Week in Review

An extraordinary recent op-ed from The Stanford Daily reflects the high case-related performance from the college media. Christopher Anderson, a graduate student in electrical engineering, noted that the lessons from events at Duke particularly resonate at his institution:

The debate continues at Stanford about how much of a split should be allowed between the college athlete pool and the student body at large. Duke University is just wrapping up a live-fire study of such an issue with the now-infamous Duke lacrosse rape case, and the results show there is a small but significant portion of the student body and faculty whose hatred of “athletic privilege” is impervious to fact, truth and justice.

In this respect, “The case certainly puts some of the more shrill voices opposing big-time sports in a different light.

In 25 paragraphs, Anderson summarized affairs in as clear and concise a production as I have seen from any writing on the case. To him, “It’s a complex case and a difficult timeline to follow, if only because it boggles the mind to think that one person with a handful of conspirators could be so nefarious in so many different ways.”

Nifong didn’t act alone, as Anderson understood:

• The faculty: “A group of 88 professors took out an ad condemning a campus “social disaster,” a thinly-disguised attack on a group of their own students. Duke English Prof. Houston Baker issued a hysterical, racist and unsubstantiated letter demanding the dismissal of every player on the team and the abolishment of the lacrosse program.”

• The administration: “This lynch mob was not quelled by Duke president Richard Brodhead, who stated “whatever they did was bad enough” and suggested the case go to trial so the players would have the opportunity to “prove their innocence.’”

• Journalists: “Some members of the media seemed content to slough off their guilt by rejoicing in the players’ suffering. These normally liberal commentators became reborn Puritans, screaming that these men deserved their Kafka-esque experience for having a tasteless spring break party.”

The outcome, in a perceptive point: “Nifong’s absurdity is, paradoxically, the silver lining. Without his preposterous pursuit of the case as it collapsed around him, the world might see these charges as a he said-she said, not-enough-evidence incident that was squelched by slick lawyers. In criminal justice, the tie goes to the accused. Instead, by continuing to go forward, Nifong disgraced himself and opened the door to the players’ exoneration.”

Anderson concluded, “Thanks to a minister of injustice, justice prevailed.”

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My colleague, Stuart Taylor, has an important article in this week’s National Journal looking at the general problem of false accusations and convictions.

“As recently as 20 years ago,” he notes, “it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.” The work of the Innocence Project is the best example of this pattern.

The problem? “America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.” Moreover, “the kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered.”

How can false convictions be reduced? Requiring law enforcement to tape record witness and suspect interviews is a good place to start, Taylor argues. Taking more seriously “police and/or prosecutorial misconduct” is another critical step. And Taylor urges appeals courts to end their “almost complete deference to findings of guilt by juries and trial judges,” especially in cases where errors of fact are obvious.

While wrongful prosecutions disproportionately harm the poor and minorities, “well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.”

“Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.”

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Angela Davis also viewed the case through the prism of prosecutorial abuse—but suggested a disturbing lack of knowledge about events in Durham. While she recognized that “Mike Nifong’s decision to withhold exculpatory evidence was neither legal nor ethical,” Davis claimed—in an article, again, criticizing prosecutorial abuse—that “Nifong’s initial decision to charge three Duke University students with rape was not unreasonable.” It’s not unreasonable for a prosecutor to seek indictments without probable cause?

“Nifong,” she hypothesizes, “was undoubtedly mindful of the justice system’s poor treatment of rape victims, especially African-American women”—as if past poor practice could justify current indefensible decisions.

She further notes, “If he had failed to pursue the prosecution of wealthy white men accused of raping a poor black woman, he would have been justifiably criticized. Facing an election in a jurisdiction with a sizable African-American community, he had the three students indicted for rape, first-degree sexual offense, and kidnapping.”

So: because a guilt-presuming populace wanted indictments, Nifong would have been “justifiably criticized” for not moving ahead, even though there was no evidence a crime had occurred, much less the people charged were guilty?

Davis also rewrites the history of the case: “When it became clear that the state could not possibly prove guilt, North Carolina Attorney General Roy Cooper removed Nifong from the case and dismissed the indictments. State disciplinary authorities quickly brought ethical charges, and Nifong was disbarred in June.”

