Tuesday, December 05, 2006

How "Separate-but-Equal" Justice Works

Two crimes—one real, one alleged—exemplify how the “separate-but-equal” justice system established by Mike Nifong works.

The real crime: the killing of Harvey Wiggins, who was shot to death in a car parked at Streets at Southpoint mall on November 30, 2004. Both sides in the case agreed that Wiggins had attempted to purchase marijuana from Barry Evans. Evans claimed that Wiggins pulled a gun, and he responded by firing in self-defense; the police claimed that Evans, who was sitting in the backseat of the car, shot Wiggins in the head, in cold blood, and then conspired with the driver of the car, Julius Gray, to make the shooting appear like self-defense.

A worker at the mall, Gary Baker, reported the crime. “I was scared,” he recalled. “I didn't know what was going on. It's supposed to be a model mall. It's really shocking for something like that to happen.”

The disposition of the case: Under apparent community pressure to give the defendants light sentences, Nifong’s office dismissed murder charges. Evans pled guilty to involuntary manslaughter and was sentenced to time served (76 days). Gray, a student at North Carolina Central, had his charges reduced to conspiracy to sell marijuana, and received probation. He had been a good student and had no disciplinary problems before the crime. A Lexis/Nexis search revealed no indication that either the NCCU chancellor nor any NCCU faculty members (much less 88 of them) publicly denounced Gray’s character or actions.

A representative of the “minister of justice” conceded that the law was not the primary consideration on whether to go to trial. Assistant District Attorney Mitchell Garrell stated that he told the victim’s mother she could decide whether Gray was placed on trial for murder or allowed to plea bargain to probation. When she chose the latter, he went along. Neither the N&O nor the Herald-Sun interviewed the victim’s mother to determine whether she received any community pressure to agree to the plea bargain deal.

The reaction to the disposition: The Herald-Sun devoted an editorial to the settlement, cautioning readers against a rush to judgment and asking them to look kindly upon the defendants, especially Gray. The editorial accepted as credible the version of events offered by Gray’s attorney (ironically, one of the few heroes of the lacrosse case, attorney Bill Thomas). To use a word common in sneering H-S editorials, Gray was uncritically described as an angel—“he was an NCCU student with a once-bright future whose life has been shattered by the incident”—while the character of the victim was wholly ignored.

Imagine if, rather than being an African-American student at NCCU, Gray had possessed the same personal character—but had been a white, Northeastern student from Duke. As a great Liestoppers post pointed out, we needn’t wonder how Ashley’s H-S would have responded: a lecture would have been forthcoming, as in the lacrosse case, about believing the words of defense attorneys:

We’ve tried to consistently remind that all the facts aren’t out, and that the defense attorneys are releasing just what fragments of the total evidence they choose to make public.

From Duke, no doubt President Brodhead would have condemned Gray with a comment such as, “If he didn’t do it, whatever he did is bad enough.” The Group of 88 could have swung into action denouncing Hall as exemplifying the dangers of white privilege seeking to exploit poor minorities.

How would the “minister of justice” have handled the matter? No doubt not with a plea bargain but with public demands for absolute justice, perhaps affirming, “I’m not going to allow Durham’s view in the minds of the world to be a white drug dealer from Duke killing a black boy from Durham.”


The alleged crime: the incident at the lacrosse team’s party. Nifong’s office again bowed to community pressure in how to handle the case: in this instance, the combination of the frenzied NCCU forum and Nifong’s own desperate need for black votes in the primary led him to ensure that someone—anyone—would be indicted.

In the NCCU student’s case, police and the D.A.’s office appear to have followed proper procedures. Standard procedures in the Duke students’ case, however, did not serve Nifong’s interests. Rule 3.8(f) would have prohibited him from his pre-primary publicity barrage. General Order 4077 would have prevented him from conducting a last-ditch lineup confined to suspects. Facing these and other procedural obstacles, the “minister of justice” simply built a case against the Duke students using a “separate-but-equal” set of procedures.

The background: Nifong, as we have subsequently learned, was merely reflecting a more general “separate-but-equal” system. The Durham Police have an official policy of meting out disproportionate punishment Duke students, as a class, for alcohol- and noise-related offenses. This policy extends only to Duke students—not to NCCU students, not to Durham high school students, not to permanent Durham residents. An e-mail to DPD spokesperson Kammie Michaels asking why the policy extends to students at Duke but not to those at NCCU received no response.

As so often occurred in the Jim Crow South, a “separate-but-equal” law enforcement system all but invited abuse. In the case of Duke students, the principal abuser was Sgt. Mark Gottlieb, who in a 10-month period before the lacrosse case arrested nearly 10 times as many Duke students as the other three District 2 supervisors combined. Several Duke students raised credible allegations of improper behavior by the sergeant.

When asked to defend this disproportionate arrest record, Gottlieb’s supervisor, Capt. Ed Sarvis, replied that the sergeant “was doing his job, and doing what I asked him to do.” The implication? The sergeants who didn’t handcuff and arrest Duke students (and only Duke students) for minor alcohol-related offenses weren’t doing their job, according to Durham’s official policy.

City Manager Patrick Baker initially denied to the N&O that a policy of meting out disproportionate punishment to Duke students existed. But he subsequently backtracked and said that Police Chief Steven Chalmerswho had deferred to Baker in commenting about issues related to Duke and the policehad, for reasons he declined to reveal, neglected to tell him about the policy.

Duke’s role: According to a September 12 H-S article, “Duke spokesman John Burness said the university had been aware” of what was described as “the Durham Police Department’s zero-tolerance policy.” The policy, of course, was not “zero-tolerance,” but “zero-tolerance” for Duke students.

