Review: Race to Injustice

The newest book on the lacrosse case is now out. Edited by University of Florida law professor Michael Seigel, Race to Injustice: Lessons Learned from the Duke Lacrosse Rape Case, in many ways captures the conventional wisdom of the case’s effects:

• in the law, a willingness to address the shortcomings that the case exposed, coupled with a renewed emphasis on the dangers of prosecutorial misconduct and civil liberties violations;

• in the academy and academic culture, an almost complete unwillingness to reconsider the dominant assumptions about race, class, and gender; or to ask hard questions as to how dozens of professors at a major university could have both rushed to judgment and then refused to reconsider their perspective as facts emerged undermining their initial assumptions.

Most of the law essays are well-written and very much on point. The essays on eyewitness identification procedures by Gary Wells, Brian Cutler, and Lisa Hasel and on grand jury reform by editor Michael Seigel particularly stand out.

Wells, et al. walk readers through the myriad improprieties associated with the lineup procedures employed by Nifong and the DPD, which they deem “profoundly flawed, dangerous, and nondiagnostic of the guilt or innocence of the accused individuals.” The authors note that the Nifong/DPD procedures went against the guidance of not only DPD official policy but also the standards laid down by the American Psychology-Law Society, the National Institute of Justice, and the North Carolina Innocence Commission. “Identification procedures matters most,” Wells, et al, write, “when there are reasons to believe that the witnesses’ memory is weak”—as in the lacrosse case.

The trio adds that beyond all the other Durham improprieties, “the repeated presentation of certain suspects’ photos is particularly egregious”—36 lacrosse players were shown to Crystal Mangum twice, over a two week-span. That this issue received relatively little condemnation, the authors speculate, is “precisely because [condemnation] seems so obvious.”

Seigel’s essay points out that “all of the procedures designed to protect individuals suspected of committing a crime in North Carolina failed to prevent this travesty of justice”—in part because even the best procedural apparatus “will not stop a prosecutor who, for whatever reason, is not bothered by the prospect of breaking the law and covering up his breach.”

Seigel wonders whether grand jury reforms might prevent such obvious miscarrirages of justice as the lacrosse case. He points to two possibilities. First: abolishing the hearsay rule, thus requiring accusers to testify before the grand jury themselves (the lacrosse case grand juries heard only from Sgt. Gottlieb and Inv. Himan, and Gottlieb has admitted that he told the first grand jury false information). Seigel speculates, probably correctly, that no grand jury ever could have come back with an indictment after listening to Mangum spin what would have been by that point version number six or seven of the “attack.” Second: allowing grand juries to hear from the defendants. It is inconceivable that the lacrosse case grand jury would have brought back indictments had the lacrosse players been allowed to testify.

That said, Seigel notes that these reforms have their own problems—most notably, they would dramatically increase the workload of the grand jury system. As an alternative, he suggests requiring preliminary hearings. This procedure might not have worked in the lacrosse case, but only because of the inherently corrupt nature of Durham “justice.” (The judge that would have heard the preliminary hearing was none other than Nifong’s ex-boss, Ron Stephens, who would later serve as a character witness after the ex-DA was convicted of criminal contempt.) But perhaps even Stevens would have been shamed into dismissing the case after seeing a Mangum performance on the stand. As a second alternative, Seigel proposes a beefed-up grand jury process, to apply only to sexual assault cases, because of the opprobrium associated with a rape indictment.

Other well-done law essays examine the role of DNA in the case (Paul Giannelli writes that “the DNA did its job. Unfortunately, Mike Nifong did not do his,” and says he can’t fathom what could have motivated Brian Meehan to violate legal and professional standards); the specifics of Mike Nifong’s prosecutorial misconduct (a thorough summary by Kenneth Williams); the toxic effects of pre-trial publicity (Andrew Taslitz); and the dangers of unjust imprisonment to those who can’t afford first-rate attorneys (Rodney Uphoff).

