Week in Review

A prominent name from the lacrosse case has joined Michael Vick’s defense team. Butch Williams was the subject of a nicely done profile this week by the N&O’s Anne Blythe.

Citing the lessons of the lacrosse case, Williams cautioned against a rush to judgment—while also predicting that the Vick case could be a bigger legal challenge than was tackling Nifong.

Williams was one of the quiet heroes of the case. Setting aside enormous pressure—both from his fellow Durham African-Americans and from taking on the city’s legal power base—Williams did everything he could to prevent a miscarriage of justice.

Blythe’s piece provides new details on Williams’ efforts to persuade the local black elite to keep an open mind on the case—even though his client was not one of the people falsely charged. Mayor Bill Bell said that Williams had an effect: “Butch was one of many people who talked to me. He obviously has credibility, and I respect him.” As Bill Cotter noted, "In the very beginning, he told people they better be quite careful, that this might not be what it seemed. I know it caused some problems for him. Some people did not want to hear that."

Bill Cotter summed up the situation*: “Butch’s efforts on the Duke lacrosse case were extraordinary. He’s got a great reputation. He’s credible. He’s very knowledgeable. He has a lot of inside information, and he’s going to tell you what he knows . . If Mike Nifong had listened to him, he still would be the district attorney.”

Vick’s case won’t be an easy one, but in Williams he has a first-rate member of his team.

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Writing in the L.A. Times, Gregory Rodriguez used the Ward Churchill case to ask some difficult questions about the nature of the contemporary academy. As Rodriguez noted,

You don’t have to be a crusading right-winger to recognize that University of Colorado professor Ward Churchill, who compared the victims of the 9/11 World Trade Center attack to Nazis, is an extremist, an ideologue whose scholarship is less than objective.

The University of Colorado fired Churchill last week—though for massive academic misconduct (a committee concluded that he plagiarized and improperly used sources) rather than his comments.

Rodriguez—correctly, in my opinion—argued that the University should have focused less of its attention on Churchill and more on “how someone as intellectually irresponsible as Churchill got to be head of a department at their esteemed institution in the first place.”

The idea of precise ideological balance in the academy is a bad one, and implementing it would decimate academic freedom. That doesn’t mean, as Rodriguez pointed out, that the public should turn a blind eye to “academia’s nurturance of loons like the hate-filled Churchill. No, they are not many, but they shout louder than their numbers would suggest. And though their influence is minor in American higher education overall, they can be very influential in particular fields, such as comparative literature and gender and ethnic studies. That’s because the problem on campuses isn’t rigorous Marxist materialists, as conservative stereotypes would have you believe, but craven emotional warriors in the arena of identity politics.”

The basic lesson? “Just because an academic field is relatively harmless and even irrelevant (in the eyes of many fellow academics) doesn’t mean that shoddy professors who can’t sort fact from ideology should be tolerated, particularly at taxpayer expense. The Churchill case might be closed, but university officials nationwide have an obligation to bring scrutiny and the ideal of objectivity to these below-par departments—perhaps by dismantling and absorbing them into more rigorous disciplines and insisting, not on any one set of views or conclusions, but on the high standards of scholarship that we expect from the best of academia.”

Of course, few—if any—of those who have followed the lacrosse case would be surprised at the antics of “craven emotional warriors in the arena of identity politics.” We know them as the bulk of the Group of 88.

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CUNY law professor Victor Goode contends that the real question of the case is: “Could it be, though, that Nifong's real offense is not misconduct, but rather treating three middle class white defendants as if they were poor and Black?”

Well, in a word, no. If the defendants “were poor and Black,” Nifong would have had no reason to target them politically. Given the yawning gaps in Crystal Mangum’s stories, it’s highly unlikely “poor and Black” suspects ever would have been charged. And it’s unlikely that a case with “poor and Black” suspects would have yielded itself to lines like Goode’s faux lament about “the tawdry events of last year's party, with all its racial and misogynous overtones.”

Yet, according to Goode, “Watching these events unfold, it was hard not to think about the thousands of young Black and Latino men who wind up in the same predicament as these Duke students.”

Thousands?

Let’s remember, again, the misconduct that Nifong committed, based on the results of his ethics trial:

1. Nifong, facing a contentious primary election, was trailing badly in the polls. After exclaiming “you know, we’re fucked” when the officers in charge told him of weaknesses in the case, he nonetheless gave between 50 and 70 interviews to the local, state, and national media, in which he expressed absolute certitude that a racially motivated gang rape occurred.
2. After the two main officers involved conceded the investigation had reached a “stalemate,” Nifong ordered them to run a third photo lineup, only this time bypassinfg procedures and confining the lineup to suspects.
3. Nifong sought the first two indictments without even reading the transcript of that lineup, and overriding police objections that they weren’t sure one of the accused (Reade Seligmann) was even at the party.
4. After obtaining the first two indictments, Nifong refused even to meet with lawyers for Seligmann or Dave Evans, even though the attorneys said they possessed evidence to prove their clients’ innocence.
5. After learning from a DNA lab director that the DNA of multiple unidentified males was found upon Crystal Mangum, Nifong turned over to the defense a report that didn’t contain this information, and then falsely claimed to two judges that he had turned over all exculpatory evidence.