In all fairness to Duke, alcohol policy is a no-win question for any primarily residential university. In terms of common sense, the best policy is to encourage students who drink to do so moderately, and on campus. Unfortunately, common sense conflicts with the law on this issue: legally, universities can be held liable for harmful consequences from excessive on-campus drinking. Ironically, the key figure in boosting the drinking age from 18 to 21 was North Carolina’s senior senator, Elizabeth Dole, during her stint as Ronald Reagan’s transportation secretary.

Seeking clarification, I e-mailed Burness, who was gracious enough to respond:

This is [an issue] where the situation has been pretty straightforward and as I wrote a person who recently inquired about it, for a number of reasons, I believe it has been misrepresented. In recent years, at the beginning of the school year, the Durham police have made it clear, historically with Duke’s support, that they will have a zero tolerance policy re enforcement of the law in the Trinity Park area. The idea is that if they could set behavioral expectations in the community in the first few weeks of the year, there would be a tendency for students to behave better for the rest of the year. The Durham police always have the right (and some would argue, a legal obligation) to enforce the law to the letter of the law; in their view, a zero tolerance policy is a statement that they will do so rather than look the other way over minor offenses, which they sometimes have done and for which they have received complaints from Trinity Park residents over the years. The police traditionally have sent letters over the summer to the homes of our students who live off-campus – sometimes, I believe, with separate letters to their parents – alerting them that they will have a zero tolerance policy in the first few weeks of school. This is, and has been, a relatively routine practice in Durham at the beginning of each school year.

Police departments, obviously, have every right to implement “zero-tolerance” policies. They don’t, however, have the right to apply “zero-tolerance” policies selectively—based on race, class, gender, or identity, including status at one university but not another. Nor do they have the right to abuse such policies, as Gottlieb did in this instance. (Gottlieb’s statistically disproportionate arrest record does not appear to have been confined to the start of the school year.) And with North Carolina’s new, inherently subjective, alcohol-related laws, the abuse only promises to get worse.

Duke’s acquiescence in—and even support of—its students’ second-class citizenship in the alcohol cases provides some context for the University’s refusal to protest Nifong’s decision to extend the “separate-but-equal” procedures to police investigations involving Duke students. The “minister of justice” could easily have responded that his handling of the lacrosse case only built upon precedents that Duke’s administration had endorsed—perhaps without realizing the full extent of their effects.


NCCU students who participate in a killing get off with probation, when the “community” demanded implementing “justice” in this fashion. Duke students whose biggest error was attending a party where they drank beer remain on trial for crimes that could result in a 30-year sentence—after an investigation that used different procedures than those afforded to NCCU students—because the “community” demanded “justice” for alleged past wrongs.

Durham’s “separate-but-equal” legal system remains in full force.


Anonymous said...

Durham-in-Wonderland readers should copy this analysis and send it to the U.S. Department of Justice and to North Carolina's two U.S. Senators and numerous members of the U.S. House.

Anonymous said...

I agree with the above. What is going on in Durham - mob rule? The mob wants probation for a homicide so they get it. I don't know what they want for the three indicted players but I do know that I'd rather not find out. A mob is a scary thing.

You can easily avoid situations like this if you adhere to the rule of law and established procedures. Unfortunately, alot of the key players in Durham are so corrupt that the law is meaningless to them. This is the result.

Unknown said...

I believe the mall where the shooting took place is NOT Southgate, but The Streets at Southpoint.

Unknown said...

I also wanted to ask, what happens if/when a student over the age of 18 has consumed Nyquil or some other medicine containing alcohol?

kcjohnson9 said...

Thanks, made the change.

On the question: the new law says that a medical exception is supposed to exist. But realistically this exception could only apply to prescription medicine of some sort. Those who are stopped after having Nyquil would be out of luck.

Anonymous said...


You are a history professor.

I bet you would find the history
of NCCU rather facinating.

Anonymous said...

Great illustration of the soft bigotry of diminished expectations -- Durham's acceptable norms for NCCU and Duke's students indeed illustrate pervasive societal racism, though not the type you might see typically taught in any standard AAAS class.

Anonymous said...

When one considers Julius Gray, a "good student" at NCCU, and the Duke rape accuser, an honor student at NCCU, you are left wondering at the values of the DPD the Durham justice system and NCCU. Class envy comes through loud and clear as a base position of the Durham DPD. No one in their right mind would move into this cesspool, nor would any caring parent send their child off to four years in Durham. I say this as the proud parent of several Dukies who believes their degrees have been degraded by the current administration's complicity in the hoax. They'll move on, though. Durham does not appear to have what it takes to do so.

Anonymous said...

Ahhhh, the glories of diversity. A taste of what's to come when society is fully integrated.

Anonymous said...


I am glad you brought up the age 21 limit on drinking. When I was in college, the drinking age was 18, and I don't believe that we had the problems that they have today with binge drinking.

The age 21 limit came as a result of the influence of MADD and other organizations, partly in reaction to the cavalier way that the authorities used to deal with accidents caused by drunken driving. Elizabeth Dole, as transportation secretary, pushed age 21 on the states by threatening to withhold highway funds from those states that left the drinking age at 18.

In essence, we saw something that was in the purvey of state law become nationalized. Furthermore, I don't think it has made a difference in the behavior of people, except to make things worse. (But, then, the United States never did learn the lessons of Prohibtion, and continues down the same insane path elsewhere.)

When we are told of the "crime" of "underage drinking," remember that students are being arrested by doing what was legal when I was their age.

Anonymous said...

A sentence of 76 days for fatally shooting somebody through the head during a drug deal. Durham justice. Gotta love it.

