Sunday, September 30, 2007

More Times Whitewashing

Here's a sentence from Aaron Beard's AP article from yesterday:
But even as Nifong won indictments against players Reade Seligmann, Collin Finnerty and Dave Evans, it became clear the allegations had no merit.

The sentence initially appeared in that form in the Times. But then the sentence was modified, to the below:

But even as Mr. Nifong won indictments against the players, Reade W. Seligmann, Collin Finnerty and David F. Evans, there was growing skepticism over the charges.

Perhaps the Times decided it needed to change Beard's words, since they contradicted the paper's own, widely discredited, reporting on the case?

Brodhead Remarks: Full Text

Given its significance, it seemed worth re-posting the remarks, which included an apology to the 47 lacrosse families along with the president's first acknowledgment of the inappropriateness of the Group of 88's statement.

This conference is not just about the Duke lacrosse case. It is about a kind of event that has taken on a central place in American culture: the legal case that creates a national community of attention, the case the public consumes every “fact” of with an endless appetite for more. Cases like these typically combine scandal, celebrity, and highly combustible social issues, race and sex perhaps chief among them. And having become one of America’s principal forms of shared public life, these cases highlight crucial problems of our culture -- problems of achieving justice in a media-saturated society, problems of fundamental fairness to individuals, and problems in the way the American public is informed and misinformed about the world we live in.

The Duke community lived through a classic example of such a case. When a case like this is over, it’s tempting to think that the facts so clearly established at the end of the day must have been equally clear throughout the process. This was not the case. When the accusations were made, our students said emphatically that they were innocent. On the other hand, the district attorney made a series of public statements expressing absolute confidence that a crime had occurred and that the students were guilty of criminal charges. These starkly opposite versions of the truth created deep uncertainty about what had happened.

Added to this, the local and national media began weeks of highly sensational coverage, creating an air of instant, uncritical certainty that fed on itself in a remarkable way, with each day providing new “revelations” that became known around the world, confirming and re-confirming public assurance that an outrage had occurred.

Given the uncertainty at the heart of the case and given the tides of passionate prejudgment the DA’s comments and media accounts touched off, I staked out a position on behalf of the university that contained three principles. First, the type of crime that had been alleged had no place in our community. Second, the presumption of innocence is fundamental to our legal system, and our students were entitled to that presumption. And third, this whole matter had to be entrusted to the criminal justice system for its resolution.

As president, I had responsibility for the statements the university made and the actions the university took in a virtually unprecedented situation, and I take responsibility for them now. But I didn’t come here to retell the story or explain the logic of our acts. We are now in the aftermath of this extraordinary case, and the aftermath, we have to hope, is a time for learning. Having spent my life in the cause of teaching and learning, I am not at all unwilling to learn lessons of my own. I am happy for this chance to share some of those lessons.

First and foremost, I regret our failure to reach out to the lacrosse players and their families in this time of extraordinary peril. Given the complexities of the case, getting this communication right would never have been easy. But the fact is that we did not get it right, causing the families to feel abandoned when they most needed support. This was a mistake. I take responsibility for it, and I apologize.

Second, some of those who were quick to speak as if the charges were true were on this campus, and some faculty made statements that were ill-judged and divisive. They had the right to express their views. But the public as well as the accused students and their families could have thought that those were expressions of the university as a whole. They were not, and we could have done more to underscore that.

Third, I understand that by deferring to the criminal justice system to the extent we did and not repeating the need for the presumption of innocence equally vigorously at all the key moments, we may have helped create the impression that we did not care about our students. This was not the case, and I regret it as well.

Fourth, this episode has taught me a hard lesson about the criminal justice system and what it means to rely on it. Given the media circus and the public reactions it fed, I thought it essential to insist that the matter be resolved within the legal system, not in the court of public opinion. As far as it went, this was right. But what this case reminds us is that our justice system -- the best in the world -- is only as good as the men and women who administer it. In this case, it was an officer of this system itself who presented false allegations as true, suppressed contrary evidence, and subverted the process he was sworn to uphold.

Relying on the criminal justice system in this case proved to have serious limits. But for the university to strive to set the system to rights -- for instance, by attacking the District Attorney -- presented problems as well. For one thing, none of us can lightly speak as if the system itself is tainted because some of our own have been accused of a crime. I was also concerned that if Duke spoke out in an overly aggressive fashion, it would be perceived that a well-connected institution was improperly attempting to influence the judicial process, which could have caused the case to miscarry in a variety of ways. Finally, there was no legal recourse against the District Attorney, for me or anyone else. Under North Carolina laws, no one had authority to take an active case from a DA absent the DA’s own request, as finally happened in January.

Even with all that, Duke needed to be clear that it demanded fair treatment for its students. I took that for granted. If any doubted it, then I should have been more explicit, especially as evidence mounted that the prosecutor was not acting in accordance with the standards of his profession.

The larger problem for society is how to create and maintain the optimal balance between the independence of the legal system and protection of individuals from false prosecutions. If this state should ever again have a rogue prosecutor on the loose with no more remedies than were available last time around, the failure to have learned the lesson of the Duke lacrosse case would be intolerable. I do not want to create some instant legislative “solution” that opens the door for new injustices tomorrow. I recognize that it is not easy to get the checks and balances right when two such important interests are at stake. But it’s essential for all relevant parties to work to create these mechanisms, and I trust the current conference will contribute to this cause.

Closer to home, this case highlights challenges universities face when students are tied to serious criminal charges. This challenge has many aspects: how the university advises a student in these circumstances, how the university regulates the presence on campus of students charged with serious crimes, how the university interacts with parents, and many more. My colleagues in the Duke administration are going over all our procedures to see what we can learn from our experience. But these are complex questions, and they aren’t ones Duke can or should hope to solve on its own. To work through these difficulties and see that their lessons are learned not only here but around the country, we will be hosting a national conference of educators, lawyers and student affairs leaders to discuss best practices in this important field.

I’ll end with the deepest lesson this case taught me. When I think back through the whole complex history of this episode, the scariest thing, to me, is that actual human lives were at the mercy of so much instant moral certainty, before the facts had been established. If there’s one lesson the world should take from the Duke lacrosse case, it’s the danger of prejudgment and our need to defend against it at every turn. Given the power of this impulse and the forces that play to it in our culture, achieving this goal will not be easy. But it’s a fight where we all need do our part.

Much of me hopes the Duke lacrosse case will be forgotten someday. But if it is remembered, let’s hope it is remembered the right way: as a call to caution in a world where certainty and judgment come far too quickly.

Saturday, September 29, 2007

Judges' Panel

Hengslter: who is making editing decisions with news as commodity? Grace, O'Reilly

how can courts deal with fact that justice is becoming entertainment and a commodity--ie, with protective orders? If people who know about case, who will talk? People who speculate.

Millette: (judge) in high-profile cases, judges need to ensure that good defense attorneys if defendants can't afford them

MD sniper cases--both sides were conscious of need to keep case out of trial

change of venue is a tool judges need to use to minimize effects of media

3 things judges worry about with high-profile cases:

1) preserve sense of normalcy in courtroom
2) select an untainted jury
3) keep jury impartial

Ruckriegle: Bryant case--lawyers for the accuser speaking to the media; how to deal with such a blitz?

out of 300 jurors, 174 passed voirdire

Walton: judge in Scooter Libby case

from inception, knew that biggest challenge would be empaneling fair jury for Libby given DC's overwhelmingly Dem nature

DC population: "wholesome degree of skepticism" about prosecutor and the government

Sellers: court public information officer is new position--increasingly prominent in court system over past 25 yrs; liaison between court and media

cameras, technology, seating, jurors, verdict--5 key concern

cameras in courtroom feeds the media interest; technology--keep cameras out? but what about text-messaging, etc.?

dangers of jurors who blog about experience or who read blogs and take influence from them

Levi: what can the judiciary do to restrain Nifong-like statements?
Millette: very difficult to answer--people in VA don't act like that

need to look to bar association for assistance; but judiciary doesn't really have tools to deal with this at this stage

Ruckriegle--trial court doesn't have ultimate legal ability to control leaks

N&O: Brodhead Apologizes

Jane Stancill on the president's speech.

