Thursday, November 30, 2006

The Stubbornness of Facts

Yesterday’s post traced events between March 16 and March 26, when the Duke administration possessed considerable freedom of action.

The post made three major points:

  • While the issue was fast-moving, Duke administrators had learned a considerable amount about the evening’s events, both from their reported discussions with local law enforcement and through their meeting with the captains. All this information pointed to the dubious nature of the accuser’s claims.
  • The last-minute cancellation of the March 25 game, after assurances the previous day that the game would be played, only intensified the public pressure it was meant to temper. The very act of cancellation implied guilt, as did Brodhead’s statement highlighting the assertion that “physical coercion and sexual assault are unacceptable in any setting and have no place at Duke.”
  • Judged by Brodhead’s own recently stated standards—a commitment to due process and the presumption of innocence—the administration’s conduct in this 11-day period fell short.

In his March 25 statement, Brodhead made clear that the last-minute cancellation did not imply a conviction in the players’ guilt. But the move certainly implied that Duke would do little or nothing to defend team members, despite administrators consistently (if privately) expressing their belief in the players’ innocence.

March 27

As the workweek started, Durham County’s “minister of justice” made clear that he had gotten the message. With his cash-starved campaign being kept afloat through personal loans, Nifong decided to exploit the case for all it was worth. Ignoring Rule 3.8(f) of the state bar’s ethics code, which requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” the “minister of justice” added a fourth task (de facto Police Department spokesperson) to his previous three—district attorney, supervising investigator, and candidate for public office.

“In this case,” said Nifong (covering all his political bases), “where you have the act of rape—essentially a gang rape—is bad enough in and of itself, but when it’s made with racial with racial epithets against the victim, I mean, it’s just absolutely unconscionable . . . My guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out.”

To this day, the leadership of Duke has not commented on Nifong’s habitual disregard for the bar’s ethical canons in dealing with Duke students.

March 28

The Herald-Sun published an editorial remarkable in both its factual errors and its conviction that a rape occurred: “When police officers arrived at the house with a search warrant on March 16, none of the players would cooperate with the investigation [sic]. Later, under threat of further penalty [sic], 46 members of the team were DNA-tested by police . . . the allegations of rape bring the students’ arrogant frat-boy culture to a whole new, sickening level . . . We agree that the alleged crime isn’t the only outrage. It’s also outrageous that not a single person who was in the house felt compelled to step forward and tell the truth about what happened [sic].” Duke, which knew the first and last statements were false, remained silent.

Facing Nifong’s verbal assault and the Herald-Sun’s defamatory writings, Duke folded almost immediately. Brodhead announced that the team would be suspended from competition until Nifong completed his work. In effect, this decision canceled the season. The move also contradicted assurances that lacrosse parents had received at the March 25 meeting that, until the legal process was completed, the team would resume play after the two canceled games.

The statement the president read at a press conference doesn’t appear on the Duke archive of Brodhead statements; but according to the N&O, the president said, “Sports have their time and place, but when issues of this gravity are in question, it is not the time to be playing games.”

The very same “issues of gravity,” of course, had been in question four days when the captains met with Duke administrators and had received word that the Georgetown game would proceed as planned. And these very same “issues of gravity” had been in question three days before, when administrators had assured parents that the suspension would last for two games, not the entire season.

The Herald-Sun editorial page, which had already deemed the players guilty, celebrated Brodhead’s remarks. The editors commended the president for “doing the right thing,” adding that the players “have themselves to blame for the current trouble.”

Public relations, not a presumption of innocence, dictated the administration’s reversal of course. As Bob Steel, chairman of the Board of Trustees and Brodhead’s most vehement supporter, informed the New Yorker, “We had to stop those pictures [of the players practicing]. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done.”

Steel’s comments, perhaps unintentionally, offered the most powerful evidence yet to appear that public relations concerns, not a presumption of innocence, motivated Duke’s response throughout. There certainly seem few other credible explanations for the reversal, within 24 hours, of the March 24 assurances that the Georgetown game would occur as scheduled.

March 29

On campus, Brodhead’s decision to suspend the season only emboldened faculty ideologues. Indeed, Duke’s arts and sciences faculty was revealed to possess an unusually large bloc of professors for whom advancing their personal, curricular, or ideological agendas appeared to have more importance than upholding the the well-being of Duke students.

A public letter from English and African-American Studies professor Houston Baker opened the floodgates. Lamenting the “college and university blind-eying of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain,” Baker denounced the “abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us.” To act against “violent, white, male, athletic privilege,” he urged the “immediate dismissals” of “the team itself and its players.”

That evening, the African-American Studies Department transformed a forum on black masculinity into a discussion of the case. ESPN reported that “there were two white women in the room, [Wahneema] Lubiano remembered, a few Latino and Asian students and a couple of white faculty members. Everyone else was black.” Anonymous student remarks allegedly made at this meeting would appear eight days later, framing the Group of 88’s statement denouncing the players.

Meanwhile, Faulkner Fox continued to facilitate linkages between extremist voices among the faculty and in the community. Her pot-banging protests attracted considerable media attention, and she used the opportunity to pronounce the players guilty. “The arrogance and bravado that they were above the law or they could think this woman is below the respect of the human community really outrages a lot of people,” Fox told WRAL. Displaying the kind of logic that would manifest itself in the coming Group of 88 statement, she declared, “The students need to realize they live in a community, and people are going to talk back if they do something, or potentially do something, that is disrespectful to women.” [emphasis added]

Events of the day, alas, demonstrated to Brodhead a basic lesson from history: appeasing irresponsible ideologues rarely yields positive results.

March 30

Less than 10 percent of Duke’s full-time faculty members attended an emergency meeting of the Academic Council, allowing the lacrosse team’s most extreme critics—who appeared in full force—to dominate the affair. To give a sense of the meeting’s tone, Paul Haagen (“helmet sports”) was among the gathering’s most moderate faculty voices. And, in fairness to Brodhead, administrators, especially Executive Vice President Tallman Trask, cautioned against precipitous action at the meeting. No administrator, however, proved willing to confront the faculty extremists.

From administration members came three announcements that would foreshadow events to come.

1.) At Brodhead’s request, Trask replied to faculty assertions that the lacrosse players had an excessive amount of problems. The executive vice president said that, based on inquiries into the matter he had conducted the previous summer, he had not seen anything in the lacrosse team’s university discipline records that didn’t seem to have been dealt with appropriately or that required further intervention on the administration’s part. (He reportedly prefaced his remarks by saying that he reached this conclusion “as much as I would have liked to have found something,” suggesting that Trask was not a figure who would sugarcoat data in the lacrosse players’ favor.) Since the players tended to do things in a group, he explained, if one was found with an open container, several others would be cited for the same offense.

Trask’s remarks previewed the conclusions of the Coleman Committee report, which revealed that the team as a whole consisted of good students with good records of on-campus behavior who had a disproportionately high number of minor alcohol-related offenses, joining hundreds of other Duke students in such offenses.

2.) Brodhead warned that the institution needed to be wary of disciplining the lacrosse team in a way that was consistent with Duke’s past performance regarding underage drinking parties, the hiring of strippers, or even a student using a racial slurs. The president noted the danger of creating a new policy and making an example of the players.

The administration, however, had already contradicted these admirable sentiments five days before; Brodhead’s canceling the Georgetown game differed from the traditional Duke approach to underage drinking parties or the hiring of exotic dancers. It also doesn’t appear that, in the past, Duke has meted out punishment to a group because one student in the group used a racial slur.

3.) Brodhead suggested that saying Duke could fix its cultural problems by hammering the lacrosse team would admit to the world that Duke’s problems were somehow more serious than what is normally reflected in society.

