that mysterious how someone with Brummell’s views on DNA found her way to Nifong’s camp. In “The DNA Evidence,” Brummell four times stated that her position on the issue applied when “a black man” was the accused. Nifong’s targets, of course, are white.

Wednesday, September 27, 2006

M. Nifong, Revisionist

We all know of high-profile cases in which defense attorneys made early, bold pronouncements of innocence, only to “revise” their opinions as more facts about the case came to light. The lacrosse case, however, represents a rare reversal of this pattern: defense statements have been consistent from the start, while the person revising his statements in light of new evidence is the prosecutor. It's almost as if Mike Nifong didn't read any of his case file before proceeding with indictments.


  • March 23: Nifong’s office submits a motion to the court affirming, “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.”
  • April 11: “DNA results can often be helpful, but, you know, I’ve been doing this for a long time, and most of the years I’ve been doing this, we didn’t have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them.”

Nifong apparently discovered it was useful to revise his opinion after the DNA tests he was certain would reveal matches to lacrosse players instead all came back empty.

Respect for Civil Liberties:

  • Herald-Sun votebook: “Justice requires a level playing field, and it is the District Attorney’s responsibility to see that every defendant has one.”
  • ESPN: “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”

Nifong apparently discovered it was useful to revise his opinion about the importance of civil liberties after defense attorneys started objecting to his unethical behavior, such as his inflammatory public statements.

Providing Evidence to Defendants:

  • “I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State’s case, then the defendant is clearly entitled to have it; if it is not damaging to the State’s case, why should it matter if he gets it?”
  • September 22: Nifong admits that Durham Police destroyed a March 14 tape, which featured the initial contact between the police and the “passed-out drunk” accuser, even though defense attorney Kirk Osborn requested that the tape be preserved. The district attorney cites the department’s policy of destroying recordings after 60 days, without explaining how it applied in this instance, since Osborn filed a motion to preserve the tape 45 days after it was made.

Nifong apparently discovered it was useful to revise his opinion about the importance of sharing and preserving evidence after he realized that people hearing the recording of Sgt. J.C. Shelton after the officer first discovered the accuser in Kim Roberts’ car might undercut the D.A.’s suggestions that law enforcement never doubted the accuser was raped.

Number of Interviews on the Case:

  • March 31: In an interview with an N&O reporter, Nifong was asked, “How many interviews do you think you’ve given?” He responded, “In excess of 50.”
  • September 22: “I’m glad [defense attorney Brad] Bannon brought up the internet. The internet is reporting that I gave 50-70 interviews. I’ve checked my calendar and have approximately 15 interviews noted on my calendar, the last being April 1st. Otherwise I’ve been responding with no comment.”

Nifong apparently discovered it was useful to revise his opinion on the usefulness of speaking out after the May 2 primary vote. Before the election, highlighting the number of interviews he had done proved his commitment to the African-American voters he so desperately needed to win. After the primary, on the other hand, downplaying the number seemed to minimize the threat of state bar ethics sanctions.

Dates of Interviews:

  • September 22: “I’ve checked my calendar and have approximately 15 interviews noted on my calendar, the last being April 1st. Otherwise I’ve been responding with no comment.”

Length of Offense:

  • March 16: Inv. B. Himan signs an affidavit stating, "The victim reported she was sexually assaulted for an approximate 30 minute time period by three males." This time period also appears in police affidavits dated March 23, March 27, and April 18. On March 25, the accuser herself gives an interview with the N&O asserting that the attack lasted 30 minutes. According to press reports, she repeats this claim in her April 6 statement to police.
  • September 22: “If I had to speculate, I’d say this whole event took five minutes, maybe 10 minutes at the outside. I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes.”

Nifong apparently discovered it was useful to revise his opinion about the basic nature of the crime after Reade Seligmann produced unimpeachable evidence that he couldn’t have committed a 30-minute crime. Unfortunately for Nifong, shortening the timeline doesn’t help his attempts to frame Seligmann, since there’s no way Seligmann could have committed a 5-minute crime, either, given the other timeline-related evidence that exists for the evening.

Date of Offense:

  • April 17: Nifong signs a document listing the “date of offense” as March 14, 2006.
  • September 22: According to WRAL, Nifong tells the court the crime occurred between 11.30pm on March 13 and 12.55am the next day. Nifong: “Out of his [Kirk Osborn’s] client’s whole life, we have given him an hour and a half that he has to account for.”

Nifong apparently discovered it was useful to revise his opinion about the basic nature of the crime after Reade Seligmann produced unimpeachable evidence that he couldn’t have committed a crime on March 14. Unfortunately for Nifong, shortening the timeline doesn’t help his attempts to frame Seligmann, since there’s no way Seligmann could have committed a crime on March 13, either, given the other timeline-related evidence that exists for the evening.

Significance of case:

  • March 27: “It is a case that talks about what this community stands for . . . I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly.”
  • September 22: “Despite the feelings of some people, this is not the only case in Durham.”

Nifong apparently discovered it was useful to revise his opinion on the significance of the case after the May 2 primary vote. Before the election, highlighting the case’s importance proved his commitment to the African-American voters he so desperately needed. By September, on the other hand, downplaying the case’s significance rationalized his inexplicably slow handling of discovery issues.