Beard Article

Twenty-eight minutes after the delivery of the speech, Aaron Beard's AP article is already up--hitting all the key points.

Public Interest Panel

Gross: danger of one-sidedness in coverage of crime; tends to treat presumption of innocence as formality

presumption of guilt in general public

normal case in crime coverage is the opposite of what was seen in Duke case--(local news)--tends to be slanted against black criminals

"crime script"--crime is violent, perpetrators are black; statistically, blacks are over-represented in media coverage as violent criminals; association between race and violence in media coverage

on lacrosse case: difference between early coverage and what happened when DNA test results released

distinguishing among media outlets; opinion from commentary

Early coverage problematic--news norms (defer to elite sources) caused problems in this case, more problematic in national coverage--very slanted

more mixed in taking longer view

Scott Bullock (Institute for Justice): incorporate media strategy into their litigation

public interest law; can lose in court, but win in court of public opinion (eminent domain cases a good example)

train their lawyers in how to deal with media--speak passionately, not in legalese

unlike criminal justice cases, need to put client up front--have client talk to media

Shapiro (ACLU): also--can win in court of law, but lose, in court of public opinion (ACLU has seen this)

difficulty of sharping message in media battle where perception too often trumps reality

many other prosecutors like Nifong; why not action against them? [again, no mention on who, precisely, these prosecutors are]

issue of how to frame discussions in a way that public will care about it

Brodhead Remarks

[General: this was a powerful and emotional address, one that touched on several important points in an impressive fashion. Especially well-considered were the president's comments about Duke's handling of the issues of standing up for due process and ensuring that some "ill-judged" faculty remarks weren't constructed as speaking on behalf of the University.]

conference about broader issue--legal case that creates a national community of attention

typically combine elements of scandal and other social issues (race/class/gender, etc.)--cases highlight crucial problems (justice, fairness, how American public is informed and misinformed)

facts weren't equally clear throughout the process; DA made series of statements expressing absolute confidence that crime had occurred--deep uncertainty about what had happened

then local and national media saturated coverage

RB position based on three principles:
(1) type of crime that had been alleged had no place in community
(2) presumption of innocence
(3) entrust case to criminal justice system

hopes that the aftermath is time of learning; last person to learn lessons from what has occurred

(1) regrets failure to reach out to lacrosse players and their families "in time of peril"---"This was a mistake. I take responsibility for it."

(2) "Some faculty made statements that I believe were ill-judged"--people could have thought they were expressions of university--should have done more to make clear this time that they weren't

(3) didn't repeat presumption of innocence at all times, and could have given impression that he didn't care about the concept

(4) thought it was essential to resolve situation in criminal system, but didn't make clear enough that system could be undone by failure of men
"relying on the criminal justice system in this case" had limits

concerned that if Duke spoke out in more aggressive fashion, it could have led Nifong to drop the case

but Duke needed to be clear that it demanded fair treatment for its students; took it for granted, "should have been more explicit" about it

State needs to do more to limit the power of rogue prosecutors--if another Nifong comes along, will be sure that the lessons of the case are unlearned

questons raised by case:
how does university advise them? show to interact with parents? how to deal with students on campus? Colleagues will be going over these questions in future--Duke will host national conference on this issue

"actual human lives were at the mercy of so much moral certainty"--lesson of danger of prejudgment

This was a very powerful speech. [I'll post it as soon as it becomes available.]

Living through Lacrosse Panel

John Burness: need to understand the degree of media frenzy in this case
3400 stories about Duke in month before case in national and int'l media--95% were positive
7300 in March
33,000 in April 2006

"intensity and duration of this story is in my experience unprecedented"

in early stages of case, almost didn't matter what Duke said or did; media rushed to stereotype [as of course, did activist Duke profs]

"variable that made this story so powerful, in the end, was Duke University"--Duke had been on pedestal

nothing that knocked story off front pages or 24-7 cable news networks

if Duke could have done it again:
1) didn't anticipate degree to which frenzy would overpower Duke's preferred message; universities not used to investing in pr firms like corporations would do
2) didn't anticipate synergy between role of blogs and press--blogs created information for press, also fanning flame; heightening perception of story that from Duke's perception 'wasn't particularly accurate"


agreed as a committee that the report would speak for itself--Coleman had press conference--said "this is our report; you should read it'--wanted disagreement to be one about facts

"public doesn't fully appreciate how easy it is" for innocent people to be convicted; once it happens, very difficult to undo

what would he have done differently? wish he had met with Joyner to speak about mutual concerns--normally he and Joyner agree--might have made a difference if he had expressed an impact the case had on defendants

Faulks (NCCU law professor)

NCCU law school much more reserved in response than NCCU as a whole (Joyner the exception)

if done differently: "I would hope that the university would have made better choices about how they showed support for the accuser" rather than rushing to take more political stance

hopefully, Duke and NCCU will communicate more frequently in aftermath of case

Haagen: emergency faculty meeting--"level of interest and excitement" that was greater than he had anticipated

basic principles:

1) had to stay out of criminal case;
2) follow existing procedures--could be no individual discipline related to actions associated with party

wanted to create common base of information to shifting set of questions--turned to Coleman as chair of committee, with promise to back him wherever his information was

3) went to athletic department to speak with some of the coaches--immediately became clear to him that coaches were quite isolated within institution--led to creation of faculty/athletics associates program

tried to stay away from anything specifically related to the case, rhetorically

4) hoped to maintain collegial relations throughout

what would he do differently?

did 50 hrs of press interviews in first week after crisis erupted--wished he had been more effective in communicating; thinks some of his language just wasn't understood

probably needed to blunter to ensure that message got out


general assignment reporter--local TV news
irritating at times to see national media get access to sources they didn't--given that he was local reporter

interesting to see story take on broader context given the national press coverage

story was like a hydra--had many different sides

spoke to some Duke students who felt the players were being thrown under bus--but afraid to speak on camera, because feared getting in trouble
wishes that he could have done more to get this aspect of the story out

Rotberg (ex-Chronicle reporter):

closer to students than any more powerful media sources; but also were students first--had their exams, etc.

Chronicle steamrolled to some extent--in retrospect, should have done more to limit access to student reporters; but in retrospect, Chron handled the case well

Q: What should other groups (faculty, adm., media, defense counsel) done better?

Burness: "This was not the media's finest hour."
media went to stereotype from the start--and think things are continued to be stereotyped

He was more conscious of giving local media rather than national media the access

tried to get media to understand the power of how the stereotypes were affecting the story

"some of the columns in the best newspapers in this country were egregious in their errors"--NYT early coverage (requested 10 NYT corrections early on, got five, should have gotten ten)

early tactical error by defense attorneys: (1) perp walk, put sweatshirts over their heads;
(2) no speaking 4-5 early days (though now understand the reasons for this silence--construction of digital alibi, etc.)

also conscious of where the administration could have done a better job: Burness first statements said that students were cooperating; Brodhead first statement said that there were differing versions of the story

weren't as effective in taking messages Duke had (available on website) to the public--too passive, people wouldn't look for it


a lot of people who performed in 'admirable" ways; some disappointments

a lot of people who were in position to affect what public's lesson should have been failed

guesses "that a lot of the 88 didn't carefully read what they had signed"

case could have been a bridge, but becoming more of a wall
accused students came out of it surprisingly calm--lacrosse supporters came out of affair very angry

failure to appreciate anger of poor who have suffered in earlier miscarriages of justice

he did what he's done in any such cases--main difference is that people were paying attention in this case

Faulks: her surprise that Duke told students not to get lawyer
surprised by media's failures--but more so institutional failures (Duke/NCCU) in using this instance to discuss sexual violence against women, athletes and problems
[but, of course, nothing occurred in this instance??]

media had opportunity to get perspectives from faculty at NCCU--such as a specialist in under-reporting of rape, prevalence of date rape at universities

serious misconduct of DA not as much of an aberration as people thought--problem is often that prosecutors rush to judgment
need to make fundamental changes on limiting power of prosecutors

Haagen: it is very disputed that students were told not to hire lawyers
one of key problems in this case was that people would know things that were in fact disputed

thinks Duke did try and reflect--though not sure that discussions were as productive as they might have been

in the end, eventually things went well (State Bar action, AG, etc.)

failure of a a variety of groups of people to recognize that they should make common cause

Duke coaches were "remarkable" in their performance--felt "assaulted," but didn't become bitter, self-restraint was impressive

tough matter: when you have an opportunity to raise your issues, how aggressively should you exploit that? what are your other responsibilities?

