Wednesday, December 28, 2011

Attorney Wilson Approaches the Bench

Again proving that a man who represents himself has a fool for a client, Attorney pro se Linwood Wilson has filed a civil rights lawsuit against Kent (DE) County, Durham County, and no fewer than 31 individuals (ranging from his estranged wife Barbara to Beau Biden(!), the vice president’s son and the current Attorney General of Delaware). The former DA’s chief investigator, Christian singer, and ethical sinkhole alleges that his arrest for possible spousal abuse in fact involved malicious prosecution, concealment of evidence, conspiracy, supervisory violations, and fabrication of false evidence—all matters of which, it goes without saying, his service under Mike Nifong gave him intimate knowledge.

Wilson’s 92-page complaint, filed alongside 10 exhibits (totaling some 355 pages), takes 10 pages just to identify the various people that he’s suing. Attorney Wilson suggests a wide-ranging and multi-layered conspiracy of his wife, her alleged “paramour,” a Delaware police officer with whom she also allegedly was having an affair, his wife’s family, some of his wife’s friends and co-workers, some law enforcement officials in Durham County, and various law enforcement officials in Delaware—all working in concert to deny Linwood Wilson his constitutional rights. Remarkably, until the filing of this complaint, this vast conspiracy went undetected—not by the media, nor by state legislators in Delaware or North Carolina, nor by various watchdog agencies. How could this be?

In the real world, the chief purpose of the complaint seems to be less exposing a previously undetected “conspiracy” than humiliating Wilson’s estranged wife and her alleged “paramour,” Joseph Curtis. Attorney Wilson describes his wife as “a mentally troubled woman who had abandoned her marriage.” Indeed, she had “plenty of Zoloft at home,” yet was caught going to the pharmacy for more. Wilson recounts the following alleged event at a local Mexican restaurant: “Defendant [Barbara] Wilson drank a large double margarita (while taking Zoloft, Clonazepam, and Xanax) and got extremely drunk, telling Plantiff [Linwood] how she wanted to rip his clothes off and have sex with him on the table.” Attorney Wilson describes this evening as “the best [the marriage] had been in months.”

But, alas, Barbara Wilson was leading a double life, according to her husband. She was having an affair with her “paramour” at the workplace, while at their “marital home,” Barbara Wilson “sat next to her husband each night, wanted [sic] him to rub her feet and legs.” The “paramour,” meanwhile, “ran from Wilson’s marital home like a dog with his tail between his legs” when confronted by Linwood.

The gap between Attorney Wilson and Plaintiff Wilson is sometimes difficult to follow. For instance, in paragraph 48 of the complaint, Attorney Wilson speaks of “our marriage” (the marriage between Barbara and Plaintiff Wilson); at other occasions, he uses “I” rather than “plaintiff” to describe his recollections of alleged events.

Attorney Wilson claims that his client has suffered various injuries, including “economic” harm, presumably a result of the marriage’s breakup shattering the “Voiceovers by Wilson” business that the husband and wife planned to start. Attorney Wilson also claims that his client has “suffered irreparable harm to his reputation.” How? After the exposures of the lacrosse case, Linwood Wilson had no reputation to lose.

Attorney Wilson is particularly fond of the phrase “upon information and belief”—an approach used in civil suits when lawyers believe that something occurred but for which they do not, before discovery, possess hard evidence to substantiate. But in the Wilson complaint, virtually every “factual” claim comes not from any evidence he possesses but from his own . . . beliefs. To give a sampling from the complaint:

“Upon information and belief Durham Coca-Cola was already aware of the affair.”

“Upon information and belief . . . Barbara Wilson had been reportedly locking herself in her office at work and crying all the time.”

“Upon information and belief, a display of public affection occurred between Defendants Wilson and Curtis, in Curtis’ car on the way back from NCCU.”

“Upon information and belief, Barbara Wilson was the only one who got a raise in the past 2-3 years.”

“Upon information and belief, the ‘Delaware Conspiracy’ along with co-conspirators . . . from North Carolina, made a ‘rush to judgment’ and manufactured changes.”

“Upon information and belief, Defendant Reimann continued to conspire with Defendants [Barbara] Wilson, Curtis, and Delaware Sgt. Weaver.”

“Upon information and belief Defendants Whitfield and Wilson hacked Plaintiff’s computers at his residence and falsified evidence.”

“Upon information and belief, Defendant Deputy Reimann was the source of information for Defendant Weaver, thus thickening the conspiracy more and more between North Carolina law enforcement and Delaware law enforcement.”

“Upon information and belief, it was common knowledge throughout the legal system in Dover, DE.”

“Upon information and belief, this is when the conspiracy was formed . . . to make it appear that Barbara Wilson was afraid of her husband (Plaintiff) and that he (Plaintiff) was crazy.” [As an aside, Barbara Wilson needn’t have entered into a conspiracy to have accomplished these goals: she simply could have told people to read this complaint.]

The strangest of these “information and belief” structures comes in paragraph 49, when Attorney Wilson writes, “Upon information and belief . . . Beth Greenman called Plaintiff [Linwood Wilson] and advised him that “If you don’t get Barbara away from [her alleged ‘paramour’] Joe he is going to ruin her and destroy your marriage.” The person who wrote these words was a party to the alleged call. This is his complaint. Is Wilson suggesting that he himself doesn’t know if the call occurred (the only reason for an “upon information and belief” construction)?

The anti-Linwood “conspiracy,” Attorney Wilson claims, intensified after his wife discovered that Linwood planned to involuntarily commit her for mental observation. At that point, Barbara Wilson decided to “flea [sic!!] the jurisdiction of North Carolina in order to avoid commitment proceedings.”

Attorney Wilson also appeared to have taken writing lessons from the grammatically-challenged Tracey Cline. Consider, for example, this head-scratching sentence: “Also none of it was relevant to Delaware since, according to Defendant Weaver himself, the fact that all this supposedly occurred in another jurisdiction, North Carolina, which Defendant Weaver had nothing to do with.”

Some of the “evidence” proffered by Attorney Wilson, alas, undermines the position of his client. For instance, Attorney Wilson recounts a conversation between Barbara Wilson and her husband, in which she told Linwood that she wanted the marriage to work, but that she had some “conditions.” That admission might sound damaging to Barbara, until Attorney Wilson reveals the wife’s conditions: that Linwood “was not to call her cell and ask where she was or what she was doing”; and that Linwood was not to “follow” her. If, in fact, the unemployed Linwood Wilson was following his wife around, or frequently calling her up asking her what she was doing, it would seem as if he was engaging in, at the least, emotional abuse; and, at the most, stalking.

In any case, Attorney Wilson says that his client immediately discerned that his wife wasn’t serious in hoping that the marriage would work—a conclusion he based on his “training and experience as a police investigator, private investigator, and District Attorney investigator, for over 38 years.”

