Point/Counterpoint

The civil suits are largely on hold—thanks to a legally-debatable decision by Judge Beaty to delay discovery while Durham’s attorneys (who have, to date, billed the city for nearly $5 million, according to the AP) appeal to the 4^th Circuit. Attorneys for the falsely accused players have now filed their response to the city’s legal theories.

Summarizing the Case

The Durham brief (filed in late July) summarizes events of the case in an almost comical form, as if what occurred was little more than a routine police investigation beset by no procedural improprieties: “Stripper[] Crystal Mangum alleged that she had been raped at that party. Durham police investigated her allegations—meeting with witnesses and working through the district attorney’s office to obtain DNA evidence. After ten days of investigation, State Prosecutor [sic: District Attorney] Michael Nifong became involved in the case. He was fully briefed by City investigators as to the available evidence. Nifong later sought, and obtained, indictments against Plaintiffs. Plaintiffs were briefly arrested following indictment, and then immediately released while the investigation continued. The charges and indictments were later dismissed.” Indeed, according to the Durham attorneys, the “factual allegations [in the case] do not give rise to a plausible inference of malice.”

And here’s how the Durham brief describes the no-fillers-allowed photo array: “On April 4, 2006, Sergeant Gottlieb showed Crystal Mangum additional photograph arrays of Duke lacrosse players,” who had, by this point, been publicly identified by Nifong and the DPD as suspects.

The falsely accused players’ response frames the context more appropriately: “The Complaint describes one of the most notorious episodes of police, prosecutorial, and scientific misconduct in modern American history. It details the sustained, coordinated actions of police and City officials to fabricate evidence, conceal evidence of Plaintiffs’ innocence, inflame the community with false public statements, and mislead the grand juries, resulting in the unlawful arrests of Plaintiffs without probable cause.”

Ignorance Is Bliss

In what attorneys for the falsely accused players correctly deem “the City Defendants’ ‘blame Nifong’ approach,” the Durham brief goes to considerable length to suggest that ex-DPD officers Mark Gottlieb and Ben Himan can’t be held liable for their improper behavior—and that any misconduct that occurred resulted from the decision of “State Prosecutor” Mike Nifong.

[An aside: With this wording, which appears throughout the brief, the Durham attorneys invent a new position in Durham County, whose voters apparently elect not a district attorney but something called a “State Prosecutor.” The reason for the sleight-of-hand is obvious—to downplay the actions of Nifong as head of the police investigation, actions for which he (and the police officers with whom he collaborated) are unequivocally liable; and instead to repeatedly label him an employee of the state, which has immunity under the 11^th amendment.]

For instance, Durham wishes away the Gottlieb/Himan role in the meeting with Nifong and ex-lab director Brian Meehan, since neither “of the City investigators knew anything at all about DNA testing, let alone the industry customs and standards regarding the proper reporting format of such results. Indeed, Plaintiffs’ allegations make clear that State Prosecutor [sic: District Attorney, or at this stage of the case, lead police investigator] Nifong—not the City investigators—decided not only who would test the DNA, but how those results would be explained to the public, shared with the defense, brought before the grand jury, and presented to the Court.”

The falsely accused players’ attorneys dismiss this argument out of hand, given that “the detectives did not need to be experts in DNA testing to understand the simple conclusion that Plaintiffs’ DNA did not match that found on the rape kit items and, thus, that Plaintiffs could not have raped Mangum in the manner she claimed—a conclusion they already had reached in their investigation.”

Similarly, Durham cites Himan’s admission to Gottlieb and Nifong that no evidence existed to indict Reade Seligmann (“with what?”) to suggest that their officer corps acted without malice. Yet, as the players’ attorneys point out, this isn’t the message the DPD communicated with the grand jury, and so “the fact that the detectives and Nifong were candid with one another about the lack of inculpatory evidence and abundant evidence of innocence does not negate the allegations of malice when each of them took actions to conceal this fact from others.”

And in a line that would draw laughs from anyone remotely associated with the case, Durham concludes that Gottlieb’s myriad instances of misconduct resulted not from his (documented) malice toward Duke students, but instead was “explained by the seriousness of Mangum’s claim.” (This is about the only time at any point in the case that I have encountered an implication of ex-Sgt. Gottlieb as overly conscientious.) Countered the players’ brief, “Even if . . . Gottlieb thought that Mangum was credible and actually believed that she was raped, that still would not justify his actions in ignoring evidence of Plaintiffs’ innocence and trying to frame them for the alleged crime.”

In fact, it seemed at times as if the Durham attorneys shared with their star client a tendency to mislead by omission. The players’ brief caustically observed that “nowhere in their entire brief do the City Defendants mention Gottlieb’s ‘supplemental case notes,’ which Gottlieb fabricated months after the indictments in an attempt to cover up inconsistencies and contradictions in Mangum’s actual statements regarding the incident. Such actions are hardly consistent with the claim that the detectives were simply making a ‘good-faith effort to investigate an allegation of a serious crime,’” as the Durham deems Gottlieb’s (mis)conduct.

According to the Durham standard, it seems, as long as the police deal with a “serious” claim of wrongdoing, they can behave according to virtually any standard. This line of argument is bizarre.

The city’s defense of Cpl. Addison for his parade of false, yet wildly inflammatory, statements against the lacrosse players is even stranger. The Durham brief suggests that as Addison did not participate in the actual investigation, the players can’t show that he knew his statements were false. And if he didn’t know his statements were false, he can’t be held to have acted with malice. This claim, alas, seems to prove the falsely accused players’ case, for if Addison knew nothing about the case, then he “had absolutely no basis for his false media statements that Mangum was ‘brutally raped’ at the party, that the players living at the house (one of whom was [David] Evans) had refused to cooperate with the search warrant, that there was ‘really, really strong physical evidence’ of a crime, and that some or all of the players knew about the attack and were obstructing the investigation, let alone for his ‘Wanted’ poster stating that Mangum was ‘sodomized, raped, assaulted and robbed’ in a ‘horrific crime’ during the team’s party.”

Contradictory Claims

The Durham brief manages to term exculpatory evidence as somehow supportive of a crime. For instance, the brief notes that “the following day, complaining of pain, Mangum told medical personnel at UNC Hospital that she had been attacked the prior day.” The brief doesn’t indicate where this “pain” allegedly was (Mangum’s back), nor that she hadn’t indicated any pain in the back the previous evening, nor that her goal appeared to be to get access to more prescription pain medication, nor that this follow-up trip to a different hospital (where she told yet another different story) would have seemed to a reasonable observer more evidence of Mangum’s mental instability. (The false accuser, by the way, is now facing a mental competency hearing in her murder trial, and the H-S implies that she’s been transferred to a state mental institution.)