"My deepest concern was that a number of people didn't ask very seriously what the tradeoffs were when they used an opportunity to push an issue."

Quintana: the case was completely tried in the public; wouldn't have happened if the defense attorneys hadn't realized this early on

University seemed to be overly conscious of image

story was about "privilege getting its comeuppance"

wasn't a face of the university to which the Univ. had access

Rotberg: "complete confusion in which all of these events were taking place"

"complete departure from everything we were raised to believe" to see that Nifong's goal wasn't to look after public, but himself

Final thoughts:

Burness: opens an interesting lens in what goes on in American society; rush to judgment, stereotyping; and how people get and process information
willingness to accept something just because it's put out

Nifong's behavior might not have been unprecedented, but his visibility was unprecedented in pursuing a fraudulent case


accept that students were innocent, because of extraordinary series of events
too easy to look back and try and deconstruct the case; importance to consider, in that process, how these things would have changed the overall outcome

what Duke did affected what others did

media needs to be more innovative in covering stories related to race, class, gender, and region; old way is completely unfair

society needs to be better in regulating the criminal justice process


rushing to judgment is a systemic problem
story of case: "all the news that fits we print"


"case exposed the basest character of the media"

Institutional Response to Crisis Panel

1) How do and should institutions respond to crises, in real time?

2) In what ways have and can institutions respond to crises that become springboard for long-term change in institution?

Levick: Institutions never have enough information--have to exist and make decisions. Generally, what happens in the first 24 hrs determines who wins or who loses. Duke lacrosse case an exception here.

Perception generally trumps reality--facts won't carry day in the media.

Always going to be a villain in every crisis--Nifong becomes the villain.

General pattern over last generation--decline of objective news; news as entertainment increasingly.

"Oklahoma land rush" for the new media--plaintiffs' bar has used it well.


experience with USA Track & Field--addressing journalists without all facts; pointing fingers is not a good strategy


problems for institutions: (1) inability to imagine: a crisis is a low-probability, high-profile event
(2) reactions to potential of threat often gets in the way of preparing for crisis
(3) inability to deal with potential threats for response


need to have sense of ongoing narratives (victim v. villain; heroic v. unheroic); also need to manage balance between strength and vulnerability; knowing that you're right isn't enough


specialist in crisis management research (soc, psych, poli sci, org. studies)
"resilience"--idea of getting back to normal after the crisis event--

(1) trauma can be transformational: many organizations have individuals who respond to traditional media--less aware of new media

(2) revision organization's philosophy

(3) renovation of underlying organizational structures--build bridges between different segments of campus


outcomes sound great--but why is it so difficult to reach them?

dangers about managing tensions--conflict between "moving on" and seeking to learn from lessons of crisis

Levick: always disagreement about nature of crisis: so what? That's what a crisis is.

"when you are not able to make decisions, it gets worse"--initially, people circle the wagons around you, but eventually pull away

Masback: Balco case--"we provided the facts when no one else would"--ability to control the info
admitted mistakes to prevent this sort of thing in future, even though small # (5) and fairly low-profile track & field athletes

Levick: reporters tend to be far fairer with institutions when the institutions are open
most lawyers bring in crisis communications people too late in the game

Masback: need outside experts in response to crisis; possible to win on facts and lose in perception

Jesse Jackson Dissembles

Jesse Jackson, from a recent appearance on the O'Reilly Factor:
O'REILLY: OK. Now let's go down to Jena, Louisiana, and Duke, North Carolina. You were unfairly, I believe, criticized in the Duke case. All you did was say that you'd pay the college tuition for the accuser, whether she was guilty or not. You didn't go down and protest. You didn't do anything else.


O'REILLY: When you saw --


O'REILLY: When you saw --

JACKSON: Wait a minute.

O'REILLY: Wait, wait, wait.

JACKSON: That was the big media lie, because --

O'REILLY: Right.

JACKSON: -- I did not go. Al didn't want to go.

O'REILLY: So, now you know how I feel.

JACKSON: Well --

O'REILLY: Now you know who [sic] I feel. It was a big media lie. Now you know how I feel.

JACKSON: But now --

O'REILLY: But wait, wait, wait. When you heard that those three white students, whose families were wrecked, whose lives were wrecked for more than a year, were not guilty, what did you say?

JACKSON: We celebrated their relief. We said it was a good thing.

Actually, here's what Jackson said and did, in an interview with John Williams of WGN Radio. He conceded that it was wrong for Mangum to have lied—though, he noted, people needed to start asking the question, “What about the girls’ careers?” In a delicate description of Mike Nifong’s conduct, Jackson asserted, “The prosecutor was playing light with his cards.” And, he concluded, he was glad that the players “were not found guilty.”

Actually, of course, they were declared innocent.

Three times he was asked whether he would apologize to the players for his spring 2006 actions; three times he refused. Instead, he continued the character assault. It was, he chided, a “very hazardous party,” indeed an “orgasmic(!) party.” He continued: “There’s no moral value in that party”—as if anyone had claimed that there were.

The people to blame were the players themselves: “They did put themselves at risk, and therefore they had to pay a real social price for it.” Anyhow, their parents had enough money to get them off, whereas a “lot of people” don’t have the resources and go to jail. Jackson did not say if he had offered to use Rainbow/PUSH funds to pay the college tuition of those who had falsely accused any other people.

[Maybe that's how Jackson considers "celebrating" an exoneration?]

When asked point-blank by host John Williams whether he had made a mistake, Jackson channeled John Feinstein:

John Williams: “Are you going to admit to them [the lacrosse players] that you made a mistake; and that your mistake had consequences, unintended, to them?

Jackson: [Pauses.] I didn’t make a mistake.
My appeal was for the truth to come out. We did not indict them. We said, let the truth—do not spare the investigation.

[So that’s what Jackson meant when he said that the Rainbow/PUSH coalition would pay Crystal Mangum’s college tuition, even if it were proven that she lied.]

Because this happens much too frequently, John, where the rich prey upon the poor, where men prey upon women.
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What did Jackson mean by “this”? A false accusation of rape? Rush-to-judgment attitudes among an elite university’s faculty? Prosecutorial misconduct excused by the state NAACP?

Jackson never said.

At another point in the interview, he again retreated to vagueness, contending, “After all, this is a pattern in the South.”

Williams asked Jackson whether the reverend was going to protest every college frat party. He could have asked whether Jackson also opposes groups of women holding stripper parties or attending explicit spring break parties. And it’s worth knowing whether it is now the official policy of the Rainbow/PUSH coalition to pay the college tuition of all women who file false claims of rape. If not, why did Jackson make an exception in this instance?

What’s the chief lesson of the case? Jackson explains:

I would say that the act of men luring women with their moneys for their private gratification—we must admit that is unethical . . . and highly risky. Therefore, that very act is ill-advised. And you put yourself in a very perilous predicament. And they did.
And what, exactly, did Jackson say in mid-April 2006?

Something happened on the night of March 13th—something so compelling that Durham District Attorney Michael Nifong was prompted to say, 'This case is not going away . . . We know that the two women were abused . . . The Duke scandal should lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many. But it shouldn’t take the brutalizing of a mother of two to raise these issues.

But Jackson and O'Reilly have rewritten history, and suggested that the Rev. did nothing else other than the bizarre offer to pay Mangum's tuition.


It was a fascinating day yesterday at Duke Law School’s “Court of Public Opinion” conference.

The most dubious presentation came from former Massachusetts prosecutor R. Michael Cassidy, currently associate dean for academic affairs at Boston College Law School. First, he challenged portions of the Disciplinary Hearing Committee’s rulings dealing with Mike Nifong’s disbarment. Some of Nifong’s pretrial statements, Cassidy suggested, were ethically proper.

