Wednesday, April 29, 2009

T. Cline, Esq., Paragon of Ethics (Updated)

[Update, Wed. 11.35am:

The post below notes how, in her first months as Durham County's “minister of justice,” Tracey Cline slashed the salaries of two of the office ADA's most associated with ethics reform in the aftermath of the Mike Nifong era. Simultaneously, and despite the massive budget crunch facing the state government, she awarded 10 percent raises to (1) a most intimate ally whose withholding of evidence Judge Hudson had compared to Nifong's misconduct; (2) an ADA who publicly hailed Nifong's good character in an interview with the New York Times.

Cline has declined to explain the rationale behind these unusual decisions.

Is this not an appropriate matter for oversight by the North Carolina legislature--which, after all, funds the Durham DA's office?

I urge DIW readers to contact the relevant members of the House and Senate Judiciary Committees, whose names and e-mails are below, and urge an inquiry into Cline's spending habits:

Senate Judiciary Committee--leadership

Sen. Fletcher L. Hartsell, Jr.
Vice ChairmanSen. Austin M. Allran
Vice ChairmanSen. Don Vaughan
Vice ChairmanSen. Ed Jones

House Judiciary Committee--leadership:

ChairmanRep. Deborah Ross
Vice ChairmanRep. Melanie Goodwin
Vice ChairmanRep. Paul Stam
Vice ChairmanRep. Bonner Stiller

Senate Judiciary Committee--other members: Sen. Tom Apodaca, Sen. Bob Atwater, Sen. Stan Bingham, Sen. Charlie S. Dannelly, Sen. Joe Sam Queen, Sen. Doug Berger, Sen. Julia Boseman, Sen. Katie G. Dorsett, Sen. James Forrester, Sen. W. Edward (Eddie) Goodall, Sen. Jim Jacumin, Sen. John Snow, Sen. A. B Swindell

House Judiciary Committee--other members: Rep. M. Alexander, Rep. Blust, Rep. Bryant, Rep. Hall, Rep. Harrison, Rep. Insko, Rep. Martin, Rep. Mobley, Rep. Neumann, Rep. Stevens, Rep. West]

Original post:

No one can say that Durham voters didn’t know what they were getting when they chose Tracey Cline as their next “minister of justice.” In the past three years, Cline has made her contempt for ethics known in virtually every way possible.


During the campaign, Cline at best misled voters and at worst outright lied about her role in the lacrosse case, most notably by denying the written record that she developed the idea to initiate the legal case through a procedurally preposterous non-testimonial order against all 46 white lacrosse players.

As the campaign proceeded, the Nifong Coalition rallied behind Cline, as Cline received the backing from the same four key institutions that bolstered Mike Nifong—the Herald-Sun, the Independent, the Durham Committee on the Affairs of Black People, and the People’s Alliance.

During the transition period after her election, Cline ordered all prosecutors in the office to re-apply for their positions, and listed the qualifications she expected from Durham’s assistant district attorneys. Her list of desired attributes did not include a commitment to prosecutorial ethics.

For her inauguration, Cline invited as her special guest none other than disbarred ex-DA Nifong, a move whose symbolism she recognized and a move that indicated contempt for all prosecutors in her office who actually followed the ethics requirements laid down by the North Carolina State Bar.

Shortly after taking office, Cline found herself on the witness stand—defending herself from allegations of ethical misconduct.

With this record, it should come as little surprise that Cline has punished those prosecutors in her office who have demonstrated a commitment to ethics.


  • Cline reduced the salary of Mitchell Garrell—who challenged Cline in the Democratic primary for district attorney, when he campaigned on a platform of restoring ethics to the office of the Durham district attorney—by 7.5 percent, from $86,546 to $80,064. The clear inference: Cline is retaliating against Garrell for trying to block her bid to become the county’s “minister of justice.”

  • Cline reduced the salary of Steven Storch—an assistant DA with a doctorate in philosophy and specialty in ethics who was hired by interim DA Jim Hardin in part to show the office's renewed commitment to ethics—by 6.7 percent, from $41,100 to $38,350, and removed the position’s permanent status. The clear inference: Cline doesn’t want anyone with an ethics focus in her office.

Perhaps, it could be argued, Cline’s actions simply reflected a broader, office-wide commitment to economy, given that the recession has hit North Carolina with particular severity (it has the 7th-highest unemployment rate of any state in the country), prompting talk of a state budget freeze. But, in fact, Cline elected to boost salaries for her cronies:

  • Jim Dornfried: a whopping 10 percent raise, from $86,340 to $94,974, went to this most intimate ally of the "minister of justice." In early 2008, Judge Orlando Hudson compared Dornfried's conduct to that of Nifong after Dornfried withheld evidence from defense counsel by turning over an edited version of a police tape, rather than the complete tape. Said Hudson, "You can't make a tape come out the way they want it to come out. That's what's wrong with this situation. I don't see that being any different than people working with the DA's office and deciding certain DNA shouldn't come out."

  • Shamieka Rhinehart: an equally whopping 10 percent raise, from $56,035 to $61,638. This beneficiary of Cline's current largesse made the New York Times in May 2006, giving Nifong a huge kiss after Nifong prevailed in that year's Democratic primary. Exclaimed Rhinehart, "He's a good man. I'm so proud of him." That analysis testifies to Rhinehart's ethical core.