Exactly one week later, 88 of his faculty members did exactly what the president had cautioned them to avoid. Brodhead would say nothing.

Meanwhile, most assembled professors leveled vitriolic attacks against the team. One speaker claimed that Duke, as an institution, practiced drinking and rape, and the lacrosse incident reflected a University problem from the top down. Another suggested punishing the team by suspending lacrosse for three years and then making it a club sport. A third asserted that the team embodied the “assertion of class privilege” by all Duke students. A fourth called on the University to do something to help the “victim.”

Three professors overpowered the meeting:

  • Houston Baker stated as a fact that African-American women had been “harmed” by the lacrosse players and claimed that students in his mostly white, female class were terrified of the lack of an administration response. In an e-mail to me, Baker denied that he was suggesting that the accuser had, in any way, experienced physical harm (he had, of course, implied otherwise in his public letter). Rather, he said, his use of the verb “harmed” referred to the situation at the house eventually revealed in “the disgusting Ed Bradley 60 Minutes piece with those disgusting photos that looked like white privilege meets exotic dancers in a horrible circle of degrading (yes, of course, legal) labor.” It’s not clear how the situation in these photos would have terrified a class of white female Duke undergraduates.
  • Wahneema Lubiano alleged favoritism by Duke toward the team and demanded a counter-statement from Duke denouncing the players. Lubiano would later edit the final version of the Group of 88’s statement. I e-mailed Lubiano to ask what evidence she possessed for the claims she made to the Academic Council. She refused to supply any, and replied, “Do not email me again. I am putting your name and email address in my filter.”
  • Peter Wood asserted that two years previously, the team was out of control, and demanded a hard line against the athletic director, coach, and team. Wood has refused to respond to repeated e-mails requesting substantiation for his allegations against team members.

Wood’s remarks, according to several people who attended the meeting, received robust applause.

March 31

Perhaps emboldened by the adulation from his colleagues, Wood granted an interview to the New York Times; in an April 1 article, Wood described the lacrosse players as “surly,” “hostile,” and “aggressive.” The Coleman Committee investigation found no evidence, even from his former teaching assistant, to substantiate Wood’s claims. (To my knowledge, despite the provisions of Chapter Six in the Faculty Handbook, the administration has not disciplined Wood for making unsubstantiated public statements about Duke students.) It would be interesting to know how many of the speakers at the March 30 meeting had taught lacrosse players, and what grades those supposedly immoral players received in the professors’ classes.

April 3

Duke Provost Peter Lange has been the only figure in the administration whose acts suggested a recognition that promoting due process and the presumption of innocence in what amounted to a witch-hunt environment required going beyond for-the-record rhetorical formulations. Lange issued a public statement terming Houston Baker’s diatribe “a form of prejudice,” the “act of prejudgment: to presume that one knows something ‘must’ have been done by or done to someone because of his or her race, religion or other characteristic.”

Brodhead, meanwhile, met with an unspecified number of professors from the African-American Studies department. Participants in that meeting have refused requests from me to divulge contents of their discussion, but it seems inconceivable that the professors did not mention the pending release of the Group of 88’s statement. That document would appear on April 6.

By this point, the story had exploded. The suspiciously timed release of the McFadyen e-mail led Brodhead to demand Coach Mike Pressler’s resignation. The latter act, of course, could not be seen as consistent with an administration devoted to upholding the presumption of innocence for its students.

Later Chances for Brodhead to Defend Due Process

April 6: The Group of 88 issued its statement, thanking protesters who had branded the players rapists and asserting definitively that something “happened” to the accuser at the party. In sharp contrast to Lange’s willingness to confront publicly Houston Baker, Brodhead remained silent amidst the Group of 88’s assault on the presumption of innocence. Even six months later, he couldn’t bring himself to question his faculty’s rush to judgment. Instead, he rationalized the Group of 88’s actions on the grounds that “these charges engaged people’s deepest fears, deepest anxieties, and dreads.”

Membership in the Group of 88 disproportionately included Brodhead’s closest academic colleagues, perhaps reinforcing his disinclination to challenge the Group. Brodhead is a professor of English and an affiliate of the Women’s Studies program (whose core faculty is overwhelmingly female); as a scholar, the president has written that he devoted his career toward “working in a more socially-oriented fashion, looking at the historical context that produced the texts we study while also seeking out the then-absent voices of women, African Americans, Native Americans, Asian Americans and others.”

Only the African-American Studies program produced a higher percentage of faculty who signed the Group of 88’s statement than did Women’s Studies, where 72.2 percent of the professors joined the Group. English, meanwhile, had the sixth highest percentage (32.2 percent) of faculty members who signed the statement.

The Group of 88, in short, consisted of the professors with whom the president shared the greatest intellectual bonds of any on campus: upholding the presumption of innocence for his own school’s students against this group of faculty members’ actions would have required him to go against his own pedagogical and academic values.

April 14: Acting under the direction of supervising investigator Nifong, the Durham police arrived on the Duke campus and surreptitiously entered Duke dormitories, seeking to question players represented by counsel. Brodhead, when approached by media during an appearance at North Carolina Central, said that he didn’t know enough about the issue to protest, even though the action violated the state bar’s ethics code.

April 20: After the arrest of Reade Seligmann and Collin Finnerty, Brodhead addressed the Durham Chamber of Commerce. His take on the allegations against the two players? “If they didn’t do it, whatever they did is bad enough.” (Like his March 28 statement suspending the season, these remarks do not appear on the Duke archive of Brodhead statements.)


A few weeks ago, in an e-mail sent to a parent of a former lacrosse player, Brodhead asserted that “the right role for the university is to speak forcefully for due process.” But his administration has failed to perform this commendable role, unless he mistakenly believes that “due process” constitutes demanding that even the most procedurally tainted cases go to trial.

Having committed himself to speaking “forcefully for due process,” moreover, Brodhead indicated that he would not join Professor James Coleman in demanding a special prosecutor. “It is my understanding,” relayed the president, “that in North Carolina the District Attorney himself would have to request such an appointment in these circumstances.”

Brodhead’s conception of due process thus appears to be limited to asking for things that an ethically challenged prosecutor might accept. (Imagine if, during the Civil Rights Era, university leaders had adopted this position, and spoken up for due process only on matters that they believed racist Southern sheriffs would endorse.) Since Nifong himself created the “separate-but-equal” system of justice for Duke students in Durham, Brodhead seems to believe that Duke’s role is to “speak forcefully for due process” by not challenging Nifong’s policies.

This conception of due process is Orwellian. In the Wonderland that is contemporary Durham, forcefully supporting “due process” means remaining silent about prosecutorial misconduct.


In all fairness to Brodhead, in late March and early April, he faced a poisonous combination:

  • a “minister of justice” who viewed himself as above the law, and seemed determined to arrest someone—anyone—before the primary;
  • a group of professors whose intellectual interests overlapped with his own; and who appeared determined to exploit their students’ plight to advance their own personal, pedagogical, and ideological agendas.

It would have taken a strong leader to have withstood these combined pressures.

Although he has refused to admit so publicly, I’m sure that Brodhead would do many things differently if he knew how events would develop. Nonetheless, the administration cannot erase the record of what it did and did not do in late March and early April. Moreover, whatever excuses existed for Brodhead’s behavior then, his subsequent refusal to demand that local authorities treat all Duke students according to the same procedures as all other Durham residents—including students of North Carolina Central—is inexplicable.

“Facts,” John Adams once said, “are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” The facts in this case stubbornly prevent an interpretation that Brodhead acted to defend either due process or the presumption of innocence. The record of his actions, and that of how his actions were interpreted by key players at the time, suggests a radically different thesis.