According to Cassidy, district attorneys in the midst of an election campaign have considerable latitude, based on the First Amendment. He cited Minnesota Republican Party v. White—but this decision appeared to have little to do with Nifong’s behavior. White held that states could not prohibit judicial candidates from expressing their opinions about issues that might come before them on a court. Nifong, however, was accused of making prejudicial statements about a specific criminal case in which his office had publicly identified suspects.

Nonetheless, according to Cassidy, it was permissible for Nifong:

To make comments that expressed certainity a crime occurred;

To comment on his reading of SANE nurse Tara Levicy’s report

To inform Newsweek (after all three indictments had occurred) that no “’facts’” had emerged that had caused him to change his initial opinion, which was expressed on March 27, 2006.

At the ethics proceedings, even Nifong’s attorney conceded that the latter comment probably was improper.

Cassidy revealed his bias a bit later in his talk, when he announced that AG Cooper's declaration of innocence was disrespectful to “victim.” Several people in the audience, correctly, called out that there was no “victim.” Cassidy slightly backtracked—terming Mangum the “alleged victim.” He made sure not to mention her name.

Other highlights:

Duke Law dean David Levi saying that if 70+ of his faculty had wanted to sign a denunciatory statement about their students, he would have done what he could to dsiscourage them from acting. President Richard Brodhead, it seems, took a different approach with the Group of 88 statement.*

Michael Tigar noted that lawyers who play soundbite journalism inevitably lose—even though, sometime, defense attorneys have to develop a relationship with the media.

During the Friendly roundtable, Dean Levi, playing the role of chancellor, was asked what he would have done upon learning from police of an investigation of sexual assault against one of his school's students.

His reply? "I'd call Jim Coleman."

*--modified to prevent overstatement. Brodhead met with AAAS faculty on 4-3-06; copies to the Group's ad had circulated via email before that time. It seems very hard to believe that the topic of the ad did not come up at the meeting. Given Brodhead's defense of the ad's themes in his 4-5 and 4-18 statements; and his vigorous defense of the ad three times in winter and spring 2007, it also seems very hard to believe that he offered the kind of objection to the ad provided by Levi. Indeed, before an e-mail sent to a DIW reader yesterday, Brodhead never criticized the ad in any way.

Friday, September 28, 2007

Responsibilities of Prosecutors Panel

The big case-related name on this panel is one of the stars of the Nifong ethics trial, Charlotte ADA Marcia Goodenow. The panel also includes two former U.S. attorneys and the academic dean at BC Law School.

Tom Metzloff: what were lessons of Nifong case for prosecutors?

Lynch: balance between how to deal with press and how to uphold rules?
need for continual training of young prosecutors in dealing with press

Goodenow: criminal defendant has a right to be tried in the courtroom, and the media doesn't have a right to try them
clear that three falsely accused students were not presumed innocent by media

media and public have right to access to the courts--not to everything dealing with case

Connolly: most prosecutors do follow the rules
lesson of Nifong is that not everybody plays by those rules--could see this through video--"shocked at what he said" at NCCU forum; "embarrassed"--clear that there "are bad apples" among prosecutors

Cassidy: more lessons not learned from Nifong case than were learned: Nifong was going to be disbarred without improper statements to media because of other violations

contends that some of Nifong charged statements were permissible
such as: city of Durham won't tolerate such behavior; "victim" exhibited behavior consistent with sexual assault were acceptable

MN v. White decision--can't gag judicial candidates; does that apply to elected DA's as well?

Lynch: inappropriate to go after individual classes of people (ie--all blacks, or all Duke students)

Connolly: trying cases in media generally not good for case

Lynch: fear that all prosecutors have is that it's more than just Nifong

Cassidy: if there's a big settlement with Durham, this might make prosecutors more cautious in the future

Cassidy: AG Cooper's declaration of innocence was disrespectful to "victim"; several people in audience call out that there was no victim

Responsibilities of Defense Counsel Panel

This is a high-powered panel: Laurie Levenson, Michael Tigar, and Harold Haddon.

Levenson: overview of rules for defense counsel
ABA Model Rule 3.6--dates from Gentile case--no statements that lawyer believed likely to materially prejudice proceedings; or to be inadmissable in court

safety zones for comments:
--explaining the presumption of innocence
--request assistance in obtaining evidence
--information contained in public record, w/o further comment (load up motions); used very effectively in lacrosse case
--scheduling information

"tit for tat" rule--defense attorneys can respond to substantial undue effect of recent publicity not initiated by client

very difficult for court to limit public access to information

will there eventually be recognized access to cameras in courtroom?

should there be a legal code regarding legal commentators?

Tigar: media has played very significant role, throughout American history, in ensuring the innocence of factually innocent people

need to think about remedy of judges taking more of a role to rebut out-of-control prosecutors

right of media to report and opine powerful (though also dangerous)

lawyers who play soundbite journalism inevitably lose--though sometimes have to develop relationship with media

Haddon: speaking to media is very risky for attorneys

at same time: in high-profile cases, 1st impressions are indelible

never able to reverse negative impression in Ramsay case after police dept's early leaks

pressure on defense attorneys to stand up quickly; yet can be extremely risky for def. attorneys to do so

Evans statement in lacrosse case "was brilliant . . . had a real significant effect on public opinion of him and of the case"

Levenson: misperception that all defense lawyers have to have same strategy
images & not that lawyers say is critical

Line of the Day

During the Friendly roundtable, Duke Law Dean David Levi, playing the role of chancellor, was asked what he would have done upon learning from police of an investigation of sexual assault against one of his school's students.

His reply? "I'd cal Jim Coleman."

Fred Friendly Roundtable

Kimel: role of upperclassmen to welcome newer members of the team--assimilate them into team and culture.

Margaret Jablonski--student affairs person, UNC: Student Affairs has right to act independently--have to recognize conflict between individual rights and community rights

Jack Ford (as moderator); seems to be treating suspension of students charged with felonies as among the more controversial elements of the case--even though it's not my sense that Brodhead's initial suspensions were particularly controversial

Lawrence McMichael: suspension is fueling the presumption of guilt: the more that public figures weigh in, the worse the person is making things for his client

Levi: would ask faculty not to make inflammatory statements (in private meeting)--yet, of course, Brodhead, on 4-3-06 when he met with African-American Studies faculty, appears to have made no such request to organizers of the Group of 88 letter

Would have even more problems if it were a group of profs who made such a demand

Levi: "There's free speech and there's also ill-judged speech"

Jablonski: need to have pr person--deal with team members, with parents. Should have conversation with members of team and their parents

Wellman: dangerous to get too far out in front of case before knowledgeable about facts of the case

Steptoe: important for press to have presented a full picture, rather than just rely on most extreme voices; why did media not take into account prosecutor's self-interestedness

Traditional Media Panel

Sylvia Adcock:

economic pressures put on print media by large corporations--eating away at talent necessary to put out great paper; will future media be able to provide necessary firepower?

Malcolm Moran:

"knows how painful this episode was" to people at the NYT
but things could get worse--technology might make it easier to spread false information, with 24-7 real-time environment, safety net of editorial process is gone

Eric Lieberman (attorney for Williams & Connolly, clients include Washington Post):

media tends to be very thin-skinned about its failings: ombudsman, blogosphere have potential to catch any error

"our most valuable asset is our credibility; if we lose our credibility, we have nothing at the end of the day."

Loren Ghiglione:

journalists need to be especially conscious of avoiding myths in race/class/gender stereotype

institutions within the press--ombudsmen, public editors; also bloggers--that can hold the press accountable

Ari Shapiro:

easier for government to manipulate media in terrorism cases--nature of process, government stopping something before it happens, therefore difficult to determine government's rationale for acting when it does

news media needs to act as filter--public doesn't need uncritical transmission of whatever government says

William Raspberry:

question of how news is made can put the media in a bad light--the end product is often good, but the mess in the production can look bad; in live-coverage, almost impossible for reporters not to lapse into speculation

also--tough for media to simply say it doesn't have new information--reporters have to advance the story, make it more likely to have speculation; pressure to report what competition has and leapfrog it

How to avoid this problem? Not sure it can be avoided. Editors help--but no editors on internet?; internet stories can force the hand of good editors

Beale: how can things get better?