Or take this charming anecdote from Attorney Wilson after his wife’s alleged “paramour” visited the “marital home” to check on Barbara Wilson’s well-being. Linwood Wilson admits to screaming at Curtis, “Don’t come into my home, push me out of the way, and disgrace me, my wife, or my home in this way or I’ll blow your f_king head off!” Again: a person charged with spousal abuse is admitting that he threatened to “blow [the] f_king head off” the man he believed was sleeping with his estranged wife.

As the marriage deteriorated, Attorney Wilson admits that his client refused to have sex with his wife, as the “Plantiff knew that would damage his case, if the marriage didn’t work out, from 20 plus years as a private investigator. A field in which Plaintiff had testified as an expert witness over 200 times . . . throughout North Carolina.” Demonstrating his client’s classless nature, Attorney Wilson passes along the fact that his wife “started using dildo’s” to pleasure herself.

The Linwood Wilson who comes through in this complaint is an enraged man, something of a control freak, clearly humiliated by his wife’s apparent infidelity. How he could escape sanctions for filing such a bizarre complaint remains to be seen.

Finally, perhaps the strangest or the many strange clauses from the Wilson filing was the following: “Defendant Eric Campen stated loudly in the lobby of the Durham County Sheriff’s Department and Courthouse in front of Deputy Tom McRae, several unknown deputies, about ten people in the lobby, one [sic] of whom was Victoria Peterson and Richard Porter, “You are a convicted felon! You will never get your guns back! You know better than to even try this!.” “I’ve seen your handy work on the computers, I know how good you are!” The truth is that Plaintiff Wilson has never been convicted of any felony and why was Campen tampering with evidence that he was not authorized to (computer). When Plaintiff Wilson and Richard Porter left the lobby of the Sheriff’s Department several unknown bystanders stated, “We didn’t know you were a convicted felon!” An obvious character assassination and deformation.”

Leaving aside the implausibility that the events occurred even remotely as Wilson described, and further leaving aside Wilson’s hilarious claim that a government official allegedly saying false things about him constitutes “deformation,” the vignette begs the question: what was Durham’s resident bigot and homophobe, Victoria Peterson, doing milling around the sheriff’s office lobby?

Friday, December 23, 2011

'Tis the Season . . . for the "Thugniggaintellectual"

The lacrosse case unintentionally exposed the extent to which shoddy thinking passes for insight in the contemporary academy. Dozens of professors at one of the nation’s finest universities rushed to judgment based on highly incomplete information—and then when evidence emerged that contradicted their preconceived biases, they resolutely clung to their original opinions.

Such behavior had to raise questions about whether Group members—who, after all, represent the dominant pedagogical approaches in most humanities and social sciences departments—also poorly evaluated evidence in their own scholarship. Addressing that question was a central theme of the blog’s series of Group profiles.

Yet a closer look at what passes for scholarship among the Group also revealed some zany (to borrow an adjective from the current presidential campaign) assertions—such as Grant Farred’s claim that former Houston Rockets center Yao Ming represented “the most profound threat to American empire.”

A recent blog post ("'Santa Claus Is Coming to Town': Some Thoughts on Christmas and State Surveillance") from the self-described “thugniggaintellectual,” Group member Mark Anthony Neal, reached Farred-ian levels. Indeed, as one correspondent noted, it read as if it were intended as a caricature of the most ridiculous type of academic discourse.

The post opened with a warm holiday scene—the Neal family getting into the holiday spirit by listening to “Santa Claus is Coming to Town.” (The Temptations’ version, of course, given that in the Group member's “youthful nationalist days, it was easy to reject the idea that some ‘fat white man’ would be honored for providing gifts that hardworking black women and men, like my parents sacrificed to provide for their families.”) And as this happy scene proceeded, Neal’s daughter tossed in a comment: “Santa sounds like a stalker.”

This . . . insight . . . prompted Neal to pause and reflect on “the more troubling aspects of Santa Claus.” He ultimately concluded that his “daughter was on to something. Every holiday season millions of American embrace a seemingly innocuous symbol, that is in truth a powerful reminder of the reality of State surveillance in everyday life.”

Santa as a latter-day J. Edgar Hoover, all courtesy of a professor's child! Who knew?

It also seems that parents who invoke Santa in a desperate attempt to get their kids to behave need to turn in their ACLU cards—for, as Neal explained, “Santa Claus is but a user friendly symbol of the State’s capacity not only to engage in blatant forms of surveillance, but to essentially police behavior in the absence of actual surveillance . . . How many parents have exploited their children’s knowledge that Santa ‘knows when you are bad or good’ as a means of reigning in bad behavior.”

Neal then proceeded to more flights of fancy, moving on from surveillance to a critique of Santa-themed Christmas TV shows, which “portray Santa Claus as a benevolent patriarch. Benevolent, that is, as long as children (and presumably adults) adhere to some State sanctioned notion of normal and legal behavior.”

The “thugniggaintellectual” provided his own unique brand of insight into Santa’s “disruptive outlaw figures.” BurgermeisterMeisterburger in Santa Claus is Coming to Town, according to Neal, “reproduced anxieties” not about Nazism (don’t be fooled by the German-sounding name) but instead “about Soviet-styled Communism.” As usual with the Group, why let evidence get in the way of a good argument, in this case proving American society’s reflexive anti-leftism? Or take two of my favorites—the Miser Brothers of The Year Without a Santa Claus. In Neal’s reality, they “are used to gently chide the kinds of male flamboyance often associated with homosexuality(!!).”

Neal’s post concluded by meandering from his reflections on Santa to commentary about the “State sanctioned assassinations of Black Panther Party leaders Fred Hampton and Mark Clark.” Of course.

It’s easy, and wholly understandable, to laugh at this type of drivel. But it’s worth recalling Neal’s valued place within Duke. Indeed, the revelation of the “thugniggaintellectual” moniker came from Duke's public relations office itself; Duke Magazine published an interview with Neal in which he asserted that “my intellectual alter ego is thugniggaintellectual—one word . . .I wanted to embody this figure that comes into intellectual spaces like a thug, who literally is fearful and menacing. I wanted to use this idea of this intellectual persona to do some real kind of ‘gangster’ scholarship, if you will. All right, just hard, hard-core intellectual thuggery.”

Those remarks appeared in print just after the dean of students, in a public forum on the university’s response to the lacrosse case, worried that Duke students had created a "culture of crassness.” No worries about how a professor who said that he engaged in “hard-core intellectual thuggery” contributed to a “crassness” of discourse on campus.

But why bother confronting the hypocrisy of the academic powers-that-be when we can speculate on Heat Miser's sexual orientation?

Sunday, December 18, 2011

A Few Updates

[Update, Tuesday, 11.51am: The N&O reports that in an unpublished decision, a three-judge panel of the state Court of Appeals has upheld the conviction of Angel Richardson, even though DA Cline didn't turn over to the defense a statement that someone else claimed he had committed the killing until the trial was already underway.

