Meeting Reaction

Commentary from defense attorneys and Jim Coleman in today's N&O and Duke Chronicle seems overwhelmingly positive about the direction of the case.

From Ben Niolet in the N&O:

After the two-hour meeting, defense attorneys said they were pleased with the prosecutors. They described the session as a business meeting -- a far cry from the days when Nifong refused to sit with the lawyers. Defense attorneys in the case had criticized Nifong for refusing to meet with them even when they said they had evidence that the accusations were lies and that at least one of the charged players had an alibi.

"We are excited to have professional prosecutors who are willing to sit down and engage us in conversation," said Joseph B. Cheshire V, one of Evans' attorneys. "We are excited that we are now engaged in a professional process."

Wade Smith, an attorney for Finnerty, said the meeting was mostly about scheduling.

"It's the kind of thing lawyers and prosecutors should do. They should talk," Smith said.

From Rob Copeland in the Chronicle:

Jim Cooney, a defense attorney for indicted player Reade Seligmann, said he was not surprised by the delay. "The two special prosecutors just got six boxes of stuff about a week ago.... I want to give them a chance to read up on the file and to make a good-faith effort to read what they need to read and to interview the witnesses," Cooney said, adding that there is a significant chance the prosecution will decide to drop the charges before May.

Joe Cheshire, an attorney for David Evans, Trinity '06, told the Associated Press he anticipated more meetings between the defense team and the attorney general's staff. "We are very hopeful about this case, and where it stands, and where it will go, and at least we know that it will be dealt with professionally," Cheshire said.

Duke law professor James Coleman, a frequent commentator on the case, cautioned against reading too far into the postponement. "The way I read this story, this is simply an interim deadline and it could be moved up or moved back depending on the progress made," Coleman said.

He added that the delay indicates the new prosecutor is willing to look at the case from all angles. "The lawyers on both sides appear to be interested in what the facts are and whether there is any basis for criminal charges," Coleman said. "If you recall, Nifong refused to look at any of the evidence from the defense and indicted a guy without looking at his alibi."

NY Post Article

I have an op-ed in today's New York Post, expanding on the post from a few days ago about the Times and DNA.

Facile Assumptions

In the early weeks of the case, we frequently heard that—despite all evidence of Mike Nifong’s improper public statements—the lacrosse players were receiving special treatment because of their race.

• The Group of 88 ad quoted an anonymous student allegedly saying, “I can’t help but think about the different attention given to what has happened from what it would have been if the guys had been not just black but participating in a different sport, like football, something that’s not so upscale.”

• Syndicated columnist Leonard Pitts wrote, “Imagine if the woman were white and reported being raped by three black members of the basketball team. You’d have to call out the National Guard.”

• In the (London) Independent, a student at NCCU said, “If the tables had been turned and two white women had been raped by the [NCCU] football team, the whole team would be in jail. They would not be walking around.”

• Another NCCU student, Spirit Mitchell, told CBS, “If it was a Duke student and it was Central’s football team, the situation would have been handled totally differently.”

Given the political needs that Nifong faced in spring 2006, the situation probably would have been handled differently had the alleged perpetrators been minority football players. But the reflexive assumption by both the Group of 88 and their ideological allies seems off-base (and perhaps, as this perceptive Liestoppers post suggested, wholly wrong). Four recent cases involving allegations of sexual assault against minority football players suggest what could have happened in the Duke case—with an ethical prosecutor and absent racial rush to judgments by the media or faculty activists.

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The first case, which occurred just down the road from Durham, was ironically first mentioned in reference to Duke events by Nifong’s now-attorney, then-critic, David Freedman. Analyzing Nifong’s misconduct on the April 19 Abrams Report, Freedman remarked,

Everything has been mishandled from the start. You had a district attorney coming out and making potentially unethical statements, saying he believed a crime occurred, which he should not do. He should not be commenting on the evidence. He took an adversarial position from the start.

We had a situation recently in Winston-Salem that could have been racially divisive—[four] Wake Forest, black football players, white female student. If the D.A. who was actually a former Duke lacrosse player himself, Jim O'Neill, had taken the position and come out strong like Mr. Nifong had that something definitely occurred and sort of played the race card, it would have been very racially divisive.

Instead, he listened to the evidence. He let everyone be interviewed. We were all able to meet in a more congenial fashion and after a careful determination they determined that there was no charges that needed to be brought. Nobody was hurt. Nobody's face was plastered all over the front of USA Today.

Articles from the Greensboro and Winston-Salem papers from October and November 2005 show the fallacy in the Group of 88’s race-based assumptions. After the allegations were made, O’Neill didn’t “throw the whole team into jail.” Instead, he handled the case quietly and fairly. The campus police turned the investigation over to the Winston-Salem police department, which conducted a thorough investigation.

While the investigation was proceeding, football coach Jim Grobe suspended the players from games (though he allowed them to practice), since “we’re going to try to do the right thing; basically, we’re going to try to make decisions that are fair to the kids, that are right for our football team and for Wake Forest.” The players were not suspended from school.

Contrast Grobe’s general attitude to that demonstrated by the Group of 88: “I want to support these kids, but I want the right result and I want things to come out the way they should, and I don't know what that is right now. I only hear one side. You hear a million things. ... I know that you've got to be careful that you don't make decisions too quickly. You’ve got to wait and see how things work out.”

D.A. O’Neill, meanwhile, refrained from racially divisive public comments, or, indeed, from any public comments that suggested guilt of the accused. After several weeks, the police and prosecutor decided that evidence for rape didn’t exist, and they declined to file charges. Grobe reinstated the African-American players to the team; all four played on this year’s ACC champion Wake Forest squad.

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The second case occurred a bit to the north of Durham, in Richmond.

In May 2006, four students at historically black Virginia Union (annual tuition of between $13,000 and $19,000) were indicted for raping a white, out-of-state student from the University of Richmond (annual tuition, $42,610). Two of the four played on the football team; one had been quarterback. The five had attended a party, and the woman had left voluntarily with the VUU students.

The case received relatively little media attention. The major Richmond newspaper covered it on the sports pages. The University of Richmond paper provided more detail, but avoided mention of the accuser’s race.

When attorneys representing two of the players were asked about some of the racialist assumptions that black athletes are demonized to a much greater extent than white college athletes in sexual assault cases, they scoffed. “That hyperbole isn’t born out by the facts,” said one. Another noted that the Duke and VUU “cases are being treated differently, that’s for sure.”

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The third case occurred last spring, not too long after Mike Nifong obtained indictments in Durham, and, like the Duke case, involved a high-profile athletic program. In late April, Los Angeles police arrested USC backup quarterback Mark Sanchez on suspicion of sexual assault.

Sanchez was shown on tape entering a bar with a fake ID; two witnesses who saw him enter his apartment building later that night said he was drunk. The USC team had a history of brushes with the law and Sanchez himself had been investigated for underage drinking and breaking a window at a fraternity party.

But through the story received considerable short-term play in the Los Angeles media, it never went national. The district attorney avoided inflammatory race-based rhetoric or any other assaults on Sanchez’s personal character; 88 USC professors didn’t take out a public advertisement denouncing Sanchez; and after an investigation, the charges against Sanchez were deemed non-credible. All charges were dropped, and Sanchez was the backup quarterback on this year’s Rose Bowl champion team.

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The fourth case, which was just in the news, involved allegations of sexual assault against former University of California running back Marshawn Lynch, who recently announced his decision to turn pro. Lynch is African-American; no articles I have seen mentioned the race of his accuser.

Alameda County senior deputy district attorney Kim Hunter told reporters that the accuser had offered contradictory versions of events, that she had no visible injuries or photographs of injuries, and that another witness (the "Kim Roberts" of this case) contradicted the accuser in every way.

"No one is saying that the victim isn't entitled to the feelings she's having, but I have an ethical obligation," Hunter remarked. "If I don't believe I can prove it to 12 jurors, then I can't ethically charge the case.

Cal-Berkeley is an institution well-known for its left-of-center faculty; to my knowledge not one professor, much less 88, issued a public statement condemning Lynch or expressing support for the keeping the accuser central to the situation.

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In the Wake Forest, VUU, and USC cases, each side conceded that some form of intercourse occurred—the only question revolved around consent. In each case, a white woman claimed sexual assault against black or Hispanic football players.

Yet in none of these cases did the D.A. throw the entire football team in jail. Or engage in race-baiting rhetoric. Or pander to the white community. In fact, in all three cases, the D.A. did his job and conducted an impartial investigation. And in none of these cases did the students' own professors engage in a rush-to-judgment public denunciation.

Looking at the case in his backyard, Richmond Times-Dispatch columnist Mark Holmberg correctly concluded, “The Duke/VUU cases may show that columnist Pitts has it backward—that we’re more alert for white-on-black, rich-on-poor crime.” Indeed, it would seem as if the rush-to-judgment crowd was wrong on this assumption as well.