And here’s how the Durham brief describes Mangum’s initial interaction with Gottlieb & Himan: “Repeating her earlier allegations, [emphasis added] Mangum told the officers that three men had raped her, and provided physical descriptions.” Mangum, of course, didn’t repeat her “earlier allegations,” since before (or after) March 16, 2006, she never offered a consistent version of events. And the Durham brief doesn’t mention that at least one of her “physical descriptions” from the March 16 meeting didn’t match any player on the lacrosse team, while those descriptions also didn’t even remotely resemble at least two of the people ultimately charged.

Durham’s Alleged Invulnerability

The Durham brief repeats the same argument already rejected by Judge Beaty—namely, that the city has no legal liability because the grand jury indictment “broke any causative link between the City Defendants’ investigative actions and Plaintiffs’ post-indictment arrests.” Indeed, Durham fumed, “the district court never considered” the issue. The players’ attorneys coolly replied that Beaty’s “opinion below devoted five pages to this issue and rejected the City Defendants’ argument because they are alleged to have misled the grand juries.” For nearly half-a-million dollars, you’d think Durham could get more thorough litigators.

In a troubling concession for Durham justice, the city’s attorneys also maintain that it doesn’t matter if Gottlieb and/or Himan lied to the grand jury (as Gottlieb, by his own admission, did): neither they nor the city can be held liable for their behavior.

In their reply, lawyers for the falsely accused players gently observe (quoting from multiple cases) that “case law establishes . . . that the chain of causation is not broken, and a police officer is not relieved of liability, where—as here—the officer is alleged to have ‘misrepresented, withheld, or falsified evidence’ that influenced the grand jury’s, or another independent decision-maker’s, decision to indict or bring charges. In such a case, a ‘prosecutor’s decision to charge, a grand jury’s decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial—none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.’”

Intriguing Claims

(1) The Durham brief maintains that the city has immunity, “because its insurance policies [which, if they exist, would mean that the city waived immunity] do not cover the conduct alleged here.” Yet, the lacrosse players’ attorneys “have identified numerous contradictory statements by the City regarding its insurance coverage, which demonstrate not only that the City does appear to have such coverage, but that summary judgment cannot be granted on this issue prior to discovery.”

(2) The Durham brief also claims that Gottlieb and Himan can’t be held liable for conspiring to produce a false DNA report, since “the DNA report was compiled after Plaintiffs Seligmann and Finnerty had already been indicted—so it could have had no effect on those indictments.” Of course, the duo’s initial meeting with Nifong and Dr. Meehan—in which, by the accounts of Gottlieb, Meehan, and Nifong, they discussed the DNA evidence that would appear in the report—occurred before any indictments, on April 10, 2006.

(3) The Durham brief includes this curious clause: “Corporal Addison is alleged to have made certain statements between March 24 and March 28 as the ‘Durham police spokesperson.’” Are the Durham attorneys suggesting that Addison didn’t, in fact, make the statements? That he lied when he identified himself to reporters as the acting department spokesperson? That he made some statements but not others? Who knows—the brief never says.

In any event, Durham concludes that “a reasonable officer [would] believe, at the time of Addison’s statements . . . , that [he was] not violating any constitutional right.” (Durham’s new motto: Durham, Where Police Officers’ Slander Doesn’t Violate Any Constitutional Right.”) Judge Beaty’s ruling disagreed, noting that “a reasonable official would have known that it violated clearly established constitutional rights to deliberately make false public statements regarding a citizen in connection with an unlawful arrest of that citizen.”

(4) The Durham brief admits that the April 4 photo array was “suggestive,” but contends there was nothing wrong legally with Gottlieb and Nifong conspiring to run a photo ID outside Durham’s procedures, without any fillers, and after Mangum had already failed to identify two of the people ultimately charged. Indeed, the brief breezily continues, “No reasonable police officer would know that . . . arranging a suggestive photo array violated a constitutional right if the resulting identification was not entered into evidence at trial.” In other words: in Durham, it’s OK to arrest people on rigged ID’s, and then simply not produce the evidence of the riggings at trial. And even more chillingly, Durham maintains that “Plaintiffs’ right [and, by inference, the right of all Durham citizens] to be free from ‘malicious prosecution’ is thus hardly ‘beyond debate.’”

This assertion drew a stinging reply from the players’ attorneys. Quoting Beaty’s ruling , they noted that “’there is no question’ that the right not to have ‘government officials deliberately fabricate evidence and use that evidence against a citizen’ was ‘clearly established’ in 2006. For good measure, the players’ brief quotes a 1^st Circuit case, Limone v. Condon, which observed, “Although constitutional interpretation occasionally can prove recondite, some truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” That Durham appears to believe otherwise is remarkable.

(5) And finally, in an attempt to get police supervisors and former City Manager Patrick Baker off the hook, the Durham brief offers the following howler, regarding a late March 2006 meeting between Baker, ex-Police Chief Steven Chalmers, and the police investigators: “even if Baker and Chalmers ‘ordered’ the investigators to ‘expedite’ the case, the much more likely ‘obvious alternative explanation’ is that they were attempting to bring the case to closure, rather than to convict innocent people.” So that’s what was going on—it’s more likely than not that Baker and Chalmers were pressuring Gottlieb and Himan to close the case and ensure that no criminal charges were filed.

Nothing in the exchange between attorneys for Durham and the falsely accused players changes the basic conclusion from Beaty’s March ruling: "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. This Court cannot take such a restrictive view of the protections afforded by the Constitution."

Updates, Including an Extraordinary Passage

[Update, Friday 9.09pm: A blockbuster piece in today's N&O detailing the degree to which DA Cline twisted the truth in her public "town hall" denouncing the N&O series. Using Cline's own words, the article (penned by Andrew Curliss and Joe Neff) demonstrates that Cline, at best, has convinced herself of self-serving versions of events that aren't true; and, at worst, is simply incapable of telling the truth.]

A few case-related items in the news:

First, Andrew Curliss reports that Frankie Washington—whose conviction was tossed out on grounds that Durham authorities denied his right to a speedy trial—has filed a lawsuit against not only the city of Durham but also embattled “minister of justice” Tracey Cline. As a district attorney, Cline possesses virtually total immunity for decisions made as a prosecutor. But the suit, filed by the Bob Ekstrand, accuses Cline of libel and slander, based on her recent public statements reiterating her absolute, seemingly faith-based, belief in Washington’s guilt. (Cline had no comment on the suit.)

