Questions and Answers, III

It’s been more than three weeks since the last Q+A post, and it seemed an appropriate time for another. Since August 28, the blog has received over 255,000 unique visitors, with just more than 460,000 page views. It now has received visitors from 94 countries, with new additions including the Dominican Republic, Guatemala, Luxembourg, Moldova, Bulgaria, Azerbaijan, Kuwait, Ethiopia, Kenya, Senegal, and Djibouti.

Q: KC, I am wondering what your professional opinion is. I believe I read somewhere that there is factual evidence that not all lacrosse players were at the party. If that scenario is true, would it be possible for the lacrosse players who were in the lineup photos and not at the party be considered fillers?

A: There were, to my knowledge, three lacrosse players who could prove they weren’t at the party. For three principal reasons, they would not be considered fillers:

• On March 31, when Nifong ordered the police to confine the lineup to lacrosse players, he had no firm information on which players were and were not at the party; he publicly stated, in fact, that all 46 were suspects. (In his capacity as lead investigator, Nifong ordered two non-lacrosse players he knew attended the party to be excluded from the lineup, presumably because in his capacity as police department spokesperson, he had failed to mention them in his public remarks about the case.) Durham General Order 4077 required police to have supplied five fillers for each suspect—or, 230 fillers, in 46 separate arrays. If lead investigator Nifong had wanted a narrower photo array, he should have asked the police to actually do some investigating before moving on to a “multiple choice” lineup.

• Filler photos are supposed to consist of people wholly uninvolved in the investigation that bear some physical resemblance to the suspects—i.e., other white college athletes, perhaps lacrosse players at UNC or Virginia; or wrestlers at Columbia; or even baseball players at Duke. This requirement explains why even the first photo lineup (March 16/21) was procedurally suspect: it should have consisted of the six suspects at the time (lacrosse players named Adam, Brett, or Matt, plus Dave Evans and Dan Flannery) plus thirty non-Duke lacrosse players. Ironically, this procedural error is a boon for the defense, since it opened the door to the accuser saying, two days after the event, that she was only 70% certain that she even saw Reade Seligmann at the party, only to be 100% certain 19 days later that he looked like a person who allegedly assaulted her. As an expert in lineup ID processes, Iowa State University professor Gary Wells, noted, “Memory doesn’t get better with time. That’s one of the things we know. How does she get more positive with time?”

• If the accuser had chosen, say, Brad Ross—the only player she twice stated she was 100% sure of seeing at the party, who in fact wasn’t even in Durham that night—there’s no reason to believe Nifong wouldn’t have sought and maintained an indictment against Ross despite this evidence. After all, he didn’t consider Seligmann on videotape someplace else at the time of the alleged attack to be grounds for dismissing the allegations against Seligmann.

One final point on this issue: the policy mandates a specific number of fillers—five per suspect. So even interpreting this issue in a light wholly favorable to Nifong and listing as fillers the three players who could prove they didn’t attend the party at any point when the accuser was present, the ratio would not be the required 5:1 but instead .07:1.

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Q: If Nifong has such a strong case, why doesn’t he turn it over to a special prosecutor? That way, he and the community get their trial, and the lax supporters get their wish to see the “evidence” independently reviewed.

A: An excellent question. We know, of course, why the “minister of justice” has refused this option: a special prosecutor would obtain access to his entire case file, and would be ethically bound to file a complaint against Nifong to the state bar if the file—as is very likely—revealed procedural violations. Moreover, a special prosecutor would have the right to recommend criminal charges against Nifong or Sgt. Mark Gottlieb.

Nifong enablers, on the other hand, have never provided a convincing answer to this question. Over the last several months, Nifong has shown himself to be a figure of dubious competence. That 51% of Durham voters cast ballots to recall him earlier this month suggests a majority of the potential jury pool they doesn’t believe a word he says about the case.

Those who fashion themselves as advocates for the accuser, therefore, should be eager for a special prosecutor to be appointed, allowing someone more competent and less personally polarizing to handle the case.

That, to my knowledge, none have advocated this proposal suggests that, whatever motivates the NAACP, or Nifong’s allies in the media, or a segment of the Duke faculty, or people like Harris Johnson, Greg Childress, and Chan Hall, seeking “justice” for the accuser isn’t high on their lists.

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Q: Do you seriously believe that Brodhead has the power to stop Nifong from pursuing his case against the LAX players?

A: I do not so believe. I do believe that Brodhead did—and does—have the obligation, as president of Duke University, to publicly demand that Durham authorities treat Duke students according to the same procedures granted to every other resident of Durham. To date, Brodhead has refused to take such a stance, suggesting that he accepts the city’s “separate-but-equal” policy toward his own institution’s students.

In the long term, it seems to me this passivity will be extraordinarily damaging to Duke’s ability to recruit top-flight students. I would imagine that parents considering sending their sons or daughters to Duke (especially sons) would have to think long and hard about whether they are willing to risk their children to an academic environment dominated by the Group of 88 and a legal environment characterized by the “separate-but-equal” system constructed by Nifong.

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Q: Did some of the Group of 88’s ads and statements venture from fair criticism into slander and/or libel of the three indicted and the 40-odd unindicted?

