Shifting Standards

Trustees at other elite institutions ignore the lessons of the lacrosse case at their peril. Ten months ago, the response of the Brodhead/Steel administration might have seemed a skillful navigation between the local community, the media, and faculty extremists on the one hand and upholding the presumption of innocence—if only in a pro forma fashion—on the other. In light of current events, the administration’s disinclination to demand that Duke students be treated according to the same procedures as all other Durham residents doesn’t look so impressive.

At the very least, the case should inspire trustees at other institutions to develop contingency plans on how to respond to high-profile charges against students when the behavior of local law enforcement raises questions.

Duke BOT chairman Bob Steel first addressed this issue in a little-remembered statement on April 7, 2006, which took an expansive view of the University’s responsibilities toward its students. At the time, Steel asserted,

As President Brodhead has consistently stated, the crimes alleged are grave and, if verified, will warrant severe punishment from both the criminal justice system and Duke’s student judicial process. Simultaneously, we must protect the rights of students who have maintained their innocence and not been charged with any crime. [emphasis added]

Before any students were charged with a crime, the lacrosse players’ rights were violated in at least four ways:

• Nifong’s late March/early April pre-primary publicity barrage;
• The false statements of the Durham Police Department that no players had cooperated;
• The April 4, 2006 lineup;
• The DPD’s April 13, 2006 nighttime sojourn to the Duke dorms.

The latter event offered a particularly easy opportunity for Duke to have implemented Steel’s policy. DPD officers surreptitiously gained entrance into the dorms by following behind a Duke undergraduate who swiped her keycard. They questioned Duke students that they knew were represented by counsel—an act that, because Nifong was by then personally directing the police investigation, appeared to violate Rule 4.2 of the North Carolina Code of Professional Responsibility. As the Baker/Chalmers report noted, all but one of the players declined to answer any questions.

The day after the DPD’s nighttime sojourn to his campus, President Brodhead declined comment when asked about the matter while at NCCU. Later that day, Aaron Graves, associate vice president for campus safety and security, issued a statement that suggested the DPD had acted properly. Incredibly, Graves then appeared to chastise the players for not telling the police what Gottlieb & Co. wanted to hear. “Duke,” Graves stated, “reiterates its earlier statements that it is cooperating fully with the police investigation and urges anyone with information pertinent to the events of March 13 to cooperate with the authorities.”

Duke has never explained why it abandoned the standard laid out by Steel in his April 7, 2006 remarks. It is interesting to speculate how Steel, Brodhead, and their advisors might have acted had they been guided by a policy holding that the institution “must protect the rights of students who have maintained their innocence and not been charged with any crime.”

Nearly a year after he wrote the words above, Steel summarized Duke’s general policy in a very different way. In an April 11, 2007 e-mail, he wrote, “We believe that it was essential for the University to defer to the criminal justice system.”

The recently posted Duke Office of News & Communications case summary likewise ignored Steel’s April 2006 words, and instead observed that the Brodhead administration focused on “avoiding interference with the legal process,” since “it was the job of the legal system—not of Duke—to determine legal guilt or innocence.” Indeed, Brodhead at one point described his policy as that of “broad deference to the legal process.”

As a result, the president remained silent as Nifong launched a procedurally improper pre-primary publicity barrage, obtained indictments based on procedurally improper lineups, and shirked his procedural responsibilities by declining to meet with defense attorneys who said they possessed exculpatory evidence. In his summertime response to the Friends of Duke letter, Brodhead explicitly rejected an opportunity to raise these issues publicly, and instead expressed his hope for a speedy trial, where “we are eager for our students to be proved innocent.”

This “broad deference” philosophy also served Brodhead’s short-term interests in dealing with a faculty whose public voice was dominated by the Group of 88. He could pacify the Group with public denunciations of the lacrosse players—as in his April 5, 2006 statement—while avoiding any comment about the case that might have alienated the Group’s rush-to-judgment mentality.

Brodhead has never explained why, in politically correct cases during his tenure at both Yale and Duke, he followed not a policy of “broad deference to the legal process” but instead Steel’s April 2006 approach that a university “must protect the rights of students who have maintained their innocence and not been charged with any crime.”

In the end, Brodhead himself didn’t follow his own policies in the lacrosse case. The ONC document approvingly noted that “soon after it became clear in court that Nifong’s statements were not credible, [Brodhead] invited [Reade Seligmann and Collin Finnerty] to return in good standing, months before Cooper’s decision.” In addition, “after Nifong dropped the most serious of the charges—rape—in December 2006, Brodhead called on him to recuse himself from the case, saying, ‘Mr. Nifong has an obligation to explain to all of us his conduct in this matter.’”

Both of those decisions were, in my opinion, correct; I praised them at the time. Yet they also contradicted a stated philosophy of “broad deference to the legal process.”

The ONC contends that Brodhead reinstated Seligmann and Finnerty “soon after it became clear in court that Nifong’s statements were not credible.” At the time the president made his decision, however, the “legal process” was still ongoing: the two still faced two serious charges, with Nifong as the prosecutor. Brodhead might be correct that Nifong lost credibility “in court” on December 15. But, according to the “broad deference” standard, only a judge or a jury—not Brodhead—had the right to determine whether or not Nifong was credible.

Likewise, Brodhead might have been correct that it was proper for him to call for Nifong’s recusal in December but not in July. But, again, according to the “broad deference” standard, Brodhead had no right to call for Nifong’s recusal.

As Jim Coleman has pointed out, an excessively aggressive defense of the players by Brodhead could very well have backfired, playing into Nifong’s hands. Yet the players’ interests were hardly served by the opposite approach—“broad deference” to a “rogue prosecutor,” coupled with periodic presidential denunciations of the players’ character and the administration’s inexplicable refusal to enforce Chapter Six of the Faculty Handbook.

In the end, the sensible standard would seem to be the moderate one that Steel articulated on April 7, 2006 and Brodhead belatedly adopted: upholding the academy’s traditional support for due process and procedural regularity by criticizing Nifong’s procedural improprieties, while declining comment on the specifics of the allegations.