Adcock: ombudsmen;
Shapiro: changing news consumer--no longer sense that need to get news from source that does it well, drags down the whole enterprise
Raspberry: tendency to write more than what reporters know--Whitewater good example of this.

Beale: how much of this problem can be attributed to prosecutors' behavior? Press have to report prosecutor's actions?

Lieberman: no--system supposed to be contest between press and gov't--media can't cede its obligation to have discipline and question the powers that be

Moran: in too many places, being wrong is OK, because desire is to get story out quickly

Ghiglione: when a news organization screws up, what does it do then? Praises Ruth Sheehan for apologizing for her early columns

Raspberry: dangers of making guidelines based on hugely exceptional cases

Hodding Carter Opening Remarks

Had spent a portion of his adult life in trying to get press to come to grips with own failings.

“often arrogant refusal” of press to accept that it has some responsibilities of broader citizenship—has had deleterious effect in terms of public attitudes toward press (national security issues, etc.)

Two key points:

1) “trial by media is as American as apple pie”

2) actions of AG and state bar were “extraordinary”—need to keep in mind this wasn’t the normal approach

Yes—will be lessons from this case—but will only last until next high-profile case

Recall Sacco & Vanzetti case—“try them after you convict them”

Leo Frank case another such example

Quite aware that usual victims of media lynchings were black men—accused of crimes against white; only occasional cases (Scottsboro) attracted attention to the injustices

“even now, newspapers too often blandly play the conveyer belt” for improper utterances of prosecutors

“We should all be so lucky as to live in a country where the work of the Raleigh News & Observer [in this case] was the rule”

“to read its work was to watch a newspaper turn on a dime”—began to repeatedly say things weren’t straight: work especially impressive in comparison to other newspapers, “some much better known in other parts of the country”

Media never learned lessons of McCarthyism

--Wen Ho Lee, Kobe Bryant, Jon Benet Ramsey, Barry Bonds (?), Richard Jewell, Whitewater

Recall the movie: Absence of Malice (even sometimes Hollywood gets some things right)

“cannot look to the media for a solution” in terms of media coverage of fair trial; also cannot hold media accountable for its misconduct except in very rare cases

But, unlike the media, there are clear rules for the court, the prosecutor, the police—no constitutional protections for them violating their rules, unlike the First Amendment for the media

Burden for ensuring fair trial relies on the Bar; can’t demand that media behave like lawyers

Why was this Bar intervention "extraordinary"--why not routine to curb a rogue prosecutor?

"What are canons for if not enforcement?" Why: "nothing quite so clubby as the Bar

real lesson of the Nifong horror show is that there are tools aplenty to strip a case from an unscrupulous prosecutor's hands

blogosphere has role to critique press--in a way that the press has failed to critique itself

to Nifong: "to violate every canon, every principle, every single standard emblazoned in law school texts and bar canons"

Nifong "the poster boy for all that is wrong" with prosecutors.

More Big Red

Outraged Cornell alums writing to protest the hiring of Group of 88 stalwart Grant Farred have received a form-letter reply from Vice President for University Communications Thomas W. Bruce:

Thank you for your comments regarding the appointment of Grant Farred to the faculty of Cornell University. He joined us in the fall semester as a professor with a joint appointment in our Africana Studies and Research Center and English Department.

Professor Farred comes to Cornell with a distinguished background in contemporary global cultural studies. He earned his Ph.D. from Princeton University in 1997 and his master’s of arts degree from Columbia University in 1990. A native of South Africa, his bachelor’s degree was earned at the University of Western Cape in that country. He has held faculty positions at the University of Michigan-Ann Arbor, Williams College and Duke University, and has been a member of the editorial board for The Journal of Sports and Social Issues. He has published several books, including Long Distance Love: A Passion for Football, which describes his love of soccer and provides many insights into race and class that he developed during his youth in South Africa and England. We feel that his unique perspectives and talents – he is an athlete as well as a scholar – will add to the range of reasoned intellectual discourse at Cornell.

The events surrounding the incident with the men’s lacrosse team at Duke shocked the entire nation and generated passionate commentary and soul-searching on that campus. We are aware that Professor Farred, as well as other Duke faculty members who made comments about the case, has been the subject of postings on the blogosphere. We support the right of free speech for all, while we understand that in many contentious issues people may never come to an understanding of others’ views.

I appreciate your taking the time to share your thoughts and concerns.

In light of his remarks, I twice e-mailed Bruce to ask two questions:

1) To what events were you referring that “shocked the entire nation”?

2) Is it Cornell’s official policy to require all professors to abide by all terms of the faculty handbook?

Bruce did not reply to either e-mail; I even delayed this post by a day to maximize his opportunity to respond. It appears, then, that Cornell no more than Duke will require Farred to abide by the terms of the faculty handbook; and while it’s true that Crystal Mangum’s false allegations should have “shocked the entire nation,” I rather doubt that Bruce had Mangum’s false allegations in mind with his statement.

Bruce’s response, moreover, provides some insight into one of the major points of this blog—how some fields in the academy define concepts like "excellence" or "reasoned intellectual discourse." Doubtless he—and the Cornell English Department—believe that Farred (last heard from academically, it’s worth remembering, proclaiming Rockets center Yao Ming as the greatest threat to the American empire) is a “distinguished” scholar in “contemporary global cultural studies.”

But when people from outside education hear academics speak of “distinguished” work, how many would understand that the academic institution is referring to scholarship such as Farred’s?

Another of Bruce’s lines is almost comical: “We support the right of free speech for all, while we understand that in many contentious issues people may never come to an understanding of others’ views.”

Farred might be many things, but difficult to understand is not one of them.

  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, on the campus of Williams College, charged that unnamed lacrosse players had committed “perjury”?
  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, in that same Williams address, contended, “At the heart of the lacrosse team’s behavior is the racist history of the South”?
  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, in an October 2006 op-ed, accused the Duke students who registered to vote in Durham of harboring a “secret racism”?
  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, in that same op-ed, stated, “What Duke students becoming Durham citizens does is displace the problem of racism from the lacrosse team and the university to Durham’s political system”?
  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, in a September 2006 forum, asserted—without providing any evidence—that the lacrosse players had “a tendency toward misogyny and arrogant sexual prowess?
  • Does Bruce think it was difficult for people to “come to an understanding of [Farred’s] views” when Farred, in that same September 2006 forum charged that any Duke student who dared to vote against Nifong would be casting his or her vote, “whether it is acknowledged as such or not, against women, and, more specifically, against black female bodies”?

I would submit that Farred’s remarks were quite easily understood, both at the time and now. That Cornell celebrates having such a figure on its faculty speaks volumes about the institution’s values.

Thursday, September 27, 2007

Post; Settlement Talks?

I'm en route to Durham but my flight is delayed; tomorrow's post won't go up until around 1am or later. Comment moderation also won't resume until then.

Meanwhile, both the N&O and WRAL confirm that Duke is in discussions with attorneys representing the unindicted players. The end to the WRAL article lays out the settlements into which Duke already has entered--a pretty good objective indication of the University's performance in the case. From WRAL:
Duke has already settled with at least five parties. In June, Duke settled with all three men, but the terms were never disclosed.

The university also reached a financial settlement with former lacrosse coach Mike Pressler, who was forced to resign shortly after the rape allegations surfaced. Terms of that agreement were not disclosed either.

And in May, it settled a suit filed by one of the undindicted players who claimed he received a failing grade in a class because he was a member of the lacrosse team.

Nechyba Honored

From the Economics Department website:

Duke University will honor outstanding students, faculty, employees and alumni at its annual Founders’ Day Convocation in Duke Chapel at 4 p.m. this afternoon. The University Scholar/Teacher of the Year Award, given by the Board of Higher Education and Ministry of the United Methodist Church, will be presented to Thomas J. Nechyba, professor of economics and public policy and chair of the economics department.

Nechyba’s name should be familiar to those who have followed the case. The Economics Department chairman was a spokesperson for the letter of January 4 that showed all that the Group of 88 no longer was the sole public voice of the faculty.