Hearing Postponed

WRAL is reporting that, as expected, the Feb. 5 hearing to consider Nifong's procedurally flawed lineup has been postponed, with both defense attorneys and the state AG's office agreeing to the move.

Duke Basketball Report Auction for ATAF

From DBR:

We have a very special auction to announce: four tickets for the UNC game (2/7), all together. The tickets are section 15, row h, seats 6,8,10, 12. These are near center court. There aren’t too many seats which are better than these. On top of everything else, you’ll see the action on the bench. The proceeds of the sale of these tickets will benefit ATAF, the Association for Truth and Fairness, which was spawned out of the criminal investigation of the the Duke men’s lacrosse team. The Duke lacrosse players need to raise $3 million dollars to help defray their legal expenses.

Please bid on these tickets and remember that every dollar you pay for these tickets will help defray the legal expenses of the Duke lacrosse players, which have been $3 million so far.

Even if you don’t bid - and we hope you do, even if it’s just to push the price up higher - you can help out by making an online donation. If everyone who reads DBR contributed just five dollars, we’d help them a lot. There is this unfortunate myth that somehow, this is just an inconvenience to three wealthy families. That’s absurd of course. These families are spending everything they have to defend their children against a prosecutor who has no interest at all in offering them a fair trial.

You can learn more or contribute at TRUTHandFAIRNESS.

Important caveat: you’ll need to to check on whether or not this auction is tax-deductible for you or not.

Sounds like a good idea to me.

Praising Stephen Miller

While their statement claimed to be “listening” to Duke students, the Group of 88 has shown little regard for what their school’s students think about the lacrosse case.

Take, for instance, Cathy Davidson’s recent Group of 88 apologia. She defended the Group’s statement by attacking students who made “racist and sexist remarks . . . on the campus quad in the aftermath of what happened on March 13 in the lacrosse house.” The ad’s gestation period lasted from March 29 through April 6. Just who were these unnamed Duke students issuing “racist and sexist remarks”? Davidson doesn’t say.

The Duke Chronicle recounted what the campus climate really was like during this period:

Surrounded on the quad in the middle of Duke’s West Campus, lacrosse player [Bo Carrington] wanted to convince protesters that neither he nor any of his teammates were rapists. But Carrington, a sophomore, couldn’t muster a word.

“You know what happened that night!” shouted one member of the crowd. “Why aren’t you saying anything?” . . . During those weeks in early April, Carrington and his teammates encountered pictures of themselves plastered around campus like WANTED posters. Posters that, in their minds, conveyed a predetermined judgment: guilty.

Davidson’s apologia also blamed unnamed “right-wing ‘blog hooligans’” for calling attention to the ad. No one noticed the ad, she suggested in follow-up e-mails posted on Liestoppers and elsewhere, until sometime in May—when the unnamed “blog hooligans” started writing about it.

In fact, the ad was noticed immediately, on her own campus, by the students to whom Davidson and her fellow signatories claimed to be listening. When the Group of 88 statement appeared, Bo Carrington told the Chronicle, “I think that all of us [these were Duke students he was talking about, lest Davidson not notice] kind of checked over our teachers to make sure they weren’t on that list.”

People on campus unaffiliated with the lacrosse players also were “listening” to their professors. On April 13, the Chronicle editorialized:

Campus groups, in attempting to respond to these issues, face a difficult balance between constructive dialogue and one-sided dogma. In many cases, they cross that line. An advertisement for a forum sponsored by the African-American Studies department proposes the idea that Duke is a “social disaster.”

This is but one example of the instances of radical, inflammatory discourse that obscures what should be our true aim: reasonable discussion.

The day before, Stephen Miller was even more direct, in a prescient Chronicle column:

Apparently, the lack of evidence was not a factor.

Friday, a full-page ad ran in the paper repeating the charge that the situation would be handled differently were the accused not a bunch of white lacrosse players. This absurd ad, which levied the untrue and indefensible charge that Duke is filled with racists, was officially endorsed by 20 of our academic departments and institutes and about 90 individual professors . . .

It is the hope of many activists, protesters and condemners to make a case not only for the excoriation of the lacrosse team, but also for sweeping social reform to address what they see as profound racial inequity.

Instead, they make a very different case—one for protecting, at all costs, our system of justice from the passions and prejudices of the people.

Miller went on from this column to defend due process and the players’ presumption of innocence in several national media appearances over the spring.

In contrast to Davidson’s claim of a vast-right wing conspiracy to use the ad to “make academics and liberals look ridiculous and uncaring,” I discovered the statement by “listening” to Duke students.

At the time, I knew no one on the Duke lacrosse team. Nor did I know any family member of a lacrosse player, or friend of a lacrosse player. I was reading the Chronicle every day to get a sense of campus attitudes; and after seeing Miller’s column and the follow-up editorial, I found the ad on the African-American Studies website and encountered its rush-to-judgment language myself.

In yesterday’s Chronicle, 293 days after he first wrote about the Group of 88, Miller returned to the topic.

He lamented how the lacrosse scandal has exposed a “shameful reality” that “while there are many good, decent and commendable professors on our campus, there are also a number of professors that are unethical, unbalanced and out of control.”

Miller cited the deeply disturbing case of Kim Curtis—who last spring “signed the abominable 'social disaster' ad, which pointed the finger of guilt at the lacrosse team, praised the protesters who rushed to judgment and slandered our student body as racist.” Moreover, of course, Curtis penned a March 29 e-mail suggesting Dowd and the other lacrosse player in her class were complicit in covering up a rape.

After taking these actions, Curtis suddenly started downgrading both Dowd and the other player—first to grades of C- on their second paper, then to an F on their final paper. Even though, Miller argued, “it’s clear to any objective observer that Dowd’s performance merits the P that he and his attorneys are demanding,” the University rebuffed the private pleas of Dowd’s lawyer and has elected to fight a suit in court.

While Curtis appears to have violated professional ethics, Miller argued that other Duke professors embarrassed themselves and their institution with their public commentary. He traced the actions of several other Group of 88 members, while recalling the springtime public letter of Houston Baker. On March 29, the former professor wrote that the team “may well feel they can claim innocence and sport their disgraced jerseys on campus, safe under the cover of silent whiteness. But where is the black woman who their violence and raucous witness injured for life? Will she ever sleep well again?”

Baker—like Davidson and each and every other member of the Group of 88—has refused to apologize for having rushed to judgment. He also has been more defiant than most, as Miller pointed out when quoting a December 31 e-mail Baker sent to Kyle Dowd’s mother:

LIES! You are just a provacateur [sic] on a happy New Years Eve trying to get credit for a scummy bunch of white males! You know you are in search of sympaathy [sic] for young white guys who beat up a gay man in Georgetown, get drunk in Durham, and lived like ‘a bunch of farm animals’ near campus.

I really hope whoever sent this stupid farce of an email rots in.... umhappy [sic] new year to you ... and forgive me if your [sic] really are, quite sadly, mother of a ‘farm animal.’

Over the past ten months, both Stephen Miller and Cathy Davidson have claimed that a desire to stand up for Duke’s undergraduates has motivated their actions. One demanded due process last spring; the other rushed to publicly denounce. One demands accountability now; the other dissembles. Who do you think has better served Duke’s students?

The Times: DNA Exonerates (Except When It Doesn't)

A powerful editorial appears in today’s New York Times, analyzing how “modern DNA testing is steadily uncovering a dark history of justice denied.” Noting that nearly 200 wrongly convicted people have been exonerated by DNA evidence in the past 18 years—including eight in New York State in just the past 13 months—the Times says, correctly, it’s high time that all states create innocence commissions, “independent investigative bodies of judges, prosecutors, defense lawyers, police officers and forensic scientists who re-examine case facts after prisoners are exonerated using DNA evidence.”

The Times cites two examples of note:

• A prisoner in Dallas spent 18 years in jail, convicted of rape “based solely on faulty testimony of a witness,” only to have a DNA test ultimately prove his innocence.
• “North Carolina’s innocence commission, led by the state’s chief justice, has already called for police investigators to vet witnesses more carefully.”

Upon reading these words, Times readers could be excused if they experience a bout of whiplash. After all, this is the same paper where columnists Selena Roberts and Harvey Araton published columns dripping with a presumption of guilt based solely on the version of events presented by one witness—just the type of person the editorial notes North Carolina’s innocence commission demands be vetted “more carefully.”

And this is the same paper that in August published a 6000-word front page article/op-ed by Duff Wilson, proclaiming that despite the DNA test results, “there is also a body of evidence to support [Nifong’s] decision to take the matter to a jury.” That article, moreover, went out of its way to exclude mention of the following clause from the March 23 order filed by Nifong’s office: “The DNA evidence requested will immediately rule out any innocent persons.”

Some might suggest that, given its performance on the lacrosse case, the Times hardly has the credibility to lecture anyone on the power of DNA evidence.

Barber, Wells, and the Sins of Denial

As John in Carolina noted, the head of the state NAACP, Rev. William Barber, was invited to preach at yesterday’s Duke Chapel Sunday service by the man he described as his “good friend,” Duke Chaplain Sam Wells.