In a remarkable piece of legal reasoning, the panel conceded that the evidence was exculpatory, and acknowledged that the Supreme Court's Brady standard (as well as, of course, North Carolina's seemingly toothless open file discovery law) requires turning over exculpatory material to the defense, but that there's nothing wrong with "the disclosure of evidence at trial, so long as disclosure is made in time for the defendant to make effective use of the evidence."]

A few updates on legal matters from Durham:

False accuser Crystal Mangum has been deemed mentally competent to stand trial for murder. Such a finding, it seems to me, best illustrates how low the bar for competency actually is—if Mangum isn’t seen as mentally imbalanced under the law, it’s hard to see who would be.

That said, the false accuser still has her defenders. Mangum co-author Vincent “Ed” Clark recently offered the following:

"The one thing I would want to add to this is that the story has been reported all wrong from the beginning . . . The narrative that Crystal lied about what happened that night is not true either. I was involved in the case from nearly the start. There are so many things that people don't know . . . the Duke case got used by a lot of people to score points in North Carolina . . . Unfortunately, reporter[s] and the general public are too lazy to do the work it takes to tell the real story. If you could just see, read or hear any of the interviews Crystal did with major media like NBC, CNN and the Daily Beast, you would have a completely different impression of what went on. Unfortunately, the attorneys for the players were very affective [sic] in killing any interviews Crystal did that made her look favorable . . . What I can tell you is that Crystal didn't make up being hurt. There were problems with the case but it didn't have anything to do with the information she provided . . . attorneys for the players[:] Many of them wereon the OJ [Brad Bannon as Johnnie Cochran??], Michael Vick and other similar cases . . . Racists [sic] idiots have no idea that the poor white boys in the case are and their parents have strong connections to the very media the hate[??]. The stress and lack of support for our own community really hurt Crystal. She has struggled to try and have a normal life but can't. Those clowns have hounded her for over five years. It has been said and unnecessary."

It’s worth pointing out: (1) none of the lacrosse players sued Mangum, as they obviously would have done if they had desired to “hound” her; (2) even the Queen of Bias, former SANE-nurse-in-training Tara Levicy, didn’t find any evidence that Mangum was “hurt”; (3) if the lacrosse players’ families had such strong connections to the media, how to explain the guilt-presuming media barrage in the early stages of the case?; (4) given that Mangum went on record with her rape-by-levitation theory, it’s hard to argue that anyone could deem any of her interviews credible.

But such comments offer a sense of the continuing reputational harm to the lacrosse players caused by Mangum’s false accusations and the Nifong/DPD misconduct.

The ethically challenged Tracey Cline remains Durham County’s chief prosecutor, even though her behavior prompted this extraordinary in-court remark from her former boss, now-Judge Jim Hardin: “In respect to motions in this court, and any others, please ensure they are factual . . . Consider this a warning and a public admonition as to that.”

That said: despite the public admonition, Hardin allowed Cline to “withdraw” her motions asking for prison-visitor records, apparently as part of an attempt to dig for evidence to prove her wild claims of a “conspiracy” against her. And Hardin chose leniency even though, as Andrew Curliss noted, “Cline offered explanations for why she sought the documents that do not match up with records requests made by her office's investigator or in the motions she presented to Hardin."

Meanwhile, the N&O is reporting that a Durham attorney, Scott Cooper, has organized a grassroots legal campaign to remove Cline from office—as the State Bar has requested between 800 and 900 pages of files from five of Cline’s cases.


Duke has filed a follow-up motion as the university continues its efforts to conceal as much as possible regarding its spring 2006 decisionmaking process. In the McFadyen lawsuit, attorney Bob Ekstrand requested material from the two public relations firms retained by Duke to craft the university’s public response to the lacrosse case. The requested material included items of considerable interest to any student of the case:

  • Burson-Marsteller’s public relations advice and communications with Duke University, its administrators, officials, employees, alumni, board members, regarding both “on” and “off-the record” statements to members of the press;

  • Duke University’s actions on April 5, 2006, including but not limited to […] the firing of former Head Coach Mike Pressler, President Brodhead’s television interviews, President Brodhead’s Letter to the Community, setting up a committee to examine the culture of the lacrosse team, setting up a committee to investigate the Duke administration and/or the decision to create any of the 5 committees announced by President Brodhead on April 5, 2006.
In a sometimes overheated reply, Duke’s attorneys described the subpoenas as an attempt to “harass the Duke Defendants” by prying into “confidential commercial information.” Somehow, I doubt that in future letters to prospective donors, Duke will describe itself as a commercial institution.

In the event, I suspect Judge Beaty will side with Duke on this matter—but his reasoning will be intriguing.


Finally, an issue unrelated to the specifics of the lacrosse case but one that touches upon some of the themes of the case.

A few days ago, the Suffolk (MA) County DA dropped all charges against New England Patriots wide receiver Julian Edelman, who had been accused of indecent assault by a woman he allegedly groped at a Halloween Party. Early press coverage, especially from the tabloid-ish Boston Herald, presumed if not guilt at the least a demonstration of extremely poor character.

When the charges were dropped, the DA’s office also released a video of the alleged “assault,” which the accompanying press release conceded showed what was, at most, “fleeting” contact between Edelman and the accuser—who neither the Globe nor the Herald deigned to name.

Perhaps, as occurred initially when the New York Times refused to identify Mangum after the exoneration, the papers didn’t want to do anything that might deter false-grope accusers from coming forward in the future.

Monday, December 12, 2011

More Words from Wahneema

Followers of the “Duke Events” website and U-stream portal received a rare treat this semester: Group of 88 author Wahneema Lubiano took time away from her two “forthcoming” manuscripts (forthcoming at 14 years and counting) to answer questions on such topics as the “relationship between literature and Marxist theory” in Duke’s online office hours.

In the literature program, explained Lubiano, “we could be attending to the thought of Marx.”

But she also wants to “attend” to the “discourse” of everyday matters, such as a bus schedule. “My students,” revealed she, “wanted to be able to explain to their parents what the Literature program was about that was different from the English Department.” Her example: bus schedules as a text! “People need to know what time is, what durations of time are. You need to think about where it’s going . . . you need to think about what it means to get on a vehicle,” and to move to the relevant section of the bus. The bus schedule allows her students to think about “how we know something.”

To give a related example: my five-year-old nephew is very interested in bus (and subway) schedules for many of the reasons that Lubiano identified. Perhaps he should apply for a position as a tenured position in Duke’s Literature program?

To communicate a thought, Lubiano never uses one word where ten would do. She spends nearly six minutes “analyzing” an Obama speech to the Congressional Black Caucus (at 6.21 of the linked clip). After much verbiage, she comes to a conclusion that anyone looking at a typical political column could receive: that standard black political rhetoric often imitates the cadences and style of the Black church. Lubiano delivers this analysis while taking sure to note that she, herself, is a non-believer.

