The 4th Circuit Hearing

[Updated below.]

Earlier this week, Durham went to the 4^th Circuit, in an attempt to terminate the civil suit filed by the falsely accused players—before discovery has even commenced. I had previously speculated that this was something of a longshot effort, given Judge Beaty’s summary of Durham’s highly troubling basic contention: 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.”

After the oral arguments, however, it’s clear that there’s a good chance the suits against the city could come to an end. Two of the judges, Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult questions of the falsely accused players’ attorney, Christopher Manning. If either Wilkinson or Motz vote with Durham, the case will end, since the third member of the three-judge panel, Roger Gregory, gave every indication of having made up his mind well before the hearing began. Indeed, at times Gregory advanced arguments that went well beyond anything that even Durham’s own attorney offered, even to the point of insinuating that the indictments of Dave Evans, Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday, and I’ve included clips of some of the hearing’s key segments as links within this post. Audio links, which are in red, will take you to my personal website; click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham attorney Michael Vatis stressed that the indictment by the grand jury shielded the city from liability and that Nifong, in his capacity as prosecutor, rather than Durham city employees made the decision to seek indictments. (Vatis didn’t explain how or why the Durham police allowed Nifong, a county prosecutor, to supervise the police investigation after March 27, 2006.) Christopher Manning, representing the falsely accused players, relied largely on Judge Beaty’s framing of the case, adding that the magnitude of wrongdoing to Durham officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting that there were other alternatives to a civil suit—administrative proceedings, perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he noted that no other inquiry had found wrongdoing by the DPD. He implied that even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t pursued any of these alternative methods. Of course, it was worse than that—in 2007, the city leadership shut down the investigation of the DPD after one hearing, citing an insurance company’s concern that the inquiry might uncover information that would damage the city’s civil case. And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the magnitude and the type of wrongdoing by law enforcement made it difficult to find appropriate precedents (for either side) to guide the court. Motz was blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson pressed Vatis on the seriousness of the allegations. Neither was hostile to Vatis, but neither similarly appeared willing to accept Vatis’ suggestions that nothing much serious had occurred in this case, except perhaps for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about the broader ramifications of the plaintiffs’ position. Even if the falsely accused players had been framed, how could the court draw a line that would not open the way for federal lawsuits from any criminal suspect that thought a police officer looked at him the wrong way? (Wilkinson worried that the question here was “whether a hard case makes some really bad law.”) Manning tried to parry these concerns by noting the extraordinary nature of the misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed convinced (though Wilkinson did suggest that the case should be litigated at the state level if the 4^th Circuit blocked a federal suit). If the falsely accused players do prevail, however, Manning’s uniqueness-of-this-case argument probably would provide the basis.

That left the third member of the three-judge panel, Judge Roger Gregory. During the presentation by the city’s attorney, Judge Gregory contributed little. During the presentation by the lacrosse players’ attorney, Gregory participated actively, sometimes with extremely hostile questions, other times with minimizing remarks about the evidence in the case or the nature of the players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report, arguing that it only said that no matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly concealed) it also said that DNA from other, unidentified males was discovered, and it implied (inaccurately) that Dave Evans’ DNA might be a match. How a finding of other males’ DNA but not that of any lacrosse players could in any way be considered consistent with Mangum’s story (that she was raped for 30 minutes by three people who didn’t use condoms, and she went almost immediately thereafter to the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly, rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in part because no police officers were prosecuted, Gregory argued that a claim of conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,” and that it certainly wasn’t (as he sounded as if he believed Manning was arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very strongly implied (though he never quite came out and said so) that the Durham authorities were within their rights to try and bring the case to trial. Only “in hindsight” did any evidence of innocence emerge, he claimed. He further suggested that the fact that false accuser Crystal Mangum never retracted her charges justified the indictment. In any event, how could the police know that Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?” This is an extraordinary standard by which to evaluate allegations of police misconduct.

Gregory added that, if the suit goes forward, it could set a precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in the claim—that the authorities merely moved forward with a “weak” case—with Judge Beaty’s summary of the claims (which, at this stage of the process, are supposed to be accepted at face value): that “government officials intentionally fabricate[d] evidence to frame innocent citizens, even if the evidence [wa]s used to indict and arrest those citizens without probable cause.”