Wells’ disturbing record on the lacrosse affair began with his April 2 sermon, when he contextualized the “disputed facts of an ugly evening” (on which, he said, he would await “forensic evidence”) as part of “a disturbingly extensive experience of sexual violence, of abiding racism, of crimes rarely reported and perpetrators seldom named, confronted, or convicted, of lives deeply scarred, of hurt and pain long suppressed.”

Wells further denounced “the subculture of reckless ‘entitlement’, sexual acquisitiveness and aggressive arrogance,” which “undermines the university because it corrupts the imagination on which the whole university rests. It breaks the university’s law.” Indeed, fretted the chaplain, “the last week has exposed the reality that sexual practices are an area where some male students are accustomed to manipulating, exploiting and terrorizing women all the time—and that this has been accepted by many as a given.”

Someone with such a view of the lacrosse case, I suppose, would see no difficulty in giving the pulpit to the head of an organization whose statements and actions have been cited as grounds for a change of venue in a case against students of Wells’ own school.

I decided to watch the webcast of Barber’s sermon to hear what he had to say. With copious references to Martin Luther King, Jr., Barber organized his talk around the “devastation of denial” when Pontius Pilate gave into the mob and denied clemency for Jesus.

“The refusal to acknowledge what is right in front of us,” declared Barber, “can be devastating,” even more so when accompanied by a denial of responsibility to change what is bad. Any “attempt to deny injustice covers us with the blood of guilt,” since “all the denial in the world will not save us from ultimately having to face reality.” To replace this atmosphere, “what we need today is a theology of truth and not denial.”

Following this link will bring up a document based on denial, not truth. A photograph of Barber himself frames a legal memorandum riddled with such case-related inaccuracies as:

• “The only Black [lacrosse] player, a freshman, left the party before the dancers arrived.”
• “After about three minutes of dancing . . . there were racial remarks made.”
• “Around 12:20, some men who saw the vulnerable Ms. M returning to the house called their friends who had taken cabs and gone to get some cash from an ATM.”
• “Theresa Arico, the SANE coordinator at Duke Hospital said ‘there was a certain amount of blunt force trauma present to create injury’.”

Barber, alas, seems reluctant to apply his desired “theology of truth” to his own organization’s statements. Instead, the NAACP head tailored his remarks to fit the organization’s new talking points—namely, that any dismissal of the case would be based on prosecutors caving in to public opinion rather than acting on the merits. “Pontius,” reminded the Reverend, “denied his responsibility that wrong was occurring before him in the court of public opinion,” and his “denial led to a great injustice.”

“We cannot deny the reality around us,” preached Barber, “or the responsibility as the church to seek change.” He cited as one example the problem of minority children, who too often in this country receive an inadequate education.

If I didn’t know better, I might have assumed that with those remarks, Barber was referring to former Duke lacrosse player Kevin Coleman, who received a 2005 ACC Service Award for his record of community service. In addition to working at the Duke Children’s Hospital and the Erwin Gardens Rehabilitation Center and Nursing Home, Coleman gave time to the “Read with the Blue Devils” program. Duke athletes promote reading skills for local third and fourth graders—just the kind of students about whom Barber was sermonizing.

In fact, more than 10 lacrosse players from last year’s team participated in the Read with the Devils initiative, seeming to put Barber’s words into practice. And the team’s commitment to the program has been longstanding.

Of course, Barber was referencing neither Coleman nor any other lacrosse player. In his comments on the case, the NAACP chair continued his organization’s practice of lionizing the accuser, wondering, “What about a society where young ladies even have to consider sexual occupation for financial sustainment, or to use those things as a flawed attempt to gain self-esteem?”

Barber’s question, it would seem, would best be directed to Group of 88 member Mark Anthony Neal, who this summer informed readers of Duke Magazine that “[t]he strip club is the new church,” a development 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.

Of course, Barber did not call out Neal, a professor in the African-American Studies Department, though his target was “right on this campus and in this community.” He asked listeners to “set aside the criminal charges for a moment, set aside what the courts will do about various things.” (So much, apparently, for the pre-Nifong recusal NAACP party line that only the courts could determine the facts.) “What about having parties with strippers and drunkenness,” mused Barber, “and reports of racial slandering?”

The NAACP has a long and distinguished history. But advocating temperance has never formed a critical or even secondary element of its agenda. Nor has it frequently been associated with Victorian standards of sexual morality.

Meanwhile, the state organization’s concern with a racially charged argument between Kim Roberts and one or two lacrosse players would seem more genuine had the state NAACP also denounced the racialist rhetoric of Houston Baker; or the revenge-thirsty Chan Hall; or the former Durham NAACP chairman’s recent claim that “the racist media and NC Bar Association . . . wrongfully used their influence to attack the integrity of a prosecutor at the rare time he prosecutes a case which profoundly has the potential to challenge racism, classism, and sexism simultaneously.”

But Barber was silent on all these issues. Instead, he wondered “about the real issue of sexual violence against so many women.” He asked his listeners to “set some things [about the case] aside, we can’t deny it.” This interpretation harkened back to Group of 88 member Wahneema Lubiano’s springtime assertion that “Regardless of the ‘truth’ established in whatever period of time about the incident at the house on N. Buchanan Blvd., the engine of outcry in this moment has been fueled by the difficult and mundane reality that pre-existed this incident.” In short, if the “facts” fail to fit the desired narrative, simply “set some things aside” and continue forward, rather than admit error.

Barber chillingly summed up the consequences of refusing to follow his demands: “If we deny God’s call to face reality, to change reality, then we sin, and the blood is on our hands.”

One person who attended the service e-mailed me to say that she walked out when Barber denounced the lacrosse players.

Barber concluded his sermon by observing, “Nothing is worse than to know better and deny a responsibility to do better.” These words serve as a fitting epitaph for the state NAACP’s performance in this case. An organization that long has committed itself to procedural regularity and protecting the rights of the accused has sacrificed its legacy upon the altar of racial politics.

Wells possesses wide leeway to invite whomever he wants to preach. But is it unreasonable to expect a University chaplain to avoid people who have gone out of their way to portray Duke students in what is at best a highly misleading and at worst an outright inaccurate fashion?

Hat tip: W.W.

Sunday Roundup

With little left to do as he waits for his ethics trial, perhaps the figure Liestoppers has dubbed “Inspecteur D.A.” should devote himself to the “case of the missing chief.” Yesterday’s Herald-Sun featured a front-page story detailing concerns about the recurring, lengthy absences of Police Chief Steve Chalmers.

The chief, of course, was missing in action as Nifong (improperly) usurped operational control of the lacrosse investigation. Then he appears to have missed another extended stint last month. And City Manager Patrick Baker has promised a make-work job for Chalmers for the final four months of his contract, from September through December of this year.

This record, H-S reporter Ray Gronberg reported, “has prompted considerable behind-the-scenes speculation about the department’s day-to-day management.” City Councilor Eugene Brown remarked that he was “hearing more and more complaints—from a variety of people” about Chalmers’ absences.

Several other members of the Council expressed concern, but said they would trust City Manager Patrick Baker, to whom Chalmers reports. This, of course, is the same Patrick Baker who polled all lacrosse case officers and fantastically reported that all claimed the accuser gave the same version of events. (In fact, the accuser failed to tell the same story to two different officers, much less all of them, and gave some officers—Himan in particular—several different versions.) No doubt civil lawyers are salivating at Baker’s “report.”

This is also the same Patrick Baker who oversaw Durham’s failure to report tests relating to lead in water and ignored memos warning about problems in the city’s yard waste recycling plant, which subsequently caught on fire. His performance, in short, hasn’t inspired much confidence.

Meanwhile, the city attorney’s office refused a H-S request to release how much time away from the office spent in 2006. That move doesn’t inspire much confidence, either.

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Good commentary in college newspapers has ranged beyond the Duke campus. In the past week alone, analyses of the case have appeared in the campus newspapers at Wisconsin-Madison, Emory, and Cornell. Ari Rabkin in the Cornell Sun captured the sentiment of these pieces, looking at what remains a disturbing anomaly of this case: “While most of the country has reacted with horror to the way the accused students have been treated, many on the Duke [arts and sciences] faculty had a quite different reaction. Their comments about the case reveal some unwelcome truths about university faculty and how they sometimes view their students.”

Rabkin’s column recalled the litany of campus events—the allegations about Kim Curtis’ behavior toward the lacrosse players in her class; “the initial reaction from many quarters [of] certainty that the accuser was being truthful, and that the lacrosse players were beasts”; and the embarrassing “racialist rhetoric” from Houston Baker. Rabkin (appropriately) ridiculed Group of 88 member Alex (drinks and “hookup”) Rosenberg, whose “studied outrage calls to mind that scene in Casablanca when the Vichy police chief (played by Claude Raines) announces that he is ‘shocked, shocked’ to find illegal gambling going on, and is then given his winnings for the evening.”

