In the Can

I recently received an email from DIW reader and commenter ES Class of 1990. He reports:

I got a fundraising call from a Duke Freshman this evening. This is a tried and true Duke event, in which living groups raise money for Duke and get a slice for their group or cause...I have done it myself. It is called “Dialing for Dollars.”

When I informed the polite young lady that I would not contribute to the university in any financial way until there had been an accounting of the behavior of the Gang of 88, she pointed out to me that Brodhead had in fact apologized and that the video was on YouTube. I countered that they still had not addressed the fact that several students had their rights to privacy violated and that faculty had in fact violated their own code of conduct...both events that would preclude any giving on my part until they had been sorted out in a public forum. I wished her good luck and ended the call.

It hit me later...they had a planned, “in the can” counter to the Gang of 88 argument! ”Look here, the President DID apologize, and here is the URL.” They clearly had been briefed and coached to deflect this argument to giving, knowing that it would be a sticking point with alums.

Is that amazing or what?

Indeed the news is amazing, for at least three reasons beyond the obvious: the fact Duke has an “in the can” response suggests this issue regularly comes up in fundraising pleas.

1.)These remarks represent the first acknowledgement by anyone affiliated with Duke that Brodhead’s September 2007 statement referred to the Group of 88. In his remarks, the President didn’t specifically reference the Group, but merely apologized for ill-judged and divisive comments by unnamed Duke professors.

2.) While it’s nice to know that Duke finally recognizes the Group’s statement as “ill-judged and divisive,” the acknowledgement raises the question of why Brodhead’s apology never accompanied any policy changes to deal with the problem that the Group’s statement illustrated.

In that respect, the “apology” is a little like an apology from a neighbor whose little boy regularly tosses a baseball through your window—but who does nothing to ensure that the little boy sees that he did something wrong; or to ensure that the following day, the little boy doesn’t again toss the same ball, in the same direction, and through the same window. At some point, the “apology” rings a little hollow.

3.) ES’s point about Duke not living up to its own standards is well-taken—even more so in light of a front-page story from yesterday’s Times. The article profiled a deeply troubling move by the Cook County (Ill.) State’s Attorney to subpoena records, including grades, from the student journalists in the Medill Innocence Project, a program at Northwestern’s journalism school. The interim director of the Illinois Press Association observed, “Taken to its logical conclusion, what they’re trying to do is dismantle the project."

Faced with a dubious demand from a local prosecutor that would seem to violate the federally protected rights of its students, how is Northwestern responding? The dean of the Medill School blasted the subpoena as “astonishing” and has committed the institution to vigorously contesting the prosecution’s demands in court. Such a response, of course, would be fully expected, both by parents and by the Congress that passed FERPA.

Contrast the Northwestern approach to defending students’ federally protected rights to that of Duke. When the Durham Police, working alongside the disgraced ex-DA Mike Nifong, demanded that Duke turn over FERPA-protected information regarding the lacrosse players, Duke did so willingly. Then, stunningly, the University didn’t come clean about what it had done—even after a subsequent court hearing on the request resulted in even the prosecution-friendly Judge Titus ruling that Nifong’s demand fell afoul of federal law.

Brodhead, it should be noted, never apologized for the FERPA fiasco.

Pottawatamie County & Nifong

In 1978, in Iowa’s Pottawattamie County, a retired police officer working as a security guard was murdered. Police and prosecutorial attention rapidly focused on Curtis McGhee and Terry Harrington. The two suspects were tried, convicted, and imprisoned for more than two decades.

But, it turns out, massive misconduct occurred in the case. The prosecutors never informed defense lawyers that police had another suspect in the killing. Nor did they reveal that they seem to have coached a key witness in the case to give fabricated evidence against McGhee and Harrington. When this information surfaced, in 2002, the Iowa Supreme Court vacated one conviction, and the other defendant accepted a plea bargain allowing him to go free immediately. Both McGhee and Harrington then filed suit against the police department and against the two prosecutors, Joseph Hrvol and David Richter, who had manufactured the evidence against them.

