Monday, August 17, 2009

Six* Items

[update, 4.33pm, two additional items:

1.) Courtesy of Harvey Silverglate, this depressing column from Rodney Balko, on the lingering effects of prosecutorial misconduct in the 1980s witch-hunt day care/"child molestation" trials (where Wendy Murphy got her start as a prosecutor!).

The book that had the most impact on my analysis of the lacrosse case was Dorothy Rabinowitz's No Crueler Tyrannies. As in the hoaxes that Rabinowitz exposed, the lacrosse case featured the presumption of guilt, the lack of evidence was simply presumed to mean the defendants must be guilty, and the purpose of the trial became (to paraphrase Pres. Brodhead) giving the defendants their one chance to "be proved innocent."

2.) A mindboggling dissent filed by Justice Scalia this week, in a death penalty case:

This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.

The statement was all the more troubling coming from Scalia, who has shown occasional libertarian instincts on civil liberties issues.]

Forbes is the latest national publication to produce a college ranking list, and I doubt that this item will make Duke alumni mailings. Duke is ranked 104th, behind Hendrix College (Arkansas), Berea College (Kentucky), St. Mary’s College (California) and conservative favorite Hillsdale College in Michigan.

The lead reader comment: “Unfortunately, though I greatly valued my Duke experience, I would not recommend Duke now to any high school senior. The takeover of the faculty by hateful race/class/gender extremists, as personified by the Group of 88, has essentially destroyed the university.”


Ranked below Duke, however, is Cornell University.* This semester, graduate students in Cornell’s African-American Studies Department get to work with a new director of graduate studies—Group of 88 extremist Grant Farred. Farred is best remembered as the 88’er who denounced Duke students as racist for registering to vote in Durham; and who published a book with the preposterous thesis that Houston Rockets center Yao Ming was “the most profound threat to American empire.”

Imagine how fairly Director of Graduate Studies Farred would deal with a student whose dissertation, say, cast a skeptical eye toward the use of racial preferences in education or in the workplace.


Last week, I noted that if the Bruce Lisker case had occurred in North Carolina (and if Lisker were African-American), the disgraced ex-DA Mike Nifong’s defenders would seize upon it to claim prosecutorial misconduct. In the minds of Nifong defenders, the conviction of people who actually were innocent (at least if they are African-American) is in and of itself evidence of prosecutorial misconduct. Of course, the state’s ethics requirements make no such holding.

As if to prove the point, the Nifong publicity blog “justice4nifong” is up with a post claiming that Wake County prosecutor Tom Ford committed “actions . . . far more egregious than what former Durham District Attorney Mike Nifong was accused of doing in the Duke Lacrosse case.” Those “actions,” from the post, appear to be Ford attempting to negotiate a plea bargain with one of the defendants. No one appears to have claimed that Ford withheld exculpatory evidence; or ordered the police to violate their own procedures; or made dozens of ethically improper public statements; or lied to a judge.

It would, I suppose, be too much to expect defenders of the disgraced Nifong to have any understanding of ethical standards.


[Updated, 3.57pm]: I have steered clear from the Lombard case. But the contrast between the campus reactions to it and to the lacrosse case is striking, and the subject of a sensational letter in today's Chronicle from two members of the Class of 2008, Hamish Russell and Drew Braucht:

In the wake of Frank Lombard's arrest on child sex charges, it is interesting to evaluate the response of Duke's administration and faculty and the city of Durham. What if President Brodhead, the Trustees, the faculty and the city reacted in the same impetuous way they did the last time a member of the Duke community was accused of such a heinous crime?

Imagine it now: Students take out full page ads condemning the faculty and administrators as a whole; the Trustees suspend all Duke officials from normal work; protests are staged outside of the Allen Building to chant obscenities and taunt any individual attempting to enter; people that previously had no interaction with the administration are suddenly thrust into positions to analyze the "administration subculture on child sex and how it proliferates in the general Duke population."

Based on the precedent set in Spring 2006, in which the lacrosse team and entire student body were systematically maligned, this seems like the rational way to handle controversy and crisis on the Duke campus. And given that no one has admitted any wrongdoing in the wake since (aside from President Brodhead's "heartfelt" address at an obscure Fall 2007 law school event), one is led to assume that no lessons were learned from that ordeal.

In no way do we condone the charges brought before Frank Lombard, and the evidence seems quite condemning. However, this isolated event has again brought to light the hypocrisy and lack of culpability still embedded in the Duke lacrosse scandal, a reality that continues to negatively affect the fabric of the Duke community.


Hat tip: J.H., O.S.


Anonymous said...

Although Duke ranked behind, substantially, behind Davidson, UNC, and Salem College (Winston-Salem), its tuition far surpassed that of any of the three higher ranked NC schools.

Here's the link to the article in the Chronicle about the rankings:

Anonymous said...

More potential prosecutorial misconduct: SCOTUS today ordered a new hearing in the 1989 case of a black man who was convicted of killing a white police officer in Savannah, Ga. Troy Davis faces death, but 7 of the 9 witnesses in the case have come forth to say they were pressured by police to testify against Davis; the other two were suspects in the murder.

Anonymous said...

KC said,

"In the minds of Nifong defenders, the conviction of people who actually were innocent ... is in and of itself evidence of prosecutorial misconduct." (emphasis added)

Unfortunately, this mindset is true of some Nifong critics as well, most notably an otherwise sound-minded professor in Maryland. We have to always keep in mind that (1) yes, sometimes the American justice system will mistakenly convict an innocent person, but (2) it will do so less often than will any other justice system on Earth.


Triangle Scientist said...

Duke Dad says to me
"You say:

1. KC was stupid.
2. Wikipedia is an authoritative reference.
3. Stating a logical principal obviates the need to show it applies to the specific point under discussion.
4. Sufficient ad hominem attacks constitute compelling debate.

Your assertions fly in the face of:
- Most wikipedia articles can be changed by anyone.
- Editors of specific controversial articles frequently have a strong bias -- eg. global warming."

What I in fact wrote was "the Wikipedia throwaway line by KC was stupid. He should know that there are many very serious folk who edit many Wikipedia entries. Of course there is nonsense out there, but not every entry is nonsense."

1: I did not call KC stupid
2: I did not call Wikipedia "authoritative". Some entries are this, but others are a mess. My reference was specifically to the entries on confirmation bias, cognitive dissonance, and experimenter's regress: these are straight from cognitive psychology textbooks
and are, I affirm, trustworthy and dead on.
3: "obviates the need" = "makes unnecessary the need". Please look up the definition of "obviate".
4: My asserting that KC said something silly, or made a mistake, is hardly argument "ad hominem". Look up that definition as well.

Pointing out that KC writes well- received books is all fine and good, but it is not an argument for anything (my well-received book output is more than three times that of KC's). That KC is indeed a fine scholar is not an argument for anything, unless you mean to suggest that scholars as successful as KC, and me, never make mistakes.

Anonymous said...

Actually, Duke is ranked just above Cornell --College--; Cornell --University-- is another hundred or so places below (which, among other things, calls into some question the methodology of this "ranking")

kcjohnson9 said...

To the 3.06:

You;re correct! Have made the change.

Anonymous said...

Well, anyone who is surprised by Duke's new reputation has been in a coma for several years. Steele, Brodhead and the Gang of 88 must be so very proud of their accomplishment. The status that Duke's faculty had achieved over many decades of hard work has been ingloriously demolished . All hail, Stanley Fish!

In any other enterprise on this globe, had leaders flushed reputation and finances in a similar manner to the above distinguished administrators, not only would such leaders be unemployed, but, also, they would be defendants in multiple lawsuits.

Oh, they are defendants in multiple lawsuits. OK, then it's time for them to be unemployed.

Anonymous said...

Anon at 3:06 said:

which, among other things, calls into some question the methodology of this "ranking"

You're right, of course: the methodology behind this ranking is questionable, to say the least. A simple review of the top twenty or so schools will raise some eyebrows. While I don't think that anyone would argue against the service academies having very high rankings, there are some other schools -- Centre College in KY, for instance -- that are in the top 20 that I don't think even their presidents would argue belong above, say, Brown.

The US News rankings are of debatable use, but these from Forbes are downright bizarre. I think any extrapolation from them without taking that into account is a bit suspicious.

They lists are interesting for sparking debate and discussion, though. --ss

Anonymous said...

Apologies for my typo above above at 4:41: I meant "The lists..." not "They lists..." Sorry! --ss

Anonymous said...

Someone named "Laura" commented on the Lombard case:

"The huge and glaring difference between these two cases is that no one is going to defend Lombard and there is little to no room for controversy about what he did and what should be done to him.... Don't lessen the Lombard story by linking it with the lacrosse story. Rather than reigniting (sic) old divides, we should all be coming together to protect children. There are more Lombards out there and they need to be stopped."