Wednesday, November 29, 2006

Green Light for Nifong

In last week’s New York Post, columnist Abby Wisse Schacter penned a piece on “presidential spinelessness.” She focused on events at Columbia, where the president tepidly defended free speech after leftist students shouted down on-campus speakers whose message they opposed. Needing another example to sustain her thesis, Schacter cited what has emerged as the conventional wisdom in media circles:

Duke President Richard Brodhead didn’t have the guts to demand some proof - or even to wait for charges to be filed: Faced with an outside community that was rushing to judgment, he canceled the entire lacrosse season and demanded the coach’s resignation. Months later, it’s now obvious that the rape/assault never happened. University presidents are supposed to uphold the highest standards of reason, discipline, leadership and moral clarity. But this bunch is too weak to lead.

Schacter’s column provides a glimpse of the task confronting Brodhead as he tries to deflect widespread criticism of how he handled the lacrosse case. After Duke hired a public relations firm, the president started touring, speaking to alumni groups and defending his actions. I heard from a few people who attended one such Brodhead gathering, and have read notes from another Brodhead talk.

The storyline from these gatherings goes something like this:

Neither Brodhead personally nor the administration as a whole rushed to judgment or did anything to fuel the media firestorm against the team. Instead, the president was one of the few people in the beginning to emphasize presumption of innocence. And if he did rush to judgment (which he didn’t), Durham authorities were to blame for this rush to judgment (which, to reiterate, didn’t occur). As Brodhead explained to the late Ed Bradley in a 60 Minutes interview, “We had public officials speaking as if it was almost certain that this thing had happened,” and it was unrealistic to expect the head of a prestigious academic institution to doubt the word of a government official.

Accepting the image of Brodhead as a latter-day defender of due process, of course, requires overlooking his silence about Nifong’s establishment of a “separate-but-equal” system of justice for Duke students. In the Nifong-orchestrated system, Duke students are treated according to procedures different than those used for other Durham residents, while they are meted out disproportionate punishment based solely on their identification as Duke students.

In the event, a close examination of the events between March 16 and April 3 shows that Brodhead’s actions signaled a belief that team members, more likely than not, were guilty. As the president’s defenders have pointed out, each and every one of his statements contained a for-the-record reminder that, legally, his students deserved presumption of innocence—comments that were buried amidst much more passionate denunciations of the team and its alleged or actual behavior. Moreover, Brodhead took no actions that suggested he believed the players were innocent, even though members of his own administration had told team captains and lacrosse team parents that, based on interviews they had done and information they had received from Duke police, they did not think that a rape had occurred.

This approach made clear that Duke would offer no institutional resistance to whatever steps the “minister of justice” might take in going after the University’s students.


March 16 through March 23

Over the course of this week, Duke officials learned from Duke police that the accuser had given dramatically conflicting reports about what had happened—and what had not happened—the night of the party. They knew that the police were rightly skeptical of the accuser’s myriad, mutually contradictory, allegations.

Perhaps most important, however, Duke officials learned that the captains had behaved like people confident in their innocence. The students who lived in the house had cooperated fully with the investigation: they each spent several hours giving detailed statements to the Durham Police. Each also offered to take polygraph tests (an offer that the Durham Police, for reasons that remain unclear, spurned) and to submit DNA samples (which the Durham Police accepted). That they gave this evidence voluntarily, without even requesting lawyers, suggested that the captains had nothing to hide—a point raised by Susannah Meadows of Newsweek in a recent media forum.

The administration, for wholly understandable reasons, seemed to hope the allegations would go away. At the same time, Duke officials took at least two actions that would have had explosive legal ramifications against the University had a rape actually occurred:

  • Apparently acting under orders from above, Coach Mike Pressler instructed all other players on the team to keep quiet about the incident—including not telling their parents. The entire team not being represented by lawyers from the start denied them a much-needed week to prepare, with counsel, how they would respond to the investigation.
  • The Dean of Students office—the same office that would assemble the disciplinary “statistics” against the students later last spring—arranged for a local attorney, Wes Covington, to act as a “facilitator” of events between the players and police. This structure left it at best unclear if conversations between him and members of the team were privileged. In the end, Covington championed a dubious solution of having six more lacrosse players join the three captains in speaking to police without presence of an attorney. This advice is so peculiar as to suggest that whoever he was attempting to represent, it was not the players.
According to the Bowen/Chambers report, lower-level administrators were responsible for both of these actions, and Brodhead does not appear to have become personally involved before the 24th. Yet neither action could be characterized as that of an administration faithful to due process.

March 24

On March 23, Nifong secured a procedurally fraudulent non-testimonial order mandating that the 46 white players give DNA samples. Police tipped off the media, which was waiting to film and photograph the lacrosse players as they entered the police station.

Given their belief that no crime occurred, it was not surprising that Duke officials initially made measured comments to local journalists. Athletic Director Joe Alleva told the N&O that Duke would “let the legal process work out . . . you’ve got to let the facts play out.” Duke spokesman John Burness informed the Duke Chronicle that the team would continue to play their games as scheduled. He said the university would await a report from the police department before taking any action, and that Duke “was monitoring the situation and cooperating with officials, as are the students.”

That afternoon, meanwhile, the team captains met with a group that included Duke executive vice president Tallman Trask, III (the number two person at the school), Alleva, and Pressler. They were assured that they could be completely candid with the administrators, since the conversation would be protected by “faculty-student privilege” (a privilege that does not exist). Alleva grilled them on what happened; the captains, from all reports, held back nothing. Upon hearing their unequivocal denials of the allegations, both he and Trask told the players that they believed the players were innocent.

(The captains had been represented by counsel from the start. That Duke officials nonetheless wanted to obtain from them detailed descriptions of the evening’s events outside the presence of their lawyers is not a policy normally associated with support for “due process.”)

Later that day, Pressler relayed the meeting’s results to the team. Trask said the University would take some disciplinary action for the party after the legal investigation was completed, suggesting that an appropriate punishment might have the players spending a day cleaning up the Trinity Park neighborhood. He added if no charges were filed, no further steps would be taken against the team, and that there was no doubt that the game against Georgetown, scheduled for the next day, would be played.

That afternoon, a faculty meeting took place to discuss the incident; the N&O reported that the sentiment was “this is sad, and it’s terrible.” This meeting was the first sign of the faculty witch-hunt that would intensify in subsequent days, eventually leading to calls for the abolition of the team as a symbol of white, male privilege. Shortly after the meeting’s conclusion, a visiting professor of English, Faulkner Fox, who played a key role in rallying the community to brand the players guilty, sent out a list-serv request that “activists” organize what came to be known as the “pot-banging” protests.

March 25

The day opened with the N&O’s front-page story on the incident, featuring an interview with the “victim.” The article has been widely, and properly, discredited, but at the time it had enormous impact.

From the Duke angle, the article contained a stunning item. The piece concluded with remarks from Paul Haagen, chairman of Duke’s Academic Council, who said that violence against women was more prevalent among males who play “helmet” sports, such as football, hockey, and lacrosse. “These are sports of violence,” he said. “This is clearly a concern.”

As John in Carolina has pointed out, Haagen’s words, whether he intended them to do so or not, explained “to readers why the Duke students might have committed the violent acts of which they are accused in the story.”

Brodhead convened a meeting with faculty and administration officials to review the latest media accounts. They surely noticed protestors gathering for the game, holding signs that read “Don’t Be a Fan of Rapists.” Out of this meeting, it appears, came the administration’s decision to change course from the day before and forfeit that day’s game and one the following week.

