Questions and Answers

Since I installed a site counter on August 28, this blog has surpassed 110,000 unique visitors, with over 200,000 page views. Though concentrated in North Carolina and the New York metropolitan area, its readership hails from all 50 states (including at least one daily visit from Alaska and Hawaii). The blog also has received hits from at least 57 other countries: Canada, Mexico, Costa Rica, El Salvador, Panama, Jamaica, Bahamas, Brazil, Argentina, Chile, Peru, Colombia, Iceland, Ireland, Britain, Belgium, France, Germany, Switzerland, Austria, Norway, Sweden, Finland, Russia, Ukraine, Czech Republic, Hungary, Romania, Serbia, Greece, Cyprus, Turkey, Italy, Spain, Portugal, Israel, Egypt, Jordan, Iraq, Saudi Arabia, United Arab Emirates, India, Kazakhstan, Thailand, Malaysia, Singapore, Brunei, Indonesia, Australia, New Zealand, the Philippines, Vietnam, China, South Korea, Japan, Cote D'Ivoire, and South Africa.

In recent weeks, as the comments have increased, both in quantity as well as quality, I thought it might be useful to answer some of the questions raised.

Q: Would it be more effective at this point to try to engage the FBI, the U.S. Justice Department, the Civil Rights Commission? What about the U.S. Senators from North Carolina? Could they help?

Q: Do you think that Nifong himself has violated laws? Will he have his own day in court? And should the judges who enabled him be impeached?

A: The answers to these two sets of questions are related. There is overwhelming evidence already on the record that Nifong has behaved in an unethical fashion; if this case doesn’t end with the State Bar revoking his license for ethical misconduct, the group’s ethics committee should dissolve itself.

Whether he has violated any laws, however, could be resolved (if at all) only by federal intervention. Such an inquiry would obtain access, for instance, to Nifong’s e-mails, and would also be able to question figures in the case (Invs. B.W. Himan and Michele Soucie would be the likeliest candidates here) who maintain some shreds of integrity.

Grounds for possible federal involvement include the remarkable decision of a district attorney ordering police to violate their own procedures, to the apparent policy of the Durham Police to treat Duke students differently as a class.

Federal involvement in such matters, however, is rare, and as of now, we’ve seen no sign of activity from either the FBI or the U.S. attorney’s office in North Carolina. The U.S. attorney for central North Carolina is Anna Mills S. Wagoner, P.O. Box 1858, Greensboro, NC 27402; phone: (336)333-5351.

Q: Regarding the Gottlieb notes: Was Gottlieb the keyboardist, or did someone else (e.g. a unit secretary) do the typing? What is the date on page 33 (or page 1)? Are there reasons to believe that this date is, or isn't, correct?

A: Virtually the only reporter to treat the Gottlieb notes as credible is Duff Wilson of the New York Times. But, as we know from the Judith Miller affair, the Times regularly views as credible even the most incredible government documents—if doing so conforms to the reporter’s preconceived notions.

Of the three possible explanations that exist regarding the Gottlieb report’s origins, none reflect well on the sergeant’s competence or integrity. Start with the fact that North Carolina’s Open Discovery Law is among the strongest in the nation—the state must turn over its entire file, including all handwritten and typed notes from police, to the defense when the state receives the information.

We know that 13 pages of the report—the runup to and transcript of the 4-4 lineup—were produced contemporaneously; these 13 pages went to the defense in late April, in the first batch of discovery. If Gottlieb’s notes dealing with dates before 3/31-4/4 (a date span that includes his alleged conversation with the SANE nurse on March 21 and his alleged transcript of the accuser’s March 16 descriptions) were also produced contemporaneously, the Open Discovery Law required turning them over in the original discovery file.

The other option, of course, is that Gottlieb had contemporaneous handwritten notes and only typed up the material from those notes in July. But, apart from one afternoon in April (on an issue almost irrelevant to the case), Gottlieb produced no handwritten notes.

The possibilities, then:

1. Gottlieb typed the report from “memory” in July—highly dubious from the standpoints of ethics and good law enforcement practice, but not illegal.
2. Gottlieb, very unusually for police officers, typed the report contemporaneously, without using handwritten notes—and if so appears to have violated the Open Discovery Law by withholding these notes from the defense for several months.
3. Gottlieb typed the report from his handwritten notes in July—and if so unequivocally violated the Open Discovery Law by refusing to turn over his handwritten notes to the defense.

Q: Regarding the alumni “talking points”: Apparently, these talking points were developed for alumni who are interviewing applicants in case they are asked these questions during their interviews. Is that true Mr. Johnson? Is there a reason why you did not mention that fact? Is there a reason why you misled your readers into thinking it “directed at” alumni in general?