The host of the program responded to this string of banalities with a breathless reply, “Wow.” Wow, indeed.

In things like an Obama presidential speech, Lubiano continues, “None of these words are accidental choices.” No kidding.

Lubiano also describes her classroom style, where “I would talk about the discourses that come together.” Sports, for instance—which according to Lubiano, is “an incredibly elaborate discourse.” (She admits that she doesn’t “know anything about it,” but has no problem speaking about it in the classroom.) “You could think of football or food or cancer treatment as a collection of social texts”—all of these things, she says, illustrate the “social order.”

Lubiano excitedly recalled that she was “sitting up all night long preparing for class one day, and . . . I just made a sign: ‘I heart Occupy Wall Street.’” It must be nice to teach a class in which the prof’s prep work consists of drawing a sign to place in her “folio.”

The host says that Lubiano has “written quite a bit” about Anita Hill. “Quite a bit” in this respect would be relative—Lubiano has written an essay on the topic. And Lubiano (see at the 20-minute mark) is such an “expert” on this matter that she apparently believes that former Missouri senator John Danforth’s name was actually Danfort. The discussion about Clarence Thomas revolves around two (apparently randomly-selected) photos of Thomas, one with President Bush and one with Senator Danfort [sic].

Amazingly, Lubiano says that she sees part of her work as commenting on “political history”—and yet she appears to know no more about U.S. political history than a typical college student. She certainly has no research background in U.S. political history. But, keep in mind, her student Melissa Harris-Perry has claimed that devotees of "black feminist" scholarship can rely on "experiential knowledge" rather than actual facts. Appropriately, the session concludes with a question submitted from none other than fellow Group stalwart Karla Holloway, asking Lubiano to reflect on the legacy of Derrick Bell—a race-obsessed law professor whose work mirrored the Group of 88’s “discourse” (to borrow a Lubiano term).

Based on these 40 minutes, Lubiano views her job as pontificating about everyday phenomena, in a way that virtually anyone with a pulse could do. Why it’s taken her more than a decade to produce the two books that she claimed were forthcoming is beyond me.

By the way, this “Online Office Hours” program seems to be a regular spot for Group of 88 figures. Below is a screenshot from Group member Kathy Rudy’s September appearance.

It’s worth pointing out, by the way, that the above comments refer to the thoughts of a figure described (by an unnamed professor) as “one of the smartest people in America.”



skwilli said...
I had a conversation with my dog yesterday that was waaaaay more interesting than anything Lubiano could ever say. Can any student taking one of her classes get their money back? Or how do I apply for a position in her department? I'm pretty sure I write just as well as she does, and I have many more interesting stories. How can Duke survive with crap like that?

12/12/11 7:41 AM
Anonymous said...
I hope parents of every kid even thinking about applying to Duke watch this. Before anyone writes a check to Duke Univ. they should know the pap that Duke is "selling."

12/12/11 9:00 AM
Anonymous said...
Almost like looking at "the people of Walmart." Also did you mean to say she has written 2 books?

12/12/11 9:27 AM
Anonymous said...
Just sent Duke my "88 cents" in response to their umteenth fund drive request. They can kiss my experiential backside.
My kid, and my meager funds, go to a real university where intelligence, production, honesty, hard work and integrity are words directly associated with the FACULTY! And taught daily to all the students. They don't harp on the evils of capitalism, the horror of racism, the disgrace of homophobia....they demand, live and teach by example....the value of hard work, the truth of real human rights, and the silliness of discrimination based on sexual preference. Shame on Duke for hiring and retaining these empty suit clowns. Cline would be a great Duke faculty member....she could teach Hooked on Phonics.

12/12/11 10:06 AM
Anonymous said...
I suppose it would politically incorrect to describe the arguments of these people as "fatuous"?

12/12/11 10:14 AM
Anonymous said...
If this is in any way indicative of the humanities and social sciences in American higher education, it's no wonder so many recent college graduates in this country are jobless. Before condemning Duke as an institution, however, it's worth noting that there are many excellent faculty teaching rigorous material in the physical sciences, engineering, economics, public policy, and others.

My son graduated from Duke in 2006 and majored in chemistry and economics. I got my monies worth. But I lament that my Alma mater employs, even promotes, such lunatic fringe. Our nation is experiencing unprecedented global competition. Society cannot afford to waste precious resources on self indulgent tripe masquerading as education.

12/12/11 1:50 PM
Lois Turner said...
The "People of Walmart" comment is spot on, and I suspect these two would take it as a compliment. No one expects middle aged college professors to look like, say, Helen Mirren, but this level of slovenliness and unprofessionalism as to personal appearance gives an awful impression of the university.

I note that the renowned Duke Diet & Fitness Center is "offering extra savings on new client seasonal rates" until December 19. Maybe someone should alert our dynamic duo of pie-loving profs.

12/12/11 4:12 PM
Anonymous said...
I am ashamed of Duke. Period.

12/12/11 5:59 PM

Thursday, December 08, 2011

Rev. Wells Departs Duke

The Rev. Sam Wells, Duke chaplain, is leaving his post to return to England. Wells was a peripheral player in the lacrosse saga, but his performance was a deeply unfortunate one, given his status as a man of the cloth. Throughout the case, Wells implied that he viewed his ministerial functions as confined to students who conformed to the humanities' faculty preferred race, class, and gender status.

On April 2, 2006, Wells (as he later revealed to the H-S) shelved his planned sermon, and instead talked about the lacrosse case. (Many months later, in an e-mail to me, Wells claimed his sermon in fact wasn't about the case, an assertion that not only contradicted what he told the H-S, but made no sense, given the sermon's contents.) In his sermon, Wells implied that the lacrosse players had broken the “law” of the university, and he placed their actions in a “subculture of reckless ‘entitlement’, sexual acquisitiveness and aggressive arrogance goes against every aspect of this law. It commodifies and consumes the bodies of others, with no generosity, no patience, no searching for truth or beauty, and no regard to its social significance. It undermines the university because it corrupts the imagination on which the whole university rests. It breaks the university's law. It debases desire.”

“The last week,” he contended, “has exposed the reality that sexual practices are an area where some male students are accustomed to manipulating, exploiting and terrorizing women all the time—and that this has been accepted by many as a given.”

Such views got Wells a spot on the wildly biased Campus Culture Initiative; and also appear to have prompted him--after Mike Nifong's case imploded--to invite NAACP head William Barber to give a Sunday sermon at Duke. That invitation came despite (or, perhaps, because of?) the NAACP's flagrant biases against the wrongly accused Duke students, and unsurprisingly led to a sermon that tried to rationalize the NAACP's inexcusable handling of the case.

To my knowledge, the Rev. Wells never apologized for his response to the lacrosse case, either to the wider Duke community or to the specific Duke students whose words he (erroneously) targeted. Indeed, in an e-mail to the blogger John in Carolina, Wells, like Barber, tried to rationalize his behavior.