Anonymous said...


If you look at the statistics on drunk driving related deaths for the 18-21 year old group since the drinking age was raised to 21, you will see the number of deaths has dropped dramatically. Even though I think you are correct in the rest of your analysis, I don't see the drinking age being lowered now when the higher age seems to have saved many lives. I will try to find a link to the statistics.

'Separate but equal' or rather 'unequal' justice is a clear violation of the Constitution's Equal Protecion clause. It's something the justice system takes very seriously, and it should set off loud alarms in everyone's head... but apparently doesn't in Durham.


Anonymous said...

The Duke 3 case is politically useful to Nifong and the black community of Durham. The Gray case was not politically useful, so that is why Nifong disposed of that case as he did.

The Duke 3 case is not about evidence or even rape. Instead, it is about the manifestation of state power. This is a big game for Nifong: how to win a conviction without evidence. The man approaches this like the UCLA football coach approached his team's game last week with Southern Cal. Supposedly, UCLA had no chance but won.

Likewise, Nifong has no evidence, but still wants to win. Quite chilling, is it not? Let's try "evil."

Anonymous said...

It's tiring to say it, but I will anyway...reverse the treatment of the students at the two schools, and tell me where we'd be today...

Anonymous said...

Okay, folks, let's do what needs to be done. You go get Nifong, and I'll bring a broom handle.

Anonymous said...

Thanks KC

If the sale of drugs involved in this case, a fact known to the prosecutor, was to be >5 grams of marijuana, it is Felony Murder.

That's an entirely different charge than murder..

Anonymous said...

Why is it in Durham the AA community are the ones who ultimately decide how crimes will be charged and punishment meted out. If the defendents are black they literally get away with murder. If the defendents are white, and abosultely innocent it doesn't matter, they get the worse possible punishment. Durham government is not base on law or the Constitution it is based on race, pure and simple. The white elected officials, judges, lawyers all work for the black community and the black community tells them who and how the charges will be. The whites need the votes, support and business, the blacks want justice for slavery.

Anonymous said...

If the Board of Trustees and the Administration of Duke do not soon awaken from their slumber, the classrooms will be empty at Duke. Who in their right mind want to send their child into this corrupt community when their are other comparable options. I also don't understand how the DA gets the victim's family to play along with this outrageous plea. It would be worth investigating.

Anonymous said...

Well, the link to MADD is www.madd.org. They site the National Highway Traffic Safety Administration statistics which do show an impressive drop in drunk driving related deaths for the under 21 crowd since implementation of the higher drinking age. According to Wikipedia, though, some critics of MADD point out that Canada has experienced a similar drop in deaths but has retained the age 18
drinking age. So, it would take more time to research than I have available. Of course, we also have some research now showing that the brain does not really mature completely until the early 20s and use of alcohol causes cognitive decline that persists after the obvious effects of drinking have disappeared...but this does not seem to worry many college students. I do believe it would be very difficult to lower the drinking age now, though.


Anonymous said...

The race issue of who gets what, is not just in Durham. This is what is happening in my 'liberal' state. See the link below:


College admission no longer will depend on hard work and good grades--it will depend on race and income. My kids are screwed....they are white, work hard to get good grades and score well on college entrance exams and are middle class.

Anonymous said...

In a post on another thread, "anonymous" asserted that standing up for the civil rights of 3 LAX guys would be unwise because doing so would not serve the interests of the 12,000 students not so charged.
Reading that assertion was an scene clarifying moment for me. It is illogical unless there is an un-stated fact standing in the wings. I mean, what possibly could be the point in being silent about injustice for a few that could benefit the many - unless Duke is afraid of what could happen to the many.
K C s latest post goes a long way to filling in the blanks.

Anonymous said...

KC's latest work chills me to the bone. That such could be allowed to occur anywhere for any reason in the year 2006 is scarey.

But just take a look at Durham in general. There's been a report of late about a former Durham County manager named George Williams who was fired some years ago for his incompetence. He's now running an architectural firm. He's been given a contract to renovate and design a huge project in the black area of Durham which has run way over budget, far more than would normally be allowed.

Williams' brother-in-law is a longtime Durham City Council member (also black), which is probably why Williams was awarded the contract when lower bidders were available. More open corruption.

A few council members voiced concerns, but now with a mostly black vote, Williams has been assured that more taxpayer funds will be flowing his way, even though some of his substandard work was done by subcontracting with another firm. And all he had to do was show up.

Maybe it's a blessing that so much light is being shown on this cesspool called Durham, NC. If anyone wants to know why the majority culture is so sickened by black entitlement and black crime, just look at Durham. That place is sick.

Anonymous said...

boring post, KC:

this is important: does anyone know if the prostitute was dishonorably discharged from navy?

y was discharged?


Anonymous said...


That's just the tip of the iceberg.

It is worth noting that the FEDS
do spend much time in Durham chasing
after the crooks. They just can't
seem to keep up it.

Now KC, how about shining those
lights down at City Hall?

Anonymous said...
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Anonymous said...
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Anonymous said...

Sod off, trolls! Racists of any stripe are not welcome, and serve only to inflict harm on the three boys whose lives are in jeopardy. If you don't care about that, then you are blood brothers to Jesse Jackson, Al Sharpton, the New Black Panthers and local Durham racist scum who helped to keep the Hoax alive. sic semper tyrannis

Anonymous said...

Could be that DPD and Durham DA office doesn't expect so much from NDUU honor students with bright futures. Seems to me they sort of expect to have a few drug-related homicides. Duke students on the other hand are expected to behave to a higher standard.

Anonymous said...