With Gregory—based, at least, on both his tone and his line of questioning—as an all-but-certain vote to end the lawsuit, the only question remaining is whether Wilkinson and Motz will both vote to allow the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted, doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed, it’s quite the reverse. To take one example: in a high-profile 2011 decision, Henry v. Purnell, he eloquently wrote of the need to allow a § 1983 action filed by an unarmed man who was shot by a police officer to proceed. (The officer unpersuasively claimed he was reaching for his taser, not his gun; the suspect was not killed.) Unlike the lacrosse case, the Henry case was a bit further along—summary judgment, rather than motion to dismiss, and so discovery had already occurred.

In Henry, Gregory made clear that, at the summary judgment stage, the court needed to view the facts “in the light most favorable” to the plaintiff’s claims as true. (His questioning earlier this week, on the other hand, seemed to be construing facts in the light most favorable to the defendants.) In Henry, Gregory accurately noted that courts needed to employ “a test that focuses on the objective legal reasonableness of an official’s acts,” and that no officer could reasonably believe that firing a gun at an unarmed man was constitutional. (His questioning earlier this week, on the other hand, implied that no officer could have realized it was unconstitutional to participate in a conspiracy to frame innocent suspects, as long as in so doing the officer accurately reported the contents of his [manipulated] case file to the prosecutor.) With these tests, Gregory had no doubt that the Henry case needed to go to a jury.

Obviously, a debate can be made about whether a police officer shooting an unarmed man in the heat of the moment or whether police officers, over a period of many months, conspiring to frame innocent men for a crime that never occurred constitutes a greater constitutional violation. But it’s remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so certain that the victims in the second did not deserve a day in court.]

Farred, Chafe, and Presumers of Guilt

One of the more intriguing admissions about the Group of 88 came in 2007, from a prominent member of the Group, history professor (and former Duke administrator) William Chafe.  “Most of us,” he told the Chronicle, “never presumed guilt.”

In one respect, the remark was preposterous, given that the statement Chafe and the other 87 signed stated without equivocation that they believed something “happened” to false accuser Crystal Mangum. But the remark was nonetheless revealing, given that it came at a time when some Duke apologists were falsely claiming that the statement had nothing to do with the lacrosse case. (It might have been, Charlie Piot mused, a response to Hurricane Katrina’s(!) aftermath.)

Chafe never said which member of the Group even he was willing to concede “presumed guilt.” A few months after Chafe’s remarks, it became clear that one Group member to whom the history professor possibly referred was Grant Farred, who (falsely) told a Williams College audience that unnamed lacrosse players had committed perjury. Farred soon departed Duke for Cornell, which offered him a position as tenured full professor. The reckless hiring, however, backfired on the school after Farred attracted fierce criticism for referring to two students as “black bitches.”

I recently came across a post from one of the few people to speak up on Farred’s behalf, a Cornell colleague of his named Riché Richardson. Richardson—a Duke Ph.D. who specializes in (of course) race and gender, and whose most recent tweet praised a "brilliant talk" by the Group member and "thugniggaintellectual," Mark Anthony Neal—is perhaps the only professor I ever have encountered to have praised herself for her . . . course syllabi, which she claims “can take a long time to research and days to write” and “and are valued by students on their own terms as research and learning tools.”

In the event, long after the Farred controversy, Richardson posted a tribute to Farred on her blog, in which she expressed concern about “a climate on campus that creates an intimidating or hostile environment for Professor Farred.” She would not, huffed Richardson, “appreciate having my own credentials or attitudes misrepresented in the way that his have been in some instances, which is also unsettling given my concerns about protecting academic freedom, collegiality and all the things that reflect the basic values of academia.”

Richardson’s post is most interesting for her comments about Farred and the lacrosse case. The man who called two African-American students “black bitches,” she argued, shouldn’t be deemed “somehow dismissive of black women.” Why not? Because “in the situation regarding the black woman stripper who alleged rape in 2006 by members of the Duke Lacrosse team, he spoke up in her defense by writing a letter clarifying some of the implications of the situation [link to at http://friendsofdukeuniversity.blogspot.com/2006/03/expired-documents-2.html ]. Many of the faculty who had the courage to speak out about this situation, which made national headlines, were threatened, harassed, criticized publicly and were victimized by a very calculated smear campaign. Some eventually moved on, including Professor Farred. I respect the very principled and courageous statement that Professor Farred chose to make in Durham on this case involving the black woman stripper, and do not take the sacrifices that he made in the wake of it lightly. The truth is that Professor Farred put everything on the line at a very prestigious job that he valued to support and help defend a black woman who he at the time believed had been the victim of rape and racist epithets.”