If any justice remains in North Carolina, this case will end with the state bar citing his massive procedural misconduct to revoke Nifong’s license to practice law. Does the district attorney hope that his enablers among the Group of 88 could then find a position for him in the academy? Perhaps his experimentation with revisionism represents an early attempt to refashion himself as “M. Nifong, Revisionist Scholar.” Based on the quality of his performance as a revisionist in this case, however, I’d say he has lots of work to do.

Tuesday, September 26, 2006

Duff's Spin Machine

Perhaps I’m na├»ve, but I expected that the chorus of criticism that Duff Wilson received for his August article would have made him more likely to give at least the appearance of evenhandedness in his future efforts on the case. Instead, it seems, he is more determined than ever to confirm Dan Abrams’ judgment that Wilson’s preference is to editorialize in “what is supposed to be the news division of the newspaper.”

In his latest article—a scant 292 words—Wilson again proves how the New York Times is supplying Mike Nifong with publicity money can’t buy. Unlike his previous effort, Wilson at least avoids out-and-out factual errors in his account of last Friday’s court hearing. But he slants his coverage in transparent ways.

The Durham district attorney said in court Friday that he believed there was no evidence that a reported sexual assault at a Duke lacrosse team party last March lasted 30 minutes, as the police had stated.

Instead, the prosecutor, Michael B. Nifong, said he thought the assault lasted 5 to 10 minutes.

A casual reader would come away from these two paragraphs believing that, perhaps, a police spokesperson had inadvertently claimed the attack lasted 30 minutes, prompting the district attorney to issue a correction.

In fact, the police filed at least four affidavits (March 16, March 23, March 27, and April 18) stating that the attack lasted approximately 30 minutes. The accuser herself gave at least two statements to police (March 16, April 6) saying the same thing. And on March 25, the accuser gave an interview with the N&O asserting that the attack lasted 30 minutes. Nothing in the police's own file of evidence corroborates Nifong's story, creating the extraordinary event of the district attorney altering the accuser’s version of events without, it appears, any corroborating evidence.

The judge rejected a defense request that prosecutors provide detailed accounts of the time and nature of each criminal act cited by the accuser . . .

In denying the motion for a detailed account of the crime, known as a bill of particulars, the judge, W. Osmond Smith III of Superior Court, accepted Mr. Nifong’s argument that such specificity was not required in the pretrial stage.

A casual reader would come away from these two sentences believing that under no circumstances would Nifong need to present a detailed accounting of events before trial.

In fact, the judge specifically granted defense leave to refile its motion. While accepting Nifong’s argument “that such specificity was not required” at this time, Smith did not rule out revisiting his decision and eventually holding that “such specificity” would be required in the “pretrial sage.”

Instead, the prosecutor, Michael B. Nifong, said he thought the assault lasted 5 to 10 minutes . . .

Mr. Nifong said the woman’s account would be subject to cross-examination and jury review after she testified at the trial.

Wilson is, apparently, so inclined to see the case through Nifong’s eyes that he detected nothing unusual about that statement. But surely his editors could have urged him to solicit a response from any of thousands of law professors or law enforcement officials around the country. He might have learned that, in the U.S. system of justice, the state is supposed to compile evidence and develop the central aspects of the alleged crime before making arrests, not months afterwards; and that the purpose of cross-examination is to challenge the state’s case, not to determine which of the state’s versions of events should be believed.

Nifong, obviously, hopes that if he can somehow get this case to trial, it might mitigate the ethics sanctions he likely will receive from the state bar. But it’s increasingly clear that the Times and Duff Wilson are just as invested in Nifong’s goal, if for different reasons—the Times to justify its March and April decisions to give such prominence to the issue, Wilson to avoid becoming the Judith Miller of the lacrosse case. If the reporter and the paper for which he writes can’t prevent their biases from permeating a 300-word filler, there’s little hope that anything else the Times produces on this case will be of any value.

Nifong's Peculiar Motion

For a moment, set aside all sense of personal ethics, and put yourself in the position of D.A. Mike Nifong. You’d probably want to avoid returning people’s thoughts to events of late March and early April, when you made a series of public statements that were misleading at best, inaccurate at worst, and almost certainly in violation of the state bar’s ethics code. No reasonable district attorney would want to revive the image below, of Nifong demonstrating on national television the “chokehold” that even the accuser told the SANE nurse didn’t occur.

If we’ve learned nothing else over the past six months, however, Mike Nifong isn’t a reasonable man. How else to explain his bizarre attempt to stimulate memories of his unethical (but politically useful) pre-primary publicity barrage? Last week, the district attorney accused defense lawyers of “prima facie evidence of an attempt to influence jurors,” citing a defense poll of 300 Durham County voters. Such polling, of course, is routine in high-profile cases. But this effort had particular justification, as defense attorneys noted in a response motion, due to the danger that an impartial jury “could have been substantially threatened by extensive prejudicial public comments made by the Durham County District Attorney.” Kevin Finnerty, father of one of the accused players, with justification described himself as " outraged" by Nifong's move, since, "When he first got involved in this case, he inflamed the story locally and nationally with his opinions, before doing the investigation."