First, someone will defend Lombard: It will be an attorney.

Second, rather than mixing our metaphors ("re-igniting old divides" sounds like setting fire to the Grand Canyon), we should all come together to protect children from Duke faculty and administrators -- especially the 19-year-old children. There are more Holloways out there and they need to be stopped.

Seems like there is much that connects the Lombard and the Lacrosse Hoax cases.


Anonymous said...

If one looks at the criteria used by Forbes, one can understand why the rankings are what they are.

Centre College is a very strong liberal arts school in Danville, Kentucky. The administration there has worked hard to develop it into a college that attracts high caliber students from a wide area.

College rankings need to be viewed with a close look at what is being evaluated; who is doing the evaluating; and for what purpose. As a parent of four college students (two of whom have graduated from highly ranked private institutions and one this coming spring from a public institution, and the fourth returning tomorrow to begin his sophomore year) I can say that such rankings can be useful in helping one's child narrow possible choices. However, it is the college visit; a close reading of the school's literature; talking with graduates (and their parents); as well as frank talks with one's offspring that are the best measures of determining which school(s) are the best for one's particular child. That is the real ranking that matters in the selection of higher education.

Anonymous said...

I'm always suspicious when the media completely omits a possible scenario. In the Lisker case, the Los Angeles Times Magazine left out the possibility that Ryan and Lisker worked together to rob the Lisker household. They had previously lived together, met again just before the murder, and shared in legal (odd jobs) and illegal (usage of controlled substances) joint ventures.

The Magistrate also excluded any talk of this possibility, but it had no bearing on his decision. The state violated the defendant's civil rights. It just so happened that there was never lawful proof beyond a reasonable doubt that he killed his mother.

I was heartened to see that the Judge in Lisker granted the writ in such a complex case. By complex, I mean that the proof of exoneration didn't rest on just one item of evidence -- such as another person's confession or DNA. Maybe this type of decision will start to have an effect on government witnesses "shading" the truth.


I still have not been contacted by Duke University regarding my application as a potential "Profile in Diversity." See, that's why Duke is 104th ranked and falling. Sure there's an element of sour grapes in my speculation, but these are the kind of bad decisions that have recently plagued Duke. MOO! Gregory

Debrah said...

On this Justice 4 Nifong hilarity, I see on this page they have two new "officers".

Take note of the caliber of Mikey's supporters.

The woman on the lower right side of the screen--Jackie Wagstaff--is really a piece of work.

She has been on the Durham City Council as well as the county school board.

During that time as a city "leader" there were numerous news accounts of her being evicted from her house or apartment for non-payment, well as using public funds improperly.

Nifong really attracts the creme de la creme.

Anonymous said...

people can whine about methodologies all they want but the fact is that Forbes and others have taken notice, Duke went after innocent Northeastern boys just because they were white. Duke is lucky to be in the top 200.

Anonymous said...

Is Fared a Communist?

Anonymous said...

They ranked Johns Hopkins #173. I think they just don't like LaCrosse.

Debrah said...

I don't know what the deal is with the Justice4Nifong website.

That page can no longer be found, but everyone has seen it before---the candy-pink one with the photos of all the "officers"....along with Mikey.

If anyone can find that "console" page, bring it here. It's hilarious.

Here is Wagstaff in 2005 when she was running for mayor of Durham.

Forgot about that one.

Looks as though the "thug intellectual" had an influence on her.

Mikey attracts the strangest supporters!

Debrah said...

A comment left on a thread of the H-S in early July:



City, Duke argue for lacrosse case dismissals
Justice for Nifong Committee
Submitted on 07/04/2009 @ 08:38 PM
Victoria Peterson's interview Thursday, July 2nd was powerful.

Concurring with the NAACP that the case should have at least gone to trial, this group is still pushing to expose the truth on real crimes committed that night. They point out that under the threat of criminal punishment, the lacrosse defense lawyers forced Nifong to assert that "nothing criminal happened that night." But, of course, no one can know that without a trial.

They also point out that following the day the city's panel, headed by Judge Wade Barber, investigating this case called for Crystal Mangum to appear to tell her story; mysteriously the panel was shutdown by an equally mysterious letter from the city's insurance company asking them to desist operations.

The Committee is accepting new members.

SS said...

cks --

I think I agree with you regarding the value of college rankings. They certainly can be a tool, but they are only one of many that any student or parent should use in his or her decision. At times they can be revealing, but at other times (and I would say that these Forbes numbers are one), their desire to reduce all things to one number make them pretty useless.

Centre College is an interesting case in point, for while you would expect such a small, relatively unknown school to trumpet such a high ranking, their response has been decidedly more reserved. Here's a quote from their president: "These rankings, of course, do not tell the whole story of the many outstanding colleges and universities in America."

For those of you such as 7:49 above who seem to take these numbers seriously, here are a few others that you might find interesting:

Duke University: #104 by Forbes; #12 by

CUNY, Brooklyn College: #393 by Forbes; #478 by

UNC-Chapel Hill: #68 by Forbes; #38 by

Frostburg State: Unranked by Forbes, #849 by

NC Central: Unranked by Forbes; #892 by

This is not to denigrate Prof. Johnson or Prof. Anderson's schools by pointing to their lower ranking, but rather to show how rather ridiculous these numbers are. Citing them as evidence of a school's value is something that not even their own college president's will do without qualifications.

This is a good thing to keep in mind before using this number as more evidence of Duke or Cornell's fall from grace. Let's not let our narrative trump all.

Have a good night, --ss

Anonymous said...

I think Triangle Scientist should continue his elucidatinous exploration of Wikipedia at this site.

Chris Halkides said...


KC has indicated that a key problem in the Lisker case was that he had an incompetent attorney. Assuming that the attorney were a public defender, today’s report by Alisa Chang about them on NPR’s All Things Considered (
money-or-time-defend-detroits-poor/).) explains a great deal. One of the public defenders had said in effect that his client, Eddie Joe Lloyd did not deserve to live, based on a (false) confession. “During the course of these interrogations, police officers allowed Lloyd to believe that, by confessing and getting arrested, he would help them ‘smoke out’ the real perpetrator. They fed him details that he could not have known.” Later, DNA evidence exonerated him of rape and murder (

These kinds of stories are one of the things that keep me from objecting when a lawyer defends someone like Mr. Lombard, who is presumed innocent (I am not sure whether or not you do). I do not wish to take a public stance on his guilt or innocence. I would rather see ten attorneys vigorously defend clients they know are guilty than one lawyer fail to defend a client competently. A DA opposes the defense attorney and a judge can reign in an overly zealous one, but there is no check against a failure to defend an indicted person effectively.


Anonymous said...

What rank is Brooklyn College?

kcjohnson9 said...

To S.S.:

It's been my experience that college presidents aggressively tout the rankings (when they're good, anyway). That's why I pointed out that Duke alumni are unlikely to hear of the Forbes ranking from Pres. Brodhead.

Regarding Brooklyn's ranking, that strikes me as about right: we're an institution that doesn't have a lot of money, we have a small donor base, and we have a very heavy teaching load (double that of Duke, for instance).

That said, we cater to students who often cannot afford the tuition of elite private schools: 85% of our students are from Brooklyn, and many are either first-generation US college students or immigrants. During the case, therefore, I particularly enjoyed emails or public denigrations from race/class/gender types on the Duke faculty or graduate students of my choosing to teach at Brooklyn. One would think, given their supposed concern with minorities and the poor in American society, they would praise a decision to teach at a public institution, rather than spend a career dealing with students of the "elite."

I should note, for the record, that I came to Brooklyn after teaching four years at Williams, which offered me tenure to remain there. Williams' Forbes ranking is #4 (100 places ahead of Duke); US News & World Report ranks it as the #2 liberal arts college nationally.

S.S. said...

Prof. Johnson--

You're right, of course, about presidents usually touting good rankings. What I think is important to point out is that we have a case with regard to the Forbes rankings where even a president who you would think would be trumpeting his school's ranking -- Centre College -- is rather hesitant to say anything at all. You'll notice that Centre's website does prominently mention a top 50 ranking of liberal arts school according to US News, so it's not afraid of all rankings -- as you indicated -- but implies a distrust for Forbes'. I think that this example is quite telling with regard to the value that should be placed on the rankings.

I want to reiterate that I was not trying to insult your institution by listing its rank, as I don't think that these rankings have much value. Thank you for your brief assessment of your school's quality, though, and for pointing to your tenure offer at quite respectably ranked Williams.