The suit asks both for money and for an independent oversight board for the DPD. Curliss reports that Durham Mayor Bill Bell said that the city would consider reform steps even before a court order—but given that Bell and Durham politicians did nothing when the massive misconduct associated with the lacrosse case was revealed, it’s hard to imagine any forthcoming action from the Washington case, either.

Second, the Daily News caught up with ex-BOT chairman Bob Steel, now (after his . . . sterling . . . performance running Wachovia) a deputy mayor in New York City. Thanks to an executive order from Mayor Bloomberg, top city officials must live in the city unless they receive a waiver, which Steel did not. Yet the Daily News caught up with Steel at what the paper described as his “extravagant Greenwich [CT] mansion”—at which his wife, four dogs, and Porsche, Mercedes, and Lexus all reside.

When the Daily News reporter dropped by, Steel’s wife claimed that he was at his other residence in the city, only to have Steel then appear “wearing golf shoes, shorts, and a preppie sweater.” Steel, naturally, denies any wrongdoing, and claims that his primary residence is in New York.

Finally, the Atlantic is a publication of unusually high quality. How, then, to explain the following passage, from an article about prominent African-Americans’ personal confrontations with racism?

Duke Professor Wahneema Lubiano, who was introduced to me by a brilliant college professor as "one of the smartest people in America," [triple emphasis added] internalized a racist comment and it shifted the course of her life. In the early seventies, in Pennsylvania, in high school, she took the National Merit Scholar's test and placed as a semifinalist. But when she went to the guidance counselor, he suggested she go to secretarial school. "And I believed it," she said. "I went home crying but I believed it." Lubiano ended up going to the University of Pittsburgh but she left after freshman year. "I dropped out, thinking, 'You're too stupid to do this,'" she said. "The damage had been done." She didn't return to college for ten years.

When she went back she went to Howard University and it changed her life. "I was surrounded by really smart black people who were pretty casual about it," she said. "It's not like you walked into a class and sat down and said, 'This is a miracle there are so many smart black people here.' No, you normalized it, it was routine. And in that way it was really nurturing because being smart was routine." For someone with tremendous mental capability and a self-esteem so fragile that it could be broken by a slight comment from a white man she respected, Howard was a life-saver. "By the time I finished with Howard I could go to grad school at Stanford because I was ready."

At least the so-called “brilliant college professor” had the good sense to offer such a breathtaking description on a not-for-attribution basis, to avoid any personal embarrassment. But perhaps this item will provide a new excuse for Prof. Lubiano’s perpetually-forthcoming manuscripts: her sheer brilliance prevents her from getting her thoughts down on paper.

Hat tip--T.S.

Cline the Dissembler

In an interview with the H-S, Duke Law’s Kathryn Bradley correctly noted that Tracey Cline’s holding a “town hall”/political rally wasn’t in and of itself an ethical violation, given that she planned to discuss trials that had already ended. That said, the peculiar nature of Cline’s decision was unavoidable: “Duke’s Bradley questioned whether Cline was speaking as Tracey Cline, the elected district attorney of Durham, or if she was speaking as Tracey Cline, who didn’t like what was written about her . . . During the meeting, Cline seemed to indicate it was both.”

Just because something might not be unethical doesn’t mean it makes any sense.

Moreover, Cline obtained little but some more embarrassment from her decision to escalate the fight with the N&O. A DIW reader who went to the “town hall” reported the following breakdown of attendees:

• 8 odd members of the media
• 7 members of the office of the public defender
• 3 ada's (all arrived late, one left early)
• 3 young ladies (purpose of attendance unknown)
• 2 members of the sheriff's office (both arrived late)
• 1 police officer
• 1 minister (a supporter who tipped out after praising her)

If Cline anticipated a swelling of grassroots support, her plan backfired.

Moreover, in an event designed to discredit the “Twisted Truth” series, Cline twisted the truth. She charged that the N&O had misrepresented the record by reporting that she never testified before the jury in the Frankie Washington trial. But, as Joe Neff pointed out, the court records showed that the N&O, not Cline, was correct.

So the embattled DA misrepresented the truth even at her own gathering.

Cline’s handling of the N&O series—which revealed a prosecutor who has only a loose relationship with the truth—seems to have robbed her of whatever credibility she retained, a potentially fatal blow for any prosecutor.

Put yourself, for instance, in the position of a judge handling the appeal of Angel Richardson. In this case, Cline admitted wrongdoing. She violated the Brady rules by failing to turn over, until the trial already had started, police notes that indicated someone else had claimed to have committed the murder. Cline (who, like her predecessor Mike Nifong, boasted of her policy of turning all files, not merely exculpatory ones, over to the defense) claimed that the error was inadvertent, and subsequently defended her decision in court filings.

That document prompted a blistering response from Anne Petersen, Richardson’s attorney, in a filing yesterday posted by the N&O. Petersen termed as “ludicrous” and “inane” Cline’s claim that she should be absolved of her responsibility of handing over the exculpatory evidence on grounds that the defense team could have obtained this information on its own. (By running a classified ad in the H-S, perhaps?) Petersen accused Cline of having “misrepresented the record” (where have we heard that before?) in an attempt to minimize the significance of the DA’s non-disclosure. And Petersen dismissed Cline’s almost comical point that her non-disclosure was irrelevant on grounds that “overwhelming” evidence existed against Richardson. This “Cline Doctrine” (which amounts to saying that Brady doesn’t apply when the prosecutor has decided that she has strong evidence against the accused) would be a far more extreme restriction on criminal defendants’ civil liberties than anything the Supreme Court has promulgated since the Court’s shift to the right in 2005.

Normally, a defense attorney describing a prosecutor’s arguments with such strong terms as “inane” might cause a judge to suspect that the argument is overheated. But Durham isn’t a normal situation, and given Cline’s behavior (including her town-hall appearance), a description of her as misleading the court or offering ludicrous arguments seems perfectly reasonable.

And that situation applied even before this morning’s extraordinary item from the N&O’s John Drescher, in which Judge Orlando Hudson told the N&O that—despite Cline’s protestations to the contrary—he held her “responsible” for her misrepresentations in the Derrick Allen case.

It’s hard to dispute Drescher’s conclusions: “Durham District Attorney Tracey Cline has a problem with facts . . . in communicating in broad strokes, she pays little attention to detail, as if it doesn't matter. She has her story, and she's sticking to it, the facts be damned . . . Cline says she would never lie in court. Let's give her the benefit of the doubt and say her memory has failed her from time to time, as it apparently did Wednesday night . . . But in the end, she's the district attorney for Durham. She is an officer of the court. She is responsible for what she says. The facts matter, regardless of how fast Tracey Cline speeds past them."

