Fact-Checking Brodhead

If a crime had actually occurred last March 14, the Duke administration’s response to the lacrosse case would be considered a model for other universities to follow when high-profile students were charged with crimes. The basic message that was conveyed to alumni, donors, and the local elite: the administration has done everything it could to separate the University from the team, so that once a conviction occurs, no one can use the development to tarnish Duke.

In a slightly different context, this is the same strategy that the Atlanta Falcons employed in the Michael Vick case. In statements issued before Monday’s plea bargain, Arthur Blank never came out and said that he thought Vick was guilty. And he made formulaic references to the presumption of innocence. But no one reading Blank’s statements would have failed to understand exactly what the team owner believed.

There was, of course, only one problem with this strategy in the lacrosse case: no crime occurred. So the administration’s decision to go out of its way to avoid saying or doing anything that could be construed as favorable to the lacrosse players—while saying or doing lots of things that could be construed as hostile—has failed to stand the test of time.

A good example: President Richard Brodhead’s November 18, 2006 address to the Durham NAACP. (The text of this address wasn’t immediately available after delivery; I encountered it recently while looking through the Duke News website.) Brodhead opened his remarks by hailing local leaders who attended the banquet, appropriately condemning Duke’s past history of excluding African-American students, and (of course) affirming his commitment to diversity. He then spent four paragraphs on the lacrosse case. He began,

Let me now speak about a subject you may be wondering if I am going to touch on. There was an event of some fame that erupted last spring on the Duke campus on the borders of Duke and Durham. I will not, on this occasion, say anything about the facts of that case, and I will not, on this occasion, say anything that relates to any person who was a party to that case. But that case has been a burden to us all and I do, in part, know why. I do understand that, not what factually happened—we don’t know that—but what was alleged to have happened had a special emotional charge because the idea of white men commandeering black women for their pleasure has a painful history. It has a history one could not ignore, and that history was activated. In the spring, it became part of my work to remind people of the presumption of innocence. More than one person from this city asked me if I thought, if it had been a black man and white women, would that person have enjoyed the same presumption of innocence? If they’d asked me if they would enjoy it from me, my answer would have been, “You bet they would have.” But I understand why people asked that question because, in truth, in our history, among the other unequal advantages people have had, some people have not had the same benefit of those presumptions that others have. And I understand that that is part of the situation we have lived through.

It is, of course, important to place events in context, to understand how the past affects the present. But political, media, and academic leaders also have a responsibility to exercise leadership, thereby ensuring that their communities aren’t governed by the passions of the mob—especially on an issue that, as Brodhead noted, involved a “special emotional charge.”

In the months before Brodhead spoke to the NAACP:
--local “activists” had held protest marches outside of the lacrosse house, carrying a “castrate” banner;
--local “activists” had distributed “wanted” posters around campus;
--members of a nationally recognized hate group had made death threats against a Duke student;
--the co-chair of the DA’s citizens committee had screamed, outside 610 N. Buchanan, “Burn it down!”

Surely such acts couldn’t be rationalized or excused “because the idea of white men commandeering black women for their pleasure has a painful history.” And perhaps an address before the NAACP was not the appropriate time for Brodhead to exercise leadership and condemn those who—even if motivated by a “special emotional charge”—went overboard. But Brodhead never publicly condemned any of the acts above. Indeed, in April 2006, he actually shared the stage with the only Duke student who publicly admitted distributing “wanted” posters, Dinushika Mohottige.

As for Brodhead’s claim that “in the spring, it became part of my work to remind people of the presumption of innocence,” this was, after all, the same man whose 2377-word April 5, 2006 statement (his last before the first arrests) didn’t even mention presumption of innocence. And on April 20, he informed the Durham Chamber of Commerce, in his first public appearance after the arrests of Reade Seligmann and Collin Finnerty, “If they didn’t do it, whatever they did is bad enough.”

Brodhead continued,

At the same time, I saw a quote from someone—I never knew who, it was quoted on TV—who said last spring, “I don’t really care if the accused people are guilty or innocent. I would just be happy to see them convicted.” I saw that quoted by a reporter. (I actually found these sorts of quotes were much more common on TV than in reality.) I saw that statement quoted to a student leader from North Carolina Central University. And you know what he said? He said, “What a stupid thing to say.” He said, “I don’t know anyone who thinks that.” He said, “Everyone I know thinks we should have the truth be established and then let’s have justice be rendered.”

The insinuation: most NCCU students didn’t rush to judgment; the media exploited the situation to make it appear otherwise; the comment came from a stray person a TV reporter probably picked up strolling across campus.

In fact, the comment (student Chan Hall “said he wanted to see the Duke students prosecuted ‘whether it happened or not. It would be justice for things that happened in the past’”) appeared not on TV, but in print—in Newsweek, no less. Even if Brodhead couldn’t track down the name of the student, surely his press office could easily have done so. Far from being unrepresentative of campus opinion, Hall seemed to reflect it—as the comments of other NCCU students from the April 11, 2006 forum suggested. And the unnamed student government leader quoted by Brodhead? It’s hard to see how the student could say “I don’t know anyone who thinks that”—given that Hall himself was an NCCU student government leader. (He was head of the Government Affairs Committee, and a candidate for speaker.) A Lexis/Nexis search of U.S. newspapers; TV and radio broadcast transcripts; wire service reports; web publications; and blogs found no record of the quote provided by Brodhead, attributed to an NCCU student government leader or to anyone else.

