Sunday Notes

If Duke alumni read only one post or article about what the case says about the university, I hope they choose this extraordinary post on Liestoppers. A detailed critique of Duke’s response to the case, the post plays off Duke president Richard Brodhead’s smirking defense of Duke’s actions on the grounds that the lacrosse players engaged in “highly unacceptable behavior.”

Liestoppers wonders why Brodhead hasn’t characterized as “highly unacceptable behavior” other actions we’ve seen in the case, such as former coach Pressler, apparently acting on orders from above, asking lacrosse players not to tell their parents about the inquiry. Or Houston Baker’s late March public demand that Duke expel all the players. Or the rush to judgment of the Group of 88. Or the actions of faculty members like lacrosse player John Walsh’s professor, who told him, “Well, if you guys really were innocent, I would feel sorry for you.” Or what Liestoppers correctly deems the “horrifying” record of Professor Peter Wood, who has engaged in “shameless media-seeking comments, groundless speculations, and unsubstantiated insults.”

The Liestoppers alumnus concludes,

For me, the disappointing behavior of the faculty and administration won’t cause me to stop raising my arm during chants of “Let’s Go Duke.” It is however, the reason my arm will continue to sport a blue “innocent” wristband. It is also the reason that my head will hang in shame until Duke manages to address the real “highly unacceptable behavior” in this affair.

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From Duke itself, last week featured two piercing statements from Chris Kennedy, senior associate athletics director and an adjunct professor in the English Department. In a letter to the editor, he blasted the Herald-Sun’s fawning pro-Nifong response to the 60 Minutes broadcast. “After all,” Kennedy noted, the paper “has consistently, uncritically, and blindly supported District Attorney Mike Nifong’s mishandling of this case. If there was a perceptible slant in the broadcast, it was toward truth and based on a reading of the entire case file.” In the end, he correctly lamented, the Herald-Sun “has chosen to promote injustice rather than to fight it.”

On the pages of the Duke Chronicle, meanwhile, Kennedy penned a guest column that reinforced the lesson of women’s lacrosse coach Kirsten Kimel: in discussions about the tensions between athletics and academics at Duke, representatives of the Athletics Department have consistently approached the issue with greater intellectual dignity than members of the Duke arts and sciences faculty.

Providing a historical perspective apparently lost on anti-athletics professors such as Orin Starn or Fred Nijhout, Kennedy pointed out that the “debate” over the athletics/academic balance began not at Duke at the late March faculty meeting but more than 100 years ago, with discussions at West Point, Columbia, and Harvard. More important, Kennedy cites a commitment to the student-athletes currently at Duke that’s seemed almost wholly absent in the faculty’s anti-athletics crusade:

At the heart of the matter, as far as we are concerned, are our student-athletes-more than 600 young men and women who chose Duke precisely because it offers a balance between first-rate academics and athletics at the highest amateur level. Our promise to them when they are recruited and when they arrive is that that balance is not an illusion. Part of fulfilling that promise means that we think carefully about the student-athlete experience, understanding that the “athlete” side of that equation must always be regarded as part of a larger whole—a Duke education—and not an end in itself.

At the same time, Kennedy objects to the characterization of the matter as a “debate”—since, he assumes, both the faculty critics and people like Kimel or him “are on the same side: Duke’s.” Based on what we’ve seen from the Group of 88, however, some might consider Kennedy excessively optimistic.

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Reflecting on Friday’s Duke media seminar, Liestoppers nominates Herald-Sun editor Bob Ashley as a human piñata. Ashley regularly “provides fodder for this blog, and others, to ridicule his aversion to truth, common sense, and journalistic ethics” his comments at the seminar revealed him “to be equally disingenuous in person as he is in print.” For instance, Ashley informed seminar participants that “the Herald Sun should have been quicker to aggressively examine the competency of the investigation.” Yet, as Liestoppers pointed out, “no signs of any examination of this nature has yet to appear on the pages of the Herald Sun. Within the past week, Ashley’s hacks have not only continued to ignore the lack of investigative competency but also have defended both the prosecutor and the police vehemently.”

Contrast this performance with that of the N&O. One person at the seminar asked, appropriately, why the media has been reluctant to report on the prosecutorial misconduct of Nifong, and why papers have printed mugshots of the players but not of Nifong. The N&O’s John Drescher responded that no newspaper in the country over the past three years has done more to expose prosecutorial misconduct than the News & Observer; Duke Law professor James Coleman seconded the observation.