And, it goes without saying, Cline continues to deflect comment on whether she will release the 2007 conversation with Michael Biesecker, in which she offered her opinion on the strength of the evidence in the lacrosse case.

Tracey Cline's Philosophy of Justice (Updated)

[Update II, Thursday, 9.56pm: The behavior of Cline at her "town hall"/campaign rally was bizarre even by her usual standards. First, doors to the courthouse were locked when the event began at 5.30pm, because Cline appears not to have informed the sheriff deputies who handle security at the building about her plans.

Second, at least according to reports in both the H-S and N&O, Cline appears to have ranted against the N&O series without offering any new lines of defense, beyond those that already had been deemed bankrupt in the N&O series.

Third, she did make one specific claim of error against the N&O--only to be proved wrong by the relevant court transcript. Reports Joe Neff,

Cline criticized the Sept. 4 story that focused on her handling of the case of Frankie Washington.

"The story says I testified in front of a jury? Never happened."

The trial transcript indicates otherwise. The jury was called into the courtroom, Cline took the stand, testified and stepped down.

The jury was later dismissed.

Finally, and by this point unsurprisingly, Cline did not comment on what she said about the lacrosse case in her 2007 interview with Michael Biesecker. She did not respond to an e-mail from me asking for her rationale in not bringing up the interview at her . . . truth-seeking . . . event.]

[Update, Tuesday, 11.18pm: In her e-mail exchanges with the N&O, Tracey Cline demanded that the paper send reporter Andrew Curliss and various other figures to what she described as a "town hall" (actually, as she outlined it, more like a Cline political rally) to defend the paper's work. The paper's editors "respectfully" declined Cline's idea, but indicated a willingness to engage, and suggested instead that Cline and Curliss both appear on a neutral forum, such as WUNC. Cline indicated no interest in such an option, nor did she respond to the paper's repeated requests to comment on her 2007 remarks about the lacrosse case to the N&O's Michael Biesecker.

What, then, appeared in Sunday's Herald-Sun? The advertisement below.

The ad doesn't mention that the N&O already declined a "town hall" request, just as Cline appears to have declined the N&O's offer to appear on WUNC. Nor does the ad give any indication that Cline even communicated this new, date-specific "offer" to the N&O. The ad contains no indication of its funding source. Did Cline pay for it out of her own pocket? And what must the State Bar think of this bizarre move? A prosecutor holding "town hall" meetings to criticize a series that indicted her by using her own words doesn't strike me as terribly temperate behavior.]

A problem with prosecutors misleading the court and the public comes in the difficulty of keeping the “revised” story straight. In the lacrosse case, Mike Nifong experienced this problem when he discussed why he didn’t turn over all the DNA evidence to the defense. By the end of the affair, he had offered nearly a dozen (sometimes mutually contradictory) explanations.

It nonetheless was pretty surprising to see that Tracey Cline could not proceed even six minutes before offering contradictory statements on whether she advised Nifong about the case. And these contradictions didn’t even take into account whatever she told to the N&O’s Michael Biesecker in 2007; a 2008 statement from Durham attorney (and DA candidate) Keith Bishop that Nifong and Cline had met with a client of his to discuss the case; and a 2008 note from a figure inside the DA’s office, that Nifong “utilized a small inner circle of advisers, known informally around the office as his “Cabinet,’” which included Cline, and which “met at least weekly for approximately one hour prior to the regular staff meeting of all ADAs and staff. They advised Nifong on sensitive matters and undertook the most sensitive duties in the office. The laborious process of copying, reviewing, and organizing the voluminous discovery in the lacrosse case was not outsourced due to confidentiality concerns; instead it was performed by and under the supervision of, these most trusted advisers of Mr. Nifong.”

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Lacrosse matters comprised only around three percent of the July 28 interview between Cline and N&O journalists. The N&O’s series speaks for itself, and didn’t depend in any way on material gleaned from the Cline interview. But the discussion, which lasted more than two hours and which was posted at Cline’s request, provided an extraordinarily revealing look into Cline’s approach to her job and her general philosophy.

Cline stated that she tells all her prosecutors that at all stages before a case goes to trial, they need to step back and look at the facts, lest they miss anything that might contradict their theory of the case. Yet, at other points in the interview, Cline made perfectly clear that this strategy does not guide her approach to handling cases. Speaking of the prosecutor in the second person, Cline implied that “true justice” was “trying every case where you know the defendant is guilty beyond a reasonable doubt.” [emphasis added]

Most prosecutors would seem to focus on cases with strong evidence of guilt, such as confessions, good eyewitnesses, DNA matches, or other compelling “evidence” to ensure a guilty verdict. And when these elements don’t exist, a good prosecutor might want to ask some hard questions about the quality of the case or whether the police arrested the right person (or, in the case of a sexual assault claim, whether a crime even occurred). But not Cline. “Courage,” to her, comes in trying other cases, “cases that do justice to the community and the victim.” [emphasis added]

In short, Cline seems to see herself as essentially a victims’ rights advocate, but one armed with the powers of the prosecutor. If she believes the victim—regardless of whether any objective evidence exists to sustain this belief—the case should go to the jury. During the lacrosse case, it had been widely rumored that Cline had instituted this policy for sexual assault cases; now, it appears, her belief-even-without-corroborating-evidence philosophy applies to all cases in Durham County.

Cline, by the way, curiously denied that her approach constitutes a philosophy. Rather, she said, “it’s the way it should be.” Take a listen:

Perhaps reflecting this philosophy of bringing cases to juries that in fact never should have been tried, the N&O uncovered data suggesting that in 2010, only 30 percent of Durham County’s felony trials ended in convictions on the felony charge; and over the past five years, Durham County had the lowest rate of convictions of North Carolina’s 10 largest counties. The N&O’s Andrew Curliss explained the paper’s methodology to Cline, noted that the figures came from the relevant statewide agency, and asked her an obvious question: was she aware of the plunging percentages in convictions? Incredibly, this data appeared to be news to the DA. But Cline’s first response was to deny the N&O’s figures (without citing any of her own). Here’s the clip:

One problem with Cline’s true-believer approach—once the prosecutor has decided, for whatever reason, that the defendant is guilty, the case must go forward, evidence be damned—is that it invariably leads to a shading of evidence, even on minor matters, to confirm the preconceived belief. Consider this brief excerpt regarding the Yearwood case (allegation of a man trying to sexually assault a 12-year-old girl, only to have the mother allegedly walk in)—but in which no DNA evidence match existed to the defendant.