One thing that you've made clear by both posting the Forbes numbers for Duke and then the US News numbers for Williams is that you place great stock in such rankings. This is a point about which we disagree, it seems, as the wide variation between the various lists seems to speak to their fallibility. Moreover, the Forbes list includes data from, which, because of its insecure and unregulated nature, would seem to invalidate any study based on such numbers.

Thank you for taking the time to respond. I hope the end of your summer goes well, --ss

a Nice NJ Guy said...

Thank you, to the 11:21 PM.
DNFTT (do not feed the trolls) is excellent advice.

Your link is spot on. Triangle Scientist is the poster child for that entry.

Just for giggles, I modified the Wikipedia entry for cognitive dissonance. It went through, and is now the official Wikipedia entry. This illustrates one of the major weaknesses of Wikipedia -- lack of authentication, permitting erroneous, malicious, or silly entries to be incorporated.

Anonymous said...

That was a great letter from the Duke students!! It proves again that the Duke student is the one who is leading the way in Durham. How can these young ones see so clearly but many of their professors and nearly all of their administrators cannot? Thanks for posting it, K.C.!!!

Anonymous said...

Brodhead is responsible for dragging Duke University down. He is the one who allowed the 88 to take emotional and cerebral charge of the lacrosse incident. He is the one who failed to take corrective action after the hoax was exposed. He is the person who allowed the 88 to be made chairmen, get plum assignments and create their own departments after being the intellectual voice for an attempted lynching of their own students. The buck stops there. As Duke slips further, Brodhead needs to be held to account. I am going to write to the trustees as I've had enough.

Anonymous said...

Loved the Russel and Braucht letter. The crime alledged is so outrageous and the evidence offered thus far so damning (essentially a confession that could not have been coerced), one wonders a little about the utter silence in Durham, at Duke, and from the NAACP.


Anonymous said...

I suppose one can argue the relevance of both the methodology and results of polls in sports, politics, and institutions of higher education, but ,regardless of Duke's ranking in a Forbes magazine poll, in North Carolina, the LAX mess is considered to be a blunder of major proportions by the Duke University faculty and administration to the extent that the University's reputation has been badly damaged. Interestingly, the City of Durham gets a "pass by many North Carolinians because it is assumed that Durham's elected officials(including DA's) are not the sharpest knives in the drawer to begin with.

However, Duke University, by way of it formerly outstanding educators, had built a reputation among the people of North Carolina as a respected place of learning . Unfortunately, Duke's reputation has suffered (perhaps irreparably) from the national spotlight on its actions and reactions since the beginning of the LAX fiasco. I have long since put away my Duke "T's" and "sweats" because I tired of the constant reminder , by my non- Duke friends, of how and why this once elite institution had become an institution of mediocrity operated by faculty in the "Angry Sciences" and a President who is too arrogant to admit his poor decisions,errors in judgment and malicious behavior.

Also, many , if not most, North Carolinians know of Bob Steele's flagrant mismanagement of both Duke University and Wachovia Corporation.

Based on my personal interaction with scores of my fellow North Carolinians over the past two years, a more scientific survey is neither required nor necessary to prove that Duke has lost image, reputation and standing. In this case, perception and reality have merged.

Anonymous said...

Article in the NYT about the ability of geneticists to fabricate DNA evidence. This may have implications for use of DNA in criminal cases.


William L. Anderson said...

I'm surprised that Frostburg State University made any list, as we really cannot claim any "elite" status. Nonetheless, I enjoy teaching there and we do get those students who turn out to do very well in the real world.

But I will say this: what happened at Duke would not have happened at The True FSU. No, our faculty are not a bunch of "conservatives," but rather that they tend to have their feet on the ground a little more than do the "Angry Studies" people at Duke who are paid high salaries in order to tell everyone else that they are "oppressed" and that Duke is a "plantation." We simply cannot afford to have people like Houston Baker, Sally Deutsch and Wahneema Lubiano on our faculty are expected to work for a living.

Anonymous said...

KC, your personal story about being offered tenure at Williams, and turning it down to teach at an inner-city college is truly heart-warming. There really are people, in all professions, who are not mesmerized by either the almighty dollar or the institution's prestige. If only there were more of them.

Some of the best college courses I took were at non-prestige colleges and universities -- including a fine community college.

-- Gus W.

Debrah said...

Does anyone know what happened to these illustrious Durham residents from last summer?

Chris Halkides said...


Upon further reflection my comment last night was misleading. I should have said that an overly zealous attorney has an opponent (the DA) who can call upon the referee (the judge) to keep the proceedings fair. However, a lazy or passive defense attorney has no one in the courtroom to say, "Hey, wait a minute. Shouldn't you...."

There is indeed a check against the defense attorney’s doing a poor job, namely that the convicted individual may appeal on the basis of ineffective counsel. Yet, my limited exposure to the appeal process suggests that it is stacked against the convicted individual (this is one reason that Robert Steel’s desire to see the DL case go to court is so indefensible). I have heard of a number of instances in which an innocent person had to wait a great deal of time to get released, and often the prosecutor does not concede that the conviction was wrongful in the first place. In the case of the attorney in Michigan, there have been complaints against him, but they have not stopped him from practicing. One might say that there is insufficient disincentive to do a poor job. Regrettably, the pay for public defenders is sometimes so low as virtually ensure inadequate representation.

My point about the public defender system is not that there are a few bad apples, but rather that the system is a sham, akin to playing craps with loaded dice.
Chapter 10 by Rodney Uphoff is about indigent defendants in the DL book "Race to Injustice." He notes that inadequate representation (due to indigence or near indigence of the defendant) turns the defense attorney into a “plea facilitator.” I highly recommend his chapter to all students of the DL case.


Debrah said...

According to this website lots of people associated with Lombard are connected to Duke or the city of Durham.

Also a photo of the communal neighborhood where he lives and where children can supposedly live in "paradise".

jim2 said...

KC -

The recent decision by the Ninth Circuit Court of Appeals might be of interest. The prosecutor knowingly included false material statems in the closing remarks. Specifically, accounts/testimony by FBI agents in the case files belied some of the assertions central to the issue. here is the link:

Below are a couple snippets.

"We reverse Reyes’ conviction because of prosecutorial
misconduct in making a false assertion of material fact to the
jury in closing argument."

"It was not, however, the defense’s burden to prove Reyes
was innocent. It was the prosecutor’s burden to prove he was
guilty. Defense counsel made no knowingly false statements.
The prosecutor did."

No justice, no peace said...

DNA Evidence Can Be Fabricated, Scientists Show

Oh my, this isn't good...

"...The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person..."

Existing security is very, very suspect at protecting content at rest, on-the-move, or once archived. External rogue actors can manipulate the content.

Forget about stealing or deleting the files, the real worst-case is when someone impugns the integrity of the data by manipulating some of the files.

Larger problems are that either trusted insiders (administrative controls) or authorized insiders may maliciously manipulate the DNA files.

Imagine a world where "trusted" users manipulate content to suit their political agenda or meta-narrative. You know, like Duke faculty, Duke administrators, and Durham PD, DA, etc...

Disassociating you from your DNA, fingerprint, retinal scan, SSN, etc. is not a good thing.

Gary Packwood said...

Debrah 8/18/09 8:10 PM said...

...Does anyone know what happened to these illustrious Durham residents from last summer?
Yikes! Good question Debrah which needs an answer. At the time I just shuddered and moved on to the next news item.

"Joy Johnson, a former-vice chairwoman of the Durham Democratic Party, and her husband, Rev. Joseph Craig are accused of kidnapping, abusing, and sexually assaulting at least two victims in their Durham home".

Where is that home and is there a connection to the residents of the 'planned' community (Commune?) in Durham that we have been reading about?

No justice, no peace said...

An example on how the press is culpable in misreprenting someones position in order to meet a preconceived meta-narrative

"This is incompetent journalism in its most insidious form."

Inversion of Statements Made During Meeting With David Cameron

I had my first taste of UK politics on August 18, 2009, when in a discussion with David Cameron head of the Tories I said:

“I'm a hyper-conservative ecologically. I don't want to mess with Mother Nature. I don't believe that carbon thing is necessarily anthropogenic (derived from human activities)."

By the “not necessarily” I meant that I don’t need expert models and proof hat we are harming it to STOP POLLUTING the planet. This is part of my idea that one does not need rationalization to the edict: DO NOT DISTURB A COMPLEX SYSTEM since we do not know the consequences of our actions owing to complicated causal webs. I also said “leave the planet the way we got it”. So my “super Green” position or hyperecologist was somehow lost in translation: they probably thought “conservative” meant loves to pollute or something like that.

Reaction: the “not necessarily anthropogenic” became a headline and from hyper-ecologist I became a “climate change denier”.