In the end, Rabkin lamented, “Many members of the Duke University faculty have displayed a dismaying tendency to jump to conclusions, conclusions motivated by an aversion to athletes that borders on prejudice. This tendency is especially troubling given that university faculty ought to possess a healthy skepticism, and a capacity for evaluating evidence.”

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The “clarifying” faculty’s missive proved to be one of the worst p.r. moves of the entire case. Rather than exonerate the Group of 88, the new statement only recalled attention to the original version. And the combination of a defiant tone and an utter refusal to even consider apologizing generated scorn from Dan Abrams to Charlotte Allen.

Another fine piece on the issue came from Mary Laney of the Chicago Sun-Times. The Group of 88, she noted, “put political correctness before due process in the railroading of these young Duke students.” The Group couldn’t wait for the semblance of due process: “As soon as the now dubious claims of rape were leveled, 88 professors wrote an open letter decrying racism, sexism and sexual violence on that campus. They urged the student body to get out and let their voices be heard.”

Laney quoted Charles Osgood of CBS News, who once said, “Being politically correct is always having to say you’re sorry.” Except, it appears, to your own students.

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Seligmann defense attorney Jim Cooney gave an interview, his first about the case, yesterday to McClatchy newspapers. Cooney signaled his arrival in the case at the October hearing, during which he eviscerated Nifong’s claim of receiving no alibi information from the defense. (Seligmann’s alibi had been filed on May 1, though Nifong stated publicly that he didn’t read it, since he lacked the time to peruse “fiction.”) And Cooney’s examination of the hapless Dr. Brian Meehan provided the Perry Mason moment in the December 15 hearing, when Meehan admitted that he and Nifong had entered into an agreement to intentionally withhold exculpatory DNA evidence.

In his interview, Cooney noted that while the media misplayed the case initially, in a “fairly rare” occurrence many journalists have reconsidered their views. (I suppose the Herald-Sun and Wilmington Journal are battling for recognition as the last to abandon Nifong’s case.) He expressed confidence that the current prosecutors would evaluate the case fairly and accordingly drop all charges. And he pulled no punches on the deleterious effects of this case, noting that it has worsened race relations in Durham and made things more difficult for real victims of sexual assault to come forward.

Two especially revealing answers. When asked whether “we’ll ever know what happened during the team party on March 13, 2006,” Cooney responded bluntly and correctly:

I feel very confident that we know what happened. I am also confident that there are certain people who will never believe the facts of this case because it does not fit their view of the case or their personal agendas. The simple truth, as the facts show, is that there was no rape, no sex offense and no kidnapping.

Also, Cooney perceptively analyzed why the case attracted so much attention.

I think there were really three factors. The first was that this case was a “perfect storm” of race, class and gender issues—it appeared to appeal to our worst thoughts about male athletes and underprivileged women of color. Second, the district attorney was so adamant and certain in his public statements that these crimes occurred—and that they were racially motivated—that even casual viewers could not help but be outraged by it. The third was that a number of constituencies—both the media and individuals with various race, gender and class agendas—then seized upon the case for their own purposes. This created a Pandora’s box that, once opened, could not be shut.

The third group, obviously, would include the Group of 88 and the state NAACP, the last bastions of the Nifong enablers.

---------

Under the category of truth is stranger than fiction, readers of the N&O’s Durham blog, “Bulls Eye,” received a treat this week. Michael Biesecker tracked down some audio clips of Nifong worthless check program head/chief investigator Linwood Wilson, who signs bass in a gospel group called the “Spokesmen Quartet.”

The group just released a tune called “I Still Believe in America,” in which Wilson booms out on bass, “I still believe we’re the last hope of liberty.” Many people would consider aiding a prosecutor engage in a massive violation of rules to contradict basic principles of American liberty.

---------

A few days ago, Liestoppers ran an amazing post by a late 1990s Duke graduate and English major, whose “all-time favorite course was Professor Laurie Shannon’s thought-provoking Shakespeare class.” The author said she “was heartbroken to learn that Professor Shannon signed both the Group of 88’s ‘listening’ ad and the Concerned Duke Faculty’s non-apology.”

The post examined a consistent pattern of how race has subsumed gender as the preferred narrative of the case. To cite one example, the post recalled the silence (or, in the case of Karla Holloway, worse) as members of the national media patronizingly attacked the women’s lacrosse team, many of whose members wore armbands or headbands sympathizing with the accused players in this year’s women’s Final Four.

Now, of course, members of the women’s team are viewed as heroes: students who not only had the courage of their convictions, but whose convictions have been wholly vindicated.

At the time, however, commentators from Harvey Araton to Stephen A. Smith to Kathy Redmond to—of course—Holloway had nothing but criticism to offer. I recently asked women’s lacrosse coach Kerstin Kimel whether any of these reporters had offered even a private apology to her or her team. Unsurprisingly, the answer is no.

The Liestoppers poster lamented,

When I was in college people thought that Title IX and the rise of women’s athletics was important to produce women of the caliber of these lacrosse players and dispel patronizing attitudes that female students were “little girls” incapable of expressing reasoned opinions and taking positions on public issues. Where are those Title IX defenders now? Hasn’t the honorable conduct of the women’s lacrosse team proved their point? Why not say so?

Those waiting to hear from Women’s Studies program director (and “clarifying” faculty member) Robyn Wiegman to respond to such questions might be waiting for some time. After all, the program’s webpage for months featured Holloway’s essay attacking the women lacrosse players. Apparently ideology trumps gender for the Duke women’s studies faculty.

---------

In late August, Nifong termed himself “very pleased” and said it “made me feel good” to have Victoria Peterson sign on as his citizens’ committee co-chair. In addition to her homophobic rants and her claims that Duke Hospital tampered with the DNA evidence, Peterson had shared the platform with the head of a hate group, the New Black Panthers, during the Panthers’ visit to Durham. Most district attorneys would not consider this a welcoming resumé.

A recently released Duke Police report shows that Peterson did more than simply stand silently on the platform. According to the report of Officer S.M. Tiffin,

Capt. Evans informed me that during the rally, Ms. Peterson was advocating burning down the house at 610 N. Buchanan. Capt. Evans told me that he quietly asked her not to continue telling people to burn the house. He also said that the leader of the group also stated that he did not agree with burning the property.

So the figure that Nifong welcomed as his citizen committee co-chair advocated burning down private property and adopted a more radical position than the head of a hate group. Incredible.

Citizens' Committee Co-Chair to Nifong: Apologize

Kim Brummell, Mike Nifong's former citizens' committee co-chair, penned a scathing letter in today's H-S.

The recent developments surrounding District Attorney Mike Nifong withholding DNA evidence," she wrote, "have him in hot water . . . why would a district attorney with nearly 30 years of experience withhold DNA evidence? Is it worth losing a job, reputation and diminishing the state's chances and the alleged victim's right to present her story?"

She continues, "Nifong owes the alleged victim, his supporters and all who voted for him a public apology for his missteps in this case. Chances are slim that will ever happen."

For the case itself, even Brummell concedes it's going nowhere: "How much can you really do," she asks, "with a case riddled with bullet holes? Usually it's dead."

Friends of Duke Petition

Friends of Duke has started a petition endorsing the Economics Department’s open letter backing President Brodhead’s demand for an examination of Mike Nifong’s conduct and welcoming all students, including student-athletes, into their classes.

More than 600 people have signed the petition to date. Here are some of the most thoughtful comments, beginning with one from a Duke professor.

Please do not assume that faculty who have been (or still are) silent have not formed reasoned and sensible opinions about the events of the last ten months. Nor should their silence be construed as supportive of the 88 signatories of the “listening” ad in the Duke Chronicle (or of any other position); as a general rule, the most strident and extreme voices are not universal, nor rarely even widely held (or so I would like to believe). I am a Professor at Duke, a Duke alumnus, and a resident of Durham. I have constantly updated my position on the lacrosse case as new evidence has come to light and will continue to do so as new evidence comes to light.

I am signing this petition because at this point in time, based on the evidence of which I am aware (which is quite extensive, after devoting much time to reading motions, affidavits, sworn statements, news articles, and multiple blogs), I believe: 1) the three lacrosse players, Reade Seligmann, David Evans, and Collin Finnerty, are completely innocent of the charges they face, 2) the DA Mike Nifong is corrupt to a level that merits censure or disbarment; I believe this will eventually happen since the charge that he already faces (making inflammatory prejudicial statements) is the least compelling of those he will probably later have to face (willfully violating accepted lineup procedures, and withholding and conspiring to withhold exculpatory evidence), 3) because of her claims, which appear at this time to be baseless, the accuser has done significant harm not only to the accused, to Duke, to NCCU, and to the city of Durham, but also to herself (by exposing to public examination her character and her past) and to all true victims of rape and sexual assault who are now less likely to be as readily believed, 4) the group of 88 signatories of the “listening” ad is not monolithic in its beliefs; while many of the signatories will likely not change their minds regardless of what evidence is revealed (which is extremely disconcerting given that we uphold scholars as people who ponder carefully, think critically, and consider dispassionately), I believe other signatories to be fine colleagues who are seeking the truth and willing to eventually change their positions in the light of new evidence (even though they may not be willing to do so in public), and 5) the Duke administration is trying to walk a fine line since it needs to please many constituencies; I believe the administration is committed to the truth, but as with all large institutions, this is a slow process because it takes more time to change the course of a large ship than a small one (recall that in the earliest days, some criticized the administration for not moving swiftly enough to condemn the players); this is especially true of academic institutions where the administration serves at the pleasure of so many competing constituencies (although stronger leaders might not seek to please all constituencies equally and the response time might then be faster).