That Cline has given her cronies raises while simultaneously targeting the members of her office most associated with ethics is fitting for a figure that saw fit to turn her inauguration ceremony into a celebration of Mike Nifong.

Cline did not respond to a request for comment. Her official website contains no explanation for the spending priorities she has pursued as “minister of justice.”

[Update, 1.30pm: Ms. Cline responds, "The District Attorney cannot speak about an employee's personnel file without a waiver from that employee. Contact each employee and attach their waiver and I will be more than happy to meet with you and that employee in my office."

It would seem, based on this reply, that the only people who could get explanations for Ms. Cline's salary adjustment rationales would be members of the state legislature; moreover, the meeting procedure that she lays out in this email would seem more appropriate for counsel to one of her ADA's than a reporter or a blogger.]

Monday, April 27, 2009

Steel On Way Out

The Chronicle reports that Bob Steel will step down as chairman of the Duke Board of Trustees at the end of this academic year, to be replaced by former N.C. Democratic legislator Dan Blue.

Blue has what could most charitably be described as a mixed record on the lacrosse case--most troublingly, he chaired the committee that recommended a new five-year term for Richard Brodhead--but regardless, the first step toward meaningful reform at Duke is the departure of Steel, who had a personal, vested interest in maintaining the pretense that the Duke administration handled the case well.

Saturday, April 25, 2009

Suggested Panels for the Stone Center

[Update II, 8.23pm: Another fine summary of the Mangum event, from Chelsea Walker. Its closing paragraph: "The event planners’ idea of trotting out victims of false accusations at the end of the presentation to juxtapose with Crystal Mangum’s bald-faced lies as examples of the “harsh reality of minority treatment” was just embarrassing because Mangum’s case is an exemplification of the harsh realities of the antithesis to the subject being discussed: false accusations and injustice against non-minorities. In fact, Mangum herself single-handedly proved that minorities are not the only victims of failings in our justice system by leveling and pursuing false accusations against the white Duke Lacrosse players. Hearing the stories of minority victims of prosecutorial misconduct only put me in the awkward position of sympathizing with the Duke Lacrosse players, who are certainly no angels, but who were also victims of overzealous prosecution at the hands of Mike Nifong and at the behest of Crystal Mangum. It is an intolerable irony that Miss Mangum is now claiming to be an expert on the “injustices” of the legal system because the fifteen minutes of fame she bought with the reputations of the Duke Lacrosse players had almost come to an end."

[Update, 12.49pm: An excellent suggestion from the comment thread: "I think that the Stone Center should be asked to sponsor a discussion about the NCNAACP and its actions in the Duke lacrosse case. One of the saddest aspects of this affair is that the NCNAACP and other leaders (such as the Wilmington Journal) might have made common cause with the lax supporters but did not (this is nicely discussed in Until Proven Innocent). I propose a debate format around the question of whether this organization helped or hurt the interest of black people by the actions it took." I'm not holding my breath that such an event will occur.]

As noted below, on Wednesday, the Sonja Haynes Stone Center hosted an address by Crystal Mangum who spoke about “the harsh realities of minority treatment both in the justice system and the media.” The event sponsors—Theta Nu Xi Inc. sorority and Alpha Phi Alpha Inc. and Lambda Upsilon Lambda Inc. fraternities—announced that, to ensure that the event would not “be a negative experience for her,” questions would be submitted beforehand to organizers to prevent questions related to the Duke lacrosse team. As it turned out, Mangum didn't even answer any of the pre-submitted questions, but left early--either due to the flu or due to an unspecified "appointment" occurring after 8pm in the evening with her wearing jeans, a hoody, and a baseball cap.

In light of the unusual policy of inviting . . . controversial . . . speakers but censoring any questions on the central matter of the speaker's significance, I have some suggestions for future events at the Stone Center.

  • “The Stone Center is pleased to announce an address by George Tenet, who will speak on appropriate methods of gathering intelligence and the importance of accurate intelligence in going to war. To ensure that the event will not be a negative experience for Mr. Tenet, questions will be submitted beforehand to organizers to prevent questions related to the run-up to the Iraq war or Tenet’s role in developing the ‘enhanced interrogation’ techniques.”

  • “The Stone Center is thrilled to announce an address by John Edwards, who will speak on the sanctity of marriage and the importance of family in a political campaign. To ensure that the event will not be a negative experience for Mr. Edwards, questions will be submitted beforehand to organizers to prevent questions related to Mr. Edwards’ affair with a campaign videographer and the woman’s subsequent pregnancy.”

  • “The Stone Center is delighted to announce an address by Miss California USA, who will speak on same-sex marriage policy in the United States. To ensure that the event will not be a negative experience for Ms. California, questions will be submitted beforehand to organizers to prevent questions related to Ms. California’s apparent belief that same-sex rights exist in all 50 states or her subsequent statement that in her ‘country’ only ‘opposite’ marriage is allowed.”

  • “The Stone Center is excited to announce an address by Terrell Owens, who will speak on the need for mutual respect on a football team and the importance of wide receivers trusting their quarterbacks. To ensure that the event will not be a negative experience for Mr. Owens, questions will be submitted beforehand to organizers to prevent questions related to Mr. Owens’ behavior toward quarterbacks Jeff Garcia, Donovan McNabb, and Tony Romo.”

Of course, any announcement such as the ones above would be greeted with widespread derision on any campus. UNC should be ashamed that one of its centers allowed Ms. Mangum to speak while prohibiting the most relevant questions that could be asked of the false accuser.