Who, precisely, are the “thousands” of other defendants whose prosecutors engaged in the behavior outlined above?

According to Goode, “We need not look far for cases where prosecutorial misconduct was far more egregious, but in which poor Black defendants had neither judges nor bar committees acting to guarantee a fair trial.” Goode cited the case of Lesly Jean, who was imprisoned for nearly 20 years after the prosecution withheld exculpatory evidence and relied on a faulty ID.

What happened to Jean, of course, was horrific. But Goode’s claim that the “prosecutorial misconduct was far more egregious” than in the Nifong case is rather hard to see. Both cases featured the withholding of exculpatory evidence. But, unlike the lacrosse case, the Jean case didn’t involve a prosecutor explicitly instructing the police to violate their own lineup procedures; nor a prosecutor making false and ethically improper public statements before any indictment was made.

Why, according to Goode, did people worry about the lacrosse case? “The very idea of white skin privilege would cease to have meaning if white and Black, rich and poor could actually expect the same treatment by our criminal justice system . . . Not surprisingly, some of the demonstrations on the Duke campus tried to link the prosecution of the Lacrosse players with ‘excesses’ of affirmative action. Others accused Nifong of simply trying to please the Black community of Durham because he needed their vote.”

On the latter point, overwhelming evidence exists that Nifong did exactly that. On Goode’s former claim, where were the “demonstrations on the Duke campus” that linked Nifong’s actions “with ‘excesses’ of affirmative action.” Goode doesn’t say.

In short, those concerned with prosecutorial misconduct against the poor and minorities undermine their case with arguments such as Goode’s, which deliberately minimize Nifong’s misconduct or invent non-existent anti-affirmative action demonstrations.

(It’s unclear, by the way, why Goode capitalizes Black but not white.)

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Under the headline of “When prosecutors are corrupt, our democracy pays a stiff price,” the (Tennessee) Mountain Press had an excellent review of the Nifong fiasco.

Unlike Goode’s racialized interpretation of events, the MP editors understood why “the saga of Mike Nifong has been so disturbing”: “Abuse of power is the one thing that can cause a democracy to fail.”

Fortunately, the truth came out:

Now Nifong’s sordid, vicious campaign against innocent young men has been revealed in its totality. He has been disbarred. He faces jail time. He has apologized to the three students. His career in law is over. He may never be able to look at himself and his children with anything but shame and embarrassment.

The whole affair, the editors correctly noted, is a reminder that “prosecutors and judges have enormous power in our judicial system,” and that legal integrity is paramount—whether in Durham or in Washington, DC.

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Duke donation figures for the 2006-2007 fiscal year are now available: the total rose 11 percent to more than $380 million. Around half of that increase came from a boosted donation from the Duke Endowment.

Most of the donations were targeted to improve need-blind admissions. That said, University presidents are, in the end, evaluated on their fundraising ability, and it certainly can’t be said at this point that Duke alumni were unaware of the administration’s general approach to the lacrosse case or its disinclination to challenge the Group of 88.

In that respect, the Brodhead administration appears to have interpreted alumni sentiment accurately.

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Update, 9.55am: Former St. John’s University Law School dean Joseph Bellacosa (who’s also a former judge on the New York State Court of Appeals) published a searing op-ed today about the Group of 88.

“Accountability,” he noted, “finally came to Durham County District Attorney Michael Nifong last month,” and now “the time is at hand to demand some accountability for Nifong’s academic enablers.”

As Bellacosa noted,

Eighty-eight members of the Duke faculty publicly promulgated a dreadful letter, enflaming a premature and prejudicial atmosphere against their own students. Yet, their conduct is largely shielded from accountability. Equally troublesome, their ironically and suddenly protective university masters executed a confidential settlement to further immunize the Duke cabal from civil liability exposure.

The 88 are thus granted a kind of institutional immunity, a corruption of process all by itself because it sidesteps a day of public reckoning.

As Bellacosa understands, “Their roles as teachers should have included special protection of their pupils from mob hysteria and media hype, not collaboration in the spectacle. These 88 and the rest of the Duke ‘family’ stood in loco parentis - in the place of the parents who entrusted their youngsters to Duke’s professionals, with substantial tuition payments. The parents’ trust was painfully misplaced, and their children suffered irreparable reputation injury and a fundamental breach of duty.”

The former St. John’s Law dean urges Duke students to vote with their feet, shunning “these professors and their courses - a good, old-fashioned revived remedy of accountability. Shunning is, under these circumstances, a proportionate penalty for the sin of heedlessly injuring young people placed in one’s care and charge. These 88 would thus be professionally disenfranchised, and as they look out at empty rooms and seats, that lesson would be felt and take hold.

In the end, according to Bellacosa, the Group “flunked with a capital ‘F’ the course in Principles of Justice 101, whose first lesson is the presumption of innocence and protection of innocents. Everyone should be held ultimately accountable for their actions, even the hostile unintended consequences thereof, lest, in the future, hubristic ideologues, invested with power and fiduciary responsibilities, think that they, too, can act irresponsibly, with impunity and immunity.”

*--corrected from original