That Nifong would have chosen this, of all issues, as the topic for his first post-indictment motion is more than a little odd. The D.A.'s in-court rationalizations were even more peculiar.

First, Nifong clumsily attempted to lowball the number of his public statements on the case. Channeling Ted Stevens, the district attorney stated that “the internet(?) is reporting that I gave 50-70 interviews.” In fact, asserted Nifong, “I’ve checked my calendar and have approximately 15 interviews noted on my calendar the last being April 1st.”

The relevant section of the state bar’s ethics code, Rule 3.8(f), contains no provision that excuses the prosecutor’s first 15 “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” In any case, as the N&O quickly revealed, the figure of 50 interviews came not from “the internet” but from Nifong himself. Speaking on behalf of “the internet,” Liestoppers compiled a partial list of Nifong statements that easily exceeded his claim of “approximately 15 interviews.”

Then, to bolster his motion, the district attorney supplied two affidavits. The first came from his wife, who claimed to have spent an hour(!) on the phone with a pollster who ended their conversation by expressing his sympathy with the district attorney’s plight. It’s unclear who Nifong expected would find credible his assertion that a pollster would take 60 minutes with any caller, much less one who identified herself as the district attorney’s wife and thus could not serve on the jury for this case.

The second affidavit, however, is much more revealing—and unintentionally damning to Nifong’s standing. When asked whether he/she was familiar with the Duke lacrosse case, Mr./Ms. Anonymous (hereafter MMA) claimed that “I don’t watch it and don’t know because I don’t want my young children hearing that kind of news.” MMA was, however, familiar enough with the case that he/she didn’t “watch” or “know” to learn that “no one was complaining [about the poll] except Mike Nifong’s wife.”

According to MMA, the poll opened with a series of questions inquiring about his/her opinion about Duke, Duke lacrosse, race relations in Durham, and Nifong’s political motivations. The pollster then asked MMA’s permission to give him/her some of the details of the case, and ascertain his/her reactions. These details included:

  • “The 2 women left the party together and that she was passed out and wearing a see through outfit.”
  • “Within 2 days police went to the women and showed her pictures of Duke Lacrosse players and she wasn’t able to pick out anyone but when they came back 2 weeks later she was able to pick out people.”
  • “They were not able to find any bodily fluids on her as evidence that she had been raped.”

The pollster then asked MMA if he/she would be less likely to convict:

  • “if we can prove that one of the accused had an ATM card [video?] proving that he was somewhere else.”
  • “based on the DNA evidence” that showed no matches to the accused.

In a line that must have warmed Bob Ashley’s heart, MMA swore, “I was told information that I should not have been told unless I was a member of the jury trying this case.” Of course, all of the information in the poll, while downplayed or distorted in Ashley’s Herald-Sun, has been in the public domain for months, and frequently reported on Triangle television stations as well as in the N&O. MMA seems to believe that judicial proceedings in this country are secret, with defendants and their attorneys losing not only their First Amendment rights but even their ability to file public motions.

Even more remarkable, however, were MMA’s apparently candid admissions after learning of the facts of the case. “I do not believe,” confessed he/she, “I could be an impartial witness after hearing this because I was convinced they were innocent.” (As far as I know, MMA is on neither side’s witness list.) Indeed, MMA wondered, “Why are they even trying this case? These men are innocent.” The pollster, it seems, was the first person to inform MMA that Nifong:

  • sought indictments against someone who could prove he was somewhere else at the time of the alleged crime;
  • had the accuser see a second lineup of the exact same people after she couldn’t identify any of her alleged assailants two days after the crime;
  • lacks any DNA or other scientific to bolster his case.

In light of these facts, MMA told the court, “I was wondering why my tax dollars were being spent like this, because it was a waste of time.” It seems, to Nifong’s chagrin, as if MMA has reached the same conclusions as “the internet about the dubious nature of the D.A.s decisionmaking.

Hat tip--Susan D.; thanks to Liestoppers for the screencap.

Monday, September 25, 2006

Understanding SANE, II

One of the most talented students I ever taught was John Makaryus, who double majored in history and pre-med. In his senior year, John received the history department’s top student award, was elected to Phi Beta Kappa, and was admitted to medical school. Since he also experienced a taste of academic groupthink while at Brooklyn College, John really would be the perfect person to do this blog; his range of intellectual interests overlaps almost entirely with the issues exposed by this case. But, as a first-year medical resident, he has other things other things on his plate right now.

For those of us who have some background in procedural or academic matters but who, unlike John, are also scientifically challenged, Kathleen Eckelt is of tremendous assistance. I posted ten days ago on some of her early writings on the Duke case; she recently completed another post, and privately answered several other questions from me. Eckelt’s findings raise serious questions about the validity of Mike Nifong’s case.

1.) In her most recent post, Eckelt explains in greater detail about the dubious nature of the Gottlieb “straight-from-memory” notes. This typewritten document, produced months after the fact without any contemporaneous handwritten notes, claims that in a March 21 conversation, SANE nurse-in-training Tara Levicy told the sergeant that her physical exam of the accuser indicated “blunt force trauma,” that she diagnosed the accuser with anal edema, and that an unidentified male hospital employee walked in to the exam room, causing the accuser to scream uncontrollably. No notation of any of these items appeared in Levicy’s written report.