The only disappointing legal essay came from Indiana University law professor Aviva Orenstein, whose CV shows an expertise in feminist jurisprudence. Unlike, say, Wendy Murphy or Catherine MacKinnon, Orenstein at least has pondered issues such as due process and fairness for the accused in sexual assault cases. Yet her chief goal regarding the Duke case appears to be ensuring that people ignore any (legal) lessons from it. Indeed, she can’t even bring herself to use Crystal Mangum’s name—she alternatively describes the false accuser as “the accuser,” “the alleged victim,” and, at least once (p. 361), as “the victim.” And in her general discussions of sexual assault law, her essay too easily interchanged between “accuser” and “victim” (p. 358), as if any woman who makes an accusation of rape can be deemed a “victim.”

Orenstein’s thesis:

I am concerned about deriving the wrong lessons from the Duke case. In hindsight, knowing that these innocent young men were subjected to a false accusation, it is tempting to over-read the Duke case as a cautionary tale about the dangers of legal reforms in sex-crime prosecutions. Over the last thirty years, changes to evidentiary rules and other legal doctrines have enabled women to come forward and testify about sex crimes with less fear and humiliation than in times past. For all the hardship that a man accused of rape may face, there are still powerful stories drawing on gender, racial, and socioeconomic stereotypes that make it difficult to convict even those guilty of rape.

How, then, should women who make “a false accusation” be weeded out before causing “hardship” to the men they falsely accuse? Orenstein’s essay is silent on the subject; such suffering, it seems, is a necessary byproduct to counter the “powerful stories drawing on gender, racial, and socioeconomic stereotypes.” But, of course, our entire system of justice supposedly is based on the premise that better nine guilty people go free than one innocent person go to jail.

In this respect, Orenstein’s essay reflects the fundamental flaw in feminist theory about sexual assault law. Feminists believe that “the problem with rape prosecutions is not false reporting, but underreporting.” And so they have championed what Orenstein delicately describes as “legal reforms in sex-crime prosecutions” to increase the likelihood that those charged with rape will be convicted of the crime, even if doing so requires weakening due process protections for the accused—under the assumption that more true victims will come forward if they believe they’re likely to win at trial. And so we have moved from a sexual assault system that, in the 1970s, was biased against the accuser to a contemporary system that is biased against the accused.

Orenstein also expresses concern with what she deems the troubling “narrative” associated with the case—“a tale of a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Such an image, she claimed, “can be traced back to the historical, generalized suspicion of women accusing someone of rape.” Yet Crystal Mangum, in fact, was “a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Should the lacrosse players and their attorneys have treated Mangum with kid gloves because she seemed to fit all the worst stereotypes of a false rape accuser, even if doing so increased the likelihood of their going to jail for a crime that never occurred? Again, Orenstein’s essay is silent on the subject.

---------

Seigel’s book also contains several essays that examine either the academic or the cultural legacy of the case. Most of these read as if caricatures of the race/class/gender-based scholarship that fueled the Group of 88’s fury.

Here’s University of Florida Law’s Sharon Rush (ironically, a former women’s lacrosse player):

Crystal Mangum did not deserve the maligning of her character by some of the partygoers or by many others who recounted what happened that night in Durham . . . Even though she lied about events in that evening, particularly the rape, it is worth exploring the damaging and hurtful assaults on her dignity in the process of exposing those lies.

Let’s be blunt here: Mangum is someone who, for more than a year, repeatedly lied with the goal of putting three people in jail for 30 years for a crime that never occurred. One wonders how those committed to “exposing those lies” should have treated her: perhaps the lacrosse players’ attorneys should have hailed her as an upstanding citizen of the Durham community?

Here’s University of Florida Law’s Michelle Jacobs, a specialist in critical race theory:

All of the risk factors that can lead to acquaintance rape, particularly of the gang-rape variety, were present that night [at the party]. Although theories explaining why college-age men rape vary, four factors can generally be used to identify a heightened risk for male sexual aggression: stereotypical views of male and female role orientation; membership in a male peer-support group; alcohol consumption; and lack of deterrence. It is clear that at least three of these factors were present in the Duke scenario.

Once again, bluntness is in order: there was no rape in the lacrosse case. So unless Jacobs is contending that the existence of these “risk factors” increases the likelihood of a false allegation of rape, it’s hard to see the relevance of her essay to an analysis of the lacrosse case.

