Weekly Roundup

This week’s roundup was delayed one day for the release of the Gottlieb deposition; Liestoppers has a great cartoon on the sergeant’s . . . unusual . . . note-taking technique.

---------

Last week, Durham City Councilman Eugene Brown penned a superb guest column in the Herald-Sun addressing the departure of Mike Nifong: “It was a sad, painful, but necessary public hearing. Lane Williamson was exemplary in his role as a chairman. His commission’s findings and his closing comments . . . received overwhelming praise. The Bar’s conclusion was very succinct: Those who abuse their power forfeit their right to that power.”

Brown, correctly, also praised Judge Orlando Hudson for acting to suspend Nifong as DA, expressing his outrage that “someone who lied to the court and to the State Bar” and “who devalued the search for justice in our community would have enriched himself by another monthly paycheck of $10,000.”

Bluntly, Brown also touched on another critical reason why Nifong had to go: “Our former district attorney is facing additional civil and perhaps criminal charges. Indeed, it was announced on Monday that the three lacrosse players and their families would file a suit against him. In addition, Superior Court Judge Osmond Smith has stated that he is not through with Nifong yet. But in spite of the possibility of pending lawsuits against him, our former district attorney would have had free and easy access to all the files on this case. I can’t say for sure that would have presented a problem. But after watching the hearings last week, and seeing Mike Nifong trying to defend the indefensible, I didn’t feel comfortable with this situation. Files can be erased, information can be altered, papers can be shredded.”

As he has been so often in this case, Brown’s analysis was perceptive.

---------

The always penetrating Kristin Butler has another must-read column in this week’s Chronicle. Her question: “For all its timeliness, does this settlement sweep important questions under the rug? It would be a real disappointment to see some administrators (Brodhead included) get a free pass in the spirit of ‘closure,’ as there remains much to answer for.”

The questions that Butler include the “mystery” of Chauncey Nartey: how could the Brodhead administration appoint to both the Campus Culture Initiative and to a “Duke Conversation” slot a student that administrators knew had sent an e-mail leading to a Duke employee filing a police report for harassment? And then to keep him in both positions after the fraternity of which he was president was suspended for a period of not less than two years?

I asked CCI chairman Bob Thompson this question in April. He said that he had not heard of the Nartey e-mail before that time. But, of course, both CCI vice-chair Larry Moneta and President Brodhead had heard of the e-mail, in spring 2006. Why they did not inform the CCI chair of this information is not clear.

Says Butler, “Yet when asked about the inexplicable decision to reward Nartey’s behavior with student leadership positions, Brodhead offered no explanation.”

Other unanswered questions: whether Duke continues to approve of the separate-but-equal arrangement of the Durham Police toward Duke students, and how much the University spent to protect the Group of 88 and Peter Wood from legal liability.

Butler’s questions—as always—deserve an answer.

----------

In six days, Paula (“no to due process”) McClain will become chairperson of the Academic Council. McClain’s defiant response to the settlement with the three families—a claim that none of the faculty were legally vulnerable for their actions—fit with her general outspokenness in defending the Group of 88’s position over the past 14 months.

Despite President Brodhead’s oft-stated desire to “move on” without any examination of the faculty’s conduct, McClain’s new position makes this goal all but impossible. Take, for instance, the CCI’s de facto “Group of 88 Enrollment Initiative”—the proposal to require all Duke students take a class that engages “the reality of difference in American society and culture,” the vast majority of which are taught by . . . the Group of 88. As one of the Group’s most vociferous spokespersons, McClain would seem to have an obvious conflict of interest in handling this issue.

I e-mailed McClain, asking her whether, after assuming her Academic Council position, “will you continue your practice of speaking as a defender of the Group of 88’s statement, or will you view it as your duty to speak for all Duke faculty, including those who agreed with defense attorneys that the Group’s statement was highly prejudicial to Duke students?”

McClain had no comment.

---------

Group of 88 member Charles Payne—who chaired the African-American Studies program when the program (from all appearances, at least) sponsored and paid for the Group of 88’s ad—has left Duke to accept a position at the University of Chicago.

In announcing the appointment, U of C dean Jeanne Marsh praised Payne’s “authentic commitment to the intersection of theory and practice.”

Payne, meanwhile, joined Joy James—Group of 88’er Grant Farred’s mentor at Williams—as recipients of the 2007 Fletcher Fellowship, which carries with it a $50,000 stipend.

Meanwhile, the American Political Science Association has announced that McClain will receive the Frank Goodnow Award, given for “distinguished service to the profession.”

The juxtaposition of these announcements and the decline of Mike Nifong is jarring. At the very least, Nifong’s misdeeds had a consequence among his professional peers, who duly punished him. His academic enablers, on the other hand, continue to be rewarded.

--------

Final figures for the Duke Class of 2011 have now been released: the total was slightly larger than expected (around 42 percent, rather than the expected 41 percent) accepted the school’s offer of admission. More applicants than expected have said “yes” to Duke University’s offer of admission for the Class of 2011.