The N&O has posted the transcript of the 911 call (the mother talks to the 911 operator and in the background to her daughter). But Cline believes that the mother also was talking with the alleged perpetrator in the background—a description of events that would corroborate the theory of the case that the mother walked in on the sexual assault, with the startled perpetrator continuing to lurk. Take a listen:

The N&O also has posted an excerpt of the police interview with Yearwood, in which he admitted that he was present at the house (looking for yard work) but passionately denied having done anything inappropriate with the girl. When the police arrested him, Yearwood was drunk and belligerent. But at a pre-trial conference, Cline told the judge that Yearwood was so drunk he could scarcely give a coherent statement—at best a highly misleading statement, at worst a lie.*

When asked about this behavior by Curliss, Cline simply reiterated that Yearwood was drunk (which no one had denied—the issue was whether he was so drunk as to not have been able to give a statement) before hilariously claiming that the N&O excerpt constituted not a “statement” but a “conversation” with police—as if the judge ever would have suspected that Cline was drawing such a highly technical distinction. This clip lasts a few minutes, but is quite interesting:

This is the case, by the way, in which Cline gave highly misleading statements about the nature of the DNA evidence, which contained no matches to the alleged perpetrator. Pressed by Curliss on these statements in the interview, she didn’t see that she had done anything questionable.

Cline’s true-believer approach was also on display when she discussed the Frankie Washington case (lack of a speedy trial, in which a plausible alternative suspect existed) with N&O journalists. Washington didn’t match the description initially given of the suspect. He was identified not through a lineup but instead by driving him in a police car and having the victims look at him from 20 feet away. The N&O reporters asked Cline whether this was a good ID tactic. She appeared unable to process the question, however, and, Perry-esque, simply stated that the tactic was legal:

With this highly dubious ID as her most significant evidence, Cline went to trial. And even through—as observed in the N&O series—it’s at the very least reasonable to believe that someone else, a convicted criminal, committed the crime, Cline has refused to send the available evidence for DNA testing. She reasoned that she knew that Washington was guilty. Evidence that might contradict that belief seems most undesirable, as is clear in this clip (which lasts a few minutes):

In some ways, however, the most depressing portion of the interview came in this brief excerpt, when Cline outlined the standard to which she (and her prosecutors) should be held. Always telling the truth? Upholding basic ethical guidelines? Following regular procedures? Not exactly—take a listen:

Perhaps this item will provide her re-election slogan: “Tracey Cline: Doing the Best She Can.”

*--corrected, regarding pre-trial rather than in-trial statement

Cline on Nifong & Lacrosse Case: “I Think I May Have Generally Given Him Suggestions"

The N&O has released audio of a lengthy (more than two hours) discussion between DA Tracey Cline and N&O journalists. Virtually the entire interview dealt with the ethical breaches revealed in the “Twisted Truth” series. But for 5 minutes, 32 seconds, the two discussed the lacrosse case. Here’s the audio excerpt:

Four particularly striking items from the interview.

First: As you’ll see if you listen to the above, Cline is very, very careful about what she says. After N&O reporter Andrew Curliss initially brought up the topic, she almost snarled, biting out, “What do you mean, my role in the Duke lacrosse [case]?” She then repeatedly paused (a couple of times for a significant period), cut herself off, and retreated to generalities.

Second: Contradicting both the DNA evidence and the attorney general’s findings, Cline described the case as “acquaintance rape situation.” In an acquaintance rape claim, of course, both sides acknowledge that sexual contact occurred, and the only question at play is a matter of consent.

Third: While Cline consistently refused to give a direct opinion on Crystal Mangum’s various tall tales, Curliss noted (correctly) that her description of a prosecutor’s role—a willingness to try hard cases despite a lack of evidence, as long as the prosecutor believes in the “victim”—is almost identical to how Nifong described his motivation in the lacrosse case. Curliss then noticed that Cline was smiling, and asked her why. She coyly responded, “I’m just smiling.”

Fourth: Further confirming her reputation for slipperiness with the truth, Cline managed to offer differing descriptions about three aspects of her role in the case—again, in less than six minutes. The contradictions:

Whether She Had Any Involvement in the Case

Cline claimed that she never talked to Nifong about why he took the case, even though, as the chief sexual assault prosecutor for the county, the case normally would have been assigned to her. Cline further claimed that the case simply “didn’t come to my desk.”

But earlier in the interview, she conceded that the case “was originally going to be mine,” and that, originally, the case did come to her desk. She admitted that she had been the prime mover behind the ethically dubious NTO (which operated under the premise that even lacrosse players for whom the state had no evidence were even in Durham that evening could be required to give DNA).

Whether She Discussed the Case with Nifong

When asked directly about whether she spoke to Nifong regarding the case, Cline confessed, “I think I may have generally given him suggestions,” although she refused to reveal the content of those discussions. But then, less than a minute later and after a lengthy pause, she seemed to deny that she had spoken to Nifong about the case: “If he had asked my opinion, I would have given it to him.”

Whether She Would Have Tried the Case with Nifong

At the start of the discussion, Cline seemed to concede that she would have served as second chair at trial, recalling that “Mike had asked me if the case went to trial if I would help him, because he hadn’t tried a case in a long time.” But then, less than two minutes later, she denied that she would have served as second chair, telling Curliss, “I don’t think so.” She offered no explanation for why this was so, or who would have served as second chair in the trial if she had not done so.

A critical point: this interview occurred on the 28^th of July. According to the e-mail stream released by the N&O, at the time of this discussion, Curliss hadn’t uncovered the tape of a 2007 exchange between Cline and the N&O’s Michael Biesecker, in which Cline apparently commented on the lacrosse case. What did she say? Would her 2007 remarks contradict what she told the N&O reporters in 2011? And why has she refused to respond to at least five requests (two from the N&O and three from me) to release the tape?

The Cline Files

As a follow-up to its series explicating ethical breaches by Durham DA Tracey Cline (which I analyzed here), the N&O has released a treasure-trove of primary sources—e-mail exchanges, an extended audio clip—between its journalists and Cline. As in the lacrosse case, the N&O deserves kudos for its willingness to place copious source material (in the case of this series, court reports, legal briefings and arguments, and police reports) on-line, so readers can test the series' accuracy.

For those who have followed the lacrosse case, by far the most significant item from the 59 pages of e-mails is the following:

Although she would have served as second chair to Mike Nifong had the lacrosse case ever made it to trial, Cline has never made a public statement about the evidence in the case. This audio excerpt, therefore, has the potential to be a bombshell. Cline ignored two requests from the N&O regarding discussing the clip. And she has failed to respond to three e-mails from me asking if she planned to authorize the clip’s release, and, if not, what she told N&O reporter Michael Biesecker in 2007.