Actually, of course, the Bar filed ethics charges, and Nifong, faced with a conflict of interest, recused himself. Cooper did not act “when it became clear that the state could not possibly prove guilt”—and when he did reach a determination, he declared the players innocent.

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Last week two key Nifong allies departed the scene in different ways.

First, the intrepid investigators at the Liestoppers forum have discovered that SANE nurse Tara Levicy has sold her house in Durham, and made inactive her North Carolina nurse’s license.

And so Levicy won’t have the opportunity to influence any more North Carolina criminal justice cases by making dubious diagnoses of “blunt force trauma” or shifting her story in ways that correspond with the prosecutor’s latest version of events.

The bad news: she’s now a practicing nurse in New Hampshire. So Granite State attorneys should keep on speed dial the number of Dr. Anne Burgess—who first developed the term “rape trauma syndrome,” but who was prepared to testify for the defense if the lacrosse case had done to trial, so outraged was she by Levicy’s behavior.

Second, the state NAACP has—nearly four months after AG Roy Cooper publicly proclaimed the players innocent—removed from its website Al McSurely’s guilt-presuming memorandum of law. It appears that even the NAACP no longer believes, as McSurely claimed, that the players “must deal with a mountain of physical evidence, that is corroborated by, we have reason to believe, accounts of some of the men who were at the party who have cooperated with the police and the D.A. from early on.”

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The author of the Group of 88 statement, Wahneema Lubiano, has posted the newest version of her CV on her Duke website. The perpetually forthcoming Like Being Mugged by a Metaphor and Messing with the Machine are still listed as “forthcoming”—as they have been for the last 10 years. (In the academy, “forthcoming” usually means that a book has been completed and has entered into the publication process.)

In the CV, Lubiano also laid out her “articles and essays in collections.” In the past eight years, the Group stalwart has produced two articles. One, a forthcoming piece, is an interview. I’ve looked at a lot of academic CV’s, and I can’t recall ever seeing a professor count being interviewed as an academic publication.

Lubiano’s only other publication since 1999? A four-page essay on the aftermath of Hurricane Katrina. (That article, published in 2005, also listed as “forthcoming” Like Being Mugged by a Metaphor and Messing with the Machine.) In the essay, Lubiano took aim at press reports of looting in New Orleans following the hurricane. How did she frame her discussion? With a quote from war criminal Hermann Göring.

In yesterday’s discussion thread, I mentioned that a Group member had produced only a half-page of scholarship per year since 1999. A Group sympathizer in the thread assumed that of the 88, Lubiano had compiled this record (apparently Lubiano has quite a reputation, even among her peers). The sympathizer offered the following defense: “I think that there are many, many examples of intellectuals at the heart of institutions who have published very little—even at the rate of 0.5 pages a year.”

Some people might wonder whether implying that the American media of 2005 was following the mindset outlined by a Nazi war criminal represents the quality of thought that we should expect from those “intellectuals,” who, “at the heart of institutions,” publish “at the rate of 0.5 pages a year.”

Hat tip: B.F.

[An excellent comment from down in the thread today:

I am not in favor of hounding Ms. Levicy, and I regret the language in some of the comments concerning her. I wish her well in her new abode. But her defenders need to consider an important point. Levicy’s role was in fact far more dangerous than that played by Lubiano. It is true that Lubiano, who seems to have more time on her hands than some of her colleagues, spearheaded the professionally improper public “Listening” statement. That statement helped to inflame local tensions, and the defense attorneys were right to cite it as one of several evidences that a fair trial, if matters came to that, was not to be had in Durham. But Lubiano is an expert in nothing, and her opinions regarding “social disaster” have no more authority than yours or mine. Levicy is (or was) a medical professional whose testimony could reasonably be supposed to be that of an expert. One has to conclude that her testimony, false as to fact, was actually suborned by her own political beliefs. This is not the same as saying she was lying pure and simple. We say “seeing is believing”, but it often works the other way around. In a complex or ambiguous situation we “see” those things we are predisposed to believe. It is fairly harmless that Lubiano is predisposed to see imaginary analogies between FEMA and the Third Reich or whatever. That mental aberration is unlikely to have much social result. The postmodernist academic jargon of a bunch of Duke professors may be incomprehensible and indigestible, but it unlikely to be lethal. Imaginary “blunt force trauma” conceivably could have put somebody in jail.]