While no university is perfect, and Duke is certainly not an exception to this rule, Duke is truly a wonderful institution with great faculty, students, employees, alumni, fans, and friends. I thank each of you for your support of Duke!

Caroline Dooley welcomed the Economics Department’s statement.

It was about time that the voice of teachers at Duke be heard. Discussion of this case has been dominated by a few (and often times irresponsible few) and the result has been that Duke as an institution looks out of touch with reality. Even more terrible, however, is that some of the statements by teachers appeared directed at attacking a Duke sports teams in general and even the specific defendants in some cases—without evidence to support the attacks or regard for the context of a developing rape case. I think this letter says what I have been waiting to hear from Duke (and am still waiting to hear from most of the university). Please don’t dismiss my input as that of an “outsider.” I am a 1995 Trinity grad, I am a liberal, I am a feminist and I am an attorney. I have no loyalty to college sports, I was not involved in greek life, I have been involved in rape crisis volunteering.

Not until this fiasco has anyone at Duke ever suggested that alums were outsiders or that they should be “moved along or left behind.” I have always loved Duke and will continue to do so—but this experience has undermined my confidence in the legal system and most surprisingly in feminist scholars and some of my former teachers. It appears that these defendants were unjustly targeted, and while it is inconvenient to admit, part of the reason they were targeted and so many people went along for so long is that Duke and its students are resented by many—even by some of its own professors.

Winford Kent Bishop, a 1961 Trinity graduate, wrote, “I applaud the Economics faculty. I am proud to say that I majored in Economics, played lacrosse, and have defended the lacrosse team from the beginning. As Dave Evans said, the accusations are ‘fantastic lies,’ and have been transparently so.”

Carl A. Johnson stated,

I strongly endorse the sentiments of the [19] faculty members of the Economics Department. I also applaud President Brodhead’s stance regarding the irregular and illegal manner in which prosecution has handled the case.

But much more needs to happen to make Duke whole again. While liability concerns may mitigate against publicly acknowledging mistakes made early on by the administration and certain members of the faculty, it is in Duke’s best interest to admit to those mistakes that continue to be unjustly harmful to the accused students and by extension to the entire Duke family. Tolerance and forgiveness were very much a part of the Duke culture during the more than eight years that I studied at Duke (BS and PhD).

We need now to start the process of forgiveness and healing. This can only happen if leadership and faculty step forward and admit to mistakes where they have happened and assert resolutely that protection of individual rights of Duke’s citizens is fundamental in its code of ethics.

Karen Donnelly noted,

I am a proud Duke alumna saddened by the events of last March. I am most disappointed in 88 members of the faculty who were more interested in fanning the flames of racism than in the presumption of innocence and the pursuit of truth. All students need to know that they have our support.

Evan Skowronski signed on, noting,

I am writing in support of the authors in this petition and any Duke faculty member, staff, or student who supports a fair, legal, and ethical treatment of its students. I would implore the administration to finally investigate and reprimand anyone associated with the university who has inappropriately and maliciously treated the young men in question who should benefit form a presumption of innocence and the support of their community.

Finally, from Todd H. Eveson:

I am an attorney and a Trinity ‘97 graduate. As a member of the NC State Bar, Mr. Nifong’s conduct and prejudice in this matter pain me greatly. So too, does the public statement of the ‘Gang of 88.’ They made a rash decision based on too few facts and now hide behind Duke’s tradition of free discourse and tolerance of intellectual diversity. True intellectuals value the truth and would not hesitate to publicly retract prior statements in the event that such statements were shown to be unfounded.

If there is one silver lining to this matter, it is that I have been proud of the manner in which the three defendants, President Brodhead and certain members of the administration, including the athletics department and now faculty of the economics department have conducted themselves. THAT is the University I know and love.

The petition itself is a welcome idea—as, of course, is the Economics Department letter upon which it is based. I hope that more Duke students, faculty, and alumni sign onto it in coming days.

Error Below

One item in the post below was badly worded at best and inaccurate at worst.

I noted that the Chronicle's story "beat" the N&O on the Gottlieb allegations. I intended to say that the Chron story got the students on record, so we learned of the allegations of lying and ethnic discrimination against Gottlieb--which were critical in interpreting the disparity in statistics regarding the arrests. That story was broken by Michael Biesecker in the N&O on September 9.

Here's how I originally (and accurately) posted on this item:

My apologies for the error.

More State NAACP Hypocrisy

Rev. Curtis Gatewood served four terms as president of the Durham branch of the NAACP from 1994 until 2002, when he moved to Oxford, North Carolina. During that time, he distinguished himself with what the (pre-Bob Ashley) Herald-Sun termed “racist cant” on Durham issues and with extremist views on foreign policy. He urged black males serving in the Army to refuse to participate in the war in Afghanistan, bringing a rebuke from then-NAACP national president Kweisi Mfume.

Gatewood has resurfaced to denounce the North Carolina Bar Association for joining “the lynching mobs in Durham who have verbally lynched and sought to politically assassinate DA Mike Nifong” as part of a “conspiracy to disrupt justice in this Durham case should be obvious.” The media are participants in the conspiracy as well, since Gatewood contends that “it is unprecedented that the alleged criminals and/or their defense team will be given the luxury of such a high-media platform to repetitiously proclaim their ‘innocence’ and attack their prosecutor.”

The lesson of this case, in Gatewood’s words, is that “the racist media and NC Bar Association who wrongfully used their influence to attack the integrity of a prosecutor at the rare time he prosecutes a case which profoundly has the potential to challenge racism, classism, and sexism simultaneously.”

Former Nifong citizens’ committee co-chair Kim Brummell is also speaking out, claiming that “the allege [sic] victim” is receiving unfair treatment from the media, which needs to look harder at the accused players and their supporters, since “I bet plenty of skeletons would be falling out of their closets.”

Such views, no doubt, reflect NAACP legal redress committee chair Al McSurely’s claim that the state organization stands committed to fair treatment for “both sides.”

Power of the (College) Press

Few people any longer are defending the print media’s coverage of the lacrosse case. In a recent edition of CNN’s Realiable Sources, CNN and Washington Post media correspondent Howard Kurtz termed the event an “absolutely awful performance by the media, pumping this into a big national melodrama.” Christine Brennan, a reporter for USA Today, agreed that it was “an awful performance, an embarrassing time, I think, for journalism . . . I think some people lost their minds in this story.”

One general exception to this pattern exists: the college media. The journalists of the Duke Chronicle have provided more, and better, investigating reporting on the case than every reporter in the country combined except for Joe Neff.

Perhaps because this case has featured the highly unusual event of a prosecutor targeting college students at least in part because of their identities as college students, the college press has proved far more willing than its more established counterparts to ask some hard questions of Nifong’s behavior.

The Chronicle opened this week with an extensive Q+A between reporter Rob Copeland and Richard Brodhead. Copeland’s questions were thoughtful but in no way hostile, the type that needed to be asked. The list included:

• “If you were Reade Seligmann and Collin Finnerty, would you want to come back to a campus where professors have denounced them and where students have held protests against them personally?

• “Let’s talk about the attention Duke’s faculty has received in this case, in particular the members of the so-called ‘Group of 88.’ Do you hold the faculty to a higher standard? Should they understand the legal process, and recognize that it’s not appropriate to speak about their individual students to the national press?

• “Another committee, the Campus Culture Initiative, has been met by widespread antipathy by students as an effort by the administration to control student life. And when you appoint divisive individuals such as Vice President Moneta, it’s fair to say you invite such criticism. Why do you continue to pursue the CCI?”

Brodhead was very careful in his responses, but nonetheless the interview broke some new ground. He defended the Group of 88’s dubious claim that the April 6 statement did not imply the players were guilty, while avoiding Copeland’s question on whether he holds faculty to a higher standard. On the other hand, his defense of the CCI was half-hearted at best. And he offered a more generous rationalization for his dismissal of Mike Pressler than he had in May, when, according to the Herald-Sun, he told alumni that the coach had to go because “Pressler’s presence would have been a big story.”

The interview was accompanied by a compelling news analysis from Chronicle reporter David Graham, who balanced his story with quotes from a former lacrosse player who graduated last year and from the first arts and sciences professor to challenge the Group of 88, Steve Baldwin.