Reports early in the case said the AV was just discharged--neither honorably or dishonorably, but they could have been wrong.

Anonymous said...

is the "sod off" poster British?

just curious

Anonymous said...

12:02 pm Anon:

Call it the 'soft bigotry of lowered expectations'...

"Could be that DPD and Durham DA office doesn't expect so much from NDUU honor students with bright futures. Seems to me they sort of expect to have a few drug-related homicides. Duke students on the other hand are expected to behave to a higher standard."

Anonymous said...

12:29 pm Anon:

The absence of a qualifier, coupled with a very short stint in the service, frequently means that they were discharged for medical reasons.

"Reports early in the case said the AV was just discharged--neither honorably or dishonorably, but they could have been wrong."

Anonymous said...

that's what i said, but i was deleted

not a bad title for a book "I Was Deleted"

if someone wants to read a brilliant suppressed book about the unmentionable, highly recommend "Race Matters" by Michael Levin, a philosopher who teaches at City College, which is where KC Johnson teaches if i'm not mistaken

Anonymous said...

12:29 Yes she was dishonorably discharged from the navy. If she was still in the service she would be ending her time now.

She only did two to two and half year out of six.

Anonymous said...

1:46: just because she got out early, does that mean her dis was dishonorable, or do u hv info that discharge was definitely dishonorable?

Anonymous said...

Yes she was dishonorably discharged. She had also gotten pregnant from god knows who the father is, but it was someone in the navy. She had started hooking in the navy and got caught.

Anonymous said...

1:46 & 2:20 Anon:

Per Wiki (consider the source):

"Radio Operator & Navigator, United States Navy[4]
Mangum enlisted in the fall of 1996 for two years of active duty with six additional years in the reserves. She began her duty in the summer of 1997, but was discharged in 1998. The U.S. Navy has not released the reason for this discharge[4]

Per N&O article in footnote [4]:

...she signed up in the fall of 1996 for an eight-year enlistment -- two years of active duty followed by six years in the reserves. She began active duty in the summer of 1997 and was sent to school in Dam Neck, Va., near Virginia Beach, to train for her job operating radios and navigation equipment.

"A U.S. Navy spokesman would not release the reason for the discharge, though records indicate it came less than nine months before she had her first child, a boy, named after his father."

Anyone have some definitive scoopage?

Anonymous said...

I thought I had read early on that she was discharged because she was pregnant....(is that a reason for a discharge?)

Anonymous said...

2:34 No that is not a reason for discharge. The baby she had was not her husbands. In the milatary this is a crime. She was lucky that she didn't go to federal prison.

The milatary doesn't really enforce that rule, but she could have been sleeping around more than once, while in the navy, or she was found to be to undtable upstairs to stay in they service.

Anonymous said...

Kbp - Felony Murder really isn't a different charge than murder. It's just a way of getting to First Degree Murder without having to prove premeditation.

Felony Murder is a murder that occurs during the perpetration of an "inherently dangerous" felony.

Anonymous said...

Do you love that she has her own entry in Wiki?!

Anonymous said...

I read yesterday in Michael Gaynor's column on November 17 that only of the defendants' attorneys had file a supression motion on the photo i.d. I was quite surprised, almost shocked. Anybody know if that's true and what the tactic might be if so?

Anonymous said...

Besides, being seperate but equal, didn't Himan or Gottlieb make false statements to obtain a search warrant. Why can't the feds get involved, as they did in this case. Violation of the defendants "civil rights" See attached:


Anonymous said...

2:43 pm Anon:

So do you - http://en.wikipedia.org/wiki/Anonymous ;>)

Anonymous said...
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Anonymous said...

Re the AV's discharge--
I believe there is a "general discharge," which is neither honorable nor dishonorable--it's possible this was the type of discharge she received. This could relate to the pregnancy out of wedlock, I suppose, or it's also possible that other physical or mental health problems might have been involved.

Anonymous said...

Help me understand this. You people just feed off of each others paranoia and fear of Durham, right? Trying to make this case as much about race as you can with every post, right? Revealing your own racist preoccupations, right? Pitiful bunch you all are. You deserve each other. Hope you can keep each other company during the trial, when those three boys will have to stand before a judge and jury and defend themselves. I guess you all are like hoping for a miracle? Doing a bit of wishful thinking huh? That means you need to go back to that party and take away the 12 hour drunken binge. But, then that would be magical thinking. What do boys do when they have been drinking for 12 hours? Bet a jury will figure it out.

Anonymous said...

One misconception that needs to be addressed: the "seperate but equal" system in Durham is not automatically contrary to the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Because the classification--Duke students--is not a racial or ethnic one (at least not facially), great deference is given to the governmental entity. Durham would have to show that there is a rational relationship between the harm they are trying to prevent (likely crime) and Duke students. The law is allowed to be underinclusive, which it clearly is. Any city could pass this test.

This is not to say that the standard does not violate some other federal statutes/regs or the North Carolina Constitution, however it should be noted that it likely does not violate the U.S. Constitution.

Anonymous said...

To 5:40
Was your comment intended to ridicule anyones "fear and paranoia" regarding the city of Durham? If so, you failed. I would say that you cranked out a pretty good example of what sober, sensible people should rightly fear - closed mindedness and an agenda.
Your concluding statement is just another version of crude stereotyping. The mountain of actual information of "what went on" I suspect you are not even interested in. But you live in Durham (actually or figuratively) and so you don't bother to work at understanding this case beyond the identity of the accused/accuser.
Tell me again why innocent white guys should not feel afraid and even paranoid in Durham.

Anonymous said...