The Scotsman: The contentious remarks were seized on by Mr Cameron's opponents. Liberal Democrat MP Willie Rennie said: "David Cameron can get pulled around by huskies all he wants, but by cosying up to climate change deniers, he shows his true colours."

Another statement made backwards concerns my position on “robustness”. I said that free markets generate fads, crashes, massive movements. Attempts to control the cycle proved futile –what we need is citizens to become ROBUST to them, to be immune to their impact. My point is that we cannot predict Black Swans, but we KNOW their impact and can be prepared for them. Again taken backwards: “Taleb loves crashes”.

This is incompetent journalism in its most insidious form.

Culprits: Guardian, Scotsman, even the FT."

Debrah said...

I just got this email from Stuart after having asked him to once again give his thoughts on the 180-degree flip by James Coleman.

On a previous thread, a commenter seemed to disagree with me when I brought up the topic---which has always been glossed over, in my opinion.

As I have said before, under the photo of Stuart on my little blog there is a link to his appearance at Duke.

During the Q&A at the end, I asked Stuart about Coleman and he gave quite a comprehensive answer then.

He's taking some time away this month and is really busy, but he did send this for me to post inside Wonderland.


Stuart Taylor opines:

In our 10.10/07 letter to the editor of the Chronicle responding to the bogus criticism of our work by Professors Coleman and Kasibhalta, KC and I wrote:

"It equally puzzles us that the duo attacked our characterization of the Coleman Committee report [as, on balance, a stunning vindication of the lacrosse players' characters]. One or both of us have given similar characterizations of the report, in print, no fewer than 23 times since May 2, 2006. Never did Professor Coleman (with whom we have spoken or e-mailed on multiple occasions) challenge our description, much less in the harsh tone employed in the Chronicle letter. Since our book directly quotes from the report's section dealing with the lacrosse players' alcohol-related arrests, it seems peculiar to suggest we overlooked this point."

In my opinion, Coleman's decision to attack our work was a capitulation to the cowardly groupthink and dishonesty that has characterized and continues to characterize the response of many faculty members to the fraud. While this angered me, it saddened me even more. I had expected much better from Coleman, whose forthright criticisms of Nifong had been a most welcome exception to the mindless, prejudiced, vicious rush to judgment against innocent students by many of his colleagues -- who have continued to express pride over their indefensible conduct even in the face of conclusive evidence of innocence. Given the high opinion of Coleman that I have heard expressed by mutual acquaintances, I see his attack on KC and me mainly as vivid proof of the pernicious power of politically correct groupthink, which is so strong as to compromise the integrity even of faculty members who are in many ways admirable.

Sincerely, Stuart

S.S. said...

Prof. Johnson--

I think that you may find this latest action by the Durham City Council interesting:

Same-sex couples win support

DURHAM -- The City Council got a standing ovation Monday night when it unanimously passed, without discussion, a resolution supporting civil marriage for same-sex couples.

"It is simply a statement" and has no effect on the law, City Attorney Patrick Baker said before the vote.

Nevertheless, when the outcome was announced much of the full-house audience in the council chamber broke into applause and then stood. [...]

For more information see the complete story:

Obviously it's not much, but I do think that it is good news, especially coming from a group with such a troubled past.

I hope this brightens your day a bit. --ss

Anonymous said...

To S.S.

Yes, I do think that we are in agreement. Rankings are just one criteria (and I would argue a minor one) that parents and students can use. If nothing else, they can bring to one'a attention a school that one may not be at all familiar with but one which might be a good fit for a student (ratings aside).

I advise my students to think about what they want from the college experience and to what extent they are willing to be flexible. For some, the experience of being far away from home trumps all - thus, for those students a neighborhood college will not be a good fit even if the expense is much lower. For others, the expense is the largest consideration. There are so many issues to consider, as any parent of soon-to-be college age children (or those of us with kids already ensconced) know all too well.

One Spook said...

Gary Packwood writes @ 10:09 AM

"Debrah 8/18/09 8:10 PM said...

...Does anyone know what happened to these illustrious Durham residents from last summer?
Yikes! Good question Debrah which needs an answer."

Please allow me to make a very charitable suggestion that perhaps some of you need to contact your County's Search and Rescue organization and ask it to conduct a search for your lost mind.

What's next? Is someone going to link us to an article where a former Durham democrat party worker is arrested for jaywalking?

Why is the disposition of that case a "good question" that "needs an answer" unless some of you are planning to join the accused's sex cult? What possible relevance does that case have to any of the issues in the lacrosse hoax?

And, if anyone is interested in this case for whatever reason, rather the posing this irrelevant question in this forum, why don't you do your own work and pick up your phone and call Durham County and find out what became of that case? The dispositions of criminal cases is a matter of public record.

Similarly, what happens to children who live in a particular community in Durham, regardless of the truly horrible and disturbing allegations that have been made, also has no relevance to the lacrosse hoax.

The public reaction of Duke to the charges alleged against one of its employees in the Lombard case compared to Duke's public reaction to charges alleged against its own students in the lacrosse hoax is relevant, and that was discussed here. But beyond that comparison, the Lombard case bears no relevance whatsoever to the subject of this blog.

The arrest itself of some random former Durham democrat party worker and a random Duke employee, neither of whom had any role whatsoever in the lacrosse hoax is entirely irrelevant.

One Spook

Anonymous said...

Thanks, Chris, for you 9:35 PM comment. I did find your first comment befuddling, as it did not seem to run counter to anything I believe in.

Regarding public defenders: First, I was one. In Texas, new lawyers like me would often take public defender cases as they tried to build their practices. I did it mostly to gain quick courtroom experience. We also found that that the money, though not large, helps keep the doors open in the early years. (One thing I learned was that if it's true that blacks in trouble with the law want Jewish lawyers, Jews who get in trouble want WASP ones.)

If I recall, the fee was $25 for a misdemeanor case plea bargain or $200 for a felony case plea bargain. If the case went to trial -- or there were longer-than-expected plea bargain negotiations -- then you were paid at a $75-per-hour rate, IIRC. For a felony case you also got $1,000 to pay for outside investigators, and in any case you could always make a special plea, usually granted, for more funds. So it's not that public defenders are underpaid (in the main).

Now, regarding "unjust convictions". I've been on every side of them. I've stopped them, I've enabled them, I've been convicted unjustly. How was I convicted unjustly? In a weak moment that I've long regretted, I rejected my attorney's advice (this was before I went to law school) and pled guilty to a DWI charge. As a result, there is one, and only one, black mark in my record. Why did I reject my attorney's advice? Because I decided the expense and time and other (known and unknown) consequences of a not guilty plea were greater than just pleading guilty and "getting it out of the way". Was I guilty? My lawyer thought not. Was I convicted? Definitely; I pled out. Was that an "unjust conviction"?

And so it was when I became an attorney. The only criminal cases I did was as a public defender. Sometimes my clients would say, "I'm not guilty; I want to go to trial." I would say, "If you're not guilty then you shouldn't plead guilty, but I need to explain to you the consequences of a 'not guilty' plea. First, if we go back into court and plead you 'not guilty' you'll go back to jail. And you'll stay in jail until either you make bail or your case comes to trial. Can you make bail? (Nearly always no.) Second, the prosecutor has offered this plea deal to settle your case. If you plead not guilty and win, you walk out of court a free man. But if you lose, the punishment, which can range to jail for X months/years and a fine of X dollars, will almost certainly be more severe than what you see in this plea deal."

[Length limitations force this comment to be continued below]


Anonymous said...

[Continued from above, for Chris]

As you can see, the coercion is "in the system". And there's nothing the DA, the judge, the defense attorney, or the defendant can do about it: Plead guilty and you go home today (or very soon); plead not guilty and you go back to jail with a very uncertain future. It's as Denzel Washington's character said in the movie Training Day, "Do you want to go home or do you want to go to jail?"

Of course, I would also counsel with the client about the long-term affects of a guilty plea, for example: "This is your first offense, but it's for theft -- which most employers view as a serious crime. Will that hurt your current or future employment prospects? If you therefore can't afford a conviction for theft and you have a good case, then I strongly urge a not guilty plea."

As I've written in this space before, I got once (of about 100 cases) the defense lawyer's dream: The actually and completely innocent client! Not merely a client with a "good case", but one as innocent as new-blown snow. In my case, the client was a young black woman, charged with drug selling. The prosecutrix laid out her case and I told her that her police witness was lying. She said she would put him on anyway. I didn't say a word. I walked out and got one of my buddies who was a real criminal defense attorney to help me with the case (actually, I was helping him). The poor young lady had to stay in jail for about two months while we haggled with the DA, but eventually she was freed with all charges dropped. Unjust? Yes, but what human system of justice will ever be perfectly just? None will, but the American system if far, far better than any other at avoiding injustice. That's my point.