The prosecutors sought to have the lawsuit dismissed, claiming that they possessed absolute immunity for their acts. But lower courts ruled against them, and their case now goes before the Supreme Court.

The case has attracted a number of amicus briefs. Among the most persuasive: that from the libertarian Cato Institute, the ACLU, and the National Association of Criminal Defense Attorneys. Filing amicus briefs on behalf of the ethically challenged prosecutors were the Justice Department and the National District Attorneys Association. Both briefs contend that abandoning absolute civil immunity for prosecutorial behavior would make prosecutors so afraid of being sued that they won’t be able to do their jobs.

The Justice Department argues, “If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.” Or, in the words of the NDAA brief, “The inevitable consequence of broader civil liability will be the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” The greater good dictates absolute civil immunity for prosecutors.

In her brief, Solicitor General Elena Kagan also argues for reversal of the lower-court rulings on the grounds that the Supreme Court “has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler [which provides absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process”] into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor's investigation and preparation of the case instead of his activity at trial.”

The DOJ/DNAA argument is quite breathtaking. As Radley Balko has argued, the Pottawattamie side of the case contends “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The Justice department and the NDAA make a second argument: namely, that other options—such as disbarment or even, in extreme instances, criminal prosecution—exist to sanction ethically challenged prosecutors. Among the examples favorably cited in the NDAA brief: the removal of Mike Nifong as Durham County District Attorney.

At first blush, and even though his termination from the legal profession was celebrated in one of these filings, the DOJ and NDAA briefs might seem like good news for Nifong, as he desperately seeks to avoid civil liability for his misconduct. In fact, however, both briefs—especially that of the Justice Department—confirm that Nifong’s behavior in the lacrosse case fell outside the bounds of any conceivable definition of appropriate prosecutorial conduct. And if even these extremely aggressive defenses of prosecutorial immunity don’t cover Nifong’s behavior, the disgraced ex-DA would seem to be in trouble.

“Prosecutors,” according to the Justice Department, “may not be held liable for fabricating evidence they introduce at trial, even though police officers who fabricate evidence may be held liable under Section 1983.” In fact, “even an unconscionable act of fabrication does not transform a prosecutor's acts at trial into a source of civil liability.”

But Nifong, of course, was supervising the police investigation before any finding of probable cause (the grand jury indictment based on admittedly false testimony from ex-Sgt. Mark Gottlieb) had occurred. In a highly unusual move, he assumed personal command of the police investigation ten days after Crystal Mangum made her initial false charges. No representative of the Durham Police Department or city government has ever provided an explanation as to why the police, in violation of custom and procedures, ceded control of their investigation to the prosecutor on March 24, 2006.

The Justice Department, in a passage that could have been tailored to describe Nifong’s behavior, conceded that “prosecutors may remain liable for any number of investigation-stage activities, as to which they enjoy only qualified immunity—for example, conducting searches and seizures that violate the Fourth Amendment.” In Nifong’s case, such behavior would be his conspiring with lab director Brian Meehan to produce an incomplete and misleading report; or ordering the police to run a third lineup, which violated their procedures and was confined to the suspects in the case.

That said, according to the Justice Department, “liability for procurement is not predicated on the simple act of fabricating the evidence; if there were no subsequent use of the evidence, there would be no liability.” But Nifong did use the fabricated evidence: the fabricated item (the lineup) provided the only specific material used against the three people that Nifong targeted.

One final item from the Justice Department brief that’s damning to Nifong. The brief maintains, “‘On facts like those alleged here, a person who bears the title prosecutor, but who ‘perform[ed] [only] the investigative functions normally performed by a detective or police officer,’ Buckley, 509 U.S. at 273, would be liable. The exemption from liability in this case, although absolute, applies only to a discrete set of individuals for a discrete set of activities.”