Regarding the latter issue (the unnamed man who allegedly entered the exam room), Eckelt notes the following,
The name of any person in that room, besides the nurse, must be documented. If it’s an unlocked room, the door is shut and the curtain is pulled to protect the patient’s privacy. The staff know not to enter and the nurse must remain in the room with the evidence until it’s locked up. The only other persons we [in our unit] allow in the room, would be either a physician or another nurse the FNE has asked to come in to assist with something. They’re usually only in the room a few minutes. Once certified, we function independently, so there’s no need to have anyone else in the room with us.
From all reports, neither Gottlieb nor those among the New York Times journalistic staff who considered his notes the key to the case indicated that Levicy ever documented an unidentified male entering the exam room.

Meanwhile, Eckelt contends that the accuser’s symptoms are inconsistent with blunt force trauma. (Times reporter Duff Wilson, who made a great deal of Gottlieb’s version of events, gave no indication in his article of checking to determine the medical plausibility of Gottlieb’s tale.) “You usually do not see edema by itself,” she reports, “as a result of BFT. You usually see other symptoms as well.”

Finally, Eckelt dismisses the claims of anal edema absent Levicy having documented them at the time. “If there is nothing checked off next to rectal trauma on the SANE’s report,” Eckelt comments, “then there was no trauma.”

Of course, Gottlieb’s version of events might be truthful. But his truthfulness would have to come at the expense of Levicy’s competence–thereby calling into question the validity of the entire medical exam.

2.) The accuser’s injuries appear inconsistent with her version of events (even if we employ the Nifong-shortened new timeline). In what “was supposed to have been an extremely violent assault–one in which the accused claimed that she was choked, beaten, and kicked, raped, and forced to engage in oral and anal sex,” Eckelt asks, “Is it logical that [the accuser] would have no red marks anywhere on her body? No bruises, no abrasions or lacerations, no swelling - no pain - anywhere?”

Eckelt presents a convincing and detailed argument as to why the injuries documented by Levicy–“edema, and only edema, of the inner vaginal walls, without having redness and edema showing on the outer vaginal area first”–do not seem to correspond with the description of the alleged attack. While “it’s common knowledge that most rape victims have no injuries . . . in an extremely violent case like this, to have only one symptom - edema - of the vaginal walls alone, and nowhere else, with absolutely no other injuries or symptoms, defies logic.”

3.) The question of who supervised Levicy, a SANE nurse-in-training, remains unanswered.

In response to my previous post on this topic, some commenters suggested that the M.D. who also examined the accuser functioned as Levicy’s supervisor. Eckelt casts doubt upon this theory, though she notes that, perhaps, North Carolina employs different rules than her home state of Maryland.

“Once all the [educational] requirements are completed,” Eckelt informed me, “the nurse in training (in our area anyway) has to be observed and checked off on doing 3 exams on her own. It takes an average of 8 mos. to one year to complete all the requirements. On our unit, the new nurses are observed, and checked off, by an experienced FNE, not a physician . . . We work totally independent of the physicians, except that we have a medical director who oversees the program . . . Besides, many of the physicians in the ER are residents in training themselves (in a teaching hospital). If they haven’t received SANE training themselves, I don’t see how they would be qualified to observe and check off a new SANE nurse.”

4.) The combination of drugs and alcohol that the accuser acknowledged using is a potent one. Eckelt states:
Her taking Flexeril was a big deal to me. There are many factors which should be looked into. First, Flexeril is a muscle relaxant, used to treat acute (not chronic) pain, stiffness, and limited movement from some injury to the muscular skeletal system . . . Flexeril is supposed to be used only for 2-3 weeks - not long term. So, what happened to her in the 2-3 weeks preceding the alleged rape? Something must have in order for her to get a prescription . . . Not only is Flexeril a muscle relaxant, but it also has properties very similar to tricyclic antidepressants. People shouldn’t be drinking alcohol when on this medicine. Alcohol can substantially increase the effects of the medication: drowsiness, dizziness, mental confusion, decreased coordination, etc. Can be very dangerous to mix the two!
5.) It’s possible and even probable that Levicy was basing her information on incomplete information from the accuser regarding previous sexual partners. Eckelt explains the procedure:
Patients are asked right out, "When was your most recent consensual sex within the last 2 weeks?" They are asked the date & time. This is documented in the chart as well as on the front of the crime lab envelope for the first vaginal swab. I always tell my patients: “Normally, most adult patients are sexually active. The crime lab needs to be able to differ the assailants' DNA from those of your normal relationships.” My patients have always given the info freely.
In this case, the initial DNA test included only lacrosse players. Only after that test came back negative did Nifong ask for DNA samples of the people the accuser listed as her previous three sexual partners.

We now know that a match occurred with one of those people, the accuser’s boyfriend, with whom she claimed to have last had sex a week before the alleged attack. In Friday’s court session, the defense strongly hinted that there might be DNA matching other people. And, on April 6, Jarriel Johnson stated that the accuser performed with a vibrator shortly before the lacrosse party. How much (if any) of this information was known to Levicy at the time she performed her exam?