For residents of Durham County, the entire e-mail thread is significant. The e-mails reinforce—rather than undercut—the N&O’s portrayal of a prosecutor who, at best, places winning above factual accuracy to such an extent that she (1, below) repeatedly, and publicly, misrepresents key pieces of evidence. The e-mails also show a chief prosecutor who has (2, below) difficulty with basic spelling and grammatical rules; and who seems (3, below) unable to engage with data that contradicts her pre-conceived viewpoints.

In the e-mails, Cline repeatedly told the N&O that she had an attorney—but she just as repeatedly refused to divulge the attorney’s name. If, in fact, this unnamed attorney counseled her to release these e-mails, she should sue for malpractice.

T. Cline, Esq., Paragon of Ethics (Cont'd.)

At Tracey Cline’s demand—and despite a caution from N&O reporter Andrew Curliss that she might want to reconsider, given their content—the N&O released its reporters’ and editors’ e-mail exchanges with the Durham County “minister of justice.” Far more important than the strange spelling and grammatical errors common in the elected DA's writings, the e-mails reinforce, rather than rebut, the N&O’s portrayal of a prosecutor who too frequently bends the truth to advance her case.

Consider, for instance, these two troubling examples from the e-mail exchanges. First, Cline misrepresents physical evidence:

Curliss responds:

And then Cline misrepresents DNA evidence:

Again, Curliss has to set the record straight, in the process revealing a troubling "evolution" of Cline's public statements:

By the way, the e-mails also feature this Gottlieb-esque development from the DPD, as seen in this Curliss e-mail to Cline, about a DPD officer penning way-after-the-fact notes:

In Durham, it appears, some things never change.

Tracey Cline: Durham's Rick Perry? (Cont'd.)

Tracey Cline is the chief prosecutor for Durham County. Her job requires—among other things—a degree of intellectual facility. Chief prosecutors must write briefs, and think quickly on their feet in developing and articulating oral arguments.

Starting this spring, Cline stated that she would only communicate in writing with N&O reporter Andrew Curliss. And so e-mails flew back and forth between Cline and Curliss, as well as other N&O journalists and editors. In response to the “Twisted Truth” series, Cline demanded that the N&O make public all of these e-mails. Curliss tried to give her an out, noting that the e-mails featured her making factually erroneous statements. But Cline insisted.

Below are some excerpts from the e-mails. Everyone has typos in e-mails. But Cline repeatedly makes basic spelling mistakes—such as:

Cline also favors wild run-on sentences—the sort of writing that I often see from poorly-prepared freshmen, but would never expect from a chief prosecutor:

And I have absolutely no idea what Cline meant in this sentence:

Cline also tends to play the victim card—even as she noted in her interview with the N&O that she didn’t want to suggest she was a victim:

Politico recently ran a column with the blunt headline, “Is Rick Perry Dumb?” The e-mails suggest that Durham’s current DA is in Rick Perry’s intellectual league.

Tracey Cline: Durham's Rick Perry?

One of the most extraordinary videos of a politician I have ever seen was this interview of Gov. Rick Perry.

Asked a simple question, Perry not merely was unable to provide a coherent response, but he couldn’t intellectually engage with (or even process) data that contradicted his pre-ordained belief. It was almost as if Perry thought the interviewer was speaking Hebrew.

Listening to Cline’s July 2011 discussion with N&O journalists reminded me of the Perry interview. Cline’s chief complaint—which she also expressed several times in e-mails to the N&O—involved a claim that in March 2011 articles about the Derrick Allen case, the N&O hadn’t revealed that the state had turned over bench notes regarding SBI testing to the defense.

This complaint would have been serious, if true. But not only had N&O articles mentioned the fact twice, N&O staffers read to Cline, during their meeting, the relevant sections from the paper’s stories. Much like Perry in the abstinence clip, Cline reacted as if her interviewers were speaking a foreign language (except for when she said she had no complaint about Judge Orlando Hudson making the same alleged error of which she was accusing the N&O). She repeatedly pressed the N&O reporters and editors to see her point of view. They confessed they were unable to do so—and understandably, since Cline’s “view” was incomprehensible. Here’s the section of the interview:

Based on this . . . reasoning . . . Cline concluded that the “Twisted Truth” series had done her a grave “injustice.” She penned a rambling e-mail demanding that the N&O send reporter Andrew Curliss, plus the paper’s editors, to a Cline-arranged “town hall,” at which she would invite “the victims in the crimes of alleged misconduct,” representatives from the DPD, and local politicians. (In other words, she planned to arrange a Cline political rally.) The N&O editors declined, but expressed a willingness to have Curliss appear alongside her in a neutral forum, such as a moderated discussion by the WUNC public radio station. Cline didn’t indicate any interest in such an option.

T. Cline, Esq., Paragon of Ethics (Cont'd.)

[Update, Tuesday, 5.11am: The third and final part of the series portrays a "minister of justice" who routinely flouts not merely the Supreme Court's Brady requirement (which mandates that all exculpatory evidence be turned over to the defense) but also North Carolina's open file discovery law (which mandates that all material be turned over to the defense). As with the first two parts of the series, Cline blames everyone else (the police, unnamed people in her office, procedures in her office that she claims to have changed, poor cooperation in one case with the FBI) for her failure to uphold legal ethics.

Viewing the articles through a lens most favorable to Cline, the series portrays a prosecutor who sees her role not as a "minister of justice" but as the representative of victims of crime, and who believes that her sole role as elected D.A. is to obtain convictions, by whatever means necessary. Through a more realistic lens, the series shows Cline to be fundamentally unethical, a prosecutor who believes that the rules don't apply to her.

One final note, on the similarities and differences between Nifong and Cline. Anyone who followed the lacrosse case will recognize the similarities--the willingness to mislead judges, bizarre rationalizations of negative DNA evidence, withholding exculpatory evidence while simultaneously (and sanctimoniously) proclaiming in public about having turned over all files.

But there's a very significant difference, as well. Cline, in this series, comes across as someone whose basic goal is to win at all costs, while breaking myriad rules in the processs. But there's no indication that she ever interfered in a pre-indictment police investigation--her rule-breaking always appears to have begun after indictments occurred--or that she has exploited a case for immediate political gain, as Nifong did. So there's something of a difference in motive, even as both chief prosecutors exhibited fundamentally and deeply unethical approaches to their position.]