The passage unveils a bizarre DOJ claim that prosecutors must have absolute immunity as soon as they introduce their manufactured or improperly obtained evidence at trial. If, however, someone else handles the case, the initial prosecutor would be civilly liable. As no trial ever occurred in the lacrosse case, Nifong would seem to be additionally vulnerable.

In short, for Nifong, even superficially good news turns out to be bad.

Academic Free Speech

An excellent essay by Peter Berkowitz on the topic. Here's his perceptive summary of the Duke case:

In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members' prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.

More from the Group

While Wahneema Lubiano—she who wrote, without any citation, that “many whites . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example”—is busy tending to all Duke undergraduates through her position as a departmental director of undergraduate education, three other Group members made news last week.

Duke’s Ariel Dorfman is a professor who:

• publicly asserted that something “happened” to Crystal Mangum, based solely on the version of events presented by the disgraced Mike Nifong
• publicly thanked protesters who had presumed the guilt of students at his own institution;
• committed himself to “turning up the volume” regardless of “what the police say or the court decides”;
• and, after the version of events about which he had expressed such public certainty turned out to be false, signed onto another statement in which he adamantly refused to apologize for his rush to judgment.

To give Dorfman the benefit of the doubt, perhaps it might be said that the Duke professor is a fanatical “anti-rape” activist, someone who believes that whenever a woman claims rape, the accusation must be treated as true; and that those targeted by such accusations must be punished to the fullest extent of the law, regardless of the evidence.

Such views, of course, would contradict the academy’s traditional support for due process—but, as we all learned in the lacrosse case, such views are in short supply among many Duke humanities and social sciences departments.

Even assuming the above, however, what explanation exists for the below screenshot, from the “Free Roman Polanski” petition?

So, to sum up: Dorfman believes that Polanski—a man who pled guilty to sexual misconduct with a minor, in an event in which his victim (and, given the guilty plea, she can be called a “victim”) claimed that Polanski had drugged her and then pursued her throughout the house; and a man who then fled the country before his sentencing hearing—should be freed; and he also believes that it was appropriate to thank guilt-presuming protesters in a case involving his own students, a case in which the claims against his students turned out to be false.

The guilty should go free and the innocent should be punished. That sounds a lot like the judicial philosophy of the Pinochet regime in Chile, against which Prof. Dorfman once wrote so eloquently.

Then there is the case of Group member Michael Hardt, whose latest publication was subjected to a blistering review from City Journal editor Brian Anderson.

Here’s the description Anderson provided of Hardt’s co-author, Antonio Negri: “Three decades ago, the Italian government believed that he was the secret intellectual leader of the leftist terrorists called the Red Brigades and that he was the architect of the group’s 1978 kidnapping and murder of Christian Democratic Party leader Aldo Moro. Unable to build a sufficient case to try Mr. Negri for murder—he has always denied the allegation—Italian authorities convicted him of ‘armed insurrection against the state.’ Facing 30 years in the slammer, Mr. Negri scooted to France, where he remained, a philosopher in exile, until 1997, when he returned to Italy to serve the remainder of a reduced sentence. He is a left-wing guru whose field work has occurred far from the faculty lounge.”

As for the book itself, here’s some more from Anderson:

For the revolution to succeed, three supposedly corrupt forms of the common must be destroyed. Some of the harshest language in “Commonwealth” targets the family: Mom, dad and the kids might not know it, but they are part of a “pathetic” institution, a “machine” that “grinds down and crushes the common” with “the blindest egoism.” Messrs. Hardt and Negri cry: “Down with the family!” The two other killers of the world’s spirit: the corporation and the nation. When the multitude seizes “control of the means of production and reproduction,” we’re promised, the evil trio will wind up on Marx’s ash heap of history.