Christoph Guttentag, the dean of undergraduate admissions, wrote that “like last year, students with combined SAT Critical Reading and Math scores of 1500 or above represent almost a third of the incoming class, with this year’s total of 558 the second highest ever.”

The number of minority students admitted and accepted increased, to 44 percent of the incoming class; as John Burness had admitted to Don Yaeger, the number of applications from white students, especially from the Northeast, declined this year.

---------

A depressing—and ultimately unpersuasive—take on the Nifong disbarment by David Feige in Slate. Feige makes some good points. For instance, he notes,

Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person’s say so before initiating a sexual assault prosecution. Indeed, they’d be vilified if they did. The cardinal rule of sexual assault complaints is “believe the victim,” and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn’t just the case in Durham; it’s true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he’d have been lionized for his dogged pursuit of rich white kids.

Yet Feige’s attempts to equate Nifong’s massive misconduct with the general behavior of prosecutors ultimately falls flat. He cites Josh Marquis of the National District Attorney’s Association and Wendy Murphy as two people who initially backed Nifong, only to turn upon him, from “a simple calculus . . . : If Mike Nifong’s conduct is commonplace, then the whole system is corrupt. If other DAs do what he did, then we have to face up to how widespread and corrosive prosecutorial misconduct really is—a discussion Marquis and Murphy and other prosecutors would strongly prefer to avoid.”

Marquis, however, never endorsed Nifong’s conduct: the quote from early in the case supplied by Feige is innocuous, and Marquis publicly and repeatedly criticized Nifong’s behavior in December and January, at a time when many prosecutors were still loath to speak out. And any portrayal of Wendy Murphy—who’s still busy spinning conspiracy theories about non-existent bribes to Crystal Mangum—as a Nifong critic is absurd.

As Judge Tjoflat pointed out in his recent address, this case has exposed the excessive power possessed by North Carolina prosecutors in general—especially the power to control court dockets (and effectively judge-shop) and to abuse the grand jury proceedings as a tool for bypassing probable cause hearings. But the claim that Nifong’s conduct in this case—where, after all, he not only withheld exculpatory evidence and made myriad prejudicial pre-trial statements but also engineered a rigged lineup, obtained indictments without probable cause, and orchestrated an ill-concealed frame with the December 21 “interview”—is routine among prosecutors both minimizes the degree of Nifong’s misconduct and trivializes the legitimate debate about prosecutorial power.

----------

An interesting commentary from a traffic court lawyer who dealt with Nifong, reinforcing the portrayal of Nifong’s Traffic Court tenure offered in Ben Niolet’s profile from last spring:

For several years I worked with Mike Nifong. Our sons played little league together. Still I find it difficult to understand how a man could so completely destroy his own life over nothing more than an over-inflated ego. But, if anyone was capable of doing it, Mike is the one.

For 2-3 years I negotiated with him every day, four days a week, month after month. I usually had 15-30 minor traffic/misdemeanors each day to talk with him about. Many times Mike would look for something to try and chastise me about. Other times he was the nicest person you could know. He is erudite and incredibly smart. Yet his bi-polar personality would repeatedly have him taking pleasure in his attempts to belittle other attorneys, including me. He would yell and curse at you over the smallest matter . . . In the end, this need to feel superior to other attorneys not only cost him his job, but, everything important in his life, outside his family, was destroyed.

--------

This week’s humor item relates Nifong’s new defense: “Michael Nifong’s only ‘crime’ in this case was doing his job—establishing a politically convenient scapegoat and pushing hard for a conviction contrary to the evidence. If the good people of North Carolina did not want political considerations to be the driving force behind decisions in the DA’s office, they should not have designated the district attorney position as an elected office in the state’s constitution in the first place. Change the law if you must, but do not hold my client accountable for the public’s fickle attitudes about due process and the rule of law.”

But, Ridiculopathy.com reports, some of Nifong’s critics will have none of it:

“Tell me somethin’, why is this guy not in jail right now?” asked Nancy Grace, arching her eyebrow so hard that it caused cracks in her thick kabuki makeup. “Anyone who would jump to a conclusion of guilt without first double-checking the evidence is a disgrace to the American legal system and a counterfeit human being. I say string his ass up!”

---------

Kathleen Parker argues that while Nifong’s disbarment “couldn’t have happened to a more deserving fellow,” his enablers should be held accountable as well. As she correctly notes, “Doubtless, many among Duke’s faculty and administration, as well as random race-baiters, campus feminists and various reporters, commentators and assorted armchair prosecutors would prefer that no one remember their roles in advancing the Nifong farce. But they shouldn’t get off so easily. All were participants in the scurrilous witch hunt that unfolded during the past year.”

Parker also joins the list of people observing that “a little self-examination would seem to be in order, beginning with Duke.”

She concludes,

The university recently settled with the three accused lacrosse players for an undisclosed sum in a move that insulates faculty from any claims of liability. Such is cheap grace. If the university really wants to redeem itself, a better remedy would be for university President Richard Brodhead to institute a new academic program to examine how totalitarian, politically correct groupthink is destroying America’s institutions of higher learning.

Duke can write the textbook.