Wednesday, April 22, 2009

The False Accuser Speaks

[Update III, 1.45pm: I emailed both of the listed student organizers for the event, asking if they would share their rationale for inviting someone whose false claims initiated a case of massive prosecutorial misconduct to speak at event supposedly highlighting the difficulties that NC minorities have experienced with prosecutorial misconduct. Neither student replied.

[Update, II, 7.01pm: Chris Halkides attended the talk last night, and posts his reflections at View-from-Wilmington. While you're there, I strongly recommend taking a look at his critique of Robert O'Neill's analysis of how Duke's faculty responded to the case.

[Update, 11.59am: A few other attendees have posted their notes on the event in the comments section, including items from the Q&A with Ed Clark; my thanks to all. In addition, the Daily Tar Heel story on the event says that Mangum "was especially bothered by a news segment showing her dancing at a bar, which she said the media falsely stated was two days* after the alleged rape." I can't say that I read everything published about the case, but I did read an awful lot--and I cannot recall a single article that claimed the video of Mangum dancing at the strip club "was two days after the alleged rape." (The video took place on March 25, 2006, at about the same time as the 'candelight vigil' protest.) But, as we know, Ms. Mangum has serious psychological problems, and a tendency to invent things.

Additionally, DTH reports that "due to an appointment, Mangum had to leave before the question and answer session of the event." I will leave it to others to determine what type of "appointment" Ms. Mangum would need to reach at 7.30 in the evening wearing a pink ball cap, an Old Navy hoodie and jeans.]

At the Liestoppers forum, Walt-in-Durham has a detailed rundown of Crystal Mangum’s appearance tonight at UNC. As I have noted previously, it is mindboggling that an academic institution would invite someone who the state AG had, with copious evidence, deemed a false accuser and not allow her to be questioned on the myriad contradictions in her story. It is all the more mindboggling that the only reason for this refusal to allow questions was to prevent the false accuser from saying something that could open her to a lawsuit.

I should note, in addition, that Mangum’s p.r. representative had similarly informed me of the media difficulties that the false accuser had in promoting her book. As I told him at the time, it’s my sense that most media organizations will not put on the air someone whose assertions they know to be false, if only to avoid massive legal liability.

Below is an excerpt from Walt’s rundown; the full version, with an excellent graphic, is now at the Liestoppers homepage:

After the Ed Clark monologue, he introduced Crystal. But, he immediately launched into a vigorous narrative, again rehearsed, about how the CBS show 60 Minutes would not pay for Crystal’s interview and he claimed to have a copy of an email from CBS saying that one of the families had total access to 60 Minutes and they would bury Mike Nifong. He continued on that HBO had been in contact with him about interviewing Crystal and doing a promotion for the book. He then complained that HBO had a line producer call to kill the project. They pushed back the publication date while they hunted for another media outlet for the launch. Then he claimed that the NBC Today Show sent a vice president, and a camera crew to interview Crystal. The NBC crew allegedly followed her around North Carolina Central’s campus, talked to her Pastor, family and friends. She gave them a four hour interview where they could and did ask any questions. Clark never disclosed the questions. According to Clark, the “contract” between NBC and Crystal would have her on the Today Show, Dateline, MSNBC and CNBC all on the day the book launched. Again a “line producer,” not the VP or producer they had met, called to tell them the promotion was off and the book launched without a major network availability. After Clark’s recitation of his difficulties launching the book, Crystal Gail Mangum spoke.

She opened immediately by stating unequivocally that she was raped. She did not name names though. She did mention Duke Lacrosse in the same general time frame, but it seemed like they were being careful not to make too close a linkage between the two. She also claimed that she had never been heard. She claimed that on the night she was “raped” she was not on medications. She claimed that the defense team had her medical records and was taking a whole year’s worth of medications and claimed that she was on them the night of the “rape”. Crystal then described some symptoms of post traumatic stress disorder that she suffered, and closed with a pitch for the book.

*--DTH reported "two hours," but two DIW readers at the event recalled that Mangum said "two days."

Mangum at UNC, Audience Questions To Be Censored

In what is nothing short of an extraordinary decision, UNC’s Sonja Haynes Stone Center has chosen to host serial fabricator Crystal Mangum at the University of North Carolina tonight, at 6.30pm, in a gathering devoted to “social injustice” and “the harsh realities of minority treatment both in the justice system and the media.” The sponsoring organization is here.

(If any DIW readers in the Triangle attend this event, please send me a summary and I will post it tomorrow.)

In an equally extraordinary development, the Daily Tar Heel reports that “following Mangum’s speech will be a question-and-answer session with the audience. Questions will be submitted beforehand to organizers to prevent questions related to the Duke lacrosse team.”

Questions that should be asked:

How much money did Ms. Magnum receive from the state of North Carolina victims’ assistance fund?

Will Ms. Mangum release—as her defender, Wendy Murphy, has essentially demanded—her 1000-page psychological case file?

How many meetings and phone calls with Mike Nifong did Ms. Mangum have, and how often did they discuss the case in these phone calls?