Lacrosse parents had arrived in Durham fully expecting the scheduled game against Georgetown to take place. Instead, they were informed of the decision to cancel the game. That several first learned of this information from Georgetown parents, who already had been told about Duke’s decision, raised questions about the integrity of Duke’s motives.

What changed between March 24, when Duke officials assured the players that the game would proceed as scheduled, and March 25, when the Brodhead administration decided to cancel the game? The Bowen/Chambers committee, which investigated Duke’s initial response to the affair, does not appear to have received access to administrators’ contemporaneous e-mails, which might have shed more light on the rationale for the decision. The only plausible explanation: the cancellation resulted from a fear of protests fanned by the potbangers’ reaction to the N&O story.

Lacrosse parents, correctly, anticipated that the last-minute cancellation of the game would send a signal to the community that Duke thought the team was guilty. Several parents noted that Duke seemed willfully naïve about the public relations effect of its actions.

At a tumultuous meeting, the parents urged the assembled Duke officials (Trask, Alleva, Dean of Student Life Sue Wasiolek, and Vice President for Student Affairs Larry Moneta) to say publicly what all already had told them privately: that they believed the team was innocent. When the quartet refused to do so, the parents asked to meet with Brodhead. That request also was denied.

Administrators present at the meeting struggled to avoid contradictory stories. When asked why, given the seriousness of the charges, Duke officials hadn’t contacted the parents, Wasiolek cited FERPA regulations. Moneta, on the other hand, pointed to practicality concerns, reportedly remarking, “Do you know how many calls we get from the Durham police about our students? If we called a parent for every complaint we get we would be calling parents every weekend.” Responding to a question on why she would advise anyone to speak to the police without benefit of counsel given the allegations of a gang rape, Wasiolek predicted that everything would go away, because the Durham police told her the witness was not credible. That such legal advice came from a J.D. (from North Carolina Central Law School) is amazing.

According to recollections from many participants, the meeting ended with parents frustrated and upset at Duke’s handling of events. But in an interview published two days later in the Duke Chronicle, Moneta presented a radically different picture of the meeting’s tone. The Chronicle summarized his remarks in the following way: “the parents were frightened and nervous for their children.” Any fair-minded outsider would have interpreted this kind of reaction from parents as consistent with a belief in guilt.

Moneta, meanwhile, soon repudiated the position on innocence he had taken at the meeting, writing, “Not sure what I blurted in the heat of the conversation. What I’ve consistently said to parents is that I hope that all the players are exonerated but until the facts are finally determined, I take no position on the matter.”

March 26

Brodhead, it turned out, had no need to hear from the lacrosse parents, because he had already decided on his course of action. He would accompany the last-minute cancellation of the Georgetown game with a statement that sent a strong signal that he and Duke thought a rape probably occurred and implied that team members had not cooperated with authorities. That statement, along with the cancellation of the Georgetown game, received enormous media attention on March 26.

Brodhead defenders have pointed out, correctly, that the statement included a for-the-record passage on the importance of presuming innocence. But no news outlet, for unsurprising reasons, focused on this section of Brodhead’s remarks—since his actions and other portions of the statement suggested his true beliefs were otherwise.

Accordingly, WRAL, the Herald-Sun, and the N&O each highlighted Brodhead’s two most newsworthy clauses: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke” and “The criminal allegations against three members of the men’s lacrosse team, if verified, will warrant very serious penalties.” The Herald-Sun article included a third, also highly negative, quote from Brodhead: “Whatever that inquiry may show, it is already clear that many students acted in a manner inappropriate to a Duke team member in participating in the March 13 party.”

Did Brodhead intend for the media to emphasize the “physical coercion and sexual assault” clause, thereby leaving the impression that he believed a rape occurred even if he didn’t know the identity of the criminals? It’s hard to believe otherwise: holder of a Ph.D. in English, he obviously possesses the ability to craft a statement to mean what he intends. Moreover, the almost unprecedented last-minute cancellation of the game suggested an act based on panic, not a presumption of innocence. Or, perhaps, Brodhead did intend to stress the presumption of innocence, but was singularly incompetent in doing so. Without access to contemporaneous e-mails between administrators, it’s impossible to know for sure what motivated Brodhead to say what he did.

As one lacrosse parent told me, “This nightmare never would have happened if we had proper legal representation earlier or if Duke had let it be known to Durham officials they believed their students were innocent and expected them to be treated fairly with due process. But Brodhead panicked and gave Nifong the green light to go after his own students.”

Tomorrow: The failure of appeasement; an Orwellian conception of “due process.”

(Posts from today and tomorrow are based on e-mail or personal discussions with more than two dozen participants in the campus events between March 16 and April 3.)

Tuesday, November 28, 2006

Bar Odds&Ends

Yesterday’s N&O, coincidentally, had an item on another dubious death-penalty prosecution involving Union County’s disgraced former district attorney, Kenneth Honeycutt.

The article served as a timely reminder of the journalistic work the N&O has done in exposing prosecutorial misconduct. The paper’s coverage broke the Gell story, and the detail of its reporting was extraordinary; likewise, the N&O appears to have been the only North Carolina newspaper whose news division devoted serious attention to the Honeycutt fiasco.

Anyone who has followed this case has come to expect pro-Nifong puffery from the Herald-Sun; or a slightly more sophisticated race/class/gender interpretation from the New York Times. But the single most disappointing aspect of the media’s recent role came when the N&O’s editorial board ignored their paper’s own reporting on the Nifong case—not to mention legacy of exposing past prosecutorial misconduct—and praised the plurality of Durham voters who gave Nifong a pass on November 7.

Fortunately, there’s no reason to believe the news division will abandon its interest in the issue of unethical behavior by prosecutors.


A North Carolina lawyer dissented from my post of yesterday:

I think you’re wrong on what the Gell case means for what will happen when the state bar considers the inevitable complaints against Nifong. The NC State Bar was EXTREMELY embarrassed by the Gell case. Major components of the state bar were, and remain, up in arms over what happened and no one was willing to defend what happened, not even prosecutors. Alice Mine, the executive director of the State Bar, was removed from disciplinary duties over this . . . My best guess as an NC attorney is that the State Bar will be quite ready to throw the proverbial book at Nifong.

I hope he’s right.


Finally, I should have made clear in the post below that the Bar and Disciplinary Hearings Committee, though linked, are separate entities.


Most elite colleges and universities offer courses that in some way expose students to the thinking of philosophers such as Immanuel Kant, the Enlightenment theorist known in part for his theories of proportional responses to offenses against the law and ethical mores.

Instead of Kantian ethics, the transformation of Duke and Durham into Wonderland has featured grossly disproportionate outrage over items that, with one exception, in other contexts would have passed with little or no condemnation; and rationalizations or even praise for conduct that in normal contexts would be worthy of severe criticism.

The Party

We all know the basics: during the 2006 spring break, the lacrosse captains held an annual team party. They hired two exotic dancers. They served beer, even though some of the players weren’t 21. After one player made a tasteless remark, the dancers stopped their performance. One dancer was incapacitated and behaving in an erratic fashion. The evening ended on a very sour note, with a racially charged argument between the second dancer and one lacrosse player. By her own admission, the second dancer, Kim Roberts, initiated the racial taunts.

Just as we all know the basics, we all also know the torrent of criticism. In two editorials (March 28 and 30), Mike Nifong’s local propaganda organ, the Herald-Sun, said that the “consistently awful behavior of this team” demanded canceling its season. Such “obnoxious fun and games” as the party proved that the players “have themselves to blame for the current trouble. We shouldn’t pronounce anyone guilty, but sympathy is hard to muster.”