Sunday, December 04, 2011

Cline Losing Her Grip (Updated)

[Update, Tuesday, 2.31pm: Joe Neff reports that proceedings were adjourned because of an apparent bomb threat, but not before DA Cline offered a "dog-at-my-homework" excuse in the Peterson hearing:

Cline also said she was unprepared and had not read(!!) 800 pages of evidence given to her after Thanksgiving . . .

“I am here to say my sister still has rights, and there is no way you can have this district attorney represent my sister,” said Candace Zamperini, (Kathleen Peterson’s sister). “They are not prepared, they haven’t read the documents…..I will tell you, this district attorney’s office is not the district attorney’s office of Jim Hardin, where I got good representation.”

Cline does not appear to have given a reason why she didn't do her job and read the relevant documents; she seemingly assumed that, at worst, Judge Hudson would allow her to delay proceedings by removing herself from the case, and was caught unprepared when the judge refused her demand.]

[Update, Tuesday, 9.28am: Joe Neff's article in today's N&O is worth reading in full, if only for the sheer entertainment value. It ranges from the bizarre (the attendance of a figure who has argued that an owl(!), rather than Michael Peterson, killed Peterson's wife) to the ridiculous:

Fox patiently listened as Cline discussed more than a dozen cases from state appellate courts that she said supported her request. At one point, Cline mentioned a case that she hadn't read yet and asked the judge for time to read it. Fox said yes.

The packed courtroom sat in silence while Cline sat alone at her table, flipping through documents.

After 14 minutes, Fox broke the silence: "Are you still reading the case?"

Cline said she hadn't located the correct citation.

Bill Thomas, appropriately, summarized: "It was remarkable that she offered no evidence in support of these extraordinary allegations."]

[Update, Monday, 6.42pm: Joe Neff reports that Judge Fox dismissed all of Cline's filings, dismissing her reasoning as "woefully inadequate."

Here's how Neff described the courtroom scene: "Cline then gave a rambling half hour speech that roughly tracked her court filings and made no mention of Peterson: Hudson was retaliating against her because she failed to dismiss a murder charge in the case of Derrick Allen."]

[Update, Monday, 12.29pm: Reporting from the courtroom, Joe Neff brings word that Judge Fox is . . . skeptical . . . of Cline's bizarre claims:

“There’s a lot of verbiage in here that has nothing to do with anything,” Fox said of Cline’s 286-page motion and foot tall stack of exhibits. “The affidavits are not sufficient.”]

There were a couple of occasions in the lacrosse case in which Mike Nifong all but baited the State Bar to file prompt ethics charges against him. The first came just before Election Day, when the embattled candidate traveled to NCCU and all but turned the American theory of justice on its head, asserting, “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself [emphasis added] is an indication that a case needs to be tried.” The second coincided with the week of the Meehan hearing, during which Nifong offered myriad (often mutually contradictory) explanations as to why he hadn’t reported all the DNA test results. The first set of ethics charges against Nifong arrived a few days later.

Based on an article in today’s N&O by Andrew Curliss, Durham is rapidly moving toward seeing its second DA in less than a decade removed for ethical improprieties. Curliss’s piece traces Cline’s by-now-standard pattern of fabrications, but it also shows that the county’s “minister of justice” has been reduced to lying about seemingly trivial matters.

In recent months, Cline expanded her network of untruths from Judge Hudson’s courtroom to that of her (and Nifong’s) former boss, Judge Hardin. The topic of Cline’s false filings: prison visitation records. In her filings to Hardin, Cline (falsely) claimed that the two prisoners (Keith Kidwell and Angel Richardson) had filed motions to which she needed to respond. Yet neither man had filed such a motion, nor had their attorneys intended to do so.

So why did Cline mislead the court; and why would she have any interest in such a seemingly obscure matter as prison visitation records? Cline refused to speak to the N&O, nor did she respond to an e-mail from me requesting comment. But it appears as if she was not only lying to a judge but abusing the powers of her office either (1) to dig for material to help save her law license in any ethics proceedings against her; or (2) as part of her futile attempt to compile “evidence” substantiating her wild claims of an anti-Cline “conspiracy” between Judge Hudson, defense attorneys, and the N&O.

Cline had no good reason for desiring the information: the prison department spokesperson Curliss, "Why the DA's office is interested in whether Kidwell is seeing his pre-approved visitors, I have no earthly idea. It's our own internal policy, so it's ours to police."

Jim Coleman told the N&O that the State Bar will be concerned about "not only whether she is misrepresenting and abusing the judicial process, but also whether she is filing patently false allegations in pleadings and taking advantage of the immunity that she has (as a prosecutor). ... She really is undermining the integrity of her office." Coleman also predicted that Cline could face a contempt-of-court hearing from Hardin.

Curliss’ latest exposé follows on Cline’s moves late last week regarding a hearing tomorrow in the latest appeal filed by Michael Peterson, the former Durham mayoral candidate convicted of killing his wife. (Judge Hudson was scheduled to preside over the hearing.) Cline wants Hudson off the case, and the H-S reported Friday that Cline has subpoenaed as many as 53(!) people to appear at the hearing. As a fallback, she’s requested that the Attorney General’s office step in for her if Hudson isn’t removed. The AG’s office has said it will accept Cline’s request—but only if it can obtain a continuance to allow its attorneys to get up to speed on the case.

The AG’s position is a reasonable one, but the fact that a long-scheduled hearing might have to be delayed because of Cline’s increasingly unhinged behavior gives a sense of why the Bar needs to intervene sooner rather than later.

For a sense of how untenable Cline’s position has become, even the local legal academy’s most prominent apologist for prosecutorial misconduct, Irving Joyner, has deemed the DA’s conduct “strange” and noted that her filings were apparent “misrepresentations to a court.”

When an unethical Durham prosecutor has lost Irving Joyner, it would seem there are few local legal allies left.

Monday, November 21, 2011

“Students Are Not The Enemy of . . . Faculty Unless We Invite Them To Be”

The past few days appear to have launched “Hypocrisy Week.” First, the New York Times public editor turned to Wendy Murphy—Wendy Murphy!—for guidance on how journalists should cover sexual assault cases. Then, the Chronicle of Higher Education turned to Cathy Davidson—Cathy Davidson!—to deliver a plea about protecting students’ due process rights on campus.

During the lacrosse case, Davidson distinguished herself for her “revisionist” interpretation of the Group of 88 statement, which she displayed in a January 2007 N&O op-ed. In a bizarre inversion of reality, the Group member claimed that the period between March 24 and April 6, 2006—when Duke administrators, professors, some students, and “activists” regularly denounced the lacrosse players—in fact featured a Duke campus with widespread, boisterous defenses of lacrosse players coupled with racist attacks on black women. “It was,” fantasized she, “as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women.” (In an e-mail circulated at the time, Davidson confessed that she penned the op-ed after consulting with a lawyer, and being informed that Group members could be vulnerable to civil suits.)