Given that her “book” still claims that an attack occurred, how does Ms. Magnum explain away the fact that not only does no evidence exist to corroborate her myriad, mutually contradictory tales, but that overwhelming exculpatory evidence exists to prove the innocence of the accused? Does Ms. Mangum still believe that Duke doctored the party photos, as she told state prosecutors? Does she believe that Wachovia doctored the ATM videotape of Reade Seligmann? Does she believe, as Nifong’s defenders have claimed, that other witnesses in the case were bribed to exonerate the lacrosse players? How does she interpret the DNA evidence finding no traces of any of the players but matches to multiple unidentified men?

Given that the AG stated Ms. Mangum did not face prosecution for filing a false police report in part because of a fear of community reaction, does she believe that a racial disparity exists regarding the treatment of false accusers by the justice system?

Does Ms. Mangum feel any sense of regret at having falsely led on the people and groups—from Nifong to the Group of 88—who sought to exploit her case for their own ends?

And, perhaps most important, will Ms. Mangum issue a public apology to the three people she falsely accused?

Monday, April 20, 2009

Lubiano: "Why Do I Think Young People Matter?"

A reader tracked down for me what Group of 88 leader Wahneema Lubiano lists on her Duke webpage as her most recent scholarly “publication”—an interview in an obscure journal called e3w.

And what is it that passes for “scholarship” among this Group of 88’er?

Information about Lubiano’s drinking habits, among other items: “There are so many half-remembered stories and pieces of stories that they jostle each other in my mind into a kind of rich but incoherent mass that’s hard to untangle—late night discussions at each others’ houses over food and drink.”

A good chunk of this scholarly article—one of three “interviews” that Lubiano lists as official publications (she double-lists one interview), and one of a mere five brief pieces, including the “interviews,” that Lubiano has produced in the last decade—consists of Lubiano reminiscing about her time at the University of Texas. It was an era, she recalled, when “we had worn ourselves out over various permutations of what came to be Ethnic and Third World Literature program.”

This process culminated in establishing e3w, which Lubiano woodenly described as “an assertion of the importance of particularities even as the rubrics themselves might change, be superseded, or be revised with regard to what those rubrics seek to name or explain.” The Group of 88’er further related, “I find myself smiling even as I think about those moments.” (It’s not clear whether Lubiano considers her smiling habits to be of scholarly significance.)

Another good chunk of this scholarly “publication” featured Lubiano telling stories about an early-1990s conference that she organized at Princeton. The event was designed “to talk about race and racism with the languages and work of a set of scholars who we thought had something to say from different disciplinary apparatuses,” and to see “what left-oriented politically-engaged academics had to say about topical issues.” These words could describe the e-mail list-serv that formed the Group of 88.

As for herself, Lubiano shared the following insight: “I describe myself as a Black Studies intellectual.” This field “has never lost sight of the political practices of elites that make use of racialization and ethnicity as formidable weapons in the work of social control.”

And the issues? Lubiano went after the Democratic Party, in predictable rhetoric from the academic fringe. “Political liberalism,” she maintained, “is of massive assistance to the oligarchy that runs the country and that includes the consistent failures of US democracy across its interests.” (This level of analytical sophistication regarding American politics mirrors that at the average Tea Bag protest.) In Lubiano’s mind, she is part of “the small segment of folks” engaged in a “consistent calling out of liberalism as the management of race to the benefit of our corporate plutocracy.” That “small segment” would be a majority in many humanities and some social sciences departments nationally.

Her interviewer asked the Group of 88’er whether the racial situation in the United States had improved in the last 15 years. Given that we have elected an African-American president, it would be hard to answer no to this question—but Lubiano nonetheless found a way to do so. “Sometimes,” she mused, “I think it’s worse especially insofar as the racialization and ethnicization of the world as the popularity of Muslim and Arab demonization proceeds apace.”

And asked what comes to her mind when the Duke lacrosse team is mentioned, Lubiano pointed to . . . her apologia for the Group of 88 (another of her scarce “publications”), co-authored with clarifying professor Robyn Wiegman and fellow Group member Michael Hardt. In that essay, which was riddled with factual errors and creative revisions of events at Duke, Lubiano listed herself and her fellow race/class/gender faculty as the true victims of the lacrosse case—victimized, that is, by “the blogs.”

But, Lubiano concluded, she shouldn’t be considered anti-student. This professor, the very same figure who chose to exploit her own institution’s students to advance her pedagogical agenda, reflected that she reminds herself, “Why do I think young people matter?”

Of course she does.


Lubiano is hardly the only Group member with a peculiar definition of how to treat the students whose tuition helps pay her salary. A chilling comment posted the other day by Bill Anderson about Lubiano’s Group colleague, Karla Holloway.

I had a conversation with a prominent Duke faculty member the other day, and he told me that in his conversations with Karla Holloway, she continued to insist that RCD were "guilty." However, her reasoning was that "guilt is a social construct," which meant that because of their race and economic status, that alone made them guilty.

When I say guilty, I don't mean in a figurative sense, but in the sense of the law. She believed that they should have been tried, convicted, and imprisoned solely because of their race and economic and social backgrounds. Those inferred guilt upon them.

Keep in mind that Karla Holloway is a faculty member at the Duke law school. Here is someone who teaches law, but believes that the law is simply a club by which people seize power and do whatever they want.

This is the same mentality that was used by the various totalitarian governments of the 20th Century that committed murder on an incomprehensible scale. To them, right was power, period.

This person was not exaggerating, and he is an accomplished academic and not given to loose talk. And I would guarantee you that Holloway is not the only Duke faculty member who thinks like this.