From Duke came a similarly one-sided and overpowering reaction:

  • In a public letter released in late March, then-Duke professor Houston Baker opined, “It is virtually inconceivable that representatives of Duke University’s Athletic Department would allow its lacrosse team to engage in regular underage drinking and out-of-control bacchanalia.”
  • Baker’s colleague, William Chafe, suggested the whites who lynched Emmitt Till as an appropriate reference point for the lacrosse players’ actions, and later added that the players having “sanctioned underage drinking, hurled racial epithets at black people, and hired a stripper” were “all facts that by themselves warrant censure and disciplinary action.”
  • The Group of 88 selected the moment to publicly denounce their students for creating a “social disaster.”
  • President Richard Brodhead, after the arrests of Reade Seligmann and Collin Finnerty, told the Durham Chamber of Commerce, “If they didn’t do it, whatever they did is bad enough.”

The latter comment was a particularly dubious assertion. We know exactly what Seligmann and Finnerty did: they attended a party they played no role in organizing, and they presumably drank some beer. They had departed the house by the time of the racially charged argument between Roberts and one of the players.

How uncommon—or common—were the actions of Seligmann and Finnerty? For some anecdotal evidence, take a look at, a photo hosting service. Typing in “spring break party” reveals 79,229 photos; “spring break drunk” reveals 44,761 pictures; and “spring break beer” brings up 30,809 snapshots.

On the statistical side, five days before the lacrosse party, the American Medical Association published a survey of college-aged women—a group that would seem less likely to drink, at least according to popular concepetion, than their male counterparts. Among the survey’s findings:

  • 83 percent of college-aged women “had friends who drank the majority of the nights while on spring break.”
  • 92 percent of college-aged women “said it was easy to get alcohol while on spring break.”
  • 40 percent of college-aged women “agreed access to free or cheap alcohol or a drinking age under age 21 were important factors in their decision to go on a spring break trip.”

Does Richard Brodhead believe that as the vast majority of these college-aged women appear to have had some beer and done some spring-break partying, “whatever they did is bad enough”? Would Houston Baker use the phrase “out-of-control bacchanalia” to describe the nearly 80,000 photos of spring break parties? Would William Chafe support “censure and disciplinary action” against the 40 percent of college-aged women who “agreed access to free or cheap alcohol or a drinking age under age 21 were important factors in their decision to go on a spring break trip”?

I haven’t seen any indication that Brodhead, Chafe, or Baker would answer yes to any of these questions. Their silence in not condemning behavior by others that they deemed so worthy of censure by lacrosse players is, therefore, puzzling.

Perhaps the vitriolic censure from the Duke and Durham elite resulted from the team captains hiring strippers for the party. “One can’t imagine a team coached by Mike Krzyzewski,” harrumphed H-S editors, “ever being in a situation like this.” Well, actually, we don’t have to imagine it. Thanks to the reporting of William L. Anderson, we recently learned that the Duke basketball team had a party with strippers just two weeks before the lacrosse party. So did around 20 other Duke student groups—men and women—during the 2005-2006 academic year.

As a college professor, I don’t spend much time passing judgment on the private behavior of my students—just as I wouldn’t want them passing judgment on my private behavior. The Duke faculty and administration, obviously, has a different point of view. (So does the faculty and administration of far right-wing schools, like BYU or Liberty University, institutions with which Duke increasingly has much in common.) But, as with the issue of underage drinking, there seems to be a disproportionate response on the issue of the strippers: vehement, vitriolic public denunciation of the lacrosse players, but silence regarding identical behavior by other Duke students.

At least one Group of 88 member, in fact, seemed to celebrate stripper parties. Mark Anthony Neal, a professor of African-American Studies, reasoned,

The strip club is the new church. That raises all kinds of interesting possibilities around spirituality and black bodies, dealing with issues of spirituality outside traditional notions of what spirituality in a church is supposed to be . . . When we think about women who work in strip clubs, the key component there is that word “work.” In some ways this is legitimate labor, and we need to be clear about that. And women make these decisions based on what kind of legitimate labor is in their best interest. While it’s important that black women’s sexuality not be exploited, at the same time, I don’t want to get into the business of policing black women’s sexuality, which is just as dangerous.

Another Group of 88 member, Alex Rosenberg, criticized the lacrosse players for engaging in the wrong type of sexual exploitation, while revealing himself to be prejudiced toward many of the females he taught. Rosenberg told the New York Sun that he signed the statement to express outrage at “affluent kids violating the law to get exploited women to take their clothes off when they could get as much hookup as they wanted from rich and attractive Duke coeds.”

A proportional response to the offenses related to the party, therefore, leaves one issue: the one player who engaged in a racially charged argument with Kim Roberts. Unlike the drinking or the hiring of strippers, this act, in and of itself, is worthy of what Chafe would term “censure.” It is a normal principle in the United States, however, that we do not hold groups accountable for the thoughts or words of one of the group’s members. It would be hard to argue that the entire lacrosse team deserved the massive public censure, their season cancelled, and three players accused of a crime because one player responded to Roberts’ taunt with a despicable slur of his own.


The 60 Minutes Broadcast

In a recent “Our Collective Voice” posting at Liestoppers, Cash Michaels wrote about,

the disgraceful behavior of a predominately white university team at a drunken, perverted party - pictures of which were shown on “60 Minutes” and literally shocked, saddened and dismayed Durham's Black community (I know for a fact that those still pictures of the players sitting around, alcohol in hand, watching two Black women making out with each other for the pleasure of white males, may have locked in Nifong’s Black vote).

Since Michaels has unparalleled sources within the Durham African-American community, it seems reasonable to accept his portrayal of the Black community’s response to the broadcast.

Michaels’ reporting was echoed by Houston Baker, who recently denounced “the disgusting Ed Bradley 60 Minutes piece with those disgusting photos that looked like white privilege meets exotic dancers in a horrible circle of degrading (yes, of course, legal) labor.”

Among other items, the 60 Minutes broadcast featured:

  • James Coleman vigorously denouncing prosecutorial misconduct;
  • Coleman accusing Nifong of using the case to pander to the black vote;
  • A blow-by-blow, documented demonstration of Reade Seligmann’s alibi;
  • Kim Roberts dismissing critical aspects of the accuser’s account;
  • Roberts revealing that, before they sought indictments, police had never spoken to her about aspects of the accuser’s account that had Roberts as a witness to the “rape” but directly contradicted Roberts’ statement to police;
  • A detailed discussion of how the medical evidence failed to support the accuser's myriad, mutually contradictory, versions of events.

And yet, for many Durham voters, the photos appear to have been so powerful as to have overcome the broadcast’s overwhelming delineation of ethical misconduct by their “minister of justice.”

Such a response, to put it mildly, seems very much out of proportion, especially since this vehement denunciation of college students drinking or hiring strippers (not commendable behavior by any means, but not unusual behavior, either) has been accompanied by total silence, or worse, regarding the issue of a local prosecutor and police ignoring basic ethical and legal obligations.

  • The Group of 88? Silence.
  • The Duke administration? Silence.
  • The N&O editorial board? Two milquetoast editorials questioning Nifong’s actions earlier this spring, followed by silence.
  • The Herald-Sun? Gushing support for Nifong, in both editorials and in the “news” section.
  • The state NAACP? Reversing 70 years of positions on criminal justice matters to help prop up Nifong’s case.
  • The local African-American community? Overwhelming political support for Nifong.

There’s something disproportionate in a community response that considers underage drinking and hiring strippers by one group (but not, apparently, by anyone else) as more significant than ethical misconduct by the county’s chief law enforcement officer.

This spring, Mark Anthony Neal announced that he hoped to leverage the case to bring about “an innovative and brave curriculum that will allow our students to engage one another in a progressive manner.”