In light of this mountain of physical (non-)evidence, how could Mike Nifong have remained faithful to his requirement to function as Durham County's "minister of justice" and simultaneously have repeatedly asserted in late March that no doubt existed that a rape occurred? That's a question I doubt even Kathleen Eckelt could answer.

Sunday, September 24, 2006

Herald-Sun: We Conceal, You Decide

John Stevenson, author of August’s borderline fraudulent article on DNA and the case, was back at work in yesterday’s Herald-Sun. Perhaps chastised by the strong criticism his last major effort received, Stevenson adopted a subtler approach in his latest piece—burying the lede, prioritizing Mike Nifong’s message, and concealing critical information.

Stevenson opened his article with three breathless paragraphs on the new discovery information that Nifong gave the defense, implying that the district attorney was handing over reams of material. What did he conceal?

  • The district attorney’s astonishing statement, in open court, that he hadn’t even read all of the material handed over to the defense, and didn’t plan, either now or at any point in the future, to read the portions of the discovery he deemed “irrelevant.”
  • Nifong’s disturbing admission that the Durham Police destroyed the recording of Sgt. J.C. Shelton’s initial radio report of encountering the accuser in a Kroger’s Supermarket parking lot, even though the defense had filed a motion in April to preserve the recording.

When was the last time the Durham Police Department or Nifong’s office destroyed evidence for which the defense had filed a motion to preserve? The Herald-Sun doesn’t say. Nor does the paper offer any insight on how the district attorney could deem irrelevant evidence that he hadn’t bothered to read.

Stevenson then moved on to several paragraphs relaying the D.A.’s bizarre preoccupation with the defense attorneys’ poll of 300 Durham County voters, reinforcing Nifong’s quest to use the issue to distract from the other questions raised by the hearing. What did he conceal?

  • Any mention from neutral defense attorneys, law professors, or former prosecutors at the routine nature of lawyers’ polling in high-profile or heavily publicized cases.
  • Any context regarding what might be the single strangest legal aspect of this case—Nifong’s attempt to introduce an affidavit from an anonymous person. This alleged Durham County resident allegedly was polled, and allegedly claimed that the pollsters’ “agenda was to try and persuade a jury or potential jurors. I thought that this has to be illegal.” Stevenson apparently finds nothing unusual that those words, allegedly uttered by this anonymous figure, eerily resembled previous utterances by the D.A.

When was the last time a North Carolina district attorney attempted to introduce an anonymous(!) affidavit as evidence? The Herald-Sun doesn’t say.

Stevenson proceeded to a section on Nifong’s ever-changing timeline, and the judge’s decision to deny a defense motion for a bill of particulars, subject to a provision allowing for the motion to be refiled later. What did the reporter conceal?

  • Any mention that the ever-changing timeline not only contradicts the accuser’s myriad, mutually contradictory statements—but that it contradicts documents as basic to the state’s case as the arrest warrants, which state that the “crime” occurred on March 14, not March 13 or March 14.

How often do district attorneys in North Carolina change the date of an alleged offense after arrests have been made? The Herald-Sun doesn’t say.

Stevenson conceals mention of the district attorney’s striking decision to contradict the statements of his prime witness. Despite the claims of Sgt. Mark Gottlieb’s straight-from-memory 33-page typewritten report, Nifong asserted that an April 11 meeting between the D.A., the accuser, Gottlieb, and two other police officers did not involve any statements of evidence by the accuser. Since the accuser appears to have given a different version of events each and every time she spoke to police, Nifong’s claim quite probably prevented him from having to defend another inconsistency.

The D.A.’s justification for this peculiar silence by the accuser, which Nifong said he provided on p. 2030 of the discovery? The accuser, reasoned he, was still very traumatized by the March 14 (or March 13-14, as things now stand) event.

So, according to Nifong, the accuser was too traumatized to speak of the incident on April 11, yet not so traumatized as to conduct an eyewitness ID session on April 4 upon which the police relied to make identifications; and give a statement on April 6 upon which the police relied to establish that a crime occurred? I can see where the Herald-Sun would struggle to fit this admission into the paper’s pro-Nifong agenda.

The Herald-Sun ace also conceals any discussion of Nifong’s bizarre in-court behavior— described in the following way by the N&O: “When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples.” Do district attorneys in North Carolina routinely behave in such fashion? The Herald-Sun doesn’t say.

Lest anyone think Stevenson is a rogue reporter committed to doing Nifong’s dirty work against the wishes of Herald-Sun editor Bob Ashley, take a look at the paper’s Saturday article on the case. Penned by reporter William West, the piece ended with a superficially “balanced” presentation of one statement from an NCCU student, Justin Carr, and one statement from a Duke student.

According to West, Carr “said the accuser should be given a fair hearing in court,” an upside-down view of the American judicial system that seems to be typical at NCCU. On the other hand, Duke student Omari Wallace—“who,” West reveals, “is black” (the race of the NCCU student isn’t stated)—offers neither a defense of the lacrosse players nor complaints about Nifong’s behavior. Instead, he laments that the lacrosse players’ actions have hurt Duke’s recruiting efforts, especially among minorities.