5:40 r u a troll, or r u serious?

discussing "black culture" with its attendant present-oriented nature is not "racist": it's called anthropology--this present orientedness expresses itself in high crime rates, welfare dependency, and illegitimacy--excuse me for telling the truth: we're in cyberspace not PC land

i'm sorry if u take offense when i characterize precious as a run-of-the-mill predator--i'm sorry she's unattractive, a prostitute, immoral, and a convicted felon

Anonymous said...

What's the rational basis for this policy though? I would think the DPD would have to show that Duke students are more likely to commit crimes of the nature they are trying to prevent than Durham residents or NCCU students. Otherwise why single out only Duke students?

I think people should be treated equally and have the same right to fairness in the eyes of the criminal justice system. That may not be a fundamental right but it should be. If a Duke student and an NCCU student get together and make some noise and are charged with a noise violation should the Duke student be treated more harshly than the NCCU student just because he/she goes to Duke? I would argue that there is a fundamental right to fairness in the criminal justice system and therefore a court should apply strict scrutiny to the DPD policy. Otherwise you can single out any large group that isn't based on a suspect class and single them out for harsher treatment by the legal system. Sorority and fraternity members? Members of althletic teams? All university students in NC or any other state?

Anonymous said...

The rational basis application will easily side with Durham in this case. So long as the DPD can show that Duke students committ crimes, it'll pass. Underinclusiveness is not sufficient to reach unconstituionality

As for your example (in which a Duke student and an NCCU student are breaking the law together), you may be right, however that's a different circumstance than I was addressing in the previous post. In your situation, as you've identified, we may be dealing with a fundamental right ("liberty interest") and therefore we're dealing with due process and not equal protection. I'd have to think about this a little more, but off the top of my head, even in that circumstance, I think the DPD is subject to rational basis. I don't think there's a "fundamental right" to be treated the same as every other person that committs the same crime as you, otherwise plea bargains would, in some cases, be unconstitutional. With this in mind, DPD would have to show a rational relationship, and, given the circumstances of the hypothetical, it's too fact specific to try and guess what the courts would do.

Anonymous said...

5:56 and 7:04 are both correct. It isn't a violation of the equal protection, even though it's fundamentally unfair. That doesn't make it right, it's just not a violation of the federal constitution.

Anonymous said...

Call me the skeptic, but I will believe that the Bar will bring charges against Nifong when I see it happening. This is NOT to discourage the NC Bar from going after this cockroach, but my guess is that since NC prosecutors are very powerful, they will stand shoulder-to-shoulder and keep anything from happening to His Dishonesty.

Remember, North Carolina is the state that has given us ethically-challenged prosecutors like Nancy Lamb (of Little Rascals fame -- complete with "bobbed hair and flashing eyes"), David Hoke, and Debra Graves. All are free to pursue their profession, even though two of them maliciously put someone on death row, knowing the person was innocent, and the other manipulated the system to throw innocent people into prison.

I can only hope that North Carolina will turn the corner, but I will not hold my breath....

Anonymous said...

I'm not holding my breath either but I sure hope that Kemper is right.

Even if Kemper is right, that doesn't mean the bar will actually punish Nifong or even find that he did anything wrong. Going by their history, they can come up with some way to protect him if they want to.

I'm the 6:34 poster and I'm a law student. Thanks to 5:56, 7:04 and 7:15 for weighing in on the legal issues. Very interesting.

Anonymous said...


"Otherwise you can single out any large group that isn't based on a suspect class and single them out for harsher treatment by the legal system. Sorority and fraternity members? Members of althletic teams? All university students in NC or any other state?"

I think all of these things are probably legal. The IRS makes a point of actively pursuing high-profile taxpayers like Willie Nelson and Wesley Snipes, just because those sorts of prosecutions are more effective from a deterence standpoint. Arguably, the same thing happened with the prosecution of Martha Stewart. In fact, I'd wager that high profile cases are generally prosecuted more aggresively regardless of the crime or jurisdiction.

Similarly, it's not unprecedented for cops and prosecutors to be especially harsh on crime that occurs within a neighborhood that houses an elementary school. It's not fair to criminals in those neighborhoods, but it doesn't raise any red flags under the law.

Anonymous said...

5:40 poster you are a very sick person. The stuff that comes out of your mouth is just another reason to move the trial out of Durham altogether. You are showing all of america what the people of Durham are really like.

I don't even believe the accuser, she has way to many stories, and no true victim would come up with that many stories.

Anonymous said...

To 5:40 poster, You are the insane one here. You are obvioulsy a racist and a homophobe. You need to seek help for your condition. You have alreadly declared these guys guilty of rape. Where is your physical evidence

Anonymous said...

9:52 a.m. wrote:

"College admission no longer will depend on hard work and good grades--it will depend on race and income. My kids are screwed....they are white, work hard to get good grades and score well on college entrance exams and are middle class. "

I wouldn't lose too much sleep over this. Hard work and intelligence will always be valued. If AA means that your kid has to go to Penn instead of Harvard, rest assured that if she's decidedly smarter than her classmates and works harder too, going to Penn or Duke won't hold her back. My strong suspicion is that the top 20% at either school will, over a lifetime, generally outperform the bottom 20% at Harvard, Yale or Princeton.

Being white and middle class might not give your kids a head start in the life, but it's no handicap. Working hard to overcome adversity, even if that adversity is just going to a safety school, will do a lot more for your kids getting into a "better" school with subpar credentials.

Anonymous said...

"What do boys do when they have been drinking for 12 hours?"

I can answer that one based on personal experience - they go to White Castle or McDonalds, stuff themselves full of food, then pass out at home. Which is exactly what Reade Seligman did.