It would seem to me that Duke and Durham need a little more Kant and a lot less of Neal and his allies.

Monday, November 27, 2006

The Bar's Lax Ethical Standards?

Like most states, in North Carolina the bar adjudicates allegations of attorneys’ ethical misconduct. Since we know that complaints have been filed against the “minister of justice,” at some point, Mike Nifong will appear before the bar’s Disciplinary Hearings Committee (DHC). Indeed, the N&O’s Steve Ford recently argued that voters (and, apparently, his paper’s editorial board) should defer to the bar in cases of ethical improprieties, and refrain from either removing or (apparently) heavily criticizing unethical prosecutors, lest doing so undermine the integrity of the system.

In recent years, North Carolina has experienced two high-profile cases of prosecutorial misconduct. The DHC’s resolution of these cases raises serious concerns about the bar’s commitment to rooting out unethical behavior among its membership, calling into question the wisdom of Ford’s preferred solution to the Nifong affair.

The first, and best-known, case involved the prosecution of Alan Gell, fallout from which triggered the state’s Open Discovery law. The prosecutorial misconduct was obvious and enormous: in a thumbnail sketch, prosecutors withheld from the defense notes of interviews with 18 people who saw the victim, Allen Ray Jenkins, alive after April 3, the day that prosecutors claimed that Gell killed Jenkins. The relevance of this date? After April 3, Gell was either out of state or incarcerated on unrelated charges, and therefore could not have committed the crime.

In a good example of the flaws in the Ashley/Brodhead/N&O editorial board/state NAACP thesis that the “process” is best served by allowing a procedurally flawed case to proceed to the jury, the Gell jury came back with a guilty verdict, and voted to impose the death sentence. Corrupted procedures beget corrupted results.

In the appeals process, Gell’s representation changed (two attorneys involved in the lacrosse case, Joseph Cheshire and Jim Cooney, were involved in the late-stages Gell defense). The conviction was overturned on appeal, and a new trial led to Gell’s acquittal—though this demonstrably innocent man spent over nine years in prison.

The state bar considered ethics allegations against David Hoke and Debra Graves, the two attorneys who handled the Gell prosecution for the attorney general’s special prosecutions division. (Their boss? Then-attorney general and current North Carolina governor Mike Easley.) Hoke and Graves had taken over the case after the State Bureau of Investigation had completed its investigation and the local district attorney had filed charges against Gell.

Despite a judge’s order to turn over all exculpatory material, Hoke and Graves never even reviewed the entire case file they received from the local D.A. They thus failed to provide to the defense either the 18 witness statements or the transcript of a phone call between one of Gell’s alleged accomplices and her boyfriend, in which the accomplice contradicted the story that she told police after turning state’s evidence.

The decision for the DHC was clearcut, and the committee found that Hoke and Graves had violated three elements of the state bar’s ethics code:

(a) By failing to produce all exculpatory witness interview reports when the Defendants had a duty under the Rules of Professional Conduct and existing case law to know the contents of the investigation files in the possession of the State and its agents, Defendants failed to make timely disclosure to the defense of all evidence or information known to the prosecution that tends to negate the guilt of the accused;

(b) By failing to verify the accuracy of the assertion of SBI Agent Ransome [the lead investigator] that all of the witness statements that needed to be produced were in fact produced, Defendants failed to make reasonable efforts to ensure that a nonlawyer’s conduct over which Defendants had direct supervisory authority was compatible with Defendants’ professional obligations; and

(c) By failing to produce all exculpatory witness statements as required by both the Rules of Professional Conduct and by the order of the court, Defendants engaged in conduct prejudicial to the administration of justice.

The bar’s punishment? A reprimand—the mildest possible rebuke.

The DHC cited the prosecutors’ “absence of prior disciplinary record” and “absence of dishonest or selfish motive,” and noted that the duo were “inexperienced” in capital cases. The DHC concluded that the prosecutors’ behavior constituted an “aberration.”

To review: Hoke and Graves cared so little about the administration of justice that they failed, before trying a case that could lead to the death sentence, to read their own case files. (Sound familiar?) For this offense, they received a reprimand. Alan Gell received more than nine years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.


The Hoke/Graves decision was quickly followed by an even more blatant case of prosecutorial misconduct, and an even more dubious decision by the DHC. In 1996, Jonathan Hoffman was sentenced to death, based largely on the testimony of his cousin, Johnell Porter. But the prosecutors in the case, Kenneth Honeycutt and Scott Brewer, never revealed the extent of a sweetheart deal they had cut with Porter in exchange for his testimony. They even altered documents they provided to a judge describing the extent of their activities on Porter’s behalf.

After conviction, Hoffman’s attorneys uncovered the withheld evidence, but they delayed filing an ethics complaint as they negotiated with Honeycutt to get their client’s conviction set aside.

With even more blatant misconduct than the Hoke/Graves case, and without the ability to claim an “absence of dishonest or selfish motive” for their actions, Honeycutt and Brewer seemed certain to receive severe sanctions. But Honeycutt was the elected district attorney of Union County, and Brewer had moved on to become a district court judge. They thus enjoyed considerable influence within legal circles.

In a bizarre move, Superior Court Judge W. Erwin Spainhour effectively attempted to preempt the bar inquiry by issuing a finding of fact that Honeycutt and Brewer knew nothing about the federal immunity agreement. But no evidence existed to substantiate this claim, while considerable evidence suggested otherwise.

The DHC rejected Honeycutt’s argument that Spainhour’s finding should be binding on the state bar. But it dismissed the ethics complaint against Honeycutt and Brewer anyway, citing two grounds that were nothing short of incredible.

First, the DHC contended that the statute of limitations had expired for the State Bar to even investigate Honeycutt and Brewer. It creatively interpreted a State Bar rule that seemed to give both the State Bar and defense attorneys a year from discovering misconduct to pursue a complaint. Instead, claimed the DHC, the one-year clock started when either defense lawyers or the Bar discovered misconduct.

This ruling effectively gutted the State Bar’s ability to independently file ethics complaints. In almost all cases (the Nifong fiasco is an exception), defense attorneys will discover possible ethics violations long before the State Bar. Under Honeycutt, defense lawyers will have to make the choice that Hoffman’s attorneys did: do they file an ethics complaint, knowing that doing so will permanently alienate the prosecutor and preclude possibly fruitful negotiations for their client; or do they keep quiet, knowing that doing so will mean the State Bar’s statute of limitations likely will expire?

But the State Bar had a second grounds to pursue Honeycutt: under the relevant rule, the statute of limitations was waived for purposes of felonious misconduct—the sort of behavior in which Honeycutt allegedly engaged, and also what we’ve likely seen from Nifong in this case.

Under North Carolina’s general statutes, an amendment to the state bar’s ethics rules must be:

(1) certified to the Chief Justice of the North Carolina Supreme Court;

(2) entered by the Supreme Court in its minutes;

(3) published in the next ensuing number of the North Carolina Reports; and

(4) published in the North Carolina Administrative Code.

The felonious misconduct amendment was certified by the Chief Justice, entered into Supreme Court minutes, and published into the state’s administrative code. But, due to a clerical error, it never appeared in the North Carolina Reports, although it was slated to do so. Citing this extraordinarily narrow technicality, the DHC invalidated the amendment. It then cited the statute of limitations to dismiss the entire complaint against Honeycutt and Brewer.

Concluding that the bar’s allegations “describe serious prosecutorial misconduct,” the DHC conceded that “such misconduct may go undisciplined is difficult to accept.” The panel also recognized that, “especially in light of the controversy surrounding” the Hoke/Graves decision, its dismissal of the complaint against Honeycutt would have “negative consequences . . . on the public’s confidence and that of lawyers themselves in the capacity of the legal profession to regulate itself.”

