Case Narative, III

Yesterday’s post continued the case narrative first provided on October 16. Today’s post will bring matters up to the present.

Nifong’s Ethics Problems

On January 12, apparently under advice from counsel, Mike Nifong formally recused himself from the lacrosse case—the first step, in all likelihood, toward losing his license to practice law. Cameramen captured a shot of the springtime media darling walking, alone and in the dark, to his car as he drove away from his office. The attorney general’s special prosecutions division took over the case.

Shortly after Nifong removed himself from the case, the Bar amended its ethics complaint against him. Focused on his decision to enter into an intentional agreement with Dr. Meehan to withhold exculpatory evidence, the Bar accused Nifong of not only massive ethics violations, but also of repeatedly lying to the court, breaking three state laws, and violating the Constitution. In many ways, the disgraced DA was his own enemy: he offered no fewer than 11 separate (and often mutually contradictory) explanations for the decision to withhold the DNA.

The Bar, it was clear, had heard enough from Nifong. In a devastating response to Nifong’s plea to dismiss some of the charges against him, the Bar accused the DA of asking the Disciplinary Hearings Commission “to undertake statutory construction, interpretation of case law, and semantic hair-splitting.” It ridiculed his citation of court orders from Judges Stephens and Smith, noting “that the content of each Order was based on Nifong’s misrepresentations to the Court as alleged in the Amended Complaint. Therefore, Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.” And it correctly argued that the “Defendant’s contention that he was under no obligation to provide the information because no trial date was set necessarily implies that he was also entitled to withhold and never disclose potentially exculpatory information in any case that settled prior to trial.”

Nifong and the Political World

Smart political figures distanced themselves from Nifong; those less politically astute failed to do so. In the former category was Governor Mike Easley, who told an audience at the NYU Law School that Nifong was his “worst appointment.” In the latter category was Amanda Marcotte, appointed as chief blogger to John Edwards’ presidential campaign only days after penning the following “analysis” of the case:

I had to listen to how the poor dear lacrosse players at Duke are being persecuted just because they held someone down and fucked her against her will—not rape, of course, because the charges have been thrown out. Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it? So unfair.

When criticized for the remarks, Marcotte deleted them from her website. As other groups pored through Marcotte’s writings, it turned out she was an equal-opportunity author of vile material, and soon thereafter she resigned from the campaign.

The Campus Contest

But while Nifong was gone from the scene and seemingly on his way to losing his law license, the furor he unleashed continued unabated, especially at Duke. As the new year dawned, Brodhead invited Reade Seligmann and Collin Finnerty to return for spring-term classes. (Both declined to do so.) Then, in perhaps the most important campus development in the previous nine months, 19 professors (17 from Economics) published a letter implicitly rebuking the Group of 88, endorsing Brodhead’s call for an inquiry into Nifong’s misconduct, and stating that they would welcome all student-athletes, including lacrosse players, into their classes.

The Group of 88 swiftly responded. Karla Holloway resigned her position as the Campus Culture Initiative’s race subgroup chair by publicizing fifth-hand, unsubstantiated gossip about Duke students. (To my knowledge, she was neither disciplined nor criticized for her actions.) Cathy Davidson published an N&O op-ed describing the Group’s ad as a response to racist defenses of Reade Seligmann, Collin Finnerty, and Dave Evans “on the campus quad” sometime between March 29 and April 6. Neither then nor at any time since has Davidson revealed who these defenders were or what they were saying. She appears to have simply made up the rationalization. Holloway joined 86 colleagues in issuing a statement purporting to “clarify” the Group of 88’s ad, which defiantly rejected all “public calls to the authors to retract the ad or apologize for it.” Then, Group members Diane Nelson and Pedro Lasch darkly hinted at a conspiracy against them—motivated for unspecified reasons and staffed by unspecified people.

The duo had joined four other anti-lacrosse professors at a “shut up and teach” event at which they barred all recording devices and then proclaimed that their critics should “shut up and teach.” (“Free speech for me, not for three,” apparently.) Finally, on February 23, the Group saw one of its most prominent members, Political Science professor Paula McClain, elected to a two-year term as chairwoman of the Academic Council. McClain’s triumph coincided with the long-anticipated release of the Campus Culture Initiative report, which carried political correctness to a new level—demanding, among other things, the end of admissions breaks for athletes but their expansion for minorities. The report’s highlight, however, was a de facto Group of 88 Enrollment Initiative, a proposal that all Duke students be forced to take a class on “diversity” in the United States—offerings disproportionately taught by the Group of 88. The CCI report was scarcely a week old when it had been torn apart by several Chronicle editorials and op-eds.

The Nifong Faithful

Group of 88 members weren’t the only Nifong enablers to remain faithful to the end. Politically correct columnists acted as if nothing had changed after April 6, 2006. From the shelter of her lily-white, upper-class Connecticut suburb, Times columnist Selena Roberts penned a column mocking the lacrosse players for seeking jobs on Wall Street and arguing, “To many, the alleged crime and culture are intertwined . . . but the alleged crime and the culture are mutually exclusive.” One problem: Roberts herself, in a March 2006 column, had made precisely that connection.

A handful of other columnists joined Roberts in pretending that no new facts had emerged after April 6, 2006. People like Michael Corey (Blue Devil Weekly), Josh Perlin (Cornell Daily Sun), and Steven Marcus (Newsday) provided more examples of why this case had given the media such a bad name. And, of course, the Herald-Sun continued its case-long record of serving as a de facto Nifong press office.

The state NAACP, meanwhile, maintained its record of using the case to abandon 70 years of positions on criminal justice issues. Rev. Curtis Gatewood, president of the Durham NAACP from 1994 until 2002, described the State Bar’s ethics charges as part of a “conspiracy to disrupt justice in this Durham case.” And state NAACP head Rev. William Barber, invited to preach in the Duke Chapel by his “good friend,” Duke Chaplain and CCI member Sam Wells, continued the organization's practice of lionizing the accuser and demonizing the lacrosse players. Several people in attendance walked out during his sermon.

As the special prosecutors continued their investigation, the Seligmanns’ lead attorney from April through October, Kirk Osborn, suffered a massive heart attack and died. He was hailed widely: Orange County DA Jim Woodall: “Not only was Kirk Osborn a very good friend, he was also a zealous attorney and a stellar representative for his clients and showed great professionalism in the courtroom.” Buddy Conner: “He hated injustice. That was the essence of his life. He carried a tremendous amount of credibility, but he did it without getting all angry and aggressive and arrogant.” Judge and former DA Carl Fox: “I often said that if I had a situation where I needed to be represented, I would call him. He was never a person who was very showy or anything like that. You’d never see him in the paper for a lot of the cases. That just wasn’t his thing.”

In a statement, the Seligmanns commented,

While it is now plain to anyone with any reason and objectivity that there was no sexual assault and that Reade has been the victim of an unprincipled prosecution, we are nonetheless saddened that Kirk did not live to see the day when Reade will be completely exonerated. While that day will come, it will now come too late for Kirk to share in it. When that day does arrive, it will be as a direct result of Kirk’s courage, skill and passionate belief in the truth.

With the N&O reporting that the players have arrived in the Triangle, ABC's Law & Justice Unit, the Drudge Report, and other sites are now reporting that AG Cooper has decided to drop all charges. An inevitable result--but a nonetheless welcome and long overdue one. But one mystery remains, as Duke law professor Paul Haagen noted: "I think the critical thing could be the wording. It could simply say the state can no longer prove its case, which would be a very harmful outcome for the community." Or the AG "could provide a full accounting of why the case should never have been brought."