The aim of the 88ists now is to deflect attention from themselves and to try to blame the Lacrosse Hoax on the American justice system. Please don't help them do it. As I've said before, look at the actions of both the justice system in this case and academia in this case. Academia declared the boys guilty. The justice system is the one that declared the boys innocent. The justice system punished and is continuing to punish the wrongdoers in the Hoax. As KC has amply documented, academia rewarded and continues to reward the wrongdoers in the case. So let's keep the harsh glare of the spotlight where it belongs.


Anonymous said...

KC said,

A mindboggling dissent filed by Justice Scalia this week, in a death penalty case:

This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.

The statement was all the more troubling coming from Scalia, who has shown occasional libertarian instincts on civil liberties issues.

KC, even some lawyers get in trouble with this. Scalia is quite correct: There is no (federal) Constitutional prohibition against executing an innocent person. I dare you to find one. All the Constitution mandates is that the defendant be given a fair trial that comports with "due process of law".

Many people think we have a three-part system of government. Actually it's more like nine parts: There's the legislative, executive, and judicial components of three different levels of government: national, state, and local.

It's the executive system -- the police -- which bring the person to the judicial system. There we try him and may convict him. If convicted, he has avenues of relief within the judicial system. One is by the customary "appeals process". Another is by the extraordinary "habeas process". Traditionally, claims of actual innocents were justicible only through the appeals process. The habeas process was limited to other claims of unjust incarceration. Any way at the end of the appeals process, the judicial system returns the person to the executive branch, to wit: the prisons.

So you ask, What if the judicial system fails in the trial and appeals processes to free an actually innocent person? The answer is in the executive branch: The chief executive has the right to grant pardons and commutations. He can grant pardons for either actual innocence or for other reasons where he finds the conviction was unjust. He can grant commutations where he believes the conviction was just but the sentence imposed was unjust. That's why we have executive branch boards of "Pardons and Paroles".

I see the increased use of habeas proceedings for claims of "actual innocence" to be a form of judicial branch imperialism -- imperialistic because it encroaches on the right of the executive to grant pardons and paroles (commutations). Moreover, I think these claims are better made in the executive branch proceedings because the rules of evidence in the judicial branch are much more strict and so the full truth of the case can be missed more easily by a court than it would be by an executive board with looser rules about evidence.

So, while I know it sounds harsh to say that the federal Constitution does not prohibit the conviction (or execution) of an innocent man, it is, first, true, and second, wise. Let the executive branch do its job. If the executive branch fails, it can, unlike the judicial branch, be punished at the polls. Keep as much power in the hands of elected officials and out of the hands of unelected ones.


Jim in San Diego said...

Justice Scalia's truly astonishing dissent that there is no Constitutional issue raised by the execution of someone in spite of the mere fact they are factually innocent is appalling.

He is arguing "how many angels can dance on the head of a pin" by making a narrow legalistic argument while spitting in the face of mortal equity. Shameful, and scary.

Years ago, in Texas, a fellow was sentenced to be hung for a murder he did not commit. On the scaffold he started to struggle. One of the jailers fell off the scaffold and was killed.

The prisoner was taken down from the scaffold and charged with the murder of the jailer. While awaiting trial, the actual murderer in the original case was found. The prisoner was exonerated of the crime for which he was about to be hung.

However, he was convicted of killing the jailer, and hung. Moral: A human does not (yet) have the right to defend themselves from being murdered by appointed authority.

Jim Peterson

Anonymous said...


I would suggest that the Constitution does protect an innocent individual from death by state execution. If not by the Fourth or Fifth Amendments, then surely based on the Eighth Amendment's ban on cruel and unusual punishment. Unless, of course, one was to consider the act of a government putting to death an innocent person neither cruel nor unusual.

I see Scalia's as an attempt to upstage Justice Sotomayor -- this is what I think about your empathy! I am only half-joking.


Now to the description of your experiences as a volunteer public defender: I enjoyed that read immensely! When I first went out on my own, I asked the local Federal Magistrate for appontments. Within a week, he set me to defending a young man in a cocaine case. Within a week of that, I realized that (a) I was in over my head, and (b) to breath -- or at least sleep at night -- I'd have to work many more hours than the schedule allowed. They did make a special exception and payed me above the schedule -- but that was the last time for me!

My biggest problem with the public defender system is that -- at least in my jurisdiction -- the senior judge appoints them. For obvious reasons, some judges would rather appoint mice than men. My advice for anyone who REALLY needs an attorney: Hire the person who you can picture standing up to a room full of people who are each working their hardest to stab him or her in the back. By the way, one of the best lawyers I've ever seen in action was a PD. MOO! Gregory

Jim in San Diego said...

RRH: "the federal Constitution does not prohibit the conviction (or execution) of an innocent man".


It is so obvious, so central to the morality of the law, that government should not execute innocent people, the writers of the Constitution could not possibly have believed such an obvious truth needed to be put in writing.

Thus, for Justice Scalia to justify a judicial decision that is fundamentally wrong and immoral by blaming it on the absence of such a specific prohibition in writing teeters on insanity.

He is making a legalistic argument (in the worst sense)of the "how many angels can dance on the head of a pin" kind, when the issue is one of mortal equity.

Article XI of the US Constitution provides, for example, that,

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Easy interpretation: the fact a particular "right" is not specifically written into the Constitution does not mean it does not exist.

There is no right more fundamental than the right not to be murdered by those in authority when you are innocent.

The idea that such a fundamental right should be protected, ultimately, by an election ("the executive must face an election") is preposterous.

Jim Peterson

Chris Halkides said...


What initially puzzled me was your statement at 5:52 PM "First, someone will defend Lombard: It will be an attorney." At the time it sounded to me as if you might be displeased that any lawyer would defend Mr. Lombard, but your more recent comments imply that you do not.

On the subject of the Troy Davis case, Bary Scheck has written a column in which he criticizes Georgia appeals procedure for a Catch-22 rule that makes getting a hearing based on a witness recanting either impossible or irrelevant ( If the appeals procedure were flawed, how can this be due process?


Debrah said...

The Frank Lombard case---a once high-ranking staff member at Duke University---has always been relevant to the issues discussed on this blog.

And the Frank Lombard case will always be relevant to the issues discussed on this blog.

Lombard openly admitted to having adopted two black male children for the specific purpose of sexually abusing them.

His antics are on tape and were viewed---offered up by him proudly---on the internet.

It will always be a fact that people at Duke and most especially those called the Gang of 88 have not and will not go after Lombard in any way because a number of them are members of the gays community, themselves.....(and yes, dear readers, all that matters and informs their reaction)....

......but most importantly, Lombard is one of them culturally, politically, and at all points where life matters--viscerally.

Such people are of a different psychological patina.

I want them happy. I want them to realize their liberties in this country; however, they do not have the right to create whole communes that would churn out such people as Lombard and create a comfortable environment for them to perform such acts on children without scrutiny.

It's detestable even as they try to paint it as legitimate.

And it is entirely a formulation of the Radical Left.

It is also relevant that members of Lombard's communal environment hold important positions in Durham and at Duke.

I have no problem with gay couples, but I wouldn't be completely honest if I didn't voice my concern about gay couples as parents.

There will always be a part of the child's upbringing that is lacking in both sensibility and role models.

While some gay men have been good friends of mine, I still do not believe that adopting children should be first on their list.

We see how such grotesque behavior can go without critique at Duke.

That is very relevant.

The reactions by Duke University and the media should not be forgotten and certainly provide yet another backdrop for the radical milieu at Duke that created and sustained the Duke Lacrosse Hoax.

I would give some charitable advice to anyone bored or annoyed by news items related to Duke, Durham, and the Triangle at large which might be illuminated here:

Don't concern yourself with this place and simply confine your reading and concerns to your own communities.

No one is forcing anyone else to read these blog comments.

No justice, no peace said...

Now this is funny...

Ex-reporter Jayson Blair now working as life coach

Did you know Blair was a victim?

'..."Very few people can go through what he did and come back," Oberschneider said. "He really is a success story.'

No justice, no peace said...

One wonders what the womyns studies (and AA) experts have to say about this looming bust?

Now this is encouraging

Ivy league college bubble bust

Check out the comments
"...A friend of mine recently went on a quasi-blind date with a woman who had gone to an ivy league school and (I think) had a Master's.

Her subject area was cross-disciplinary sociological something-or-other with a dash of women's studies thrown in.