Imagine facing a jury with people like Karla Holloway, Houston Baker, Paula McClain, Sally Deutsch, Larry Moneta, Richard Brodhead, and John Burness. Talk about a kangaroo court.

It’s worth remembering that their colleagues just elected Lubiano and Holloway to positions on Duke’s Academic Council.

[Update, 12.58pm: Group apologist Robert Zimmerman reports that he has received an email from Karla Holloway that Anderson’s claim is “an absolute and patent falsehood,” that he’s “reporting a conversation that could never have taken place” and that it “misrepresents [her] views.” (I should note that Prof. Holloway does not respond to my emails.) On Prof. Zimmerman's blog, I have invited Prof. Holloway to submit to DIW her recollection of the conversations, and also what her "views" on the case currently are. I will post any response she supplies in its entirety.]

Thursday, April 16, 2009

Up & Down

Sometimes doing the right thing is rewarded.

A PPP poll shows that Roy Cooper, one of the heroes of the lacrosse case, continues to lead incumbent Senator Richard ("Silent Dick") Burr in what appears to be an increasingly likely Senate bid.

And who doesn't like Cooper? The Nifong true believers. I'm sure that Senator Burr, most recently seen making bizarre comments on his personal response to the financial meltdown, will be reassured by their support.

By the way, the ethically challenged new Durham DA, Tracey Cline, was on the witness stand yesterday--showing that she's following in the footsteps of her ethically challenged former boss.

Tuesday, April 14, 2009

Nifong & Stevens: Follow-up

Ironically, on the very day that the post below came out, a major report from the Justice Project appeared, using Nifong and the Stevens prosecutors as the two specific examples of prosecutorial misconduct in recent years.

I agree completely with the report's recommendations--especially its sympathic view toward open-file discovery--although its description of the lacrosse case seems a bit off the mark. The authors write, "The reports indicated that DNA evidence found on the victim did not match any of the three defendants in the case." The only "victims" in the lacrosse case, of course, were those victimized by Crystal Mangum's false claim of rape.

The report adds, "There are dozens of cases in which misconduct identical to Nifong’s have resulted in wrongful convictions and imprisonment." There certainly are "dozens of cases" in which misconduct "identical" to one element of Nifong's has "resulted in wrongful convictions and imprisonment."

I'm not aware, however, of "dozens of cases" in which a prosecutor has: (a) made numerous inflammatory, unethical statements to the national and local media; (b) ordered the police to violate their own procedures for a lineup, after a lineup loosely following procedures didn't yield any ID's; (c) withheld exculpatory evidence; and (d) outright lied to the judge about the content of that exculpatory evidence.

The full report is here.

Monday, April 13, 2009

Nifong & Stevens

Two weeks ago, Attorney General Eric Holder asked the court to dismiss all charges against former Alaska senator Ted Stevens. Holder cited the performance of the prosecutors in the case, who had been repeatedly excoriated by Judge Emmet Sullivan for withholding exculpatory evidence from Stevens’ attorneys.

In the aftermath of Holder’s decision, a meme quickly developed linking the Stevens affair to the lacrosse case. From the left, Jim Coleman in Huffington Post:

The United States has one of the best criminal justice systems on earth; in practice, however, there are two systems. One system, the one that tried former Senator Ted Stevens, seeks justice. The other system, the one to which the public is largely indifferent, is the one in which the kind of misconduct that freed Mr. Stevens is both common and tolerated . . . Many in the greater Duke community think of the case of the Duke lacrosse players who were falsely accused of sexual assault as a failure of the system. The opposite is true. And that is what was unique about that case and about the Stevens case. Although some parts of the system failed, in the end, justice was done through the system itself . . . Many of the people who will praise Mr. Holder for dropping the charges against Mr. Stevens will not care that the same kind of misconduct routinely taints the trials of those who are not rich, or famous, or well-connected, or well-regarded. Nor will they likely step back and learn from what happened to Mr. Stevens. That is the other reality of the criminal justice system and the indifference that sustains it.

[I agree with Coleman on the latter point—though it’s worth noting that many who purport to be concerned with what Coleman calls “the other system,” ranging from figures like Irving Joyner or Al McSurely to members of the Group of 88, did “not care” about the “misconduct” that tainted the case against the falsely accused Duke students, and have shown no indication in the aftermath to “step back and learn from what happened.”]

From the right, John Hinderaker in Powerline:

The prosecutors who tried to railroad Republican Senator Ted Stevens will now be investigated by order of the presiding federal judge . . . Like disgraced Duke lacrosse prosecutor Mike Nifong, they could eventually go to jail . . . It ultimately proved that the Duke prosecution arose out of a Democratic official’s hope of partisan political gain. Were the Stevens prosecution, and the misconduct that it engendered, similarly motivated? That is the question that investigators need to get to the bottom of.

At first blush, the connection between the lacrosse case and the Stevens trial is obvious: they were the two highest-profile instances of acknowledged prosecutorial misconduct in recent memory. But on closer examination, the Nifong-Stevens storyline obscures as much as it illuminates. Equating Nifong with the Stevens prosecutors minimizes the degree of prosecutorial misconduct committed by the disgraced ex-DA. And linking the lacrosse players to Stevens dramatically overstates the dubious behavior of the former Duke students.


Before his trial, longtime Alaska senator Ted Stevens was probably best-known nationally for his aggressive attempts to secure federal funding for dubious Alaska projects (such as the “bridge to nowhere”) and his describing the internet as a series of “tubes” during his tenure as chair of the Senate Commerce Committee. (Jon Stewart skewered the latter item, below.)