Baldwin raised the impossible-to-answer counterfactual: “I just wonder what Nifong would have done if he thought that the things he was doing were, in fact, not supported by the University.” And the lacrosse alumnus cited the extraordinary event of faculty statements being included in the change-of-venue motion to express his “hope that Duke will admit some of the instances where they might have been wrong and work to make sure this doesn’t happen again, where Duke students are targeted by Durham authorities and Duke’s own faculty would be cited in a defense change-of-venue motion. It’s in their best interest that it’s not a part of Duke’s reputation.”

The Chronicle, in fact, has been the only media source that any of the team members have spoken with in any depth—in part, no doubt, because they could appreciate the paper’s fairness. A summer article by John Taddei, “Living a Nightmare,” is far and away the best article that’s addressed the human side of Nifong’s actions; team members Bo Carrington, John Walsh, and Tony McDevitt spoke on the record about events on campus, in the classroom, on the team, and with Nifong.

Carrington provided the only glimpse inside the procedurally improper pre-indictment visit by the Durham police to Duke dorms, as Nifong’s minions desperately tried to ferret out information on the whereabouts of Reade Seligmann and Collin Finnerty at the party. (Nifong refused to do the obvious: just ask the duo’s attorneys.) Carrington also gave a first-hand response to the appearance of the Group of 88’s ad—“I think that all of us kind of checked over our teachers to make sure they weren’t on that list”—that belies the Group’s revisionist history that the ad had nothing to do with prejudging the team.

Walsh offered what turns out to have been a spot-on analysis of Nifong’s dilemma: “"He started something to get re-elected, and now he’s got it, but he’s made the biggest mistake in the world. He buried himself in a hole, you know. What’s he going to turn on it now when he publicly stated that ‘I know there was a rape in this house?’ What can he do? He’s got nothing, absolutely nothing.”

Finally, the Chronicle’s Jared Mueller beat out his competitors at the N&O and the Herald-Sun on Sgt. Mark Gottlieb’s rogue treatment of Duke students before the lacrosse case even emerged. Mueller’s article was chilling—revealing a bigoted and unethical police officer, who appeared to despise Duke students and who clearly treated them differently from other Durham residents.

Add to these articles the paper’s regular coverage, first-rate commentary from columnists Kristin Butler, David Kleban, and Stephen Miller, and prescient editorials on Nifong and the Group of 88’s statement (among others)—and the Chronicle’s performance over the past ten months has been remarkable.

In fact, compare the Chronicle’s coverage to that of the New York Times on this case, but remove the mastheads from the two papers. I suspect that most people would guess that the Times, with its (until recently) simplistic, one-sided articles and commentary was the college newspaper, and the Chronicle’s work was that of the country's paper of record.

Gottlieb Watch

Duke basketball was at home tonight, and so police were directing traffic after the game. At an intersection on Erwin Road (on the fringe of campus), the officer with the orange cone was none other than Sgt. Mark Gottlieb. It seems his career has hit a dry spell.

Duke Law School Panel

I happen to be in Durham for a few days, and so went by to watch today’s law school panel on prosecutors and improper public comments. Here’s a brief summary for those who couldn’t catch the webcast.

Metzloff:

He contended that the more serious charges in the ethics complaint are the pre-trial comments, and predicted the case might be one of the leading cases on this issue to talk about in law schools for quite some time.

If Nifong were still on the case, he added, this would be about easiest change of venue case you could imagine; neither he nor many colleagues he has spoken to could have judged case fairly with Nifong trying case, because of their distaste with his behavior.

Of all of Nifong’s comments, Metzloff termed the “hooligans” remark the worst, since it directly related to a bar rule prohibition—an assault on the personal character of the defendants.

In an intriguing section of his remarks, he tried to guess how Nifong might defend himself.

• Public statements made before anyone arrested;
• 1^st amendment arguments;
• His remarks constituted legitimate law enforcement purpose by trying to encourage “witnesses” to come forward;
• He was a political novice— and got carried away.

Neither Metzloff nor any of the other panelists seemed impressed by these defenses.

Metzloff also pointed out that the bar—though it didn’t have to do so—expanded the allegations into Rule 8.4 (misconduct), suggesting that the bar desires serious sanctions.

Coleman

His comments were succinct and brilliant. His criticism of Nifong, he stated at the stat, had nothing to do whether students innocent or guilty; and it didn’t matter if they were Duke students, or UNC students, or NCCU students. The issue was one of procedure. He said that he had two specific concerns with Nifong’s conduct and one general problem.

Specific:

1.) The statements were racially inflammatory; made in circumstances that appeared to be for political gain, Nifong knew that what he was doing would increase racial tension—in effect, he was pandering to black voters in Durham.

2.) The statements were intended to heighten public condemnation of lacrosse team and privileged white students at Duke generally.

His overarching concern:

Because of his statements and effect in Durham and in the University, Nifong’s actions increased the chances that some would be wrongfully charged and even wrongfully convicted. Nifong involved himself in the investigation, contended Coleman, “in a way that was destructive.”

Also, Coleman noted, Nifong put pressure on police to focus investigation in single direction. He cited two examples:

1.) DNA evidence: if Nifong really believed the accuser had been sexually assaulted, the unidentified men whose DNA was found in her rape kit would have to be suspects.

2.) Lineup—everyone involved understood that it was done improperly, designed solely to get the accuser to pick three players, any three players, that Nifong could indict.

The summary: Nifong committed himself to bringing a case; he broke procedures to do so.

Neff

The question is better framed as how not to cover cases where prosecutors make high-profile remarks.

The coverage of this case, he noted, changed from a criminal case to investigation of someone else’s investigation; hidden agendas therefore played a more substantial role.

Reporters, moreover, have a long history of getting in trouble in cases like this—Richard Jewell and Wen Ho Lee are examples of why reporters need to be really careful in using anonymous sources in case like this.

Also, Neff cautioned, reporters need to beware of meta-narratives—instead, they must rely on the facts. (The New York Times coverage is the obvious example here.)

Neff, meanwhile, said that he was assigned to the story initially with a simple mandate—go out and find second dancer. He didn’t do so (this was very early on, when Roberts’ identity was unknown.) But his editors kept him on story because they suspected there was prosecutorial misconduct occurring.

The summary: reporters covering such a case need to know how the process is supposed to work; they need to learn the rules.

Tigar

He was a mesmerizing performer. He stated that the Nifong case will serve us well only if first step to addressing serious injustices in the system.

Nifong, he contended, harmed the system of justice in three ways.

• His pretrial publicity had an obvious effect.

• He did a distinct disservice to people who want to bring complaints of wrongdoing, by making fair-minded people less likely to believe legitimate victims, or making victims afraid of coming forward lest their case be turned into a media circus.
  

• He derided people who invoked their constitutional right to counsel—thereby compromising basic values of the legal system.

All three attorneys predicted that the bar would punish Nifong severely. As Coleman noted, Nifong caused a great deal of damage; his behavior was intentional; and the damage was systemic.

Tiger also suggested that Nifong will have hard time establishing a Sullivan distinction on civil liability—since the lacrosse players weren’t public figures at the start of the case, Nifong will be very vulnerable to a libel suit.

Nifong's Legacy of Misconduct

Some reactions to the expanded ethics charges filed yesterday by the State Bar:

1.) These charges suggest that the Bar’s intent is to strip Nifong of his license.

From the AP story:

• UNC law professor Joseph Kennedy: “If these allegations are true and if they don’t justify disbarment, then I’m not sure what does. It’s hard for me to imagine a more serious set of allegations against a prosecutor.”
  

• Duke law professor Thomas Metzloff: The new charges “have significantly increased the chances for a serious sanction, possibly including suspension or disbarment.”

2.) Joe Neff is prescient.

In a December 24 N&O story, Neff and Ben Niolet analyzed Nifong’s ever-changing explanations as to why he didn’t turn over exculpatory DNA evidence to the defense. The district attorney had just given an interview to the New York Times suggesting that his heavy workload led to an oversight on his part.

But this excuse, Neff calculated, “was Nifong’s third explanation why he did not turn over the evidence.” Nifong previously had claimed he hadn’t heard about the matter prior to a December 13 defense motion; and then made the extraordinary claim that “we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.”

The Bar noticed Nifong’s evasions as well—and added a fourth. On December 28, in a letter to the Bar, the D.A. returned to justification #2—a desire to protect privacy rights.

Yet, as paragraph 283 of the amended complaint noted, Meehan’s report listed the names and DNA profiles of two lacrosse players not then indicted (Dave Evans and Kevin Coleman), plus the names of all lacrosse players who had contributed DNA specimens.

In an extraordinary move, the Bar used that information to deem Nifong’s response not only unpersuasive but an ethical violation in and of itself. Nifong’s December 28 assertions that privacy concerns explained his approach to not turning over the DNA test results, the amended complaint argued, “were knowingly false statements of material fact made in connection with a disciplinary matter.”