The authors warn the rulers of the capitalist world that if they want to survive a little longer, they need to enact reforms, including global citizenship, a right to income for everyone and participatory democracy. But Messrs. Hardt and Negri don’t think that their warning will be heeded. Revolution will erupt—and soon. It could be violent, a prospect that does not seem to trouble them: “What is the best weapon against the ruling powers—guns, peaceful street demonstrations, exodus, media campaigns, labor strikes, transgressing gender norms, silence, irony, or many others—depends on the situation.” Pirates, the rioting Muslim banlieusards of Paris and the Black Panthers all are praised in Commonwealth as heroes of disruption.

Anderson’s devastating summary: “Messrs. Hardt and Negri make little effort to build arguments in support of their wild assertions and predictions. They write as if ignorant of the 20th century and of much else, including economics and social science.”

Finally: the case of Cathy Davidson. All who followed the lacrosse case closely know that . . . memory problems . . . bedeviled Prof. Davidson in 2006 and 2007. After all, this is the same professor who preposterously claimed that in the week between March 29, 2006 and April 5, 2006, Duke students "felt demeaned by racist and sexist remarks swirling around in the media and on the campus quad in the aftermath of what happened on March 13 in the lacrosse house. The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women."

In fact, during that week, Mike Nifong dominated the airwaves, virtually no one was defending the lacrosse players (much less doing so through "pernicious stereotypes about African-Americans," activists flooded the Duke campus with "wanted" posters of the lacrosse players, and Richard Brodhead made time to meet with African-American students who demanded recognition of the lacrosse players as guilty of a "hate crime" even as he refused to meet with the lacrosse players' parents or lawyers.

Now, Emory professor Mark Bauerlein has revealed that Prof. Davidson's . . . memory problems . . . predated her experience in the lacrosse case. Bauerlein notes that, in Davidson's 2004 apologia for the overwhelming political imbalance among the Duke faculty, "Either as a department member or a member of the APT [appointments, promotions, and tenure] committee, I've not encountered any Duke faculty member being harassed or discriminated against because he or she is conservative."

Yet Bauerlein has uncovered a letter from Davidson that contradicts her firm 2004 assertion. In an extraordinarily high-profile event from the pre-Keohane/Chafe Duke, then-English professor Stanley Fish (chairman of the department of which Davidson was a member) demanded that Duke not appoint any member of the National Association of Scholars to an APT or distinguished professor position. As Bauerlein noted, "Obviously, Fish's request marked a patent act of discrimination on ideological grounds."

Anyone who heard her 2004 statement might have assumed that Davidson was unaware of Fish's request. Yet Bauerlein has uncovered a letter from Davidson in the Fish Papers, in which she praised Fish's performance as chair. She also noted, "Although I do not agree with the tactics that he (reportedly) suggested with respect to the NAS debate, I also do not at all see him speaking for me in this matter and find it curious that, in the name of free speech, his voicing of his views is being condemned." (In other words: Fish wanted to exclude professors from appointments committees because of their political or pedagogical beliefs--and yet he was the victim in the affair.)

In any event, it appears that sometime between the early 1990s and her 2004 remarks, Prof. Davidson . . . forgot . . . about Prof. Fish's efforts to harass or discriminate against Duke faculty members "because he or she is conservative."

Given her recurring . . . memory problems . . . perhaps it is better that Prof. Davidson no longer does her own grading, and has ceded that basic professional responsibility to the students in her class.

Professors Dorfman, Hardt, and Davidson, it’s worth reiterating, are among the Group of 88's most prestigious scholars.

A Treat for Duke Students

At most large universities, the position of undergraduate deputy serves as the department's ambassador to the undergraduate student population. He or she is the professor to whom students will come with questions about the department's courses, or rules and regulations, or faculty members.

An ability to deal with all students, regardless of race, ethnicity, gender, or belief systems, would seem to be a minimum requirement for the position. For instance, a professor who believed that “many blacks . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example,” would be a problematic choice for deputy.

The current director of undergraduate studies of the Duke African-American Studies Department is none other than . . . Wahneema Lubiano, she of the opinion that “many whites . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example.”