I have no doubt that some students at Duke feel as Wallace does. But all anecdotal as well as media evidence suggests that the most powerful student view revolves around outrage at Nifong’s misconduct. I wonder why West quoted from an NCCU student who reflected the campus mainstream but from a Duke student whose views don’t seem shared by a majority on campus. Surely the fact that Wallace’s statements complement the Ashley editorial line couldn’t have factored into the reporter’s decisionmaking process?

Special thanks: Liestoppers' in-court observer, for information on some of the unreported items.

Saturday, September 23, 2006

The D.A.'s Tough Day

Some issues of relevance from yesterday’s court hearing:

1.) The NC Open Discovery Law needs to be strengthened.

In 2004, Governor Mike Easley signed the measure, which requires prosecutors in felony cases to turn over all their files to defense attorneys. Dick Taylor of the North Carolina Academy of Trial Lawyers said the law would “result in less surprise, less ambush and more fair trials . . . I think it’s one of the most significant developments in our criminal procedure for a number of years.” A contemporaneous survey of defense lawyers, however, more skeptically concluded, “Open discovery will still depend, as it does now, on the ethical quality of the D.A.”

Mike Nifong’s performance in the Duke lacrosse case has certainly confirmed the wisdom of those skeptical about open discovery’s effects. As defense attorney Brad Bannon told ABC-11,There is a pattern that has developed . . . that we don’t get discovery unless a court date is set and we’re here before a judge.” (Yesterday, Nifong turned over more than 600 pages of documents, months after his “investigation” supposedly was completed.) The district attorney’s increasingly erratic personal behavior hasn’t facilitated the administration of justice; defense attorneys revealed that Nifong (incredibly) refuses to return phone calls or respond to their motions.

Nifong’s excuse? “We’re providing in good faith what we can in these circumstances. Despite the feelings of some people, this is not the only case in Durham.” This is, however, the only case that Nifong is personally prosecuting, so he doesn’t have to handle other discovery requests. And it’s unclear why even the most administratively challenged figure would require more than three months to turn over internal e-mails that the police department itself compiled in June. While, admittedly, the D.A. didn’t have to deal with the issue of discovery during his years in traffic court, a cynical person might conclude that Nifong had something to hide.

2.) “My timeline” is really no timeline.

In perhaps the least surprising development of the case, Nifong has abandoned even the accuser’s version of events to invent his own timeline. Having obtained indictments based on a tale that a 30-minute rape occurred on March 14, Nifong is now claiming that a 5-10 minute attack occurred on either March 13 or March 14.

The district attorney rationalized his new theory by adding to his previous de facto roles as lead investigator and Durham P.D. press secretary. Now posing as an armchair psychologist, he asserted, “When something happens to you that is really awful, it can seem like it takes place longer than it actually takes.”

The real reason for the change, of course: Reade Seligmann’s attorney, Kirk Osborn, has provided unimpeachable evidence that no possibility exists of Seligmann committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

Unfortunately for Nifong, shortening the time of the alleged attack only undermines what remained of his credibility. Time-stamped photos show the dance ending at 12.04am, a timeline reinforced by the accuser’s cellphone records and the neighbor’s statement. The second dancer’s statement, corroborated by that of the neighbor and most of the accuser’s myriad and mutually contradictory versions, has the dancers proceeding from the dance’s conclusion to the bathroom for an unspecified period of time, and from there to the car, where one of the players persuaded them to return to the party. Unless the D.A. is now contending that these developments occurred with the two dancers effectively in a full sprint, both Seligmann and (it appears) Finnerty had departed the house before the window for even a 5-minute attack opens, while Seligmann well before that time was on the phone.

3.) Due process and normal prosecutorial conduct remain under assault.

Spurning defense demands for a bill of particulars, the district attorney announced, “We’re not required to report the exact time an offense took place.” Speaking directly to Osborn, Nifong continued, “Out of his client’s whole life, we have given him an hour and a half that he has to account for.”

Setting aside the fact that Osborn has already done precisely that, Nifong’s comment reflects his belief that the defense carries the burden of proof. To quote Wendy McElroy’s recent article,

The assumption that a defendant is ‘innocent until proven guilty’ has been reversed. Seligmann is assumed to be guilty. But more than this. It is as though Seligmann is not allowed to prove his innocence no matter how much evidence he produces.

4.) What was yesterday’s bait and switch?

This case has regularly featured what could be called the “Nifong bait and switch”: shortly before receiving another crushing p.r. blow, the district attorney releases tangential information to distract attention. So, for instance, the McFadyen e-mail was unsealed five days before announcement that DNA evidence that Nifong had promised would “immediately rule out any innocent persons” instead matched no lacrosse players. Just before a devastating piece by the N&O’s Joseph Neff, Nifong’s house organ, the Durham Herald-Sun, published an article on DNA evidence that bordered on journalistic fraud.

It’s easy to see the Nifong distraction for yesterday’s hearing: his bizarre obsession with defense attorneys’ routine decision to poll 300 Durham County residents about the case. What, then, is the bombshell evidence he expects? I suppose we’ll learn in a few days, but for now, my money is on the DNA. Defense lawyers want complete information about the second round of DNA testing, with a suggestion that there might be additional matches to people other than lacrosse players (no matches with the accuser) and the accuser’s three admitted sexual partners in the week before the party (one match, of three). If additional DNA exists, and that DNA belongs to someone not yet tested, then the accuser concealed information about her number of sexual partners in the days before the party.