That prediction proved prophetic. Ruth Sheehan lamented that the DHC’s record, she lamented, seemed designed to ensure “the bad-guy prosecutors getting off scot-free.” Former Superior Court Judge Tom Ross expressed alarm at the trend, noting “From my perspective as a lawyer and judge, the adversarial system has gotten to the point where winning is more important than justice.” (Sound familiar?) Indeed, according to an article by Joseph Neff in the N&O, “the State Bar has not suspended or revoked a prosecutor’s law license, the most severe punishment it can exact. Shame has been the only punishment.”

To review: Honeycutt and Brewer cared so little about the administration of justice that they willfully and dishonestly manipulated the system to bring about an unjust conviction. (Sound familiar?) For this offense, they received no punishment. Jonathan Hoffman received more than seven years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.


The bar giving a pass to Honeycutt was the DHC’s last high-profile decision before Nifong launched his full-scale assault on the bar’s ethics code, beginning on March 23. There are, however, three differences between the Nifong case and the two cases cited above:

  1. Nifong’s misconduct has received extensive national attention, most spectacularly in the 60 Minutes broadcast, and has essentially become the national image of North Carolina “justice.”
  2. Nifong’s support from the state bar appears to be a mile wide and an inch deep: while the silence of North Carolina lawyers regarding his misconduct has been notable, Nifong’s public support from attorneys has been confined to scattered figures associated with either the Durham defense bar (which has to deal with his office) or the state NAACP (which has used his crusade to turn its back on 70 years of principles associated with the organization).
  3. Nifong’s misconduct has been multi-faceted, unlike the other two cases, which involved only one major violation.

These three factors make it more likely that the Bar will move aggressively—at some point—against Nifong. Also, perhaps the legislature will adopt a permutation of the “three strikes” rule common in sentencing guidelines. If the bar punts on punishing Nifong after having already given a pass to the Gell case prosecutors and to Honeycutt, the legislature could create another body to regulate North Carolina lawyers’ ethical conduct.

But even if it is somewhat more likely the Bar will act against Nifong than it has in other recent cases of prosecutorial misconduct, the record of the Gell and Honeycutt cases renders dubious the N&O editorial board’s breezy assertions that we can count on the Bar to do the right thing, to such an extent that the general public and editorialists should look away from Nifong’s misconduct.

Sunday, November 26, 2006

Sunday Review

Last week, Joseph Cheshire and James Coleman testified before a state House committee on the issue of prosecutorial misconduct. Though the topic was confined to misconduct in death penalty cases, the duo’s remarks resonated for the lacrosse case.

Said Cheshire, “We do know that prosecutorial misconduct exists . . . We all want to believe the fiction that all of our elected district attorneys are ethical. There are gross exceptions to the good people on both sides.”

Coleman, meanwhile, criticized the “unprincipled exercise of discretion” in seeking the death penalty, which disproportionately targets minorities.

It’s not hard to think of a district attorney who is a “gross exception” to the pattern of ethical occupants of the office; or who has distinguished himself for the “unprincipled exercise of discretion.”
Defenders of the academic status quo often dismiss those who criticize higher education’s lack of intellectual diversity by contending that even if humanities and social sciences professors are overwhelmingly one-sided, students are discerning enough to detect their bias and not be indoctrinated. The case of Shadee Malaklou, however, would seem like Exhibit A for the critics’ case.

In a recent op-ed that Duke Basketball Report correctly termed McCarthyite, Malaklou contended that despite Nifong’s prosecutorial misconduct, his handling of the lacrosse case is “right,” because lacrosse players need to be punished for unrelated behavior of which she disapproved.

At Duke, Malaklou is a dual major in cultural anthropology and women’s studies, two departments known as hotbeds of anti-lacrosse activism. Cultural anthropology is home to such figures as Orin Starn, among the team’s leading critics. The women’s studies program, meanwhile, features on its homepage Karla Holloway’s “Bodies of Evidence” opus.

The two departments are among only three in which more than 50 percent of faculty members signed the Group of 88’s statement. A staggering eighty percent of the African-American Studies 2005-2006 faculty members signed the statement, followed by Women's Studies (72.2 percent) and Cultural Anthropology (60.0 percent).

Totals from other arts and sciences departments:

Between 25% and 50%

Between 10% and 25%

Below 10%

At the other extreme from African-American Studies, Women’s Studies, and Cultural Anthropology were the 10 arts and sciences departments that had zero signatories. The “Terrific Ten” departments included: Biological Anthropology and Anatomy; Biology; Chemistry; Computer Science; Economics; Genetics; Germanic Languages/Literature; Psychology and Neuroscience; Religion; and Slavic and Eurasian Studies.

The Group of 88, of course, might suggest that professors in the hard sciences—or in Economics or Slavic Studies—aren’t as concerned as are statement signatories with issues of underlying racism in American society. Perhaps, but it is it far more likely that these faculty members recognized the inappropriateness of professors rushing to judgment and publicly denouncing their students based on wildly incomplete information.

No professors in the Engineering School signed the statement; no full-time law professors signed it, either.


Duke Basketball Report recently published a thoughtful commentary by ’05 graduate Adam Bonneau. Bonneau noted that the basics of the lacrosse case are now clear: “In the months since the night in question more evidence has, in fact, come to light, and virtually all of that evidence suggests that no rape occurred and that the players are innocent. Almost everyone – including most of those who initially assumed otherwise – agrees that the case is without merit, and the only holdouts are those who probably will not change their position unless the accuser fully recants her story.” (My guess is that some Nifong enablers would cling to their position regardless.)

But, cautioned Bonneau, a danger exists in allowing the lacrosse case “to call into question the plausibility of gang rape stories in general.” He cited the rape-and-murder by U.S. soldiers in Mahmoudiya, Iraq, to argue that “the lacrosse case should not compel anyone to assume innocence in the future, just as the Mahmoudiya case should not compel anyone to assume guilt. Instead, the two cases together should remind everyone of the importance of withholding judgment until all of the relevant facts have come to light.”

Feminist groups, it seems to me, particularly need to ponder Bonneau’s message. Susan Estrich stands as among the few high-profile feminists who have criticized Mike Nifong’s handling of the case. Estrich blasted the “minister of justice” for overriding procedures to take the case to trial: as she noted, such a fraudulent action will leave all true victims’ rights advocates “depressed because we will worry, rightly, about all the messages being sent to legitimate victims.”

As Estrich recognized, by approaching the lacrosse and Mahmoudiya cases as one and the same, anti-rape activists will only lead fair-minded people to doubt their cause in the future.


The Nifong lineup is now the conventional wisdom for a rigged procedure. Straight Dope is a well-reviewed website dealing with cultural trivia. The site recently ran a piece on eyewitness lineups; here's how it characterized actions by the “minister of justice”:

Sometimes law enforcement officials ignore sound advice, to say nothing of common sense, when putting together a lineup. Perhaps Mike Nifong, district attorney for Durham county, North Carolina, and Durham police sergeant Mark Gottlieb were watching The Usual Suspects instead of reading the DOJ guidelines. Defense attorneys allege that a woman accusing members of the Duke University lacrosse team of sexually assaulting her was shown photos of … the Duke University lacrosse team. There were, in other words, no “fillers” at all – every picture she was shown, according to the defense lawyer, portrayed a team member. Not surprisingly, the woman picked three members of the team as her attackers.