She is now in the unenviable situation of having WELL OVER $100,000 in student loan debt and not much on the horizon in terms of a job. My buddy (who has some bucks) could just feel the desperation - her new secret plan, apparently, was to find Mr. Big Bucks and extinguish the debt that way."

Anonymous said...


A welcome moment of clarity. Well said.


Anonymous said...

I believe that's Radley Balko, not 'Rodney.'

a Nice NJ Guy said...

On rankings of undergraduate schools:

A friend teaches at one of the California community colleges (2 yr associate degree). Successful graduates are guaranteed entry into the junior year at a CA state college.

Since these are not research institutions, the faculty has a full teaching load. Because tuition is much less than state 4 yr colleges, there has been a migration of students to do their first 2 years at community college.

Besides cost savings, in many cases the instruction is considerably better, as classes are taught by full time instructors (who have PhD's), rather than grad students who lack teaching competency, and in many cases, command of English.

The "quality" of the top tier schools is seen after enduring 2 1/2 years of 'make work' teaching of grad students working for their stipends.

Anonymous said...

School rankings. Perhaps you don't get what you pay for after all.
North of Detroit

Anonymous said...

For #1 the name is actually Radley, not Rodney

gwallan said...

If the executive branch fails, it can, unlike the judicial branch, be punished at the polls.

Excellent. Thus the US can continue to kill people it knows to be innocent whilst we wait for the next election day.

Anonymous said...

In an article in Sunday's(8/23) Charlotte Observer about Duke Quarterback, Thaddeus Lewis, the article's author, Luke DeCock, reports that Lewis "managed to schedule a light course load " during this fall semester.

"He is taking only two courses, a theater course and a sociology course about Carribean food, which taken together can be seen as a sign that Lewis' education is largely complete."

Two courses, six(6) credit hours? The Sociology of Carribean food?

You just cannot make this stuff up.

Anonymous said...

For the Sociology of Caribbean Food final examination, you have to fill up blue books about these two very important questions:

1. Where do you put the lime?


2. Through empirical investigation and critical thinking, how did the people of the Caribbean react to having put their lime in the coconut?


Speaking of Jeralyn Merritt, I had a post on the old Talkleft Forum comparing the evidence in the Durham fake rape with the evidence in one of the Salem Witch Trials, the trial of Tom Robinson in "To Kill a Mockingbird" and the actual rape perpetrated by Michael Earl Sexton, who was defended on appeal by Dr. Irving Joyner. It is located here. Needless to say, the amount of evidence trumpeted by Nifong fell well short of those famous hoaxes and the actual rape that Joyner thought was such an injustice.

The Mangum evidence would fall woefully short of the hoaxed evidence in the daycare abuse cases as well. There are, however, some similarities. In the case cited by Professor Johnson, there was prejudice against the defendant like there was prejudice against the "elite" "jocks" in the Mangum Hoax. Also, both cases were built on at least one mass-fallacy. In the Mangum case, it was that women never lie about rape. In the daycare cases, it was that children never lie about crimes. MOO! Gregory

Anonymous said...

halides1 said at 8/20/09 9:44 AM...

What initially puzzled me was your statement at 5:52 PM "First, someone will defend Lombard: It will be an attorney." At the time it sounded to me as if you might be displeased that any lawyer would defend Mr. Lombard, but your more recent comments imply that you do not.”

You’re final judgment is correct: I am not in the least displeased that Lombard will be defended by an attorney. Everyone is entitled to bring an attorney who will defend them to the best of his ability. In that vein, I think of all OJ’s high-priced lawyers, Barry Scheck was the best. But I have to wonder: Do the ghosts of Nicole and Ron still come to him in his dreams?

”On the subject of the Troy Davis case, Bar[r]y Scheck has written a column in which he criticizes Georgia appeals procedure for a Catch-22 rule that makes getting a hearing based on a witness recanting either impossible or irrelevant ( If the appeals procedure were flawed, how can this be due process?”

I have read the piece you cite by Scheck in the Huffington Post. While I do not know much of the facts of the Troy Davis case, I do know some things that most of Scheck’s readers do not: The normal rules of trial and appellate procedures.

Normally, when a defendant is convicted, he will make, first, a motion to the trial judge for a new trial. (Here I am skipping over “motions for a directed verdict” and “motions for judgment notwithstanding the verdict”, which are other, but extraordinary, ways of short-circuiting a guilty verdict.) One of the grounds for such a motion is “insufficiency of the evidence”. If the motion is granted, a new trial with a new jury is held. If the motion is denied, the defendant can appeal his conviction to higher courts – and again, one of the grounds for reversing the conviction is “insufficiency of the evidence”. If he loses his appeals, then the justice system is – barring an extraordinary event – forever barred from re-considering the conviction on evidentiary grounds, though it could still grant relief from the conviction on other grounds. The reason for this rule is that the legal system is loath to (my words) “let the judges squeeze their fat asses into the jury box”. In American law, jurors are considered the best judges of both the facts and the credibility of witnesses.

The Davis trial took place 18 years ago. Under Georgia law, assuming it is as Scheck describes, the only way for the courts to now reconsider the evidence of the case is a prerequisite showing of the impossibility of the evidence presented at trial -- the "purest fabrication" rule. The example Scheck gives is where a witness claims to have been an accomplice but it is later indisputably shown that, at the time of the crime, he was incarcerated in another county. In this, Georgia law follows an American tradition of long-standing.

[Continued below due to length limitations]

Anonymous said...

[Continued from above]

So, what are Davis’ remaining avenues of relief? If his claim, as it is, is that the evidence against him was tainted by fraud, then he should bring his case to the Georgia Board of Pardons and Paroles:,2167,683715,00.html The Board’s website describes its mission thusly:

”The State Board of Pardons and Paroles was established by the ratification of a constitutional amendment in August 1943. The Board is a part of the executive branch of Georgia's government, authorized to grant paroles, pardons, reprieves, remissions, commutations, and to restore civil and political rights.”

For some reason, Scheck does not tell us if Davis has availed himself of this avenue of relief.

What Scheck wants instead is, essentially, a new trial 18 years after the first one. Apparently, however, in Scheck’s version, only the defense will be allowed to present its case. Assume for a moment that while in the last 18 years the defense has discovered some exculpatory evidence, there has also been discovered new inculpatory evidence. In fact, Scheck seems to suggest there is new inculpatory evidence when he says, “There was no physical evidence linking [Davis] to the crime.” Scheck’s careful use of the past tense here, to a lawyer’s way of reading, suggests that there is now some physical evidence linking Davis to the crime. Will this new inculpatory evidence, if any, be heard in Scheck’s specially invented “new trial”? Scheck doesn’t say.

Moreover, Scheck in his haste to rewrite Georgia law does not tell us what the standard of proof should be in this new-fangled judges-only hearing. At the first trial, the prosecution had to prove its case “beyond a reasonable doubt”. Under current Georgia law, the defendant seeking this extraordinary relief based on witness recantation must, in effect, bear the same “no reasonable doubt” burden of proof. (Scheck denounces the “purest fabrication” rule for considering recantation evidence. In effect, Scheck is saying that the witnesses who were found credible in the first trial should be found credible in his specially created new trial – even when they are saying opposite things!) So what should be the standard of proof? Again, Scheck doesn’t say.

Based on Scheck’s argument in the Huff Po, if I were on the Georgia Supreme Court, I would tell Mr. Scheck to take a hike. I would also give him the phone number for the State Board of Pardons and Paroles. If he wants looser evidentiary rules and a standard of review less respectful of jury verdicts, that’s the proper forum.


Anonymous said...

The inestimable MOO! Gregory says,

"I would suggest that the Constitution does protect an innocent individual from death by state execution. If not by the Fourth or Fifth Amendments, then surely based on the Eighth Amendment's ban on cruel and unusual punishment. Unless, of course, one was to consider the act of a government putting to death an innocent person neither cruel nor unusual."

That's an interesting argument -- especially about the 8th Amendment -- but isn't it superfluous? I mean, can you imagine any circumstances in which an undeniably innocent man would be executed? One way or another, any such execution would be stayed. Even George W. Bush, who as Texas governor wasn't known to stay many executions, stayed the execution of a confessed serial killer where it was clear that the killer (who was later executed for other crimes) had falsely confessed to that particular murder.

Because there is no chance that an indisputibly innocent man can be executed in the United States, your concern and suggested extraordinary application of Federal law are unwarranted.

(I still love the way you write.)


Anonymous said...

Ken of Dallas said, of my earlier comment...


"A welcome moment of clarity. Well said."

Jim Peterson of San Diego (Calif.), had a much different view, saying, in part...

"RRH: 'the federal Constitution does not prohibit the conviction (or execution) of an innocent man'.