Nifong’s objection to the evidence? Its $4035 pricetag. This sudden burst of frugality seems particularly rich given the nearly $23,000 that Nifong already spent to conduct a highly unusual second round of DNA tests—a fact that Brad Bannon pointed out yesterday. The judge, of course, ordered the D.A. to supply the material by October 20, so we'll soon see specifically what Nifong didn't want to turn over.

For the first time in this case, it seems, we have a judge who's not going to tolerate Nifong's shenanigans. If so, that leaves a question of not will the D.A.'s case will unravel, but when will it do so.

Friday, September 22, 2006

Nifong's Political Fallout

[Welcome Instapundit readers. This blog is updated daily; among its recent items, this post on the severe weaknesses of the state's medical case, and this one on the bizarre ideas of Duke's anti-lacrosse faculty members.]

Over the past six months, Mike Nifong’s record has exposed the fragility of North Carolina’s legal institutions. His procedural misconduct, by this point, is common knowledge:

  • The fraudulent March 23 notion relied on a false claim (the players used first-name aliases) and withheld from the court that the accuser had failed to identify any suspects in a photo lineup already conducted by police.
  • The late March p.r. blitz served the D.A.’s political interests at the expense of his obligations under the bar’s ethics code.
  • Nifong ordered police to violate in multiple ways their own procedures for lineups in order to get someone to indict before the May 2 primary vote.
  • He ignored ethics code requirements to consider exculpatory evidence by refusing to look at Reade Seligmann’s alibi evidence, which included, among other items, a video of Seligmann at an ATM machine more than a mile away at the time of the alleged crime.

All the while, however, Nifong has suffered no official retribution, as Durham judges, Governor Easley, Attorney General Cooper, and the state bar have failed to rein him in. Their failure to require Nifong to act in accordance with North Carolina's laws and its state bar's ethics code has led many legal scholars to wonder if the Durham district attorney, in fact, represents a mainstream version of North Carolina justice. Indeed, Duke Law School professor Erwin Chemerinsky recently noted that he was unaware of any case in the past 15-20 years where this extent of procedurally irregular behavior was widely known by the public at this stage of the process.

Failure by public officials and the bar assocation to hold Nifong accountable for his improper legal and ethical conduct has enabled him to subvert groups that citizens count on to advocate for fairness and justice. An example of this pattern came in Nifong's conduct at an April 11 forum held on the campus of North Carolina Central University. The day before, defense attorneys revealed that DNA evidence which Nifong had promised “will immediately rule out any innocent persons” had matched no lacrosse players. Facing an overwhelmingly African-American audience, the constituency that would make or break his primary campaign, the district attorney stated, “I hope you will understand that my presence here means that this case is not going away.”

Nifong has claimed a commitment that “the District Attorney’s Office must be, and must be perceived as, a place of unquestioned integrity.” By promising, at what amounted to a campaign appearance, to continue the case regardless of evidence or his earlier affirmation to the court about DNA, the D.A. violated his own written standards.

The NCCU forum also launched the peculiar relationship between Nifong and Victoria Peterson. Before spring 2006, Peterson was best known for her losing city council campaigns, her support for convicted murderer Michael (no relation) Peterson, and her extreme homophobia. In 2003, Peterson opposed “health benefits for sodomites” on the grounds that “many of them are infected with diseases, and their lifestyles are very, very dangerous,” and dismissed the need for statewide anti-discrimination protections for gays and lesbians on the grounds that they “come to work dressed one day looking like a female and two weeks later looking like a male.”

At the NCCU forum, Peterson explained away the DNA tests as the result of Duke University hospital having “tampered with” the sample; she demanded that the district attorney arrest three lacrosse players. A few weeks later, Peterson welcomed to Durham the head of a hate group, the New Black Panthers, whose members, among other things, leveled a death threat against Reade Seligmann that Nifong declined to condemn. As Nifong’s electoral base atrophied, however, he and Peterson entered into a marriage of convenience. He would strengthen his position with those motivated by appeals to race and class prejudice; she would get the ear of the county’s top law enforcement official. In August, the district attorney announced that he was “very pleased” that Peterson had agreed to found and co-chair his citizens’ committee, a development that “made me feel good.”


In the last 20 years, North Carolina Democrats have elected to the Senate two liberals, John Edwards and Terry Sanford, both of whom narrowly prevailed thanks largely to overwhelming support from African-American voters (21.8% of the state’s population in 2004). The platform of the N.C. Democrats, meanwhile, expresses strong support for protection of civil liberties, while also affirming the party’s opposition to “discrimination of any kind - whether in employment, gender, ethnicity, sexual orientation . . . [with] vigorous enforcement of existing civil rights laws and a periodic re-examination of their adequacy.” [emphasis added]

What happens when political realities and ideological commitments appear to clash? The pairing of Nifong’s flagrant violations of civil liberties in the lacrosse case and Peterson’s outrageous homophobic statements struck me as irreconcilable with the principles laid down in the state party’s platform. So I e-mailed Schorr Johnson, the state party’s communications director, supplied links to Peterson’s comments, and asked:

Given its commitment to opposing discrimination in all forms, including discrimination based on sexual orientation:

1.) Does the party have a statement regarding Ms. Peterson’s positions?