At every big football school in the country (BYU excluded), thousands upon thousands of guys spend twelve hours drinking every Saturday. Yet somehow incidents of brutal gang rape are still low. I think the jury will be able to make that connection too.

Anonymous said...


I do hope you are right. If you are, believe me, it will be an important day for justice. Right now, prosecutors get away with just about everything. It would be wonderful to see Nifong having to face the consequences of his own actions.

As for 5:40, from what I gather, these guys were not drinking for 12 hours straight. But I also love it that 5:40 claims there was a rape with no evidence.

Anonymous said...

I'm not sure if 5:40 is trying to get a rise out of some of us on this board, but it might as well be one of the gang of 88 or any other "civil rights" activist.

The whole idea of people like 5:40 is to shift the conversation from the specifics of this case, ie the evidence and lack of it, to name calling - racist etc.

It figures. Without any facts there is no reason to argue whether a rape occurred. Everyone, and I mean everyone, knows that a rape did not occur. But 5:40 does have the black community from which to draw a jury. And that is the most critical part of this issue and one that stacks up in his/her favor.

And it is this last point where I must respectfully say that Prof. Anderson is decidedly wrong in his assertion that this case is about the power of a prosecutor in NC. While that has been a sad side note to this episode, the real issue here is race and the impossibility of a jury system (and for that matter a political or social system) built upon a mulicultural society that places the interests of certain groups over truth and the individual.

Surely, Nifong has too much power as a prosecutor, but he has shown his willingness to bend to community pressure. Further, and more importantly, had the community shown the slightest bit of respect for fairness, due process and the presumption of innocence, Nifong would have been defeated in the election. He would have been stripped of any power he had as a prosecutor.

Instead, I must respectfully say that Mike Nifong understands this case better than Prof. Anderson. Nifong understands that his power as a prosecutor depends on his manipulation of the black vote in Durham. Nifong's appeal to the lust for power that blacks feel in Durham is the answer to this case (and to the OJ case and to the continued power of Jesse Jackson, Al Sharpton, NAACP etc).

I urgue Prof Anderson to rethink his analysis of this issue. Anderson has made a strong point that NC prosecutors have too much power. He is correct that in a system of checks and balances, the Gov or AG should have stepped in now. But he ignores the vote of early Nov when the voters could have trumped the power of the prosecutor if they had believed that he had abused the power he was entrusted with. Instead, Durham kept him. They liked the way he pressed the black issue and I'm afraid there is more of this to come . . . whether prosecutors have too much power or not.


Anonymous said...


I concur. I had a piece on Lew Rockwell's page a while back entitled, "The NAACP and Jim Crow Justice," and made many of the same points.

Mob rule gives us mob "justice."

Anonymous said...

I do not believe that the DPD policy of targeting Duke students for special treatment by encouraging arrest rather than citation for minor infractions can pass the rational basis test. First, I do not think there is a rational basis for distinguishing one set of college students from another. Second, the reason given, that Duke students are scofflaws, does not afford a basis either. People who commit quality of life crimes are pretty much, by definition, scofflaws. Huesofblue cited targeting of celebrities by the IRS. That is a different situation because the IRS has limited resources for enforcement and, therefore, maximizing the effect of those resources through selective investigation and enforcement is a legitimate consideration for Equal Protection purposes.

The larger problem is the nature of the arrest power and the use to which DPD is putting it. The purpose of arrest is to ensure that those accused of a crime show up in court. Those taken into custody can obtain release by giving sureties for appearance at trial. The purpose is not to punish. Therefore, the only grounds upon which a policy of encouraging arrests rather than citations can be rationally justified is if Duke students are less likely to show up for trial than any other citizens of Durham. The DPD policy makes no reference to any such concern. Indeed, I suspect Duke students are more likely to show up for trial than most. Instead, by its own terms, the policy is designed to punish and intimidate Duke students. As such, it has no rational basis for Equal Protection purposes. Furthermore, because the policy is designed to punish individuals who have not been found guilty of a crime by a court of law, it is also a violation of their right to Due Process.

Anonymous said...

Happy to see Judge Osmond Smith's WFU Deacs win the ACC title game Saturday. Hopefully he was able to attend. Have to believe you know what you're talking about in the Duke Lacrosse case concerning Liefong(typical Tarhole waste of taxpayer money,including the recent football hire). I too do not believe the case will ever go to trial and Liefong will ever face any serious reprimands. He will say my health is felling me now, in relation to his previous prostate cancer. He is not a very appreciative cancer survivor! And he also has "Precious" that he can say lied to him.

Anonymous said...

I am with you on this, Jason. I cannot think of a rational basis for the policy. My understanding is that "rational basis" is not entirely a rubber stamp--there has to be some reason to support it. If we think about the Lawrence sodomy case where the Supreme Court used rational basis to strike down Texas sodomy laws that applied to homosexual acts but not heterosexual acts, how can we argue there is a rational basis for arresting and possibly jailing (which entails some risk to the student) noisy underage Duke drinkers but merely writing a citation for the NCCU student or the drunk underage Durham resident?


Anonymous said...

Jason and Observer,

Your arguments are valid. But I just don't think that's the way rational basis works in practice. To call it a rubber stamp doesn't strike me as that far off. As one law school website explains:

"The traditional rational basis test, as applied in cases such as Williamson v Lee Optical, is extremely deferential--some would call it a total abdication of judicial responsibility. Under this traditional test, a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state. Moreover, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation. It is enough if the interest is now advanced and that it is "conceivable." If attorneys for the state lack the creativity to come up with a conceivable interest, some justices are willing to help out and supply one themselves."