Davidson’s latest stab at commentary came in response to the pepper-spraying of peaceful protesters at UC-Davis—which today led to the suspension of the campus police chief. Cal-Davis deserves all the criticism that it gets for this incident, and I agree wholeheartedly with the remarks of FIRE’s Greg Lukianoff on the issue. Yet there’s something . . . peculiar . . . about seeing Cathy Davidson standing up for due process, given what was (at best) her indifference when three of her own institution’s students faced the highest-profile case of prosecutorial misconduct in recent U.S. history. It’s even more remarkable to see her pen an article entitled “A Plea to College Presidents: Exercise Your Moral Leadership,” given the failed “moral leadership” exhibited by her own institution’s president in the lacrosse case.

Davidson, however, appears unable or unwilling to detect her hypocrisy. “Students are not the enemy of administrators and faculty unless we invite them to be,” writes the Group member. If nothing else, the Group of 88 statement invited dozens of Duke students to recognize that some of the most outspoken faculty members on campus viewed them as the enemy.

The Davidson essay is notable for another matter relating to academic hypocrisy. Over the past several weeks, I’ve heard of troubling instances in which CUNY faculty members have brought the Occupy Wall Street protests into their classrooms, including at least two occasions of professors “encouraging” their students to actually attend the protests. Davidson seems to see little problematic with such conduct, noting approvingly that she has “heard from faculty and administrators who see the Occupy activities as appropriate for thoughtful conversation and debate across a numerous departments, whether economics or ethics.”

It would be interesting to see how many professors who see OWS as a “teachable moment” had a similar reaction to the Tea Party movement, which in many ways was OWS’ mirror image from 2009-10. (I rather doubt that Davidson had such a reaction, for instance.) From defenders of the academic status quo, we often hear (correctly, in my opinion) that the partisan affiliation of professors, in and of itself, is irrelevant to the quality of education. But that argument becomes much harder to sustain when professors so blatantly bring their political sympathies into the classroom.

“Students are not the enemy of administrators and faculty unless we invite them to be.” Cathy Davidson certainly knows of what she speaks.

The Times Again Shames Itself

The New York Times’ failure in covering the lacrosse case occurred on many levels. At the most basic level, of course, the paper’s handling of events could be blamed on the flawed and biased reporting of Duff Wilson, along with the fact-free “commentary” of Selena Roberts and Harvey Araton. At a second level, the paper’s record demonstrated a massive failure by the editors—from then-sports editor Tom Jolly upwards, to Bill Keller: once Wilson’s flaws had been exposed for the world to see, editors had no obligation to keep him on the story.

At a third level, however, the story represented a failure of the Times’ public editor, a position established in the wake of the Jayson Blair scandal to represent the readers and to champion journalistic integrity from within the paper. Then-public editor Byron Calame penned two columns on the lacrosse case. The first, which appeared in spring 2006, minimized even the factual inaccuracies that had marred Roberts’ early columns. The second, which came after the exonerations in spring 2007, denied any ideological bias to the Times coverage, and declined even to speculate on why the Times had gotten the story so wrong for so long. It was left to the AJR and the Chronicle to analyze the Times’ wreckage.

Yet even Calame’s poor performance can’t hold a candle to the most recent public editor’s column from Arthur Brisbane. The subject: how the paper should cover rape allegations. In formulating his suggested approach, Brisbane consulted with three people, each of whom was described as some form of victims’ advocate. One was Claudia Bayliff, project attorney for the National Judicial Education Program. A second was Marci Hamilton, a professor at Cardozo Law School.

The third was . . . Wendy Murphy.

That’s right. The public editor believes that reporters at the nation’s paper of record should take guidance on how to appropriately cover sexual assault cases from a figure who informed a national TV audience that she had “never, ever met a false rape claim”; and had, in her public statements about the highest profile sexual assault case of recent years:

  • asserted, without any evidence, that “there’s a very good chance there was a payoff” to false accuser Crystal Mangum and the second dancer, Kim Roberts;
  • implied, falsely, that the unreleased 1000+ pages of the discovery file, which contained Mangum’s psychological records and was sealed upon orders of the judge, might have contained “witness statements from the defendants’ friends—statements saying that a rape occurred just as [Mangum] described”;
  • fantasized, falsely, about the existence of “broomstick DNA” in the case;
  • reasoned that, contrary to North Carolina’s open-file discovery law, ex-DA Mike Nifong had a right to withhold evidence from the defense (one of the offenses for which he was eventually disbarred;
  • deemed Mangum’s ever-changing version of events as “minor inconsistencies”;
  • claimed, falsely, that President Brodhead had publicly asserted that “many” non-lacrosse players attended the party;
  • bet,” on national TV, that one of the falsely accused players was “molested as a child”;
  • made no fewer than 18 false statements in the first nine months of the case alone.

A while back, Salon’s Alex Pareene used Murphy’s career to suggest that “there are, in the mass media, absolutely no consequences for blatant, constant lying.” Public Editor Brisbane’s column, however, reveals something even more shameful: that the public editor of the nation’s most influential newspaper could consider such a figure suitable to provide guidance to journalists.

Friday, November 18, 2011

"Power Without Responsibility or Conscious"

[Update III, 3.47pm, Saturday: Two articles were posted on the N&O website earlier this afternoon. The first, by Joe Neff, notes that on Friday, Cline filed a 285-page(!) motion--described by Neff as "packed with passionate and personal attacks" against Judge Orlando Hudson--demanding the removal of Hudson from all Durham criminal cases. Cline further alleged a wide-ranging conspiracy to discredit her between Hudson, various Durham defense attorneys, and the N&O. The paper's executive editor, John Drescher, appropriately deemed the (unsubstantiated) allegation "crazy."

The second article, by Andrew Curliss, reveals that the State Bar has begun looking into Cline's behavior. Additionally, both Jim Coleman and former North Carolina chief justice Burley Mitchell sharply criticized Cline's behavior, noting that the issues raised by Cline--alleged errors by Hudson--would be handled through appeals, not by accusations of ethical misconduct. Of Cline's filing, Mitchell said, "I have never, never seen anything like it"; Coleman contended that "you don't discredit a judge in this intemperate way," adding that he was unaware of any comparable filing against a judge "in any context."

And, from the comments section, a reminder that in 2008, the Independent hailed Cline (whose J.D. comes from North Carolina Central, and whose B.A. comes from Livingstone College, in Salisbury, N.C.) as a "great attorney" who "could be an excellent role model for the young African Americans caught in the system." Those comments, by the way, came in an editorial in which the paper admitted that it was wrong to have endorsed Mike Nifong in 2006. How long will it be until Indy similarly retracts its praise of Cline?]