Here’s University of Mississippi Law’s Michele Alexandre, a specialist in “feminist legal theory”:

The Duke lacrosse rape case is a story that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.

Again, let’s return to reality: a “woman of color” made a false accusation of rape against three “privileged” white men, and had her accusations not only taken seriously by local authorities, but saw these local authorities engage in grossly unethical practices to keep her case alive. Moreover, she received zealous, public support from dozens of the professors who taught these “privileged” white men, and, at least initially, from most of the mainstream media. This is hardly the record we would expect from a case “that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.”

The only academic/cultural essay that seems grounded in what actually occurred at Duke comes from Robert O’Neil, a specialist in academic freedom issues, former president of the University of Virginia, and director of The Thomas Jefferson Center for the Protection of Free Expression.

O’Neill has little sympathy for the Group of 88’s performance. He writes,

Controversy over the “Group of 88” ad would have been intense under any conditions. But the level of concern was substantially heightened by the release of a later [January 2007] statement, signed by many of the original 88 and by other Duke professors as well. Given the steady erosion of the premises on which the lacrosse players’ guilt had been based at the time of the original ad, many in the Duke community expected the sequel to include, at the very least, a substantial recantation. The second letter did slightly qualify the 88’s original position, stating that ‘we do not endorse every demonstration that took place at the time.” it also sought to provide a broader and less passionate context for the Group of 88 ad, insisting that the earlier text had been distorted and misunderstood. Basically, however, the sponsors declined to apologize or retract, and essentially reaffirmed the position they had advanced nine months earlier.

O’Neil also dismisses the claims offered by some Group members that the administration should have openly defended them against their critics, while adding (correctly) that “in one specific respect, the administration exceeded any conceivable pre-existing obligation to safeguard the interests of its faculty,” when the administration shielded the faculty from lawsuits as part of the settlement with the three falsely accused players.

In a few other areas, however, O’Neil seems excessively willing to give the Group the benefit of the doubt. He faults Steve Baldwin, for instance, for behaving in an “uncollegial” fashion in his criticism of the Group—while leaving without mention the (false) assertion by Women’s Studies professor Robyn Weigman that Baldwin had used the “language of lynching.” Certainly, by any standard, a public, written, false allegation of racism against a colleague would qualify as “uncollegial” behavior.

More problematically, O’Neil seems to imply that an academic freedom exemption exists to the faculty’s requirements on treating students laid down in the Faculty Handbook and the student bulletin. Duke is, of course, a private institution, and if it wants to say that faculty members engaged in race/class/gender-based research have an academic freedom exemption to advance their pedagogical agenda by publicly attacking students on the politically incorrect side of the race/class/gender viewpoint, the University has every right to do so. But, as now written, neither the handbook nor the bulletin contains such an exemption.

Finally, O’Neil paints an inaccurate picture of one element of the Group of 88 statement. He notes that the ad would have been improper had the signatories claimed to speak on behalf of Duke, but “nothing in the ad expressly claimed or even strongly implied departmental (much less university) endorsement. Even a casual reading of the text would have belied such nexus, given the critical tenor of the statements.”

Yet, of course, the wording of the ad unequivocally asserted official departmental endorsements. The bottom the text published in the Chronicle and then posted for 183 days on an official Duke departmental website contained the following passage:

We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology; Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages & Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of additional faculty and staff who signed on in support may be read at the AAAS website.

Moreover, as we now know, not even one of the departments listed as officially signing onto the ad ever formally voted on such an endorsement—an extraordinary violation of standard academic procedure, yet one for which the Duke administration appears not to have punished anyone associated with the ad.

One additional point on the book’s contents: the essays leave a glaring hole in coverage. How, one wonders, in the highest-profile case of prosecutorial misconduct in modern American history, did dozens of professors at a major university seem utterly indifferent to due process and almost eager to exploit their students’ difficulties? Perhaps, sadly, we’re at a point at which no one familiar with the academy even expects professors to defend due process if doing so contradicts the dominant assumptions on issues of race, class, and gender.