The Daily Show With Jon StewartM - Th 11p / 10c
Headlines - Internet
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Obviously, I didn’t live-blog the Stevens trial, although I followed it out of an interest in Alaska politics. (I wrote a biography of one of Alaska’s first two senators, Ernest Gruening—who, ironically, had defeated Stevens in a 1962 Senate election.) Stevens’ indictment culminated a wide-ranging investigation of public corruption in Alaska that yielded convictions of several state legislators and prompted the resignation of Stevens’ son, Ben, from his position as president of the Alaska state Senate.

The criminal case against Stevens revolved around his connections with an Alaska businessman named Bill Allen. The government alleged that Allen and his company, Veco, had paid for a substantial remodeling of Stevens’ Alaska home; and that the senator hadn’t reported Allen’s assistance, or other gifts he had received (both from Allen and from other Alaska friends/businessmen), as he was required to do under Senate rules.

Testifying in his own defense, Stevens conceded that Veco employees had drawn up the plans for the renovations to the house, and had done the work that roughly doubled the size of his home. He denied, however, any untoward behavior, and maintained that he would have paid Allen if the businessman had ever presented him with a bill for his complete work. Other lines of Stevens’ testimony defied credulity: he claimed, for instance, that a $2700 Brookstone massage chair given to him in 2001 and still in his house at the time of the trial was not a gift but a loan, since “we have lots of things in our house that don’t belong to us.” (The senator asserted that his friend “bought the chair as a gift but I refused it as a gift.”) Discussing furniture that Veco had provided him, Stevens claimed that he hadn’t wanted the furniture, and that the furniture was substandard, only to have prosecutors remind him that he had considered giving the furniture to his son to furnish the son’s new home.

In short, regardless of whether his behavior was illegal, Stevens’ testimony exposed a politician who had lost his way on ethical issues—and thus had come up short in a fundamental component of his job. In that respect, there’s really no comparison to the lacrosse players—good students and athletes, with a solid record of treating fellow Duke students and staff with respect, whose offense was holding a tasteless spring break party, as thousands upon thousands of college students do every year.

Two of the jurors in the Stevens trial recognized the difference. One noted that while the former Alaska senator “may be innocent on corruption charges which were never brought up,” he was “still guilty of not disclosing some of [his] major gifts to the public”; another stated, more bluntly, “I mean, he had the chair.”


An equally significant gap exists between the prosecutorial misconduct that occurred in the Stevens and lacrosse cases. Judge Sullivan recently asserted, “In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” The Stevens prosecutors sent a witness home to Alaska—apparently because his testimony didn’t correspond to their version of the case. The prosecutors didn’t turn over a note from Allen suggesting that Stevens probably would have paid the full amount of the renovation until Allen was already on the stand, testifying. And, after Stevens was convicted, prosecutors ignored a deadline imposed by the judge to turn over documents to defense attorneys—including notes of an earlier interview with Allen that contradicted part of his trial testimony.

Despite the severity of this record, there’s no comparison between the Stevens prosecutors’ behavior and that of Nifong. Had the Stevens prosecutors followed all the rules, the senator still would have been indicted. And (given that he wasn’t exactly dealing with a sympathetic jury pool), he might still have been convicted (as the quotes above from the two jurors suggest), although the odds at trial would have favored the defense.

In the lacrosse case, on the other hand, had Nifong followed all (any of?) the rules, an indictment never would have occurred: the only direct evidence against the three people indicted came from the players-only lineup, in which Nifong had ordered the police to violate their own procedures. Nifong’s myriad, procedurally improper, public statements helped nationalize the case and whip up local public opinion. Nifong did join the Stevens prosecutors in withholding exculpatory evidence, although in the lacrosse case, unlike in the Stevens affair, the prosecutor couldn’t possibly claim an honest error in not turning over the exculpatory DNA evidence to the defense.

Based on the evidence currently available, a significant gap also exists between the motives of Nifong and the Stevens prosecutors. As the ethics proceeding against him established, Nifong’s chief motive was personal gain: he hoped the exploit the case to win a primary election, which would, in turn, allow him to receive a higher pension. The motives of the Stevens prosecutors, on the other hand, do not appear to have been personal financial gain or advancing their political interests; a long article in yesterday’s Washington Post describes a prosecution beset by factionalism, poor preparation, and insufficient oversight.

The Nifong and Stevens cases, in short, remind us that different levels of prosecutorial misconduct exist. And while it’s a salutary effect of the lacrosse case that the name Mike Nifong is now associated with virtually every instance of acknowledged or even apparent prosecutorial misconduct, it’s worth remembering that that the disgraced ex-DA set quite a high standard on the question of prosecutors breaking the rules.

Friday, April 10, 2009

Weekend Reading

Last week, I noted that Wahneema Lubiano had published virtually nothing since arriving as a tenured professor at Duke more than a decade ago.

Her latest "publication"--a 3-page interview in an obscure journal called e3w--isn't available in any scholarly databases to my knowledge, isn't available at the Columbia, NYU, or CUNY libraries, and has a website that was last updated in 2007. But below is a taste of what the Group of 88 leader has published.