For good or ill, the fates of any number of people are tied to the disposition of this case. The most obvious, of course, is Nifong, whose pending ethics case before the state bar would be immeasurably strengthened by somehow getting to trial and achieving a hung jury. But two other figures come to mind as well: Bob Ashley, who has chosen to transform the Herald-Sun into a Nifong cheerleading arm; and Richard Brodhead, who has remained silent as Nifong has imposed a “separate-but-equal” legal system on Duke students and Duke students alone.

Unlike Nifong, who desperately needs a trial for his self-preservation, the fate of Ashley and Brodhead will depend more on financial matters. Ashley’s Kentucky-based bosses must be watching with alarm the plunge in H-S subscriptions since Ashley started serving as Nifong’s minister of propaganda; and it seems hard to believe that limiting his paper’s potential readership to the 49 percent who cast ballots for the “minister of justice” is a sound long-term business strategy. Meanwhile, Brodhead needs to sustain the Duke fundraising base in the face of increasing alumni questions as to why and how his administration has accepted Nifong’s “separate-but-equal” system while helping the Group of 88 assume de facto campus leadership.

Along these lines, Glenn Nick, a former lacrosse player who graduated from Duke in 2006, recently offered an incisive comment to those considering donating this year to Duke.

Though a letter to designate that a contribution be used for, say, Pratt (Engineering) or the athletics department (explaining why) sounds great at first glance, there is a glaring problem with this tactic. No matter where and how money is designated to Duke, President Brodhead and company will still possess the benefit of tallying this amount to their overall alumni contributions, thus painting his tenure as lucrative for the University.

Much of a president’s success is strictly measured by dollars, therefore I beg all interested to write your letters to the powers that be every time a donation request is mailed to you, but rethink where to send the check.

The defense fund for the indicted players and their families is a drop in their legal fees’ bucket. Please consider this donation alternative; it will serve the greater good for Duke by eventually shedding light on the University’s mismanagement of the rape hoax, ultimately holding the enablers responsible by weeding them out.

Nick, of course, is correct—for partisans on both sides of the issue. Those who wish to keep in place what the New York Post’s Abby Wisse Schacter recently termed Duke’s “presidential spinelessness” should boost their contributions to Duke this year.

Board of Trustees chairman Bob Steel is a vehement Brodhead partisan, but other members of the Board doubtless would notice a dramatic spike or plunge in donations, and respond accordingly.


This week’s Wilmington Journal, the paper that runs Cash Michaels’ columns, has a contribution from Nifong citizens’ committee co-chair Kim Brummell. Brummell, who has described herself alternatively as a “corporate security officer” and a part-time employee for FedEx, is best-known for championing the use of DNA to exonerate innocent defendants—when the defendant happens to be a “black man.”

Brummell’s column alleges “a double standard for African-American victims receiving media coverage,” in which the media devoted disproportionate attention to the lacrosse case because it involved an allegation of a white-on-black crime. This line of critique might very well be true—but it seems rather odd coming from Mike Nifong’s citizens’ committee co-chair. Without the media attention that Brummell now denounces, Nifong almost certainly would have lost the primary.

That the “minister of justice” himself fanned the attention with inflammatory and misleading arguments makes Brummell’s current position seem even stranger. I’m sure that Brummell and other Nifong enablers wish outsiders would stop paying attention to events in Durham now that the “minister of justice” has achieved his goal. But it’s more than a little hypocritical to describe as racist media attention that Nifong, in violation of the state bar’s ethics rules, stoked for his political gain.

Saturday, November 25, 2006

Highlighting Comments

Two excellent comments from yesterday’s thread that deserve more attention:

Gustafson’s comments are important. Not only to the Professors of the left prejudge the students, they also prejudge the source of the outrage of the alums while also revealing shocking ignorance about important legal trends. I am a Duke graduate (as it my brother and other members of my family). Long before this case arose, as an attorney I was well aware of the difficulties of the legal system and the mistreatment of multiple defendants. Despite being a white corporate lawyer,I volunteered my time to assist many minority defendants who I believed had been mistreated or overcharged. In my own state of Illinois, we had an epidemic of prosecutorial and police misconduct that resulted both in the conviction of the innocent and, by definition, the failure to find and incarcerate the. As in North Carolina, (Project Innocence) all walks of society worked to remedy these issues and the prosecutors are far more open to consideration of error.

Just today, for example, an inmate incarcerated in 1992 is having his case re-opened because of a DNA match.

So, when those of us who (as lawyers and law professors) apply these well known and decade old issues to an obvious misjudgment to have profoundly ignorant and unqualified English professors examine the issues through their “rubric” of gender and race it is laughable.

The prejudice is assuming that people who are upset and outraged by Nifong’s treatment never cared about these issues before, never thought about these issues before, and only care because they are lacrosse players is a window into their own limited mind.

In my own case, I brought no predisposition to the matter. I know full well that the Duke Campus, as with all campuses nationally, has some people capable of criminal acts and that alcohol abuse is a serious issue at Duke and elsewhere. Anyone who has studied and worked in the legal system knows full well what is happening based on no more than Nifong’s own statements.

So, to those people who claim that the outrage is a lens into the prejudice of the people upset at the treatment of the lacrosse players, you could not be more wrong.


The second comment:

One humorous aspect of the Hoax -- if such a train wreck could be seen as funny -- is the studied indifference of the Hoax’s enablers to D.A. Nifong’s narrative. Recall, he claims that the three rapists were aided by three additional lacrosse team members, who pulled apart the alleged victim and exotic dancer Kim Roberts, hustling Roberts into a bedroom so that the rapists could attend to the A.V. in the bathroom.

Thus, if the rape happened, there are three unindicted co-conspirators at large. Who are they? Why haven’t they been arrested? Did yet other teammates enable their actions?

The Group of 88 and their fellow-travelers have no interest in this issue. Of course: bringing up the unindicted three players only highlights the absurdity of the felony charges as an account of events that actually transpired, rather than as a signifier of resentments based on class, race, and social status.

Yet this side issue shows that evaluating the quality of police work becomes impossible once law enforcement becomes the standard-bearer for Social-Justice-based vengefulness. If this were a real case, there would be tremendous (and justified) pressure to indict the Other Three. Once we accept that this is kabuki, there’s no need for additional witches to try--Seligmann, Evans, and Finnerty will do.

How many other cases has the DPD “cleared” as ably as they have solved the Lacrosse Rape? Not a question I would be comfortable asking if I was a Durham resident.

Best of the Case, IV

As a follow-up on three earlier posts, below are links to the best material to appear on the case since in the past month.



Some of these items are worth particular comment. Kristin Butler's two columns represent a model of newspaper commentary. Compare her work to the reflexive, sloppily argued pieces on the case turned out by Selena Roberts and Harvey Araton from the New York Times.

The two Liestoppers posts, meanwhile, should be required reading. A few weeks back, Herald-Sun editor Bob Ashley rationalized his paper's atrocious coverage by claiming a lack of resources. Blogs have no financial resources at all, but have done the work that Ashley's pro-Nifong propaganda organ has ignored. "From the Wall of Silence," an extraordinary investigative piece, revealed behind-the-scenes doings between March 24 and March 27—testimony that even at this late stage, new facts about the initial days continue to come to light.

Meanwhile, the Liestoppers analysis of the NAACP should win an award for timeliness. In recent weeks, Nifong enablers have attempted to argue that the NAACP has taken a "neutral" course on the case, chiefly by citing a 10-point statement by state director Barber. (That an organization with a long history of defending due process in criminal justice cases could assume a position of "neutrality" in a case with massive prosecutorial misconduct suggests a new approach in and of itself.)

Yet the Liestoppers post showed that the NAACP has, essentially, spoken with a forked tongue on the case, maintaining the Barber statement but taking action after action that contradicted it--to the point where the organization is now all but operating as an arm of the prosecution.