Coleman, as usual, was on target. The N&O has made some errors on the case: as editor Melanie Sill has strongly implied, the paper shouldn’t have printed the vigilante poster; and the March 25 interview with the accuser should have included her criminal record and a comment that she was making allegations against others, not just the lacrosse players. But these two events pale in significance when viewed against the totality of the N&O’s work on this case: the investigative reports of Joseph Neff (his latest); the fair-minded daily reports of Benjamin Niolet (plus his first-rate profile of Nifong); the increasingly passionate columns of Ruth Sheehan (her latest).

The paper, in fact, has produced more insights into Mike Nifong’s misconduct than that of every other newspaper in the country combined. (The Washington Post and New York Times, which have far greater resources, should be ashamed.) Moroever, the N&O had previously exposed massive prosecutorial misconduct in the Alan Gell case; and troubling irregularities in the prosecution of Howard Dudley.

As bad as things have been in Durham over the past six months, imagine what things would be like without the N&O, and if the Herald-Sun represented the Triangle’s only print journalism.

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Taking exploitation to a new level, a group calling itself “Speak Up-Speak Out” is planning a candlelight vigil, in recognition of National Domestic Violence Awareness Month, outside the house the three lacrosse captains rented last year. According to a report from ABC-11, “The names of people who lost their lives due to domestic violence over the year will be called out.”

So—women who lost their lives to domestic violence are now being compared to the accuser in this case, a person who far more likely than not made a false claim?

The NAACP has tarnished itself by affiliating with Nifong’s crusade. So has the Duke faculty. Now domestic violence activists plan to join the parade.

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The TalkLeft discussion board has an interesting discussion about a question that merits far more attention than it has received: where are the legal experts supporting Nifong?

In another TL thread, Cash Michaels termed NAACP attorneys Irving Joyner and Al McSurely “pro-Nifong”: both say they want the case to go to trial (reversing 70 years of NAACP principles on criminal justice issues in the process), but both shy away from specifically endorsing Nifong’s actions.

One TL commenter muses, “I don’t think you’d have any trouble finding a lawyer willing to defend Nifong’s interviews, lineups, or refusal to meet with the players in court”—but then conveniently offers no names to back up the claim.

Another commenter, oddly, listed the following item as defending Nifong’s procedural misconduct:

There is almost no evidence that could be construed as corroborating the alleged victim’s accusations,” says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. “The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary—evidence that does not fit into their theory.”

While Warden doesn’t think Nifong can win a conviction in the Duke case, he concedes that the district attorney is under no ethical obligation to drop it “if he thinks the person is guilty.”

The issue gets to Cash Michaels’ complaint against 60 Minutes not interviewing Joyner and McSurely to counter the criticisms of Nifong made by James Coleman. In his segment, Coleman focused on a discussion of how Nifong had habitually violated procedures. If 60 Minutes could have found a reputable legal scholar to challenge Coleman’s critique of procedure, they should have included that voice in the broadcast.

Does such a figure exist? Are McSurely and Joyner now willing to fulfill that role, and defend the D.A.’s handling of the case? Their comments to Michaels are the closest they’ve come yet to doing so.

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But before the duo completes the NAACP’s abandonment of its traditional position in favor of due process rights for the accused—particularly with regard to the abuse of photo lineups—they might want to look at William L. Anderson’s recent column. Or, perhaps, the most recent article of Jason Whitlock. Whitlock, a sportswriter, penned one of the finest columns on the case back in early May, arguing, “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.” Unlike so much that has been written on this case, Whitlock’s article has more than stood the test of time.

Nearly six months later, Whitlock returned to the Duke matter in a spectacular fashion, opining, “The charges against the Duke lacrosse players should be dropped immediately, and the people demanding the dismissal the loudest and most forcefully should be the very people who have made a living allegedly fighting against racial injustice.”

Had 60 Minutes, Whitlock argued, “aired the same story about three black Duke basketball players being railroaded by a prosecutor pandering to white voters and a white accuser with zero credibility, we all know where [Jesse] Jackson and [Al] Sharpton would be—right where they should be today. In Durham, asking the prosecutor to do the right thing.”

Instead, of course, with the crucial exception of Coleman, the black legal and political leadership has either avoided comment on the Duke affair or—like McSurely and Joyner—weakly rationalized Nifong’s behavior. For Whitlock, such a record will not do:

By remaining silent about this obvious miscarriage of justice, black leadership looks as racist and cowardly as it paints white people who ignore obvious mistreatment of blacks.

You follow?

Standing up for Seligmann, Finnerty and Evans would be standing up against injustice, and what we’re learning is that injustice recognizes opportunity more than color. In America, there is more opportunity for injustice to visit poor people of color. Their best defense is standing against all injustice, regardless of race.

It’s a shame that more people didn’t listen to Jason Whitlock in May. Hopefully they will not repeat their mistake in October.