These excerpts come from an essay Lubiano prepared around 15 years ago, ruminating on the topic of political correctness. To reiterate a theme often raised in the blog, this sort of "scholarship" is exactly what many humanities and some social science departments--and not just at Duke-- look for when hiring new professors and tenuring those on staff. The excerpts also provide a glimpse at the kind of teaching that occurs in Prof. Lubiano's classroom:

. . . Perhaps, however, some of us could do something else as part of a multifaceted project of left theorizing and strategizing around aesthetics and reconstructing political common sense.

Why is popular culture so vexed for much of the Left? Could we begin to answer the questions of this symposium by acknowledging that we (as intellectuals, cultural workers, and activists) have something to learn from taking seriously the enemy of our enemy: namely, the Right's fear and loathing of popular culture-including the desire that resides therein?

Certain elements of the Left have been so distrustful of desire that they are often disempowered from even considering desire as a ground on which to do politics. Can popular culture be politically correct? Correct for whom? Under what circumstances? To what end? Are we referring to "politically correct" as a finished process? Are we trying to account for politics (in or from popular culture) from the point of view of the producer(s)? The consumer(s)? By virtue of popular culture's politics' effects on larger discourses?

. . . At the same time, perhaps we could consider why it is that popular culture is one of the easiest objects of political critique given the pervasiveness of racism, sexism, homophobia, and classism throughout our social formation.

. . . Popular culture is important because it is at least a potential threat to the manageability that a corporate capitalist culture desires; it falls outside of "orderly" categorizing-it refuses to behave appropriately. Of course, transgression does not guarantee-in and of itself-an oppositional narrative to the status quo of global capitalism; but it doesn't necessarily militate against forming opposition either. Further, while reams of paper and trillions of words of left criticism and analyses of capitalism's production and management of popular culture have made it clear that there are no mass distributed forms of culture that are shaped outside of corporate management and influence, it is precisely because we know those things that we can take up the task of learning something else: what might being cognizant of pleasure in the consumption of, and participation in, popular culture teach us about politics?

. . . As Cora Kaplan tells us, we haven't progressed much beyond the late eighteenth century's inability to generate a "positive account of fantasy for women, the lower classes, or colonial people.” [emphasis added]

. . . To make a stab at beginning the work of answering-in however small a part-some of the questions I've raised, I've been talking with my students about some instances of popular culture productions in order to try to account for what politics might be available in those places, for whom, and under what circumstances such things might fit into some kind of politics. We looked recently at two-"frivolous" (as far as my students were concerned)-examples: one a song (popular about two years ago) and the other an ad for a recent Hollywood movie-examples that my politically engaged feminist and/or vaguely left students thought were either sexist and heterosexist, or culturally "inauthentic" (the latter charge being an accusation of "sin" against identity politics, which they saw as the last bulwark against racial cultural imperialism).

The song was Soul II Soul's "Back to Life," a song subjected to extensive criticism by students who disliked what they saw as the dilution of funk and house music with "inappropriate" use of strings . . . some students explained that "inappropriateness" as the "bombastic" or "pompous" use of strings for music that might otherwise have a claim to being "harder,"4 to being more "authentic." I asked them whether they thought that the use of violins in this cut meant that the song was pop that hungered after musical respectability? Was it simply a question of the arranger or composer's ignorance about the "appropriate" use of strings, or desire for the increased popularity of (and profits to be generated from) a possibly "softer" sound? Or could it be a self-conscious de-elevation of "classical" (or "high culture") musical instruments?

. . . The appropriation of European instruments and musical forms "means" something within the discourse of black music's relation to European or Euro-American music, but how do we tease out the political implications of that meaning? We can begin by reminding ourselves that historically the black liberatory project has explained cultural production as counterhegemonic resistance.

. . . The second example we considered in class was an ad for the movie The Bodyguard, starring Whitney Houston and Kevin Costner. The ad shows Houston somewhat scantily clad in a leather-trimmed outfit and thigh-high black leather boots; Costner is carrying her and her face is buried in his neck. Black and white women students in my class who saw that ad generally responded with condemnation of its inscription of a heterosexist fantasy of dependent female romance.

. . . For some of my black women students, this ad had the effect of seeing "Swan Lake" integrated even while another student's impulse was to question whether or not black people want to see everything (including "trash") integrated.

. . . One of my students, an "out" black lesbian from Guyana and the one who said, "he [Costner/hero/generic white male person] ought to carry us," talked about her own consumption of interracial, heterosexual mythologizing. "Besides," she said (having read something of mine about two salient public narratives about black women), "at least here's one of us being something other than a welfare queen or Anita Hill. Plus, you see those boots of hers? Maybe she's a top." [emphasis in original]

. . . Can disrespect for authority engendered by popular culture be turned to more "directly" political ends? In other words, how do we learn from, and continue to engage ourselves in, the channeling of some kind of desire into political agency?

To quote from a recent essay by Gary Kamiya (who is basically sympathetic to the Group's pedagogical approach), "The rise of advocacy scholarship was understandable and has generated much legitimate research and worthy polemics. But it also opened the door to hacks and ideologues. Ethnic studies and gender studies departments are always in danger of falling into breast-beating advocacy and identity-group solidarity. It is the responsibility of universities to make sure they don't."