A: The Duke Alumni association website, not a website confined to alumni who interview students, hosts the “talking points” link. The “talking points” text contains no references that the document was intended solely or even primarily for alumni who interview students. Perhaps this questioner, who didn’t leave a name, had access to inside information available only to Duke administrators.

If this alleged inside information is true, Duke’s conduct in this matter raises even graver concerns. In effect—if this informant is correct—the Duke administration authorized release of information intended to deceive future students with the claim that, despite overwhelming historical evidence to the contrary, it’s improper for professors and academic leaders to speak out against procedural improprieties in criminal justice cases.

Q: Regarding the “right to a speedy trial,” . . . you’re the historian: why did NC never grant such rights?

A: In the colonial and post-Revolutionary period, North Carolina enjoyed a reputation as among the states most interested in upholding individual rights. The Constitution’s failure to include a Bill of Rights generated particularly intense opposition in North Carolina; for this reason, the state didn’t ratify the Constitution until 1790.

The current North Carolina constitution, however, dates from 1971—an era when busing was a critical issue in the state and Richard Nixon, with great support from the South, was promising a presidency that would be “tough on crime.” Constitution drafters do not appear to have focused on protecting civil liberties for criminal defendants. Moreover, the state has a tradition of granting substantial deference to prosecutors, even for such matters as setting court schedules.

Ironically, the “case management system”—appropriately derided by virtually every outside commentator on this case for having made a bad situation worse—was hailed at the time of its adoption (1997) as an improvement over its predecessor. Then state chief justice Burley Mitchell described the program as a “phenomenal achievement.”

If North Carolina’s political leadership has learned nothing else from this case: the governor should propose, and voters should adopt, a constitutional amendment adding a speedy trial right to the state constitution.

Q: When will Gov. Easley be held accountable? He appointed Nifong and has refused to speak out or suggest a special prosecutor. Does Easley have future political ambitions?

A: I have no answer to this excellent question. Last weekend’s AP story quoted Easley’s press secretary saying that the governor would make no moves to remove Nifong from the case. It seems to me that local and national media should be repeatedly pressing Easley, with questions such as:

• What criteria did you use to select Nifong?
• Has Nifong’s behavior hurt efforts to persuade businesses to relocate in North Carolina?
• Have you learned anything from this experience to improve the quality of your future appointments?

As for Easley’s future ambitions, he remains in office through 2008, when he is term-limited. Senator Elizabeth Dole’s Senate seat comes up that year; while Easley is unlikely to challenge her, he could run if she retires. He was been widely rumored as a possible challenger for Republican senator Richard Burr in 2010.

Should he stand for office again in North Carolina, he certainly should be held accountable for his silence in this case.

Q: It is obvious from the one-sided nature of your comments on this website that you have become a mouthpiece for the LAX team parents.

A: Well, that’s not really a question, but I’ll answer it anyway. I’m a professor, not a journalist—but because media coverage of this case has been so spotty, sometimes I have to try to find things out myself. When relevant, I ask questions of some lacrosse parents: sometimes they answer, sometimes they don’t. I do the same, with the same results, of John Burness at Duke and of North Carolina law enforcement officials, the NAACP, political figures, or other relevant people. Although I have been highly critical of how the Duke faculty has responded to this affair, and have grown increasingly critical of the administration’s actions as more facts have come to light, I have included Burness’ statements to me, usually in their totality, every time he responds to one of my questions.

I teach at a college with a 4-3 workload; have a Western Civ textbook coming out in 2007; and have a contract from Cambridge University Press for a book on the Cold War that’s due in 2008. So my spare time is at a premium. I can think of around 10,000 things that would rank higher on my priority list than serving as anyone’s “mouthpiece.”

Q: Regarding the overlap between Duke professors who signed a statement demanding divestment from Israel and membership in the rush-to-judgment Group of 88: At a private university, to whom are the faculty “accountable”—students, parents, Trustees, themselves?

A: The short answer: they’re, appropriately, accountable to themselves. But academic freedom doesn’t restrain students, parents, alumni, or trustees from exercising their own rights to freedom of speech and publicly condemning the irresponsible actions of professors.

In this instance, it seems to me that Board of Trustees chairman Robert Steel long ago should have publicly taken to task the Duke arts and sciences faculty, asking what it says about campus culture that so many Duke arts and sciences professors appear to have been intimidated into silence by the Group of 88. But, alas, Steel has refused to lean against the spirit of the moment and urge the faculty to again embrace its traditional role as champions of due process.

Thank you for your questions; I’ll continue this feature as long as readers continue asking questions on the blog.