The Baum Letter and a Durham Trial

The Herald-Sun recently published a revealing letter from Duke student Dan Baum that powerfully explains the need for a change in venue.

On the Duke website, Baum says (in language that could have been written by the African-American Studies Program) that he seeks “to create a safe space for engaging and thought-provoking discussions on issues ranging from identity and diversity to human relations in general.”

In his H-S letter, meanwhile, Baum contended with that Nifong’s re-election, the D.A’s “initial handling of the case is in the past and . . . therefore, there’s no need to continue this heated debate about things that won’t change.” Imagine such a response regarding the situation in the early 1960s Deep South—the local sheriff trampling on the rights of African-Americans had just been re-elected in a racially polarized election, so “therefore, there’s no need to continue this heated debate about things that won’t change.”

I mention Baum’s statements only to establish that he seems not at all sympathetic to the players targeted by Nifong. Nor does he seem particularly troubled by the issues of prosecutorial misconduct or “separate-but-equal“ justice that have marred Nifong’s approach to Duke students. In light of these beliefs, the rest of Baum’s letter is especially significant:

Unfortunately, I think there’s so little faith in our legal system that whatever happens in court, a substantial portion of our community will leave angry. If a guilty verdict is handed down, wearers of “Innocent” wristbands will be up in arms about the bias of members of the Durham community against Duke. If the court finds them innocent, cries that they bought their way out of trouble will follow from others.

As a Duke student who has had the privilege of discussing this matter with my classmates, students from NCCU and Durham residents, I’ve found that most people have made up their minds about whether or not a rape occurred. [emphasis added] Most do not see a verdict changing their minds either. So once this decision comes down, in the face of the inflammatory media [led by the Herald-Sun?], our community will still have serious healing and reconciling left to do . . . a verdict is not going to solve anything.

Baum’s letter raises three points.

1.) As well intentioned as he sounds, it is naïve to believe that “serious healing and reconciling” can occur as long as a segment of the community maintains that Nifong’s “initial handling of the case is in the past” need not be discussed. A similar caution would apply to those on the Duke campus, such as the CCI, who are desperate to avoid any discussion about the faculty’s initial rush-to-judgment.

As a counter, consider the various truth and reconciliation commissions established in the 1990s—from post-apartheid South Africa to post-civil war El Salvador. All operated under the premise that reconciliation could not occur without exposing and documenting the truths of past misconduct, even if the perpetrators of these injustices were not punished for their actions.

In short, there can be no “healing” or “reconciliation” in Durham until all sides—most especially Nifong’s enablers among the city’s political, legal, and media elite, as well as Duke’s faculty—acknowledge his misconduct.

2.) Baum’s call for looking ahead to the post-trial situation reinforces a message offered several months ago by USC law professor Susan Estrich. “Of this,” Estrich wrote, “you can be sure: No good will come of it. Trials do not tend to be healing experiences. Sides dig in. Things get more contentious, not less. Tempers are bound to flare.”

Estrich’s warning—made in August—seems prophetic now. In this case, the prosecutor has no evidence that a crime even occurred, much less that the three players he targeted committed a crime. As Sunday’s N&O revealed, Nifong is facing dozens of ethics complaints; while the Disciplinary Hearings Committee should not take into account the results of a trial in judging whether Nifong violated the bar’s ethics rules, it’s unrealistic to expect that a trial’s outcome would have no bearing on the DHC’s actions.

So, as a matter of personal survival if nothing else, Nifong’s only realistic strategy is to intensify his race-baiting demagoguery, seeking to exploit and intensify what he has termed Durham’s “underlying divisions.” During the campaign, Nifong previewed his opening argument: “The future of Durham’s in the balance” with any verdict.

In short, whatever tensions Baum and others detect now are likely to be infinitely worse after a Nifong-orchestrated show trial.

3.) Baum’s letter makes an overpowering case for a change of venue. By his own description, Baum feels comfortable moving between Duke, NCCU, and among Durham residents. He clearly has spoken to numerous people about the case. His findings? “Most people have made up their minds about whether or not a rape occurred.”

This discovery should surprise no one. After all, Nifong’s handling of the lacrosse case was the only issue at play in both the primary and the general election. The 51 percent of Durham voters who cast ballots against Nifong (for either Lewis Cheek or write-in spoiler Steve Monks) effectively said that they didn’t believe a word their “minister of justice” said about the case.

On the other side:

• Several months ago, most dramatically at the NCCU forum, a segment of the Durham “community” demanded that indictments occur—regardless of whether the players were innocent—in the name of justice.

• With their votes in November, 49 percent of the Durham “community” demanded that a trial occur—regardless of whether the players were innocent—in the name of justice.

• Is there any reason to believe that these same people will not demand that a conviction occur—regardless of whether the players were innocent—in the name of justice?

Baum appears to have encountered few who would answer that question in an encouraging fashion.

The two principal arguments against a change of venue, meanwhile, seem quite weak. The first, presented by NCCU professor and NAACP case monitor Irving Joyner, revolves around the racial dynamics of the potential jury pool. In a June interview with Sports Illustrated, Joyner stated that the district attorney “still has a viable shot at victory before a jury in Durham.” I e-mailed Joyner to ask why he specified a “Durham” jury as giving Nifong a chance of victory; he replied, candidly, “A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina.” Joyner added, “This case originated in Durham and should be tried here.”

This viewpoint clashes with the traditional approach of the NAACP Legal Defense Fund, which has supported changes of venue in racially charged trials; and also, as a late September article by Cash Michaels pointed out, contradicts a previous high-profile case in North Carolina. In short, the fact that Nifong would have little chance of prevailing in a trial outside of Durham is not a compelling argument against change of venue. The issue revolves around the constitutional rights of the defendant, not the prosecutor or the accuser.

The other argument also came from the state NAACP (which, reversing 70 years of its traditional positions on criminal justice issues, has functioned in this case as an arm of the prosecution). As summarized by Michaels, “Joyner was one of many who blasted the defense for releasing so much dirt about the accuser’s troubled past that he felt they wanted to effectively taint the Durham pool themselves to force a probable change of venue.”

It is undeniably true that much damaging information has come out about the accuser. But the vast majority of this information came from the media, not the defense. In the spring, the AP broke the story of the accuser’s previous unsubstantiated allegation of a three-man gang rape. In October, 60 Minutes revealed that the accuser was pole dancing in a limber fashion at the same time she told the UNC Hospital that she was in such great pain that she required prescription drugs. In November, the N&O reported that four days after the alleged attack, the accuser reportedly told the security manager of the strip club at which she worked, “I’m going to get paid by the white boys.” There would seem to be few, if any grounds, for punishing the defense for damaging information about the accuser that the media has uncovered.

The state NAACP’s Al McSurely claimed, without citing evidence, that the defense “would want a change of venue whether Nifong said anything or not.” But, of course, Nifong did say things, over and over again, in violation of Rule 3.8(f) of the state bar’s ethics code. The conclusions of the Baum letter illuminate why one consequence of those statements should be a change of venue.