Monday, April 06, 2009

March Events in the Case

A major theme of this blog has been the importance of ethics in the legal profession. In late March, the Volokh Conspiracy, the nation’s leading legal blog, invited Prof. Richard Painter, to guest blog about his new book, Getting the Government America Deserves: How Ethics Reform Can Make a Difference. Between 2005 and 2007, as White House Associate Counsel, Painter had served as the chief ethics lawyer for the President, White House employees, and senior nominees to Senate-confirmed positions in the Executive Branch.

The Painter posts were wide-ranging, covering matters from torture to the ethical dangers of the White House Office of Political Affairs. Painter also explained his principal role simply: “Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense.”

This definition of legal ethics helps illuminate ex-DA Nifong’s misconduct in the lacrosse case. It was common sense not to order the police to run an additional lineup that violated their own procedures; or to withhold exculpatory DNA evidence; or to make dozens of inflammatory public statements. But Nifong, of course, lacked an ethical core.

Other events from March:

  • In elections for Duke’s Academic Council, Group of 88 members dominated in contests from the Humanities departments, while Anne (“Group of 88 for Credit”) Allison captured a slot on the Social Sciences list.
  • Several high-profile members of the Group of 88—the faculty members who got a race-related issue in their own backyard so spectacularly wrong—convened a high-profile conference on . . . race in America. The party line predominated—down to the refusal to allow taping of the event, lest an audience outside Duke’s campus walls be exposed to the Group’s extremist ideas.*
  • At the conference, Group member Sally Deutsch maintained that the Group’s ad—for which signatures were solicited describing it as “about the lacrosse team incident”—denied that the ad referred “to the rape accusation and Buchanan Blvd.”
  • Wahneema Lubiano, scheduled to moderate a panel entitled, “Race, Gender and Sexuality: Intersections on Multiple Dimensions,” was a no-show at the conference, claiming a previous commitment in Prague.
  • Michael Burch, a local man whose alleged sexual assault of a (white) Duke student didn’t arouse a peep from the Group of 88, pled guilty—after being charges with a second sexual assault while he was out on bail. Newsday ran an interview with Burch’s victim, Katie Rouse, but ignored the wildly disparate responses to the Burch attack and the lacrosse case from the Duke faculty and administration.
  • In an editorial for a small suburban paper in Boston (the only type of publication that will still print her ruminations?), Wendy Murphy demanded release of “thousands of pages [that] have been withheld from public view”—without mentioning that the only elements of the case file “withheld from public view” were Crystal Mangum’s substantial psychological files.
  • Roy Cooper, one of the heroes of the case, took a small lead over incumbent GOP senator Richard Burr, in a possible battle for Burr’s seat. The N&O reported that Cooper is seriously considering making a bid.
  • The lacrosse case got a mention in John Grisham’s latest novel.
  • William Bowen continues to defend his widely discredited report on the administration’s initial response to the case—a document that faulted the administration not for anything that would cost Duke millions of dollars in settlements and legal fees, but for being insufficiently sensitive to “diversity.”

Finally: While I realize it’s no match for the perpetually forthcoming Like Being Mugged by a Metaphor, my latest book was published March 31 by Cambridge University Press. The book, an analysis of the 1964 presidential campaign, has its website here; the amazon link is here.

[Update, Monday, 6.04pm: A commenter passes along the news that Duke allowed NPR to broadcast brief excerpts of the conference--raising the question of whether Group members engaged in ideological screening in deciding who could and could not tape the event. The commenter also passes along the more welcome news that Group organizers have relented and allowed the posting of the conference at itunes. No word yet on when the "Shut Up and Teach" forum will be posted to the itunes site; a search indicated no presence of the panel.]

Friday, April 03, 2009

Some Swaggerers Are More Equal Than Others

Four items involving groups of men at Duke and the media:


--headline, N&O, 9 April 2006

2.) “The charges track the noisy passage of a championship lacrosse team with a reputation for a swaggering sense of entitlement and privilege.”

--N&O, 9 April 2006

3.) “But they have a reputation for swagger and rowdiness, according to The Chronicle, the student newspaper, which wrote last week, "Players frequently walk around with girls--sometimes called 'lacrosstitutes' by their peers--in tow," and have been known to kick in doors and urinate out windows. History professor Peter Wood, who often has lacrosse players in his course on Native Americans (who invented the game), complained that team members sometimes signed in to class and then walked out, without bothering to sit down.”

--Newsweek, April 2006

4.)--Chronicle, 2 April 2009

How many people believe that Peter Wood will come out of retirement to denounce the “swagger” of Duke students, as reflected in yesterday's Chronicle ad?

Wednesday, April 01, 2009

The Group Tightens Its Vise

Election returns have come in for Duke's Academic Council, the body tasked with implementing Duke's principle of faculty "self-governance." The body is already run by Group of 88 stalwart Paula McClain.

Indicating just how much the Group's pedagogy dominates Duke's Humanities departments, four of the five vacant Humanities positions went to Group of 88 members, led by extremists Wahneema Lubiano and Karla Holloway. (Antonio Viego and Priscilla Wald were the other Group members to be elected.) The quartet joined Group members Stanley Abe and Leo Ching, who already serve on the Council.

On the Social Sciences list, Anne ("Group of 88 for Credit") Allison captured a slot, where she joins "clarifying" faculty member Kerry Haynie.

Defenders of the academic status quo dismiss outside pressure on the grounds that professors are best equipped to deal with internal misconduct or behavior that violates the academy's norms or ideals. It's hard to reconcile that vision of the academy with a Humanities faculty that would give 80 percent of its vacant Council seats to Group members.