[Update II, 10.35pm: In an interview with WTVD-11, Jim Coleman notes, "This is as an extreme of a reaction by rulings of a court that I've ever seen, particularly because it's so personal. The basis for it appears to be rulings that can be reviewed on appeal and if the judge got it wrong, they can be reversed . . . There probably a lot of lawyers who had thoughts like this about judges, but I've never seen one actually put it in a pleading and filing it."]

[Update I, 12.40pm: Joe Neff tweets that the Cline filing was an "all out, one of a kind attack" on a judge. And I e-mailed Cline to ask why she didn't proofread her document before filing it; she did not respond.]

In a blockbuster article, the N&O’s Andrew Curliss revealed that embattled Durham County “minister of justice” Tracey Cline has filed a complaint with the North Carolina Judicial Standards Commission against Durham judge Orlando Hudson. Cline accused Hudson of acting with “BAD FAITH” (capitalization and emphasis in original) and deemed him guilty of “moral turpitude, dishonesty, and corruption.” The DA added that the existence of the complaint gives Judge Hudson a conflict of interest with the Durham DA’s office, and therefore he should hear no criminal cases until any ethics proceedings against him are completed.

In a rambling, 12-page document, Cline charged Hudson with having a vendetta based on her handling of the Derrick Allen case. She outlined her . . . reasoning . . . in this meandering sentence (grammatical and run-on errors all in original): “The District Attorney alleges, based upon information and belief, that this Honorable Court’s action of attempting to coerce the District Attorney into dismissing Allen and then for this Honorable Court to engaged in retaliatory conduct against the District Attorney and the District Attorney’s office after the District Attorney refused to dismiss that case are actions that constitute an improper or wrongful use of the power of this office by acting intentionally and with gross disregard for this conduct and in bad faith.”

Cline offered her “evidence” for Hudson’s alleged gross misconduct in three-and-a-half pages. She summarized what she saw as the basic facts of three cases (Yearwood, Dorman, and Allen) in which Hudson had ruled against her. Cline provided no new evidence to sustain her wild claims, most of which were thoroughly debunked in the N&O’s “Twisted Truth” series. Instead, she frequently resorted to citing unspecified, and unrevealed, “information and belief” (about her own cases!). Based on the arguments presented in her filing, virtually any high-profile ruling against a prosecutor could be deemed judicial misconduct.

The most striking aspect of the filing, however, came not in Cline’s decision to accuse a sitting judge of gross misconduct based largely on his having had the temerity to criticize her own unethical behavior. Rather, it was her decision to do so in a filing that appeared as if it were written by an ill-prepared high school student rather than a major county’s chief prosecutor.

A comedy of grammatical errors, the filing included numerous comma splices that (doubtless unintentionally) produced passages that differed from Cline’s desired meaning. Sometimes the DA seemed unable to write in complete sentences. (“Also a nurse saw the defendant looking at the deceased child’s vagina prior to there being any indication of sexual assault.” Or: “That the appellate courts have reviewed this case two times and each time did not overturn this conviction.” Or: “In that the agency was helping the family with counseling and trying to locate other family members.”) Mid-sentence, Cline frequently capitalized words (Game, Stayed, Interest) for no apparent reason. Occasionally, she ended sentences without periods. Sometimes, she used words Sarah Palin-style, as when she asserted that Hudson’s behavior “retards” confidence in the court’s application of the law.

Most embarrassingly, the filing was riddled with spelling mistakes. At one point, Cline referred to saliva as “salvia.” At another, she described the court system’s principles as the “principals” of the criminal court system. At still another, she feared that her rights were “striped away” by Hudson’s rulings. At yet another point, Cline charged that the legal system’s credibility was a “causality” of Hudson’s conduct. And consider this single-sentence paragraph, with the emphasis added: “This is power without responsibility or conscious.” Was Cline suggesting that Hudson had passed out while delivering his rulings?

Finally, ponder this borderline incoherent sentence, with which Cline began her introduction to the Yearwood case (run-on nature, lack of punctuation as in original): “Mother of 12 year old victim comes home at lunch hears her daughter scream out Mom help and goes to her bedroom to see her daughter crying, her panties torn on the floor, her dress torn and being held up trying to cover her body and the defendant is there buttoning his pants.”

In many circumstances—say, comments on a blog—there’s little, if any, expectation of the writer adhering to basic rules of grammar. But, in this instance, a sitting district attorney took the extraordinary step of registering a claim of ethical misconduct against a sitting judge. Yet this prosecutor, whose job includes the writing of legal briefs at the trial level*, couldn’t even take the time to have someone who knows how to write proofread her legal filing?

It should go without saying that, if removal proceedings aren’t already underway against Cline, this filing should force the State Bar to take a hard look at her fitness for office. As Curliss notes in his article, "Ethics rules for lawyers say they cannot 'engage in conduct intended to disrupt a tribunal' or engage in discourteous conduct 'degrading to a tribunal.' Ethics rules also require lawyers to bring actions based in law and fact, and that a lawyer cannot make a statement 'with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.'"


Monday, November 14, 2011

Duke & Penn State

A couple of intriguing connections in the media coverage between the Penn State scandal and the Duke case crossed my desk in the past week.

The first comes in a well-done piece in the Chronicle of Higher Education on how the scandal might affect the university in the long term. The article contains the following passage:

It could be years before the legal case runs its course. In the meantime, the university needs to focus on the messages it presents to the world and figure out the right strategies to get those messages across, says John F. Burness, a visiting professor of public policy at Duke University, who was its chief spokesman during the 2006 lacrosse scandal.

"While Penn State is probably best known for its football program and iconic coach, it has a lot of academic quality across the board," he said. "In the long run, that won't be changed at all, and will very much help them get out of the current chasm they're in."

I suspect that Burness is correct, although at this stage I wouldn’t be confident in the prediction—in part because I’m not at all certain that Penn State has much of a reputation for “academic quality across the board,” in part because this affair has the potential to exact even more damage depending on how the civil lawsuits proceed.

That said, it’s worth using the Burness quote to note the difference between this scandal and that at Duke: at Penn St., there’s no evidence of any wrongdoing by any academic units. At Duke, by contrast, the scandal quickly called into question the “academic quality” of dozens of faculty members, who seemed unable or unwilling to unable to evaluate evidence that contradicted their preconceived race/class/gender worldview.


Late last week, the Patriot-News, the major newspaper in the Penn State area, also examined the issue of the potential damage to the long-term Penn State “brand.” The article featured extensive quotes and summaries of previous university episodes of bad publicity (Duke, Texas A&M, and Virginia Tech) from Terry Hartle, a vice president at the American Council on Education (ACE). The council describes itself as “the major coordinating body for all of the nation's higher education institutions, seeks to provide leadership and a unifying voice on higher education issues and to influence public policy through advocacy, research, and program initiatives.” Given the obsession with certain types of diversity in contemporary higher education, it’s not hard to determine ACE’s reflexive position on “diversity” issues.