[In an article published in today's Times, Duff Wilson (writing under the sole byline, alas) paraphrases Nifong's December Times interview to offer yet another explanation for his withholding the evidence. "In an interview last month," writes Wilson, "Mr. Nifong agreed that the DNA results had been potentially exculpatory, but said they had not seemed important to him because he was no longer then pursuing the case on the basis of DNA evidence."

The original article had mentioned the first point, but not the second. In any case, the distinction is irrelevant--the Open Discovery statute requires turning over all evidence, whether or not the prosecution considers it exculpatory. And if Nifong were no longer then pursuing the case on the basis of DNA evidence, how to explain the May decision to indict Dave Evans?]

3.) Nifong’s false representations to the court over the past several months were damning.

Nifong, the amended complaint makes clear, does not deny that Dr. Meehan told him of the exculpatory DNA evidence. That admission alone contradicted multiple written or oral statements by Nifong to various judges in the case.

On May 18, Nifong wrote, “The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant.” At the hearing where he stood idly by as a hate group member threatened Reade Seligmann, Nifong also Judge Ronald Stephens, “I’ve turned over everything I have.”

On June 22, Nifong again deceived the gullible Stephens, who wanted to make sure that he had discussed with Dr. Meehan nothing other than the contents of Meehan’s report. “That’s pretty much correct, your Honor.”

On September 22, Nifong deceived the new judge, Osmond Smith.

• Smith: “So you represent there are no other statements?”
• Nifong: “No other statements. No other statements made to me.”

4.) The breadth of the ethics complaint was surprising.

On the surface, the amended complaint dealt only with the Nifong-Meehan conspiracy and Nifong’s false representations of the duo’s agreement. But at least two other paragraphs of the amended complaint touched upon additional questionable behavior by Nifong.

Paragraph 205 noted that Nifong “sought and obtained these indictments [against Seligmann and Finnerty] . . . despite his office’s prior representation in the application for the NTO [non-testimonial order] that the ‘DNA evidence will immediately rule out any innocent persons.’”

Paragraph 206 added that Nifong “repeatedly refused offers from counsel for the players who were eventually indicted to consider evidence and information that they contended either provided an alibi or otherwise demonstrated that their clients did not commit any crime.”

These moves hinted at other ethical violations, specifically a violation of Rule 3.8, comment 2, which states that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

The Bar didn’t need these two paragraphs to make its case in today’s amended complaint; but they provided a compelling reminder of Nifong’s general aura of misconduct.

5.) The amended complaint made several subtle, interesting points.

The complaint cast a negative light on Nifong’s disparate approaches to similar issues. For instance, the Bar noted, when the defense requested the underlying data and complete file from Dr. Meehan, the D.A. accused defense attorneys of seeking a “witch hunt list.” He read a letter into the record from Meehan expressing privacy concerns. He complained about the excessive cost of the move.

Yet, as the Bar observed, when the defense requested the identical material from the SBI, Nifong “raised no such concerns or objections.” Could it have been that Nifong had something to hide in the Meehan material?

On a second point, the amended complaint argued that Nifong committed a “continuing violation” of the Open Discovery statute up to the very second that AG Roy Cooper took over the case.

As paragraph 255 explains, “Even when Nifong ultimately provided the underlying documents and materials on October 27, he did not provide the Duke Defendants a complete report from DSI setting forth the results of all its tests and examinations, including the potentially exculpatory DNA test results.”

On a third point, Nifong’s non-testimonial order ultimately backfired on him. At the time, it served the D.A.’s purpose to have the 46 lacrosse players engage in a “perp walk” before tipped-off media representatives.

But because the defense accepted the non-testimonial order, by law, Nifong was required to hand over to the players or their attorneys a “copy of any reports of test results as soon as the reports are available.” Nifong, of course, didn’t do so.

6.) There’s no longer much mystery to why Inv. Linwood Wilson picked December 21 to interview the accuser for the first time.

The amended complaint states that the initial grievance letter from the Bar about Nifong’s withholding the DNA evidence arrived on December 20. “Coincidentally,” Nifong decided to have the accuser interviewed the next day, when she produced a story that downplayed the significance of the DNA evidence that Nifong had withheld.

7.) The closing section underscores the extent of the Bar’s concerns.

The complaint traces a “systematic abuse of prosecutorial discretion in the underlying criminal cases,” accusing Nifong of having “engaged in conduct prejudicial to the administration of justice.”

It asserts that Nifong committed professional misconduct, violating Rule 8.4(d) of the bar’s ethics code. Comment 4 of the rule clarifies: “A showing of actual prejudice to the administration of justice is not required to establish a violation of paragraph (d). Rather, it must only be shown that the act had a reasonable likelihood of prejudicing the administration of justice.” And, as Comment 6 outlines, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

The amended report paints a picture of a prosecutor who has flagrantly violated multiple rules of professional conduct over a period of many months, and showed no indication that his behavior was going to let up in any way even as he turned the case over to the attorney general.

How can Nifong possibly not take a leave of absence as District Attorney until these charges are resolved?

The Bar Lays Down the Law

The Bar's ethics complaint against Mike Nifong has been amended, to include the far more serious charge of withholding evidence. The specific issue: his decision to enter into an agreement with Dr. Brian Meehan to intentionally withhold exculpatory DNA evidence, and then state repeatedly to the court that he was aware of no additional exculpatory evidence.

The complaint says that Nifong lied to the court at least five times--either in person or in writing.

The amended complaint has just been posted; I'll update a bit later today.

The N&O is also reporting that past ethics questions have been raised against Nifong investigator Linwood Wilson--who, in a highly unusual move in this case, elected to interview the accuser without any other law enforcement personnel present. In this interview, of course, she dramatically changed her story, seeming to adjust it to fit various holes in the case.

Murphy's Latest

The government-funded Centers for Disease Control describes the National Sexual Violence Resource Center (NSVRC) as an organization that “identifies and disseminates information, resources, and research on all aspects of sexual violence prevention and intervention.” The NSVRC itself obtains part of its funds from the federal government, through a grant from the Center for Disease Control (though it is careful to point out that its website’s contents do not necessarily reflect the government’s viewpoints). The group’s honorary board includes Pennsylvania State Treasurer Barbara Hafer and former Syracuse University quarterback Don McPherson.

On January 9, the NSVRC posted an item called “Talking Points: Duke University Lacrosse Team Rape Case.” (Of course, the rape charges had been dropped 18 days before.) According to the NSVRC’s accompanying statement, “The following talking points offer some context and facts about this case in an effort to help support advocates in responding to the media.” Two voicemail messages left for NSVRC communications director Susan Lewis to ask which unidentified NSVRC figures “reviewed” the document before its posting received no reply.

As Bill Anderson pointed out at the Liestoppers Board, another victims’ rights group forwarded an earlier missive, this one dated December 21—ironically, the day that the accuser dramatically changed her story.

The author of both the “talking points” and the e-mail? Wendy Murphy. Her statements bring together a collection of Murphy’s distortions and outright inaccuracies (reviewed earlier in this post). It is almost as if she believes that she has the right to make defamatory public statements without consequence.

Reade Seligmann

Murphy (Dec. 21 e-mail): “In fact, the guy Seligman [sic] who claims his cell phone calls ‘prove’ his innocence actually lends support to the theory that he was the first guy to assault her—which is what she claims—and that it was oral—because he could have assaulted her for the first few minutes—then thought to himself ‘I’ve got to get out of here’—which explains why he frantically and repeatedly called a cab. who frantically calls a cab to see if they’re coming—in a space of five minutes—especially considering that the guy went to an ATM and a pizza place when he left—no real emergency there. Isn’t it convenient that he just happens to be one of the guys she accused?”

Of course, on December 21, the accuser wholly changed her story, and contended that Seligmann did nothing to her, because he said he was getting “married” the next day.

Contrary to Murphy’s statement, Seligmann called a cab not “frantically and repeatedly,” but once, at 12.14am. The cab arrived five minutes later. This information has been in the public record since May 1, when Seligmann’s attorney filed a motion laying out his alibi. The media has widely reported this fact.

Until the Murphy e-mail, no one, as far as I know, has ever claimed that Seligmann went to a “pizza place.”

At no point in any of her myriad, mutually contradictory stories did the accuser claim that one of her assaulters was using the phone at any point during the attack or left the scene during the attack.

Defense “Spin”

Murphy (Dec. 21 e-mail): “Remember that all the information we are hearing is coming from the defense side and spinners.” [emphasis added]

She wrote her e-mail partly to respond to revelations from the Dec. 15 court session, in which Dr. Brian Meehan admitted that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence. The hearing was open to the public—it was not confined to the “defense side and spinners.” Reporters from the N&O, Herald-Sun, WRAL, FOX, Duke Chronicle, and Los Angeles Times were present; I was live-blogging the hearing. A transcript of the hearing was made publicly available, and I posted it on the website.

Most people do not consider court documents to constitute “the defense side and spinners.”

Murphy (Jan. 9 statement): “The actual discovery documents turned over to the defense number in the many thousands of pages, yet approximately a thousand pages have been withheld by the defense. That is, the defense has shared some, but not all of the evidence provided to them by the prosecutor.”