Perhaps, it could be argued, NCCU student opinion had tempered by the time Brodhead made his speech. Not exactly. As late as February, when Mike Nifong’s case had been exposed (even to Brodhead) as a fraud, a Baltimore Sun article jarringly opened in the following manner: “Seventeen North Carolina Central University undergraduates in a communications class were asked to think like a jury: Raise your hand if you believe the accuser in the Duke lacrosse sexual assault case fabricated her story. The students in the cramped cinderblock classroom looked at each other and at the reporter posing the issue. Not a single hand was raised.”

In the Yaeger/Pressler book, N&O columnist Ruth Sheehan admitted that she rushed to judgment in part because Duke officials—contrary to her expectations—failed, in any way, to “spin” the story to their students’ benefit. Why, then, did Brodhead feel compelled, months later, to “spin” on behalf of NCCU students, by suggesting their response to the case was more moderate than (at least) the media record suggested?

Brodhead concluded his case-related remarks in the following way:

That’s another community value that we have between us, because the world of due process and of justice based on evidence, that’s a world we all need. The day it’s us up there, we’ll need the benefit of the law and due process. We’ll need the benefit of the presumption of innocence. We’ll need the benefit of waiting until the facts are in before judgment is rendered. We all need that. But I must say, people who have not had the full benefit of the law have as much or more to lose as anybody from the opposite world: a world where prejudice is allowed to make decisions through prejudgment, a world in which you can decide whether someone is guilty by deciding what category of humanity they belong to, or a world in which people feel free to reach conclusions without taking the trouble to establish the facts.

Brodhead was, of course, speaking to a group whose statewide website featured an 82-point, error-riddled memorandum of law that was a classic example of “where prejudice is allowed to make decisions through prejudgment, a world in which you can decide whether someone is guilty by deciding what category of humanity they belong to, or a world in which people feel free to reach conclusions without taking the trouble to establish the facts.” Surely, if Brodhead meant what he said about not rushing to judgment, he would have been compelled to make some mention of this document? Instead, the president ignored the NAACP’s memorandum of law.

Brodhead’s remarks about due process, meanwhile, are worth considering in context. Between April and December 2006, the president essentially claimed that due process required people to suspend judgment about all aspects of the case until a trial occurred, in which (as he stated in a July 2006 letter) “we are eager for our students to be proved innocent.”

But, of course, due process extends beyond the presumption of innocence (and certainly beyond an argument that trials exist for people “to be proved innocent”). Due process also requires the state to follow its own rules and regulations. By the time of the president’s NAACP speech, Mike Nifong’s improper public statements were documented (indeed, the Bar had already drafted up an ethics complaint). So too was Nifong’s decision to order the police to violate their own procedures and confine the April 4 lineup to lacrosse players. Surely, if Brodhead meant what he said about upholding due process, he would have been compelled to make some mention of such behavior? Instead, the president remained silent.

In his contemporaneous article about the speech, Cash Michaels reported that the NAACP leaders greeted Brodhead’s remarks with gushing applause. It’s not hard to see why.

[Update, 9.26am: Friends of Duke spokesperson Jason Trumpbour adds some important insights:

The Duke News and Communications Office usually dutifully posts every single public remark made by the president including sneezes and yawns. I was very surprised that I could not find a fairly significant address such as this one. I thought it telling that Duke wanted to maintain good relations with the local NAACP, but did not want to play that fact up because state and local NAACP officials were among the biggest hoax enablers. In addition to that libelous memorandum, there was also the William Barber sermon in Duke Chapel trashing the players, Irving Joyner’s “expert commentary,” funding the Our Heart’s World website and the huge screech they put up when the defense filed a motion for a change in venue.

President Brodhead’s speech seems to have been added to the site much later. Compare this page from today to this one from archive.org retrieved on April 7, 2007. The November 18 item is not there in the latter. I cannot tell when they added it because archive.org’s list of retrievals stops in May for some reason and there is a glitch in the internal links pointing to that same page after April 7. However, that archive index for 2006 page appears to be unchanged for all of early 2007.

Why did Duke add this item months later? Is it because President Brodhead gave some mumble mouthed tribute to due process and this somehow brings his word total on this subject up? I have to say that he did talk about due process and the presumption of innocence a little more forcefully than he ever did elsewhere, more forcefully being an entire paragraph on the subject which, as KC points out, he qualifies in other paragraphs.

The problem is that President Brodhead’s idea of due process meant making sure the case went to trial so that no one could say that Duke was behind any dismissal and having the case go to trial was exactly what the local NAACP wanted, because a guilty verdict would allow them to do an end run around all the evidence and impose their own version of reality by clothing it as the product of legal process, essentially Nifong’s agenda. Does Duke think people are unaware or have forgotten about all this?

Indeed, his urging his audience to wait for the legal process to run its course at a time when Nifong and the police were doing everything in their power to corrupt and pervert that process without any sort of recognition of this fact by him is positively sick. In any event, if this is all President Brodhead said when given the chance to speak to some of the biggest hoax enablers in defense of his students, then he should be embarrassed not proud of these remarks.]