Hartle was paraphrased in the following way:

In all three cases, the universities organized themselves to determine the root causes of the crisis put policies and procedures in place to ensure it never happens again and fairly quickly re-established credibility and confidence with various public audiences.

It’s difficult to determine what Hartle could have been talking about when he suggested that Duke had done anything that resembled reforming its policies or procedures to ensure that something like the university’s response to the lacrosse case never occurs again. The university, of course, has spent lots of money in legal fees and settlements—but those efforts have, in part, been undertaken to protect the rush-to-judgment contingent among the faculty.

The university reappointed its president, and retained the same faculty hiring patterns that appeared to foster the rush-to-judgment attitude. It doesn’t appear that even any of the faculty members were punished in any way for their dubious and in a few cases unethical conduct. Indeed, several Group of 88 members have been promoted to deanships. Duke consistently has avoided any kind of investigation into why the administration and faculty so disastrously rushed to judgment and abridged their students' rights—the episodes that prompted the university to settle out of court with the falsely accused players and remain at issue in the unindicted players' suit. If a lacrosse-like case emerged at Duke tomorrow, it's hard to imagine things would play out much differently at the university than they did in 2006.

While I know little of the Texas A&M case, Duke appears to be the anti-Virginia Tech. While VT undertook a full inquiry, and changed procedures to make sure that a student like the shooter never again fell through the cracks, Duke appears to have taken the reverse approach. But, of course, for a university convinced that it must do nothing to reduce the emphasis on "diversity" in hiring patterns or regarding curricular matters, Duke's response comes as little surprise.

I e-mailed Hartle to ask him what he was talking about in his comments regarding Duke. He did not reply.

Sunday, November 06, 2011

Assorted Legal Matters

The City of Durham has filed its final brief in its mid-case appeal to the 4th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.

To reiterate, here is how Judge Beaty has responded to the Durham argument:

Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.

Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.

The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”

But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.

Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.

This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.

Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.


One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.

Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.

In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.

At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”


One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."

As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.

In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?


The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.

In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."

Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.


Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.

As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.

A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.


Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.

But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.

In fact, the grand jury report said something quite different. Here’s the relevant excerpt:

“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.

In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.

[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]

Wednesday, November 02, 2011


A few update items:

(1) Group of 88 extremist Grant Farred is back in the news, after the Cornell student government—with only one negative vote—passed a resolution (unsuccessfully) urging the Cornell administration to reconsider its decision to have Farred chair the Africana Studies Department’s search for a new department chair.

The genesis of the controversy was Farred’s 2010 decision to refer to two female African-American graduate students as “black bitches.” The chair of the student government’s Women’s Issues Committee, who sponsored the resolution, asserted that the appointment of Farred indicates that we don’t have the support of the University in reversing sexism on campus.” Note, of course, the presumption—asserted as unchallengeable fact—that “sexism on campus” at Cornell is so pervasive as to need to be reversed.

The co-director of Africana Studies, David Harris, dismissed concerns with Farred’s appointment, which he deemed an “administrative service” and which he—almost hilariously—implied gave Farred little power to shape the future direction of the department. (Harris is a 1997 Ph.D. with several book chapters and articles, but without a scholarly monograph. He has served as Cornell’s interim provost; his course list includes “Race and Policy”; “Research Seminar in Race and Ethnicity”; “The Demography of Race”; “Racial and Ethnic Identity”; “Introduction to Social Inequality”; “Elementary Statistics”; and “Race, Class, and Social Policy.”) Harris also denied that Farred’s role in chairing the search would make it harder for Cornell to recruit quality applicants. “We are a month away from deciding who we will bring in to interview and I have yet to hear people say [that] ‘I am concerned about coming here because of Grant,’” he said. “What I am hearing is that people are concerned about Cornell because of all the negative press … I think that has a much greater effect on our search.”

Harris’ statement confirms guidance I once received from a long-time mentor in the battle for academic freedom on campus: even in a campus dominated by the race/class/gender trinity, he reminded me, in the end, race trumps all. And certainly applicants to chair an Ivy League Africana Studies Department would recognize as much. So despite the oft-stated concern among the politically correct campus left with sexism, it seems entirely plausible that no applicants would have any trouble with Farred, despite his sexist statement—since, in the end, his status as a race-based demagogue is almost without parallel at Cornell.

And, not to belabor the obvious, it’s worth pointing out that no one at Cornell has even attempted to offer an explanation as to why the university would choose a figure who had slandered students at his previous university while deeming students from his current school “black bitches” to run such an important search.


(2) False accuser and accused murderer Crystal Mangum has been deemed mentally competent to stand trial—in some ways, a surprising ruling given the extent of her mental difficulties.

Additionally, the accused murderer’s request to reduce her bail was denied. Mangum, remarkably, had based her claim on a desire to see more of her children—the same children who were in the other room as she attempted to set fire to her previous boyfriend’s bathroom.


(3) Finally, a follow-up on Lubiano-Chafe student/Group of 88 apologist Melissa Harris-Parry, and her remarkable argument that as a practitioner of “black feminist scholarship,” she can rely on “experiential knowledge” as significantly as actual evidence in constructing arguments.

A point from her recent book provides a sense of how such “experiential knowledge” works in practice. Among Harris-Perry’s other claims was the following, about the origins of the Group of 88 statement: “Less than a year after Hurricane Katrina revealed patterns of festering racial inequality and prompted national conversations about black citizenship, these eighty-eight members of the Duke faculty chose to frame the lacrosse scandal as a disaster. In the long shadow of Hurricane Katrina, this choice is an important clue to the multiple meanings associated with the rape accusation. In this context,‘disaster’ evokes a sense of unequal vulnerability to supposedly neutral processes. The faculty members were drawing a link between the abandonment of black citizens in the aftermath of Katrina and the sense of vulnerability that many black men, white women, and especially black women felt on Duke's campus.”

As with Harris-Perry’s general interpretation of the Group and its critics, the Katrina-Group statement traces its roots to the unsubstantiated claims of former Africana Studies chairman Charlie Piot. And, of course, linking the Group’s statement to Katrina provides a way of removing some of the tarnish from the faculty’s actions: if the Group’s protest derived from the horrors of Katrina, it would seem, the Group should be seen as noble critics of an indifferent or even racist American state.

There is, of course, only one problem with Harris-Perry’s claim: there’s no actual evidence to link the Group’s statement with Katrina. In the 15 sentences from the Group’s statement that appeared in the faculty’s own words, no mention was made of Katrina. In the e-mail sent by the statement’s author, Wahneema Lubiano, soliciting membership in the Group, no mention was made of Katrina. In the alleged statements from anonymous alleged students quoted in the ad, no mention was made of Katrina.

But, of course, Harris-Perry doesn’t need “evidence” to advance her arguments. She is, after all, a practitioner of “black feminist scholarship.”