This statement is the first I’ve heard of the defense withholding anything in the case, much less “approximately a thousand pages.” If Murphy has evidence of such a conspiracy, she should present it publicly.

Murphy (Dec. 21 e-mail): “Defense attorneys can lie with impunity—prosecutors can’t even tell the truth without getting in trouble.”

In fact, Rule 4.1 of the state bar’s Rules of Professional Conduct holds, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Nothing in the provision excludes defense attorneys from its terms.

December 15, 2006 Hearing

Murphy (Jan. 9 statement): “One can argue that Nifong’s withholding of this information was proper because the [accuser’s] sexual history, like the sexual history of the defendants, is constitutionally protected private information. It is improper for any prosecutor to disclose this information without a hearing at which a judge must make a ruling to decide whether sexual history is relevant to an issue in dispute.”

Murphy appears unaware with North Carolina law, passed in 2004. The state’s open discovery statute requires all results of forensic tests to be turned over to the defense. The prosecutor does not have the authority to withhold any information, anywhere in his file, from the defense.

Speedy Trial

Murphy (Dec. 9): “The simple point is—the defense COULD demand an immediate trial, right now—but they’re not . . . In short—if this were truly a weak case with no evidence, the defense would be pushing for a speedy trial.”

Once again, Murphy appears unaware of both the facts of the case and North Carolina law. In fact, Seligmann’s lawyer, Kirk Osborn, specifically asked for a speedy trial, a request that Judge Ronald Stephens denied. (Ironically, the other arch-Nifong defender, Georgia Goslee, cited this request to flail the defense, saying it was improper for defense attorneys to seek to rush the state.) Osborn then filed a motion to this effect, which was never ruled upon. North Carolina’s state constitution has no speedy-right provision, and the state operates instead under a “case management” system.

The “Bribe”

Murphy (Jan. 9 “talking points”): “The defense would have the public believe that this was a false report made to get money, but remember that according to a well-sourced news report by the Wilmington Journal in June 2006, the [accuser] rejected a payment of over 2 million dollars last spring to back out of the case.”

Yet again, Murphy appears unaware of the facts of the case. This allegation came via the accuser’s cousin and sometimes spokesperson, “Jakki” (who has complained at various points in the case that months have passed without speaking to the accuser) and the scarcely more credible Cash Michaels. The Durham police—no friends of the lacrosse players—investigated the claim. On June 30, the accuser told police that she had never made such a claim to her cousin, and police found no evidence to substantiate it. So Murphy is making a claim that neither the accuser herself nor the Durham police consider truthful.

The Workings of the Judicial System

Murphy (Jan. 9 “talking points”): “Defense attorneys can spin, distort, and omit facts while the prosecution must remain silent until trail.”

This statement, of course, is absurd. Nothing has prevented Nifong from filing responses to any defense motions. He has not done so.

Murphy (Jan. 9 “talking points”): “When defense attorneys unfairly taint the jury pool against the interests of the victim, there are no similar sanctions against them because a judge cannot punish the accused for the bad behavior of his lawyer.”

Yet again, (a familiar refrain), Murphy appears unaware with the facts of the case. Since July 17, both sides have operated under a gag order, which has limited what either Nifong or defense attorneys could say about the case to the media. Indeed, Nifong’s pre-election comments would seem like the most blatant violation of this order. But had the judge deemed any defense action a violation of the gag order, the judge could have held them in contempt of court. Even Nifong never asked for such any sanction.

Murphy (Jan. 9 “talking points”): “Defense attorneys are well aware of their right to ask the judge who handled the DNA issue to punish Nifong for suppressing evidence by dismissing charges; the fact that they did not complain to the judge strongly suggests an obvious understanding on their part that Nifong did nothing wrong.”

The Nifong-Meehan conspiracy only came to light on December 15; a full transcript of the hearing wasn’t available until several days later. Shortly thereafter, the Linwood Wilson “notes” appeared and the accuser’s story dramatically changed, setting into motion the chain of events that culminated in Nifong’s departure. Defense attorneys still have the right to seek sanctions against Nifong, a right they must balance against the need to create collegial relations with the new prosecutors.

Murphy (Jan. 9 “talking points”): “Criticism has surfaced concerning the fact that Nifong did not interview and talk to the [accuser]. We do not know the history of his interaction, or his offices’ interaction with the [accuser].”

In fact, Nifong stated in court on October 27 that neither he nor anyone from his office spoke to the accuser about the facts of the case. And he admitted on Dec. 22 that the previous day’s session with Linwood Wilson constituted the first such interview. Both events, which laid out the “history of his interaction, or his offices’ interaction with the [accuser],” received extensive media coverage.

Change of Venue Motion

Murphy (Jan. 9 “talking points”): “If this case is as weak as the defense attorneys would have us believe, and if there is so little upon which to build a case, then it is indeed interesting that they were concerned enough to have filed this motion for change of venue. This suggests that in fact the defense is taking the case seriously and doing all it can to do battle on behalf of their clients.”

This statement is, simply, bizarre. Can an attorney actually be criticizing a defense team for “taking the case seriously and doing all it can to do battle on behalf of their clients”?

Electoral Analysis

Murphy (Dec. 21 e-mail): “Nobody seems to care that despite claims that the prosecutor brought charges so he could win the 'black vote,’ he didn’t win the majority of black votes in the primary and more important, he lost a ton of wealthy white votes—something he surely knew would happen if he brought charges—yet he brought the charges anyway.”

In fact, Nifong, who appeared to be dead in the water before the case broke, won a convincing plurality of the black vote (by somewhere between 15 and 18 points, compared to a 3-point margin of victory) against a black candidate endorsed by Durham’s major black PAC and a white nominee (Freda Black) who had aggressively courted black voters. “Wealthy white votes” are few and far between in Durham, and the 20 percent of Durham voters who were Republican couldn’t vote in the primary. Losing those voters posed no problem for Nifong in May.

The Evidence

Murphy: “It is not unusual for there to be minor inconsistencies in victims recalling traumatic events.”

In this case the accuser has differed—among other things—on:

• the number of alleged attackers;
• the number of other dancers present;
  
• what each of the alleged attackers did;
• what time the alleged attack occurred;
• the names by which the alleged attackers called themselves;
• the name by which she called herself at the party;
  
• whether the alleged attack was a rape or a sexual assault;
• whether she was intoxicated;
• whether she was punched;
• whether she was kicked;
• whether the second dancer was an accomplice in the rape;
• whether the second dancer stole her money.

The accuser has also identified people with 100 percent certainty as attending the party who could prove that they did not attend the party and in one case did not even spend the night in question in Durham.

Such a list extends beyond “minor inconsistencies.”

Murphy (Jan. 9 “talking points”): “Additionally, there is some indication that the [accuser] may have been drugged; there were reports of her going from sober to totally unaware and then back to not-intoxicated by the time she reached the hospital.”

Yet again, Murphy appears to have demonstrated her unfamiliarity with the case. A toxicology screen on the accuser was negative; and the accuser admitted taking Flexeril with alcohol despite instructions not to do so.

Imagined Events

Murphy (Dec. 21 email): “The line-ups were not unlawful. According to the president of Duke, ‘many’ players were not at the party—and many NON-players WERE.”

Duke president Richard Brodhead never claimed to know who and who did not attend the party; Murphy is simply making up the statement.

In any event, her point is irrelevant. On March 31, Nifong instructed the police to confine the lineup to all 46 white lacrosse players—each of whom had been publicly labeled a suspect eight days before. Durham procedures—as have been widely reported—require five filler photos per suspect.

Murphy (Dec. 21 e-mail): “It is also important to remember that the defense claims NOW that they wanted to meet with the DA to show him evidence of their innocence—but the simple truth is—a meeting between the police, prosecutors and defendants was scheduled BEFORE charges were brought and at the last minute, the defense CANCELLED the meeting. Thereafter, the evidence was brought to the grand jury. The defense has no business complaining about not having a chance to show evidence to the prosecutor.” (CAPS in original.)

Not even Nifong has claimed that “a meeting between the police, prosecutors and defendants was scheduled BEFORE charges were brought.” In fact, until this Murphy e-mail, I’m unaware of anyone commenting on the case in any forum who has made such a claim.

Moreover, Murphy appears unaware of Rule 3.8, comment 2 of the state bar's ethics code: “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” A prosecutor refusing to meet with defense attorneys to examine evidence they claim will prove the innocence of their client obviously violates this rule.

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One victims’ rights advocate with whom I spoke said that the movement as a whole would be loath to criticize a prosecutor who was standing up for the complaining witness. But posting inaccuracy-laced material such as Murphy’s undermines the movement’s credibility. How could anyone who has closely followed this case hereafter trust any statement from the NSVRC, knowing that the organization disseminated Murphy’s “talking points”?

As for the Centers for Disease Control, perhaps it would be worth knowing how the federal government could, even indirectly, be funding the dissemination of Murphy’s assertions on the case.