Sorry. It is so obvious, so central to the morality of the law, that government should not execute innocent people, the writers of the Constitution could not possibly have believed such an obvious truth needed to be put in writing. Thus, for Justice Scalia to justify a judicial decision that is fundamentally wrong and immoral by blaming it on the absence of such a specific prohibition in writing teeters on insanity. He is making a legalistic argument (in the worst sense)of the 'how many angels can dance on the head of a pin' kind, when the issue is one of mortal equity."

"Mortal equity" -- now there is something I hadn't heard of. It must be a California thing. Btw, while we'e on the subject, it's not "Article IX" of the Constitution but "Amendment IX" which contains the language you cite. Also, there's an easy way to remember the difference between "being hung" and "being hanged": The old saying goes, "Horses are hung; men are hanged." (Sometimes, depending on the audience, I change this to "Pictures are hung....").

In Texas, we sing songs about the thrill of hanging "bad boys": (Enjoy the Cajun dancing girls.) Some people know about the Texan comedian Ron White, but many do not know that he is also one of my philosophical and lifestyle mentors. Here's his explanation of the death penalty in Texas:

Now, as for the diametrically opposed views of Texan Ken and Californian Jim -- who seems to think that the courts exist to dry every tear and wipe every nose: Which justice system would America do better to emulate, Texas' or California's? Jim seems to esteem the one that produced the OJ trial and is in the process of loosing tens of thousands convicts on law-abiding Californians.

Well, one piece of good news, Jim: If you ever follow so many of your fellow Californians in moving to Texas, you will probably be exempt from jury duty.


Jim in San Diego said...

RRH, at 9:36, "there is no way that an undisputably innocent man can be executed in the United States".

Sorry, again.

Actually, it happens fairly regularly. We know this on at least a statistical basis.

The Innocence Project has won exoneration for seventeen undisputably innocent men who were once on death row.

The grounds for exoneration have been matches (or mismatches) of a DNA fingerprint left at the scene of the crime for which the innocent man was convicted.

However, only a fraction of crimes leave a DNA fingerprint sufficient to use to prove innocence, later.

Therefore, unless every crime of which an innocent man has been sentenced to death left a sufficient DNA fingerprint; and, unless we have found and exonerated every single such person;

Then, it is statistically certain that undisputably innocent men have been executed. And, will continue to be executed in the future.

This moral catastrophe ought to temper the legal opinions of someone in the position of Justice Scalia. Apparently, it does not.

Jim Peterson

Anonymous said...

Jim in San Diego said...

"RRH, at 9:36, 'there is no way that an undisputably innocent man can be executed in the United States'.

"Sorry, again.

"Actually, it happens fairly regularly."

Name one. (Actually, I meant "a man who was known to be innocent at the time of his execution", but let's go with your definition.)

"We know this on at least a statistical basis."

Ohhhh. So you can't name one, but you "just know" it's happened.

"The Innocence Project has won exoneration for seventeen undisputably innocent men who were once on death row."

I cannot say that I have reviewed all of TIP's "exonerations", but of the ones I have, I would say that most of them are not "exonerations" at all: TIP did not prove the convict's innocence, but instead only cast enough doubt on the case to have the sentence commuted or a pardon granted.

"The grounds for exoneration have been matches (or mismatches) of a DNA fingerprint left at the scene of the crime for which the innocent man was convicted."

Except in rare cases, such as rape. DNA can not prove innocence, only guilt (except in California; see, e.g., what Barry Scheck did with the DNA evidence in his big trial there). Except in rape and similar cases, DNA does not and cannot exclude suspects; it can only include them.

For instance, if you came to my house and killed me but left no DNA, would that "prove your innocence"? Maybe to TIP and weak-minded souls it would. What if you left no physical evidence whatsoever: Would that "prove your innocence"? What if witnesses to the crime changed their testimonies 15 years later -- Would that "prove your innocence"?

My point is that physical evidence makes it easy to prove guilt (except in California) while a mere lack of physical evidence does not prove innocence. That's why the burden of proof for a guilty verdict is "certainty beyond a reasonable doubt" (except in California, where it's "beyond all possible doubt"). A defendant to be acquitted (notice I didn't say innocent) needs to merely raise some reasonable doubt that he is guilty. This is such a light burden that it is very, very rare for a defendant to be wrongly convicted.

I would estimate the incidence of a wrongful conviction resulting in prison time to be less than 1 in 1,000 cases. In fact, now that I recall, I think the TIP research itself shows that I am overestimating the incidence.

My larger point is: The 88ists want to take the spotlight off themselves and put it on the American justice system. In the Lacrosse case, it was the American justice system that vindicated those the 88ists sought to condemn. Can't you see the difference? I am always amazed why some people in this forum -- this forum in particular!! --continue to harp on the (mostly imagined) failings of the American justice system when their energy is far better and justifiably spent on the failings of the American academic system.


Chris Halkides said...


Randall Dale Adams, an obviously innocent man, came within two days of being executed for the murder of a Dallas police officer. Cameron Todd Willingham was executed by the State of Texas partly on the basis of forensic evidence, crazed glass, that is no longer considered evidence of arson at all. My recollection is that of the first 700 persons on death row after the moratorium on capital punishment was lifted, 600 were executed and 100 were released. 100 out of 700 is sobering number of close calls. I have no idea how your 1/1000 estimate was determined, but maybe you can shed some light on this.

I have blogged several times on the misdeeds of the G88 and their ilk, and I agree that they are one of the more culpable groups. However, you have failed to convince me of your other point as well, that the spotlight should not be on the criminal justice system. As OneSpook has noted, "Saying that the justice system worked in the lax case is somewhat like saying the safety system worked in a fighter plane accident because the pilot was able to parachute to safety." I would add the following thought. Suppose that Reade Seligman’s family friend had not been able to loan the family $400,000 for Reade’s bail. Reade would have spent a year in jail for a crime that the laws of chemistry and physics indicate he did not commit. The DNA evidence in the DL case was especially powerful because Crystal was taken into custody shortly after the incident on North Buchanan.


Jim in San Diego said...


If you have read my posts on this blog over the past 18 months, every one of them signed, you will know my attitude toward the G88 and their ilk.

My opinions of them, and the danger they pose to my children and grandchildren, are formed within the larger issue of fundamental justice for all.

If I read your very articulate arguments over some time, your view is that full justice is served when an accused has had full notice and opportunity to be heard, and a judge or jury has made the factual determination of guilt. End of story.

I no longer agree this is the whole story. I have seen too many judges pretend to believe lying police officers, too many juries make decisions on whether they "like" someone, or their attorneys!

We therefore differ in the level of formality we need to be satisfied with justice. You are satisfied with justice if I cannot "name" one of the innocent men who has been executed by authority.

I am NOT satisfied, knowing and proving statistically these executions have happened, and will happen in the future.

So we have to leave it there.

Jim Peterson

Anonymous said...

Prof. Chris Halkides said…

“Randall Dale Adams, an obviously innocent man, came within two days of being executed for the murder of a Dallas police officer. Cameron Todd Willingham was executed by the State of Texas partly on the basis of forensic evidence, crazed glass, that is no longer considered evidence of arson at all. My recollection is that of the first 700 persons on death row after the moratorium on capital punishment was lifted, 600 were executed and 100 were released. 100 out of 700 is sobering number of close calls. I have no idea how your 1/1000 estimate was determined, but maybe you can shed some light on this.”

I have only today learned that you are a college professor. I have to admit that when I learned that, a red film descended over my vision and the hair on the back of my neck stood straight up. I am no longer willing to try to explain a system to a man who believes, inter alia, that “released” means “innocent”. I’m sorry, but in the legal profession words have precise meanings. (Here I resist the desire to refer you to a definition of “precise”.) Apparently, in academia, words don’t mean a goddamned thing: “Black” could mean “black”, or it could mean “blue”, or “green”, or “plaid”, or “heavy”, or “new”. When George Orwell said (and I may be paraphrasing from memory), “There are some ideas so incredibly stupid that only an intellectual could believe in them,” I don’t think he had lawyers in mind. Academics complaining about the purity of the legal system now remind me of lepers that she treated complaining that Mother Teresa didn’t wash her hands all the time.

(In fairness, I will say that lawyers, too, often say crazy things about other professions, like the President does on the medical profession – such as that doctors will choose treatments based on what’s best for their own pocketbooks, or that a doctor receives $50,000 for amputating a leg. It is for this reason that I have been careful not to call, as many others here have, for specific reforms of academia such as an end of tenure. I think the academics should clean their own house – unless, as it appears more and more to me, they are incapable of it.)


[Continued below due to space limitations]

Anonymous said...