To the Editor:

We, the undersigned Economics Department faculty members at Duke University, are cognizant of the fact that, to date, the only collective signed statement by faculty members concerning the events of last March was an advertisement in the Duke University Chronicle subsequent to protests and a forum on March 29, 2006. We are aware too that the advertisement was cited as prejudicial to the defendants in the defense motion to change the venue of the trial involving the three Duke lacrosse team members. We regret that the Duke faculty is now seen as prejudiced against certain of its own students.

1) In light of recent events detailed in court proceedings, it appears that there were a number of irregular acts committed by members of the Durham law enforcement agencies and District Attorney’s Office. We join with President Brodhead in calling for an investigation of those acts, inimical to students at our university.

2) We welcome all members of the lacrosse team, and all student athletes, as we do all our students as fellow members of the Duke community, to the classes we teach and the activities we sponsor.

In the truth-is-stranger-than-fiction category, Group member Rom Coles attacked Nachyba and his colleagues for the letter. Here was David Graham in the Chronicle:
First, [Coles] said it did not address the veracity of accusations made about the original ad, and second, he said there was a "possible insinuation" that the signatories to the ad did not support and welcome members of the lacrosse team--a suggestion for which Coles said there was "absolutely no evidence."
Coles' wife was a fellow Group member. Her name is Kim Curtis. She certainly had an unusual method of welcoming members of the lacrosse team into her class.

A Tale of Two Letters

Put yourself in the position of editor of Duke Magazine. You have received two letters, but only have space to publish one. The first comes from a well-known alum who the magazine quoted to provide a semblance of balance to an otherwise one-sided May 2006 article on the lacrosse case.

The second comes from a discredited professor whose claim to fame is authoring a faculty statement cited in the defense change-of-venue motion and having listed two books as “forthcoming” for the last 10 years.

In the Wonderland that is Durham, the second letter was published (and sent to all alums); the first appeared only on the web.

The first letter, of course, came from Jay Bilas, who became the highest-profile figure connected with Duke to publicly call for the resignation of President Richard Brodhead and BOT chairman Bob Steel. Since the letter didn’t make it into the print version of the magazine, it’s worth re-posting:

A true leader has the vision and courage to recognize what is right, especially in the face of adversity, and fears not the consequences of unreasonable response. A true leader needs not the benefit of hindsight to make clear the right path. From March 2006 to date, President Brodhead’s mishandling of the challenges presented has proven him incapable of effectively leading Duke into the future.

While President Brodhead can point to a few ineffectually communicated words here and there for a feeble claim that he “emphasized” the protection of the rights of Duke’s students, his claim fails the laugh test. The vast majority of his words and actions, and in many cases his silence, emphasized an aura of guilt of the students and of the university. From the beginning, President Brodhead abdicated his responsibility as Duke’s leader to stand up for fairness and truth. Instead, President Brodhead chose the path of political expediency. He failed to effectively counter factually inaccurate and inappropriate statements about Duke and its students, failed to forcefully speak out against procedural irregularities, and failed to take appropriate action in response to repeated attacks upon the due process rights of Duke’s students. That is unacceptable.

If such failures in leadership are not enough, for the same reasons that President Brodhead forced the resignation of lacrosse coach Mike Pressler—because confidence in his ability to lead had been compromised, and a need to move forward in a new direction—President Brodhead should resign or be dismissed. And, based upon [trustee chair] Bob Steel’s letter of April 11, 2007, in which Mr. Steel stated that the board agreed with the principles President Brodhead established and the actions he took, the resignation of Mr. Steel and any board members that acted in lock step with President Brodhead are also appropriate.

Jay Bilas ‘86, J.D. ‘92
Charlotte, North Carolina

Bilas, it’s worth remembering, has been a voice of sanity throughout this affair. He spoke up on behalf of Duke athletics in the May-June 2006 article. He challenged negative portrayals of the lacrosse team in an appearance on ESPN2; and he appeared at Duke’s October 2006 media forum on the case, where he criticized the rush to judgment. And, perhaps most important, he reached out to members of the lacrosse team, addressing them (at Coach Danowski’s request) to celebrate the rebirth of the program.

Most people, I suspect, would consider Bilas’ piercing criticism to be newsworthy—or at least more significant than the letter that did make it into the magazine’s print version:

I’m writing to ask for a correction or clarification of a factual error in your article “One Year Later” [May-June 2007]. You quote Professor Michael Gustafson, who refers to “Lubiano’s reference to the players as ‘perfect offenders.’“ Professor Gustafson is incorrect. I did not call the players perfect offenders.

The essay [he refers to] discusses at some length the rhetoric that circulated in the immediate wake of the incident. I wrote there that some of the rhetoric coming “either from those defending the alleged offenders or those defending the alleged victim, is rhetoric driven, haunted, by a fight over whether or not we have offenders who can be seen as ‘perfect’ in their villainy” or “a victim whose victimage can be seen as necessarily complete and thus ‘perfect.’“

Throughout that essay I tried to make sense of, and wrote about the perspectives of, those who were defenders of the alleged victim or of the team. Among other things, I argued that in discussing the need of those who were critical of the team to intensify what they saw as the players’ “perfectness as offenders,” various differences (ethnic, wealth, behavioral) among the players that complicated this picture had to disappear. That essay attempted to explain the flattening out of complexities in the general public discussion. Its entire five and a half pages are accessible to you and to Duke Magazine readers via the Duke African & African American Studies blogspot:

Wahneema Lubiano
Associate professor of African & African American Studies and Literature

Those who follow the link are greeted with an essay (published by a tenured professor in literature) entitled, “‘A Social Diasater’” [sic]—which might make it difficult to take seriously anything else Lubiano has to say.

Here’s how Stuart and I summarized Lubiano’s essay in UPI:

Shortly after the Group of 88 ad appeared, Lubiano expressed pleasure “that the Duke administration is getting the point’: The banging of pots and pans had hammered home that a specific claim to innocence mattered little. The members of the team, she noted, could be considered “almost perfect offenders,” since they were “the exemplars of the upper end of the class hierarchy, the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus.” (Many months later, Lubiano would suggest that she didn’t mean that she considered the players to be “perfect offenders,” but the tenor of her springtime statements and actions belied this interpretation of her remarks.) Lubiano concluded by promising that the crusade to transform Duke would continue “regardless of the ‘truth’ established in whatever period of time about the incident at the house on N. Buchanan Blvd.” and “whatever happens in the court case.”

In essence, the argument in Lubiano’s Duke Magazine letter boiled down to a claim that she (a tenured Literature professor at Duke) couldn’t produce an essay written clearly enough to communicate her own meaning. This is the same Wahneema Lubiano who:

  • authored the guilt-presuming Group of 88 ad, with its claims (since rebutted) that five Duke departments officially endorsed its contents;
  • fantastically claimed at the March 30, 2006 faculty meeting that the Brodhead administration was being too sympathetic to team members;
  • appeared on an April 12, 2006 panel that floated the idea that things were “moving backwards” on campus as a result of the negative DNA tests;
  • told the N&O, after the arrests of Reade Seligmann and Collin Finnerty, that “people can’t imagine that the woman could have made a false rape allegation.”

  • penned a May op-ed declaring that Duke needed immediately to begin “targeted teaching” to expose “the structures of racism and the not-so-hidden injuries of class entitlement in place at Duke and everywhere in this country, and without regard to banal and ordinary sexual harassment,” since “we don’t have to wait for working class or poorer students to be targeted by fraternity ‘theme’ parties or cross burnings on the quad or in dorm halls, or for sexual assaults to be attested by perfectly placed witnesses and indisputable evidence.”

So, more than a year later, Lubiano is now suggesting that she wasn’t among “those who are defenders of the victim, [to whom] the members of the team are almost perfect offenders.” It’s worth noting that there was no “alleged” in Lubiano’s April 13 essay.

What in her spring 2006 statements or actions would suggest that she differed from these unidentified “defenders of the victim [sic]”? Lubiano doesn’t say.

Yet Duke Magazine considered it more important for alums to read Lubiano’s after-the-fact rationalizations than hear the powerful dissent of Jay Bilas.