[Note: Observer is correct that the Texas sodomy law was struck down on "rational basis" review, but even Justice O'Conner recognized that the Court was actually applying a higher level of scrutiny. Commentators have dubbed this "rational basis with bite", but the Supreme Court has only really applied this standard to classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens. University students aren't likely to receive this sort of special treatment.]

Anonymous said...

Thanks to Prof. Trumpbour and Observer for the input. The idea of giving Duke students harsher punishment simply because they attend Duke seems fundamentally unfair. All the arguments have been interesting to read. I hope this is one departmental policy that would fail the rational basis test.

Anonymous said...


I didn't realize you were a law professor. My knowledge of con law is limited to two semesters as a student, so I'm happy to defer to your superior knowledge.

But my impression of the DPD policy is still that most courts would find a rational basis. Wouldn’t it be enough for the DPD to say that 80% (an arbitrary number) of Duke students have a permanent residence outside of Durham and are therefore less likely to show up for court? Or maybe that students at a private college are more likely to have good fake IDs that might warrant arrest and fingerprinting at the station?

I might be wrong, but I feel like con law is filled with similarly weak arguments that the courts find persuasive. Likewise, I didn’t think the state needed much in the way of evidence if its suppositions were in any way feasible.

I’d be interested in your thoughts.

Anonymous said...

I'm the 6:34 poster and I'm a law student. Thanks to 5:56, 7:04 and 7:15 for weighing in on the legal issues. Very interesting.

You are also right.

Anonymous said...

I should have used quotes:

"I'm the 6:34 poster and I'm a law student. Thanks to 5:56, 7:04 and 7:15 for weighing in on the legal issues. Very interesting."

You are also right.

But, Duke and John Burness do not seem to care.

Anonymous said...

Isn't the whole subject of the legality of targeting duke students a moot point if none of them files a complaint? (Or has one filed a complaint?) Isn't a complaint required before the legality of the police actions will be tested?

Anonymous said...

As a reference, I'm 5:56 and 7:04. As for the discussion, I'm still confident thatm if rational basis applies (which it does unless there's a fundamental right being infringed), the DPD's policy is constitutional. If the goal of the policy is to "prevent crime", and the characteristic is "Duke students", then the DPD need only show that Duke students commit crimes. Under rational basis, the court doesn't look to the motives or intent of the government, and, after RR Retirement Board v. Fritz, simply needs to be able to come up with ONE rational reason for the policy, even if the government can't do so. There are outlier cases that seem to look into the motives of the government (Romer v. Evans being the big one), however no one really knows what these stand for, and the plaintiffs in Romer were slightly more sympathic as a class than Duke students (fair or not).

Finally, Lawrence was, by and large, a heightened scrutiny case. "Rational basis" may be claimed, but that's because the majority probably couldn't get 5 votes if they wrote precedent that gave strict scrutiny protection to sexual activity. As such they watered down the language, but still applied the test.

Anonymous said...

Yes, presumably someone would have to challenge the different treatment in some way--through a complaint, or by raising the issue in a court proceeding on a charge against the Duke student. One aspect no one has mentioned so far that might also go in to the rational basis calculation is the fact that many of these arrests have been in Trinity Park, a neighborhood where the neighbors have frequently complained about noise and rowdy behavior by students. Perhaps NCCU students don't congregate in particular neighborhoods, or if they do the neighbors are less vocal. I'm not saying it's fair, but it seems to me the police might be able to argue that the higher level of neighborhood unhappiness is a rational basis for the disparate treatment.

Anonymous said...

All right. I admit I am stretching, but I am not willing to concede completely on the equal protection issue. Caveat: my knowledge of con law is also limited to law school many years ago and a superficial reading of what has happened in more recent years. First, I still believe the DPD policy is a violation of the Equal Protection Clause. The clause states "nor shall any State...deny to any person within its jurisdiction the equal protection of the laws."
This is understood to forbid invidious disparate treatment of similarly situated individuals or stated differently this clause requires that similarly situated persons be treated similarly with respect to laws and policies. The Supreme Court limits what it is willing to enforce with its varying standards of scrutiny, but whether or not it's willing to enforce the clause for this particular situation is a different question to me than whether the DPD policy violated the clause. I believe the policy DID violate the clause--it was a policy of treating similarly situated individuals completely differently.

Second, as for the standard of scrutiny, I believe the Supreme Court has moved closer to a sliding scale of scrutiny in recent years with Baker and Lawrence. Baker (the Michigan affirmative action case)concerns different treatment based on race, but it doesn't really get strict scrutiny and Lawrence is supposed to be rational basis, but the Court doesn't really use that either. So, I maintain the Supreme Court is capable of surprises and is continually refining its use of the Equal Protection clause. Somehow I suspect that if this policy had been directed at
NCCU students, the Court might very well find the policy violates Equal Protection. In a country where Caucasians will eventually lose majority status, the Court may need to think more broadly about who gets to avail themselves of the protection of the Equal Protection clause and why.

And finally because the DPD policy is fundamentally unfair and discriminatory, if Equal Protection and Due Process arguments failed (as per Jason Trumpdour's argument) I would turn in desparation to the Commerce Clause. I seem to remember almost anything could come under its umbrella. I believe the DPD policy creates an undue burden on commerce by discriminating against out of state students who want to spend their education dollars in
Durham, North Carolina. Yes, I am joking... but not completely.

And, yes 7:22, someone who had experienced this discriminatory policy would have to file a lawsuit against the
DPD before any court would look at it. But having such a policy makes the DPD and Durham look bad and should make college applicants aware they may not be as welcome as they might want to be in


Anonymous said...