Well, of course, students treated unfairly could always appeal to the department's fair-minded chair--J. Lorand Matory, the sponsor of the anti-Summers resolution at Harvard.

Updates, Including Bob Steel's Latest

If I were looking for the identity of someone least likely to be named trustee for a major hospital, former Duke BOT chairman Bob Steel would be high on the list. Leaving aside Steel's ill-fated performance at Wachovia, Duke under Steel's leadership paid out millions of dollars in settlements and legal fees from lawsuits stimulated, in large part, by the dubious conduct at Duke University Hospital.

And yet, as Dr. Roy Poses reports at the fine blog Health Care Renewal, the Hospital for Special Surgery has just appointed none other than . . . Bob Steel . . . as its newest trustee.

Poses concludes, correctly if sadly, "Mr Steel's unlikely career trajectory shows how once someone becomes a member of the superclass, the new power elite that spans business, government, and academics, that person is likely to continue to wield power no matter how poor his or her track-record, to the detriment of nearly everyone else."

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Over the past few years, we all have learned just how intensely some in the higher education community believe—indeed, given their ideology, have to believe—that sexual assault is widespread on today’s college campuses.

Sometimes, these figures follow the approach of the “clarifying” faculty in the lacrosse case, simply issuing public statements declaring that sexual assault is “prevalent” on the Duke campus even though the university’s own figures indicated that 0.1 percent of Duke females had been victims of sexual assault. (And, of course, the “clarifying” faculty did everything they could to downplay the rape of someone like former Duke student Katie Rouse, since that attack didn’t fit into their worldview.)

At other times, these figures follow the approach of the Duke women’s center, and champion new judicial procedures that will tilt the judicial playing field blatantly in the accuser’s favor, apparently from a belief that as women don’t lie about being raped, those women who claim to have been raped should be ensured of a conviction.

And then there’s the case of Jennifer Beeman, the former director of the Campus Violence Prevention Program at University of California-Davis. The number of rapes that have occurred at Davis didn’t fit Beeman’s ideological preconceptions. So in 2005, 2006, and 2007, she simply inflated the figures. And the Sacramento Bee discovered that Beeman was doing it for some time—and used her made-up figures as the basis for which to apply for federal grants.

Incredibly, when Beeman’s 2005-7 inflated figures were first brought to the University’s attention, Davis’ response was to suggest that her made-up figures were proof of her having created a “nationally recognized … model program for its outreach efforts and services for survivors.”

Only in academia.

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The Durham Police Department is again under fire, and, as in the lacrosse case, again seems to believe that its own rules and regulations do not apply to its officers.

The North Carolina SBI is investigating a scandal regarding the Police Department billing the city for excessive overtime.

Will the usual suspects blame the inquiry on wealthy outsiders?

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I supported AG Roy Cooper’s decision not to prosecute false accuser Crystal Mangum, largely because there’s no way he could have gotten a conviction. Magnum could have claimed that she was psychologically unable to tell the truth (and had 1000 pages of files to back her up); or she could have claimed that as the city’s police force and county’s “minister of justice” believed her, that should qualify as reasonable doubt to beat charges of her filing a false police report.

It’s much harder, on the other hand, to support the decision of Nassau County DA Kathleen Rice not to prosecute the Hofstra case false accuser, Danmell Ndonye.

In this respect, I agree completely with Newsday’s editorial board, which noted, “Rice justifies her decision not to prosecute because it would have a ‘chilling effect,’ making actual victims fearful to come forward. That concern is misplaced. Historically, police and prosecutors have been hostile to women who made rape charges, but the consensus now in law enforcement is that these cases should be fully and aggressively prosecuted. For legitimate claims to be taken seriously, however, society must also know that phony ones will be punished. That’s what will make the voice of every true victim even stronger. Instead, Rice’s resolution risks creating the perception that there isn't much downside to making up a story that could have sent someone to jail for 25 years.”

Hat tips: M.S., D.P.