[Update, 12.13pm: Some people appear to be under the impression that the Lubiano letter was only in print, and the Bilas letter only on-line. In fact, the Lubiano letter was both in print and on-line; the Bilas letter was only on-line. And the Lubiano letter was first in the on-line string of letters; the Bilas letters was eighth.]

Wednesday, September 26, 2007

Indy Endorsements

The Independent--home to Hal Crowther's vile columns on the case--made a bold pronouncement in favor of police misconduct in issuing its City Council endorsements.

The paper's top choice, erstwhile Nifong backer Diane Catotti, spent much of the spring attempting first to prevent an investigation of the Police Department's behavior in 2006 (she was the only Council member to vote aginst an inquiry) and then to render the committee ineffective by demanding that it be slotted on hard quota lines, with her own slot given to a figure with a conflict-of-interest problem in evaluating the police.

The paper didn't endorse Catotti's companion on the "Something Happened" line--Victoria Peterson--but it portrayed Peterson in an almost wholly positive light: "Victoria Peterson, known most recently for her very vocal support of former district attorney Mike Nifong, is an omnipresent community activist who passionately advocates for Durham's poor black citizens. "

Was Peterson's "very vocal support" of Nifong troubling to Indy editors? Apparently not, even though it involved, among other things, Peterson sharing the platform with a hate group leader and advocating burning down the lacrosse players' house. And, apparently, Indy is under the impression that none of "Durham's poor black citizens" are gay or lesbian, given Peterson's record of homophobic statements and actions.

Neff Blog

It's not case-related, but it's of obvious relevance to contemporary events.

ABC on Lawsuit Possibility

Scott Michels of ABC's Law & Justice Unit has a well-done piece just up on the possibility that the unindicted players and their families could file a lawsuit against Duke. [In my quote for the piece, I should have stated "almost" all of the administration, to take account for the behavior of Provost Peter Lange.]

Offering the administration's view, John Burness said, "The university established its position fairly early. First, if what was alleged had occurred, it was not something that was acceptable. Second, in our system you are presumed innocent. And third, the way to settle these issues is through the legal process. We held that position consistently."

I invite readers to examine the 2,395 words in President Brodhead's April 5, 2006 letter--his last public statement on the case before the first two indictments--to determine whether it reflected the policies that Burness laid out.

I also invite readers to consider whether Brodhead's statement to the Durham Chamber of Commerce just after the arrests of Reade Seligmann and Collin Finnerty (“If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough") reflected the policies that Burness laid out.

Court of Public Opinion Conference Schedule

Friday, I'll be presenting as part of a panel on new media at the conference, held at the Duke Law School. I'll also be live-blogging the entire conference.

The full schedule is below:



Friday, September 28, 2007

Welcome and Opening Remarks
8:30-9:00 a.m.

Opening Address by Hodding Carter III
9:00-9:30 a.m.

The Role and Responsibility of Traditional Media
9:35-10:45 a.m.

Moderator: Sara Sun Beale, Charles L. B. Lowndes Professor of Law, Duke University School of Law

--Sylvia Adcock, free-lance journalist for The Washington Post; Lecturer, North Carolina State University
--Loren Ghiglione, Richard Schwarzlose Professor of Media Ethics, Medill School of Journalism, Northwestern University
--Eric N. Lieberman, Vice President and Counsel, The Washington Post
--Malcolm Moran, Knight Chair in Sports Journalism and Society, Pennsylvania State University College of Communications
--Ari Shapiro, Legal Correspondent, NPR News

The Role and Responsibility of New Media
10:50 a.m. -12:00 p.m.
Moderator: James Salzman, Samuel F. Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy, Duke University School of Law
--KC Johnson, Professor, Brooklyn College and The Graduate Center of the City University of New York, editor of
--Beatrice Myers, Executive Producer, CourtTV News
--Marcy Wheeler, PhD, contributor as "emptywheel" to and
--Kinsey Wilson, Executive Editor, USA TODAY

A “Fred Friendly” Roundtable
12:15-1:45 p.m. (Lunch Provided)
Moderator: Jack Ford, Anchor, CourtTV News
--Peter Gilchrist, District Attorney, Meckenburg County, North Carolina
--Kimberly Guilfoyle, Host, “The Lineup,” Fox News
--Kerstin Kimel, Head Coach, Women’s Lacrosse, Duke University
--David F. Levi, Dean, Duke University School of Law
--Sonja Steptoe, Senior Correspondent, TIME Magazine
--Elliott Wolf, President, Duke Student Government, 2006-2007; Member, Duke University Class of 2008

Public Premiere of “Voices of American Law” Documentary: Gentile v. State Bar of Nevada
2:00-2:30 p.m. (while Roundtable participants have private lunch)

The Role and Responsibility of Defense Counsel
2:45-4:00 p.m.
Moderator: Robert P. Mosteller, Harry R. Chadwick Sr. Professor of Law, Duke University School of Law
--Mark Geragos, Principal, The Law Offices of Geragos & Geragos
--Harold A. Haddon, Member, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman PC
--Laurie L. Levenson, Professor of Law, William M. Rains Fellow and Director of the Center for Ethical Advocacy, Loyola Law School, Los Angeles
--Michael E. Tigar, Research Professor of Law, American University Washington College of Law

The Role and Responsibility of Prosecutors
4:15-5:30 p.m.
Moderator: Thomas Metzloff, Professor of Law, Duke University School of Law
--R. Michael Cassidy, Associate Dean for Academic Affairs, Professor of Law, Boston College Law School
--Colm F. Connolly, United States Attorney, District of Delaware
--Marsha Goodenow, Assistant District Attorney, Mecklenburg County, North Carolina

Saturday, September 29, 2007

Comparative Law Approaches to Media Access to Court Proceedings
9:00-10:15 a.m.
Moderator: Francesca E. Bignami, Professor of Law, Duke University School of Law
--Lucy Dalglish, Executive Director, The Reporters Committee for Freedom of the Press
--Peter M. Jacobsen, Partner, Bersenas Jacobsen Chouest Thomson Blackburn LLP, Ontario, Canada
--Gavin Phillipson, Professor, Department of Law, Durham University, United Kingdom
--Giorgio Resta, Associate Professor, Law Faculty, University of Bari, Italy

Institutional Response to Crisis
10:30-11:45 a.m.
Moderator: Noah Pickus, Nannerl O. Keohane Director of The Kenan Institute for Ethics, Duke University
--Judith Clair, Associate Professor, Boston College Carroll School of Management
--Richard S. Levick, President and Chief Executive Officer, Levick Strategic Communications
--Craig A. Masback, Chief Executive Officer, USA Track & Field

A Conversation: “Living Through Lacrosse”
Noon-1:15 p.m. (Lunch Provided)
Moderator: Erwin Chemerinsky, Alston & Bird Professor of Law and Professor of Political Science, Duke University School of Law
--John F. Burness, Senior Vice President for Public Affairs and Government Relations, Duke University
--James E. Coleman, Jr., Professor of the Practice of Law, Duke University School of Law
--Paul H. Haagen, Professor of Law, Duke University School of Law
--Raymond C. Pierce, Dean, North Carolina Central University School of Law
--Emily Rotberg, Member of Duke University Class of 2007

The Role and Responsibility of Special Interest Groups
1:30-2:45 p.m.
Moderator: Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies, Duke University School of Law
--Scott G. Bullock, Senior Attorney, Institute for Justice
--Robert Entman, J.B. & M.C. Professor of Media and Public Affairs, School of Media and Public Affairs, The George Washington University
--Kimberly A. Gross, Associate Professor of Media and Public Affairs, School of Media and Public Affairs, The George Washington University
--Dori J. Maynard, President and Chief Executive Officer, Robert E. Maynard Institute for Journalism Education
--Steven R. Shapiro, Legal Director, American Civil Liberties Union

The Role and Responsibility of the Court
3:00-4:15 p.m.
Moderator: David F. Levi, Dean, Duke University School of Law
--Gary A. Hengstler, Director, The Donald W. Reynolds National Center for the Courts and Media, National Judicial College
--Leroy F. Millette, Jr., Chief Judge, Circuit Court, Prince William County, Virginia
--W. Terry Ruckriegle, Chief Judge, 5th Judicial District, Breckenridge. Colorado
--David A. Sellers, Assistant Director for Public Affairs, Administrative Office of the United States Courts, Washington, D.C.
--Reggie B. Walton, Judge, The United States District Court for the District of Columbia

Closing remarks
4:15-4:30 p.m.