[Update, Monday, 11.07am: The second part of the series should send chills to anyone who followed the lacrosse case. The case involved a claim of sexual assault against David Yearwood, in which then-ADA Cline misrepresented DNA findings to the court and withheld evidence from the defense attorney, all while she was claiming to go above and beyond the legal requirements by providing "open-file" discovery. Sound familiar?

A couple of passages to capture the flavor of Andrew Curliss' exposé, which I recommend in its entirety: "Cline told a judge that 'contact was insufficient' to capture Yearwood's DNA. She said the tests couldn't determine whether saliva found in the child's vaginal area belonged to the girl or to Yearwood. But the crime lab's work was clear about Yearwood: No forensic evidence, such as hair or fluids, connected him to the alleged crime, according to interviews and SBI records."

More: "Cline said she believes that she spoke accurately but that she relied in some instances on information that was available to her but is not in any record."

And a Nifongesque touch: "Long-settled law in the United States requires that defendants receive information the state gathers if it could be favorable to the defendant or if it would undermine, or impeach, a witness. Cline said in hearings during the Yearwood case that she went beyond that, giving 'open file' access. But records Yearwood's lawyers have not previously seen have recently emerged. The SBI's lab report and notes, as provided to Yearwood for his trial, are 12 pages. The SBI says its file is 71 pages. Investigators scraped Yearwood's fingernails, but he has no reports about testing on them. In one hearing, Cline said the police had dusted for fingerprints in the home, mentioning as many as 20 prints. But she said they couldn't be evaluated because they weren't 'workable.' No reports about fingerprinting were provided to Yearwood."

Tracey Cline was going to be Nifong's second chair if the lacrosse case had gone to trial. It's quite clear, based on the above, that she would have had no problems with his unethical handling of the case. The question now is how much she advised him, in private conversations, to follow his unethical course.]

The voters of Durham County elect a district attorney with a record of public, ethically-dubious behavior. Now possessed of more power than ever before, the “minister of justice” only intensifies the unethical conduct.

The two sentences above could apply to either of the last two district attorneys elected in Durham. Mike Nifong is, fortunately, disbarred, and can’t harm people anymore. Tracey Cline is, alas, still dispensing her brand of “justice” in the Triangle.

A blockbuster story, by Andrew Curliss, in today’s N&O shows Cline to be, at best, utterly indifferent to legal ethics; at worst, she is someone determined to break the rules on a consistent basis in order to win in court. The article’s thesis: “In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers. . . . Cline's conduct is under scrutiny for similar behavior in at least five cases other than Washington's that are in various stages of the courts, according to documents and interviews.

Today's article focuses on the Court of Appeals dismissing the conviction of Frankie Washington, on 6th amendment grounds. (That’s extraordinary in and of itself—though technically all defendants have a right to a speedy trial, the courts almost never enforce those rights.) The article shows that, in handling the case, then-ADA Cline was at best negligent and at worst lied outright on the witness stand (Washington’s attorney had called her to testify to ask why it took so long for the case to trial). Cline tried Washington on a procedurally dubious eyewitness ID, without forensic evidence, and without looking seriously into evidence that another man, a convicted criminal named Lawrence Hawes, actually committed the crimes.

Even now, almost incredibly, Cline refuses to ask the SBI lab to compare the DNA evidence in the case to Hawes’ profile, which they have on file. Why? "It was clear to me that Frankie Washington was the person who did it."There was never any doubt in my mind that he committed the offense."

Evidently, Tracey Cline “knows” the truth, evidence be damned. Does that sound familiar? But what more could be expected from a "minister of justice" who invited Mike Nifong to her inauguration?

Curliss also interviewed several jurors from the case, all of whom didn’t know the charges had been dismissed. They recalled that when deliberations had begun, considerable disagreement had existed, but that they had eventually based their decision to convict largely on the basis of eyewitness ID. Yet the police had never even included Washington as part of a lineup—instead, two witnesses, sitting in the back of a police car, got a look at Washington from a distance of 20 feet. Incredibly, Cline seemed to have no problem with sending someone to jail based on such police conduct: "Frankie Washington has very smooth skin around his eyes, extremely, very distinctive eyes," she said. "It was clearly a legal show-up."

The State Court of Appeals, more reasonably, wrote, "We are troubled by the Durham Police Department's use of a highly suggestive show-up procedure to identify defendant as the perpetrator of this crime."

The Court of Appeals opinion overturning Washington’s conviction is brutal in its description of the DPD’s behavior and Cline’s indifference to legal norms: “The circumstances of this case are unprecedented,” the court wrote, in that “even with more than four-and-one-half years of time to prepare its case, the State failed to completely analyze the evidence as ordered.”

More important, “the record contains overwhelming evidence that the actual reason for the delay in this case was not a neutral factor, but rather, was repeated neglect and underutilization of court resources on the part of the Durham County District Attorney’s Office.” Evidence was “not submitted to the SBI lab for analysis until 4 August 2005, which was more than three years after these items were collected.”

“The record reveals that during the prosecution, the State was given notice of evidence tending to establish the guilt of another person already in custody, yet the State failed to request that the SBI make appropriate comparisons of the evidence to this person.”

The opinion noted the Court’s concern with “the fact that the victims in this case were permitted to participate in several in-court identifications nearly five years after the date of the crime.”

And then the opinion zeroed in on Cline: “At trial, Assistant District Attorney Cline testified that it can take ‘years’ for the SBI to fully test an item. This assertion, however, is simply unsupported by the evidence of record.” Cline’s stunning response to the Court? “In an interview, Cline did not recall[!!] her testimony at the trial."

In a series of interviews and e-mails with Curtiss, Cline offered varying explanations/excuses for her behavior. “I would not sit in a courtroom and lie. I wouldn't," she said. "That is not who I am. And anybody that knows me will tell you that.” That a person who invites to her inauguration the only DA in Durham's history convicted of lying to the court, and who then cut the salaries of the people in her office most associated with championing legal ethics, can claim to be a truth-teller to the core is almost laughable.

On another occasion, Cline seemed to blame the system, almost as if violations of constitutional rights are inevitable and unavoidable, and a prosecutor doesn't have any independent role in upholding ethics: “Every day we go to court - or in every jurisdiction in North Carolina, South Carolina, probably all the 50 states - there's evidence that's thrown out because of constitutional violations. There's confessions that are thrown out. There's evidence that's suppressed. Everything. This happens every day because of a violation of someone's constitutional rights. And, to be sure, sometimes the guilty people go free."