2.) Is the party “very pleased” that she’s serving as citizens’ committee co-chair for the party’s candidate in what probably is the highest-profile race in the state this year?

Johnson’s response? “I have not paid enough attention to have any comment.”

I asked the same questions of the co-chair of the Duke Democrats, who responded: “Duke Democrats is not commenting on Nifong’s election campaign.”

It would seem there are two explanations for the “no-comment” response of both the state and Duke Democrats:

  1. The state and Duke Democratic parties don’t believe that Nifong has violated civil liberties in the lacrosse case, nor do they consider Peterson’s statements homophobic.
  2. The state and Duke Democratic parties are fully aware that the Nifong/Peterson axis contradicts the party’s basic principles, but don’t care enough about those principles to stand up for them in this instance, lest doing so risk alienating the party’s African-American base.

(In the case of the Duke Democrats, any Duke student might also have a legitimate fear of publicly criticizing Nifong, given the Durham P.D.’s official policy of targeting Duke students.)

Regional and campus GLBT organizations likewise proved unwilling to challenge Peterson. Gay rights groups have an (appropriate) reputation for sensitivity to anything resembling homophobic statements, especially by figures in power or those with access to figures in power. Equality NC didn’t reply to my questions; Triangle Community Works responded that because of its non-profit status, “We don’t have a statement regarding Ms. Peterson.”

From Duke GLBT groups, I received even more unusual feedback. The co-chair of the Business School’s GLBT organization stated, “I don’t believe that I have nearly enough information about Ms. Peterson or Mr. Nifong’s knowledge of her allegedly homophobic behavior to make any sort of comment.” (I had supplied links in my email; that a GLBT group co-chair would describe Peterson’s statements as “allegedly” homophobic is nothing short of astonishing.) The tri-chair of the undergraduate GLBT group, meanwhile, attempted to rationalize Peterson’s statements as perhaps based on studies the citizens’ committee co-chair might have read: “When studies cite higher rates of smoking, drug use, and mental health issues in LGBT populations, we have to ask whether LGBT persons engage in risky behaviors because they’re gay or because of the stress associated with societal disapproval. Personally, I think it’s the latter.”

Two explanations seem to exist for the “no-comment”/rationalization response of both regional and Duke GLBT groups:

  1. Regional and Duke GLBT groups don’t consider Peterson’s statements homophobic.
  2. Regional and Duke GLBT groups fully comprehend the homophobic nature of Peterson’s statements, but don’t care enough about condemning homophobia to do so in this instance, lest they be perceived as supporting a group, Duke lacrosse players, with whom they would not normally sympathize.

(In the case of the Duke groups, any Duke student might also have a legitimate fear of publicly criticizing Nifong, given the Durham P.D.’s official policy of targeting Duke students.)

Just like judges, the governor, and the attorney general in the legal realm, state, regional, and campus Democratic and GLBT organizations in the political realm appear unwilling or unable to confront Nifong. Neither N.C. Democrats nor the state's gay rights groups will be well-served by fair-weather fidelity to their basic principles. I suspect that these organizations will look back with shame at their silence regarding the Nifong/Peterson axis.

Thursday, September 21, 2006

Celebrating Ignorance

Today's N&O brings news of a positive suggestion from Duke law professor Paul Haagen. Seeking to bridge the gap between the athletics program and the arts and sciences faculty, Haagen proposes creating athletic "faculty associates," professors who would be assigned, on a voluntary basis, to various sports teams to get a better sense of campus athletics. The professor could attend practice, get to know the players and coaches, and even travel with the team to selected road games. Haagen told the N&O he wanted to create a situation where professors knew more about athletics.

Women's lacrosse coach Kerstin Kimel strongly endorsed the plan, correctly noting, "There isn't a real tremendous understanding from a faculty standpoint about what our athletes and coaches do day to day."

The Haagen plan would seem to have no downside. Professors who desired to do so could get a first-hand glimpse of the "culture" of Duke athletic teams. I have no doubt that most would discover what I learned from watching my sister, who was a three-year starter and two-year captain of Columbia's women's basketball team: that at academically elite institutions, most athletes work much harder than the average student. They need to balance a full courseload with the physical, mental, and time commitments of sports.

Reaction to Haagen's proposal suggests that some Duke professors prefer to celebrate their ignorance about the true nature of life for the institution's student-athletes: after all, what they discover might contradict their preconceived ideological notions. Group of 88 member Paula McClain, co-director of Duke's "Center for Gender, Ethnicity, and Race in the Social Sciences," announced that the professors to whom she speaks (presumably the Group of 88's other 87 members) "are just aghast" about the idea.

But, then again, McClain has distinguished herself throughout the crisis for her reflexive, unsophisticated opinions. When asked over the summer if she would support a public declaration urging due process for the accused lacrosse players, she offered an emphatic one-word response: "NO."

Haagen says he'll withdraw his mild proposal if faculty opposition to it intensifies. He should instead consider the objections of figures like McClaim to be a badge of honor.