More Bryan

A reader reminded me of another stunning articulation of the unimportance of due process from Duke judicial affairs officer Stephen Bryan (mentioned in the Elliot Wolf post below).

In a fall 2006 memo to Wolf, Bryan explained his rationale for using illegally obtained evidence:

"However rare it is that a judge rules that evidence against a Duke student was illegally obtained, the issue you [Wolf] raise still needs to be addressed: What is the university's policy in using that evidence as an indication of a violation of university expectations? Since one of the purposes of our disciplinary process is to help students process the difficult choices they could have made in a situation, it would be antithetical to that mission to dismiss such a learning opportunity because of a technicality in how information was obtained." [emphases added]

In the specific case that Bryan referenced, the "technicality" was a warrantless search.

Could it be that some Duke administrators were so unwilling to speak up for due process in the past 18 months because they themselves do not value the concept?

Hat tip: B.N.

More Marketing 101 from DNA Security

DNA Security has made another unusual marketing move.

At the Nifong ethics hearing, Dr. Brian Meehan lectured the audience that the firm's name was DNA Security, not DNA Securities. Given his conduct in the case, any sensible person would have preferred that people remember the wrong name for the firm.

At the Nifong criminal contempt trial, parts of which were brodcast, Meehan showed up wearing a DNA Security shirt. Again, why he would have wanted to have broadcast the name of the firm in that particular context is unclear.

Now, DNA Security is marketing a new product. The title of the webpage: "Forever DNA Crystal." The heading of the announcement: "A Unique Rememberance." Indeed it was.

The truth is stranger than fiction.

Hat tip: R.T.

Denigrating Procedure

In the past 18 months, the administration of President Richard Brodhead has pursued what could most charitably be described as an erratic policy regarding the enforcement of community standards and Duke policies.

For instance, the administration has consistently refused to enforce the provisions of the Faculty Handbook, which includes the following mandate:

Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty.

As Peter Wood, or Grant Farred, or Karla Holloway engaged in their serial, unfounded denunciations of Duke students, the administration responded with silence.

As allegations of in-class harassment by faculty members reached Duke administrators last spring, the administration appears to have conducted no investigation.

The message: on issues of race, class, and gender, those professors on the appropriate side of the divide need not conform to the Handbook’s provisions.

The administration, meanwhile, has been at best inconsistent regarding the student code of conduct. “Harassment of any individual for any reason is not acceptable at Duke University,” the code declares.

In spring 2006, senior Dinushika Mohottige was the only person to admit publicly that she publicly distributed the vigilante posters with the lacrosse players’ photos.

Surely such action would constitute harassment, and therefore be deemed “not acceptable” at Duke.

Yet not only was Mohottige not held to the standard, she was asked three weeks after her vigilante action to join Brodhead at a panel combating the “culture of crassness“ on campus.

The message: on issues of race, class, and gender, those students on the appropriate side of the divide need not conform to the community standard’s provisions.

Yet while noticeably lax in enforcing some provisions of the community standard, the administration has been almost draconian in enforcing others. Two sensational recent columns by Elliot Wolf make the point.

Wolf took aim at the inherently arbitrary nature of the standard. He noted,

Currently, “students may be held accountable for any violation of university policy that may or may not be included in [the bulletin],” whether the violation occurred “on or off-campus,” or for “any conduct adjudged unsatisfactory or detrimental to the university community,” or for “attempting or intending to commit any violation of laws and/or university policies” or for “failure to comply with directions, requests or orders of any university representative or body.”

Adapting Judicial Affairs’ new standard of “probable cause,” all that is required to initiate disciplinary action is information indicating something that someone may have done, tried to do or meant to do may have been against some university policy, written or unwritten, may be in contravention of someone’s request, order or directive or may be otherwise “detrimental to the University community.”

Even more remarkable, Wolf documents numerous statements in which key Duke administrators downplay or dismiss the importance of procedural fairness.

Vice President for Student Affairs Larry Moneta: “However the evidence is obtained is immaterial. However we learn of a behavior, we respond to the behavior.”

Moneta: “We will not ignore information because some other agency obtained it illegally. Our interest as an educational institution is education.”

Judicial affairs director Stephen Bryan, on the allegations of DPD mistreatment of Duke students, as most clearly enumerated in the Chronicle: “Given that a lot of these students are under the influence of alcohol, there’s a propensity to question whether they have an accurate perception of what happened.”

It should be noted, for the record, that neither Bryan nor any other Duke administrator challenged the Chronicle assertions when they occurred. That--after all the DPD abuses that have come to light in the past year--a senior Duke administrator would publicly side with the DPD against his own students is remarkable.

Bill Thomas had a powerful retort to the peculiar claims of Moneta and Bryan. “For the administration to take the position that students are not being mistreated,” he noted, “I think they have their head in the sand . . . Given the events of the last year and a half, one would certainly think that Duke University would have a great appreciation for due process.”

Instead, key administrators appear to believe that due process is a positively harmful development, best to be ignored. The Moneta statements in particular are nothing short of mindboggling.

Wolf also pointed out that the unholy alliance between the Durham Police and the judicial affairs office has reached such a point where students can be convicted solely on the written report of a police officer who does not testify before the (Duke) judicial board. That’s one way of ensuring that Sgt. Mark Gottlieb is never cross examined. Apparently, the Bryan/Moneta policy is to simply assume that DPD officers always tell the truth, the whole truth, and nothing but the truth.

(All of Wolf’s relevant documents are here.)

The basic message:

Duke has written procedures that it follows—except when it doesn’t.

Students are expected to conform to the community standard—except when they aren’t.

And professors are supposed to adhere to the terms of the Faculty Handbook—except when they don’t feel like doing so.

What message does the Duke administration send when it declares (a) that faculty won’t be held to the same standards as students; and (b) how evidence is collected is irrelevant to the findings of internal disciplinary proceedings?

Tuesday, September 25, 2007

Bilas: Brodhead, Steel Should Resign

A powerful letter from Jay Bilas (ESPN college basketball analyst, former star men's basketball player at Duke, holder of both undergrad and law degrees from Duke) in the most recent Duke Magazine:

A true leader has the vision and courage to recognize what is right, especially in the face of adversity, and fears not the consequences of unreasonable response. A true leader needs not the benefit of hindsight to make clear the right path. From March 2006 to date, President Brodhead’s mishandling of the challenges presented has proven him incapable of effectively leading Duke into the future.

While President Brodhead can point to a few ineffectually communicated words here and there for a feeble claim that he “emphasized” the protection of the rights of Duke’s students, his claim fails the laugh test. The vast majority of his words and actions, and in many cases his silence, emphasized an aura of guilt of the students and of the university. From the beginning, President Brodhead abdicated his responsibility as Duke’s leader to stand up for fairness and truth. Instead, President Brodhead chose the path of political expediency. He failed to effectively counter factually inaccurate and inappropriate statements about Duke and its students, failed to forcefully speak out against procedural irregularities, and failed to take appropriate action in response to repeated attacks upon the due process rights of Duke’s students. That is unacceptable.

If such failures in leadership are not enough, for the same reasons that President Brodhead forced the resignation of lacrosse coach Mike Pressler—because confidence in his ability to lead had been compromised, and a need to move forward in a new direction—President Brodhead should resign or be dismissed. And, based upon [trustee chair] Bob Steel’s letter of April 11, 2007, in which Mr. Steel stated that the board agreed with the principles President Brodhead established and the actions he took, the resignation of Mr. Steel and any board members that acted in lock step with President Brodhead are also appropriate.

Jay Bilas ‘86, J.D. ‘92
Charlotte, North Carolina

The opening section of the second paragraph is an incisive critique of Brodhead’s after-the-fact claims of upholding the presumption of innocence.