A: The Group of 88’s statement and subsequent actions, coupled with the Brodhead administration’s refusal to challenge (to borrow a phrase) the faculty’s “highly unacceptable behavior,” should give any parent great pause about sending their child to Duke under current conditions.

As to the question of legal liability: the Group of 88’s statement betrayed the signatories’ responsibilities as faculty members and was one of the most disreputable acts that I have witnessed in my 13 years as a college professor. While academic freedom gives faculty members a right to operate in a contemptible fashion if they so choose, the question is whether any or all of the Group’s actions crossed the line from contemptible to something actionable.

The clearest case is Peter Wood, who appears to have slandered Reade Seligmann and also made highly negative public comments about other lacrosse players for which the Coleman Committee found no corroboration. That Duke would have nonetheless installed Wood as chair of the athletics subgroup of the Campus Culture Initiative is nothing short of astonishing.

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Q: KC, I have a question. During the time you have been operating this web site, have you ever received any financial support either directly or indirectly from any current or former Duke LAX player, any member of the family or other relative of any LAX player, any other person who you have reason to believe is a supporter of the LAX players, or any attorney or law firm representing any of the indicted or unindicted LAX players? Also, have you received any nonfinancial assistance or advice or have you discussed strategy or worked in a coordinated manner with Bob Bennett or his law firm, or any other lawyer, law firm, or public relations consultant working on behalf of the LAX players or their families? Just curious.

A: These questions have a tone somewhat resembling, “Are you now or have you ever been a member of the Communist Party?” I am, however, happy to answer them.

Question Set One: I have received no financial support of any form, from any source, for my work on this case. The site is hosted on a free service (blogger.com), using my personal internet connection and computer. All work is, and has been, done by me. All time spent has been my own. All incidental expenses related to my posts, totaling several hundred dollars since the case began, have come from my personal checking account.

Question Set Two: My interest began when the Group of 88 issued its statement on April 6. As of that date, I had no connections to Duke and knew no members of the team or their families. At the time, I considered the statement a betrayal of the signatories’ duties as professors; I feel even more strongly on the issue now. Of course, as the extent of Nifong’s misconduct became apparent, my interest and involvement expanded as well.

As someone who has followed this case extremely closely, I have detected no role at all by Bob Bennett or his law firm; I have never spoken with him or with anyone representing his firm. I have never spoken with any public relations consultant working on behalf of anyone. Like everyone else seriously covering the case, I would have been derelict not to have asked questions both of defense lawyers and of Nifong’s office, and I have done so; since July, however, attorneys on both sides have operated under the restrictions imposed by the gag order.

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Q (via e-mail): This link describes the role of Mike Nifong’s staff members. As you can see, Linwood Wilson is listed as a “Worthless Check Program Coordinator.” If his role is to track down people who write bad checks, why is he the lead investigator in a high profile rape case?

(Here is a definition of the Worthless Check Program I found online: “The Worthless Check Program is a service of the District Attorney’s office in some counties. It allows people who have written checks that have been returned with insufficient funds to pay off those checks and any other fees that go along with them before anyone files a criminal process.”)

A: I have heard that Wilson has been promoted, to “chief investigator,” a position apparently unfilled in the D.A.’s office for several years.

It’s hard to imagine what he has done in this case to merit promotion: Wilson doesn’t exactly project an image of competence. His highest profile moment in the case came when he shouted down defense attorney Joseph Cheshire on the courthouse steps, claiming that he had read the discovery file and that, contrary to defense suggestions, the accuser had never changed her story.

The next day, Cheshire faxed a report to local news sources, with a copy of a police report handed over to the defense the previous day showing that the accuser had told one of the first police officers to interview her that five, not three, people raped her.

Wilson also had some other memorable actions in the case: he discovered Elmostafa’s 2.5-year old misdemeanor warrant, but never discovered the accuser’s previous filing of a three-man gang rape—a combination that provided a sense of his priorities. But I suppose that’s what we should expect when a district attorney hands over a criminal investigation to someone who was hired to track down bounced checks.

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Q: Is there any consequence for the attorney general of North Carolina for failing to exercise his duties in this case?

A: In a word, no. North Carolina law, ignoring the recommendations of the American Bar Association, contains no provision for a state attorney general (or governor) to act in the interests of justice and remove a rogue district attorney. Only the district attorney himself or herself can request appointment of a special prosecutor: obviously, that would never occur in this case, since a special prosecutor would obtain access to Nifong’s files, opening up the possibility of charges being filed against Nifong himself.

That said, nothing has prevented Roy Cooper—or Governor Mike Easley—from publicly disassociating themselves from the Nifong Rules. As they have elected not to do so means, I think it’s not unreasonable for observers to conclude that the two men are satisfied with Mike Nifong providing the image to the nation of how justice in North Carolina operates.

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Q: KC-Going way off the subject here, but sometimes we need to be lightened up, so here is my question. Are you an everyday bow-tie guy or is that just in the picture? Just curious. Paul Simon would be proud! :)

A: Although the two issues are unrelated (except perhaps subliminally?), I was a strong supporter of Paul Simon’s 1988 presidential campaign; and yes, I’m an everyday bow-tie guy . . .

Thank you for the questions; I will do another Q+A post as appropriate. In the meantime, the bow-tied staff of this blog extends warm holiday greetings.