[Continued from above]

”I have blogged several times on the misdeeds of the G88 and their ilk, and I agree that they are one of the more culpable groups.”

Shouldn’t you wake up every day asking yourself, “What can I do today, however small, that will help to make Karla Holloway’s life a living hell?” What could that be? Well, how about contesting, every day, Holloway’s metanarrative of hulking white male beasts and virtuous black maidens that permeates academia and without which the Lacrosse Hoax could never have occurred?

” However, you have failed to convince me of your other point as well, that the spotlight should not be on the criminal justice system. As OneSpook has noted, ‘Saying that the justice system worked in the lax case is somewhat like saying the safety system worked in a fighter plane accident because the pilot was able to parachute to safety.’"

As much as I admire OneSpook, his analogy is deeply flawed. To fix it, I would say that Nifong was an evil pilot who, only with the aid of a conspiracy of academics, kidnapped the Lacrosse Boys and took them on an airplane ride. The legal system was the air traffic controllers who used a tractor beam to force the plane to Earth, de-licensed the pilot and threw him into jail, and then forced the academic conspirators to give the Boys millions of dollars. How about that analogy?

You may respond that, “Well, unfortunately academia doesn’t have the power to punish our miscreants the way the legal system does to its.” Really? How about shunning? When Pres. Clinton was found to have abused his office – in a way far less heinous than the G88 abused theirs -- the entire U.S. Supreme Court boycotted his State of the Union address and later disbarred him (without a hearing, I might add). What lawyers can’t understand is why academics can’t do that with the G88. Why don’t academics, say, refuse to appear at fora with G88 members? Why aren’t they, at least, shunned?

As I’ve said before, if the legal system handled Nifong like the academic system handles the G88, by now Nifong would be the attorney general of North Carolina! If the academic system was like the legal system, by now Karla Holloway would never be allowed to darken the door of a classroom again. So, please get your own house in order before you try again to tell me how to clean mine.


Anonymous said...

Jim in San Diego said...

"If I read your very articulate arguments over some time, your view is that full justice is served when an accused has had full notice and opportunity to be heard, and a judge or jury has made the factual determination of guilt. End of story.

If that's what you think is "my view", then I cannot have been "articulate" enough.

The bottom line is that I believe that "separation of powers" is the bedrock principle that undergirds our system of justice and liberty. We have rules -- ancient rules -- about where judicial and executive powers begin and end. In the case of judicial power, I am happy to repeat the view of Chief Justice Roberts: "If it is not necessary for a court to rule on a certain issue, then it is necessary for a court not to rule on that issue."

There are many evil people who see that the way to impose tyranny on us is to blur those rules. They use very sympathetic cases (almost always twisting the facts) to make smart people like yourself believe that the rules must be changed -- that the different departments of government should be able to "reach into each other's pockets" to overcome some perceived injustice that is -- they promise you -- sure to occur.

What the evildoers seek to convince you of is that the court must rule on everything under the sun or else something terrible will happen. For instance, if a court denies an innocent man's last appeal, they want to make you believe that his execution is inevitable. I'm going to type this slowly: They. Are. Lying. The executive branch and even the legislative branches can do their jobs -- within the ancient rules that exist -- and free that man. The legal frauds who tell you that only a court can decide life-or-death count on your sympathy and your ignorance of the rules of the system. Don't let them do it.


Anonymous said...

I'd like to add an unrelated anecdote to what Anonymous said about Brodhead on 8/18 at 1:03 pm. In the summer of 2006 while the Duke lacrosse hoax was in full force, Brodhead, who owns a vacation home in Vermont, still found the time to threaten a lawsuit against the tiny hamlet where he has the house over a petty manner. He then told off a neighbor who reached out to him over the same petty manner and thus turned an entire village against him. My point being, in the summer of 2006, one would think he'd be trying to make and keep as many friends as he could. Looks like he was on a roll. His presidency at Duke reminds me of the Peter Principle, he has definitely risen to his level of incompetence. He should have stayed a dean at Yale.

Chris Halkides said...


It would not have occurred to me that anyone would dispute the innocence of Randall Dale Adams, as you appear to be doing. His story was the subject of the Errol Morris documentary, “The Thin Blue Line.” Nevertheless, I am interested in your reasons. Please don’t hesitate to contact me privately if you feel that this subject is off topic here.

On the one hand, I think that your view of academia may be overly colored by the actions of the G88 and their sympathizers. Most academic departments with which I have been associated are filled with people who teach things such as, “The data are the data.” In other words they have their opinions and pet theories, but they let the experiment rule their thinking, not the other way around. On the other hand, my recent conversations with DukeDad and OneSpook have convinced me that there is more to say about academia and the Duke case. I recall Professor Steven Baldwin tell me some time ago with respect to his letter to the Duke Chronicle that academia had a problem. I hope to come out of retirement temporarily this weekend and post a modest article on my blog.

The biggest resistance I face in discussing the Duke case with academics and other intelligent people is convincing them that there larger issues involved than three young men falsely accused. Among them is certainly the conduct of many academics at Duke, but I would still list the conduct of the DPD and media as other areas worthy of consideration. It is a strange coincidence that you should mention Professor Holloway. I had recently commented about her at the Duke Chronicle in a thread that was removed due to obscene language. The text below is slightly modified from what appeared there:

Many of us have debunked your claims about the students, sometimes multiple times. Instead, let’s talk about Karla Holloway, professor of English and teacher of legal ethics. Here is a multiple choice question. In January of 2007, when the DA’s case was in tatters and President Broadhead invited Reade Seligmann and Collin Finnerty back to Duke, Professor Holloway,
A. said, “It must be a relief for our two seemingly innocent students to see the light at the end of the tunnel with respect to such serious charges. I am sure that they are eager to move forward.”
B. said, “Isn’t it horrible to imagine our students being at the mercy of apparent prosecutorial misconduct. I would like to teach our law students why it is wrong to withhold exculpatory evidence so that they never do it themselves.”
C. said that President Broadhead’s decision “is a clear use of corporate power, and a breach, I think, of ethical citizenship,” and resign from a committee in protest without bothering to explain what corporate power she was talking about.

It is Professors Baker, Farrad, Holloway, Wells, and Wood, and their ilk who should be on the defensive, not the lacrosse players.


Anonymous said...


"Why aren’t they, at least, shunned?"

Good question.


Anonymous said...

Ken, Dallas, said...


"Why aren’t they, at least, shunned?"

Good question.

8/28/09 11:31 PM

Thanks, Ken. As you may have noticed, in the wake of the Lacrosse Hoax I have not advanced any ideas for drastic institutional changes in academia. In a way I wish others would follow, I do not have enough arrogance to think that I know enough about academia to speak competently on the subject. The responses that I have urged upon the academics here -- such as shunning the G88ers or commemorating the anniversaries of the date of the infamous ad or the exoneration of the Boys -- have all been very small bore in caliber: An individual professor can do any of them; it doesn't take a wholesale restructuring of the academy.

It gets my dander up (in case you hadn't noticed) that academics take the reverse tact -- and they do so almost on command from the G88ers: They take one extraordinary case (or a infinitesimal number when compared with the totality) and suddenly they decide they are competent enough to recommend institutional-level reforms for the whole legal system.

"Change the rules of evidence!"

"Change the standards of proof!"

"Change the grounds for appeals!"

"Change the application of habeas corpus jurisprudence!"

It is, from my perspective, jaw-droppingly arrogant for them to behave in this way. It actually makes the actions of the G88ers more understandable, if so many professors with so little knowledge seem to think they are fit to make broad critiques of systems and institutions.

In such a way, our friends in academia give us more cause for alarm than do our enemies. Meanwhile, I bet not a single one of them has given his students the day off from classes for one of the Lacrosse Hoax anniversaries.


Chris Halkides said...


Your comments might be construed to dispute the premise of the book “Race to Injustice,” several chapters of which used the DL case as jumping off point for discussing issues such as lineups, the grand jury system, or indigent defendants.

Collin Finnerty stated, “There seemed to be some flaws in the legal system that should be addressed. For example, the fact that in North Carolina there are no recordings of what was said in the Grand Jury and also the need to establish checks and balances on the total power of the DA (

Do you support Collin’s calls, or do you reject them on the basis that the DL case is an extraordinary case and an infinitesimal sampling of the legal system?


Debrah said...

Some of you guys might want to read this very lengthy article from The New Yorker

Chris Halkides said...


I posted an advertisement for this article on my blog last night ( It is a long article, but it has many insights. There is a connection between the Willingham case and the Adams case, namely the testimony of defrocked psychiatrist James Grigson.


Debrah said...

Good, Chris.

Yes, it's very long.

As usual, you are ahead of the game!