A few broader points:

(1) Events in Durham since 2006 are Example A of the dangers of elected district attorneys. Based on the results of the 2006, 2008, and 2012 elections, a majority of Durham voters are indifferent to electing chief prosecutors who are, in turn, at best indifferent to adhering to basic legal ethics. The result is almost predictable—a D.A.’s office run by people who can’t tell the truth will invariably trample on defendants’ rights.

(2) Washington’s fate—and the fates of the other defendants who have suffered from Cline’s unethical behavior (and that of the DPD)—brings into relief the folly of how groups like the NAACP and supposed progressives such as Irving Joyner and Diane Catotti approached the lacrosse case and its aftermath. Rather than realize that it was likely that the behavior of Nifong (and Cline) and the DPD likely had threatened the rights of other defendants, they chose to function as Nifong apologists—thereby losing the chance to push for a full-scale review of how the DPD and the prosecutors associated with the lacrosse case had behaved in other cases.

(3) Will the State Bar inquire into Cline’s behavior?

Reminders

A few items from the last week serve as reminders of the lacrosse case.

First, a teaser from yesterday’s N&O front page, highlighting an article to appear Sunday (that I’ll blog) on Mike Nifong’s ethically-challenged successor, Tracey Cline.

Second, college football fans might have read about the arrests of two of LSU players (including the starting quarterback) for assault. LSU’s current athletic director is former Duke AD Joe Alleva—who demonstrated a rather uneven record in the lacrosse case: he shifted from initial public support for the lacrosse players to sudden silence, even as faculty members starting publicly going after student-athletes. All the while, he remained on the job despite being involved in a boating accident that resulted in alcohol-related charges against his son, before moving onto LSU at a higher salary.

Alleva’s comment on the football players’ travails? According to the Times-Picayune, “For his part, Alleva said the current problems facing the football team are "frustrating," but added that he understands how to handle delicate off-the-field issues from his experience around an alleged 2006 Duke lacrosse rape case that sparked controversy during his time as athletic director at the school.

“There's a lot of similarities in this situation," said Alleva, who has been at LSU since 2007. "I think it's always disappointing when student-athletes don't behave the way they're expected to."

A “lot of similarities” exist between the situations? Really? In the LSU case, no one appears to be denying that a fight occurred and that people were injured, though the players’ attorney has stated that his clients are innocent. (The lawyer has been careful not to deny that the players participated in a fight.) In the Duke case, on the other hand, the players’ attorneys consistently said that no crime occurred, and no physical evidence existed of any injury.

In the LSU case, the prosecutor and police appear to have behaved ethically—and, indeed, seem to have bent over backwards to ensure cooperation with the players. In the Duke case, on the other hand, both the prosecutor and the police cast legal ethics aside in an attempt to obtain convictions.

In the LSU case, there’s no evidence of race/class/gender-oriented faculty exploiting the situation to advance their pedagogical agendas (perhaps because one of the accused is a non-wealthy African-American, albeit one who owns no fewer than 49 pairs of shoes). In the Duke case, on the other hand, activist professors aggressively exploited the case, initially relying solely on the version of events presented by Mike Nifong—though most, in the 2007 clarifying statement, reaffirmed their rush to judgment even after Nifong’s case imploded.

In the LSU case, the accused players appear to have acted well outside the norm for LSU students (most LSU students, it would seem, don’t engage in bar fights). In the Duke case, on the other hand, the lacrosse players—along with hundreds of other Duke students, and thousands of students nationally—attended a tasteless spring break party; and—along with nearly 20 Duke groups over the course of the 2005-6 academic year, including some athletic parties—hired strippers.

Well, one similarity exists between LSU and Duke: Joe Alleva was the AD in both situations.

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And finally, consider this item from Cara Buckley in the New York Times, on the aftermath of the DSK dismissal of charges: “Experts said rape crisis centers usually see a drop in reported cases in the aftermath of high-profile sexual assault cases, especially those in which the prosecution failed, like the case against Duke University lacrosse players.”

Nifong clearly “failed,” but this doesn’t appear to have been Buckley’s meaning about “the prosecution.” In the lacrosse case, of course, Crystal Mangum's varying allegations were thoroughly investigated by the North Carolina attorney general's office. The special prosecutors' investigation used medical, DNA, and electronic evidence--as well as numerous interviews with Mangum, the two men euphemistically termed her "drivers," and lacrosse players who attended the party--to determine that the people Mangum accused were actually innocent, and that no physical contact of any kind between her and the accused could have occurred. Mangum, they concluded in a public report, had either lied or had come to believe her claims (which included, in their final version, an assertion of the rape occurring while she was suspended in mid-air) because of her serious, and longstanding, mental problems.

This process, obviously, was not the "prosecution" having "failed," given that the prosecutor's job is to achieve justice, not to obtain a conviction. Buckley—or her interviewees in the “victim’s rights” movement, whose viewpoint the article reflected—appear actually to maintain that any high-profile sexual assault claim, no matter how flimsy, that doesn’t yield a conviction, by hook or by crook, leads to diminished reports of sexual assault.

On another front, I invite readers to answer this SAT-style question: which of the following is NOT like the other?

a.) The DSK case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could conclude that a sexual assault likely took place;

b.) A recent case involving two ex-NYPD officers, which yielded conviction on minor charges and in which the officer’s defense against rape was the highly implausible contention that he lay down in bed with a drunk woman to whose apartment he had been called but didn’t sexually assault her;

c.) The William Kennedy Smith case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could (though I’d argue shouldn’t) conclude that a sexual assault likely took place;

d.) The Duke lacrosse case, in which no sexual contact of any kind occurred, and in which a state investigation was able to conclusively conclude that each of the accuser’s myriad tales was false.

I suspect that most test-takers would respond “d.” Yet Buckley’s article, reflecting the viewpoints of victims’ rights advocates, lumped the four cases together. And so either (a) given the disparity between press coverage of Mangum’s initial charges and of the players’ exoneration, many people, including potential rape victims, recall the event as initially portrayed, a likely sexual assault (thus implying continuing harm to the falsely accused players’ reputations); or (b) Buckley, whose article contained no quotes from any defense attorneys, buried the lede—that victims’ rights groups, for their own reasons, choose to link the lacrosse case with cases in which some doubt about guilt is actually plausible, in a manner that almost would have to raise suspicions that something must have happened in Durham.

On the latter point, in sentiments recalled the extremism of former SANE-nurse-in-training Tara Levicy, Buckley reports, "None of the women’s advocates interviewed expressed doubt in Ms. Diallo’s claim that she was assaulted." Ideological blinders work wonders.

The latter two items testify to the lasting reputational damage to the falsely accused players caused by the unethical actions of Nifong, the DPD, and figures such Levicy and Dr. Brian Meehan.