I call the 5:40 poster the "you people" poster, since she repeatedly refers to us with that. Other posters have repeatedly challenged her to refer to evidence and she doesn't. Based on similarities of writing styles and viewpoints, I believe she is Y. Carrington of the blog "genderracepower". I tried surfing to find "feminist" webstite ranting on the case, after Prof. Anderson's post on feminists. I found a couple which gave up on the Duke case under the weight of evidence. But I did find Carrington's, which contained the following comment of hers on 10/24/06:

"As for the accuser, I choose to believer her. I mean that. Women who say they are raped need to be believed, period. No conditions placed or questions asked."


Ms. Carrington says she's from Raleigh, a writer and an activist.

My own view of "true" feminists is that they are or would be appalled at fabricated accusations because of the damage it does to reporting real rapes.

Anonymous said...

The link I gave to Ms. Carrington blog did not work. It was just to provide the reference point for the quote, and if you really need it her site is http://www.genderracepower.blogspot.com

and the comment is in the comment section after her blog entry of October 14, 2006.

Anonymous said...

I went to the gender/race/power website, and was not surprised at what I read. Basically, this is a woman who is filled with hatred for people who are different than she is.

The problem occurs when these twisted opinions become part of law. What she demands is that the law throw any man in prison who is accused of rape, no matter what the evidence might be. For example, if I were in California on a Wednesday, but a woman here swore that I raped her in this place on that same day, it would not matter if I could prove that I was in California. She claimed rape that day; that settles it.

In other words, we dispense with a trial, since the woman is never wrong in her charges and in her identification. I mean, why go through the pretense of a legal trial when we already know the TRUTH?

Unfortunately, the law no longer regards people like this as cranks. They are taken seriously, and it is because of people like her that men are falsely accused and imprisoned on bogus rape charges. No doubt, she also would support the child molestation witch hunts.

This woman is the kind of model student turned out by faculty members like those in the Gang of 88. There no longer is Truth; there only is power, according to these people, and they want power and will do anything to get it.

Anonymous said...

To huesofblue:

Yes, I am a professor, but do not worry. You make a good argument and, if you had not told us you only had one year of law school, I would not have guessed it.

You are absolutely right that the rational basis test is an extremely low standard and that it is rare to come across a law or policy that is irrational on its face or that cannot be rationalized in some way. I just think a strong argument can be made that DPD’s policy is one of those rare instances. The fact that the victims of offenses committed by Duke students have a greater personal animus toward them is not a rational basis. The best argument I can see would be that preserving the tax base in Trinity Park is a higher priority for the city government than in the areas around NCCU. However, the policy does not apply to all offenders committing similar acts in Trinity Park. Instead, it applies to Duke students and it is not even clear that there is a geographic limit on its application.

The Due Process problem is even more pronounced. By its own terms, the policy is penal in nature. It does not attempt to fit itself within any recognized acceptable use of the arrest power, i.e. ensuring appearance at trial, abating present criminal activity or protecting the public or the arrestee, his or herself, from some immediate harm posed by the arrestee. The right to liberty is a core interest protected under the Fifth and Fourteenth Amendments. Irrespective of the substantive offenses involved, the policy essentially allows officers to act like Judge Dredd from the 2000 A.D. comics and arrest, judge and sentence Duke students on the spot for the crime of being Duke students. One can only be deprived of liberty by due process of law, which requires a criminal conviction. Many of these students end up being acquitted. If being a Duke student is an aggravating factor for a given offense, that is something that must be determined by a judge.

Anonymous said...

To 5:40pm

You don't have any idea what you are talking about. Reade Seligmann was playing golf for 5 hours prior to that party. He hadn't been drinking for 12 hours. I know you have no interest in facts obviously.

Anonymous said...

10:57 - I think you are correct in writing that white people are tired of the blacks sense of entitlement, crime stats, ebonics, etc. I know I am and I helped in the good fight for civil rights most of my life.

5:40PM - drinking alcohol for twelve hours in no way assists men in starting or completing a sex act.

Anonymous said...

To Professor Johnson:

I suppose the reason why the Durham police arrested a disproportionate number of Duke students for noise and open container violations is because the lacrosse players and other Duke students who lived in Trinity Park had been throwing rowdy drunken parties for years, the neighbors and police had been asking them to tone it down for years, they had arrogantly refused to do so, so the neighbors and the police finally got fed up and decided to take strong action. If the lacrosse players and the other students had been more considerate of their neighbors, none of them ever would have been arrested. You blame all of this on the police, but I would blame it on the students.

Anonymous said...

I might consider agreeing with you if Nifong had dropped the charges once the first DNA results came back. All the prior behavior should have justified was a higher level of suspicion. Once real evidence was available to judge accusation vs. denial, to contnue meant that justice was perverted for the sake of polical gain.

Alleva and Brodhead tried to point out that forfeiture of two games for the drinking behavior was a serious penalty, but no one listened to them on that part of it. You could argue thay brought the forfeits on themselves, you could argue they brought the initial suspcions on themselve, but it is beyond mean to suggest they brought these prosecutions on themselves.

Anonymous said...

To 1:58 PM,

I am not suggesting that the LAX players deserve to be charged with rape just because they held rowdy parties. Professor Johnson has pointed out several times that the Durham police have arrested Duke students for very minor violations like noise and open container violations more than they have arrested other Durham residents for those kinds of violations. Typically, a resident of Durham who was not a Duke student would simply get a citation for this kind of violation, not an arrest. I am responding by pointing out that there was a long history here in which the students were asked to tone down their rowdy parties and refused to do so, and this explains why the police started arresting them.

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