The most significant item, of course, from Richardson’s statement is her last line—even a defender of Farred has publicly conceded that the Group member presumed guilt: he “believed” Mangum was raped. Richardson’s claim of Group victimization is as unsurprising as it is unsubstantiated. But I was struck by her claim that “Professor Farred put everything on the line at a very prestigious job that he valued.” As far as I know, Farred put nothing “on the line” related to his job (other than, I suppose, his reputation). Richardson’s insinuation that there was some sort of connection between Farred having “moved on” and his having put anything job-related “on the line” prompted me to ask if she had any evidence about Farred and Duke.

Richardson declined a direct reply to my question. Instead, she wrote, “The consequences at Duke did not necessarily relate to jobs, but there were definitely reprisals (i.e. hate mail and other negative reactions) for faculty who spoke out about that case at the time, some of whom I know. And even if I indeed defended his comments, would that be any worse than defending perceived rapists and racists, as your scholarship suggests?”

“Negative reactions” constitute reprisals! By Richardson’s standards, Mitt Romney has experienced more “reprisals” than any American alive in the past week, given the “negative reactions” (whether deserved or not) to his comments about the attack on the embassy in Libya. Somehow, though, I doubt that Richardson would apply her “negative reactions” standard to figures with whom she disagrees.

I admit that I had never previously heard the lacrosse players described as “perceived rapists.” For Professor Richardson, it seems, no amount of evidence can overcome a false initial perception.

But to answer the professor’s question: yes, I would say that defending a professor who made materially false statements (that unnamed students at his own university had committed perjury) and in the process likely violated the terms of his school’s Faculty Handbook is worse that defending people who were falsely accused of a serious crime.

Penn State Followup

A few weeks ago, disgraced former Penn State president Graham Spanier launched something of a media blitz. His attorney held a press conference denouncing the Freeh Report (while conveniently saying that Spanier, who wasn’t present, would answer the tough questions about the report’s factual findings). Spanier did an interview with the New Yorker’s Jeffrey Toobin, who declined to press Spanier on the critical piece of evidence uncovered by Freeh—an e-mail from Spanier admitting that the decision not to report Jerry Sandusky to police might leave the university “vulnerable” in the future. A follow-up Spanier interview with ABC mostly revolved around the unconvincing argument that because he was the victim of physical abuse as a child, it was inconceivable that he wouldn’t have reported the allegations against Sandusky to authorities.

I wrote about Spanier’s unconvincing defense at Minding the Campus; and, as DIW readers know, have been interested in the similarities and differences between how Penn State responded to the Sandusky scandal and how Duke’s administration responded to the lacrosse case. Stuart and I penned a WSJ op-ed looking at how Penn State, for good or ill, authorized a comprehensive inquiry into what went wrong and why—in contrast to Duke’s decision to have two “diversity”-obsessed advocates of the status quo “investigate” and produce a “report” on the administration’s response to the lacrosse case.

It’s hard to imagine that Penn State’s (or any school’s) faculty could do anything comparably embarrassing to the Group of 88 statement (and the Group’s subsequent rationalizations and refusals to apologize). But it’s also hard to imagine what 30 former and current faculty leaders at the school could have been thinking when they produced a recent letter that exhibited a sense of epistemic closure that would rival the Group of 88 in its bunker.

After what comes across as a token expression of outrage and sadness on behalf of Sandusky’s victims, the PSU profs quickly get onto the real victims—people who work at Penn State, victims of the “current hyperbolic media environment.” (The professors couldn’t find space to identify a single example of this “hyperbolic media environment.”)

Of the Freeh Report, the letter concedes its “investigation appears to have been reasonably thorough, given that it could not subpoena testimony.” (Ironically, a document released by Spanier’s attorney criticized Freeh for relying on subpoenaed testimony from ex-assistant coach Mike McQueary, rather than defying prosecutors’ requests and interviewing McQueary himself.)

But . . . “as a document in which evidence, facts, and logical argument are marshaled to support conclusions and recommendations, the Freeh Report fails badly. On a foundation of scant evidence, the report adds layers of conjecture and supposition to create a portrait of fault, complicity, and malfeasance that could well be at odds with the truth.”

In what ways is the Freeh Report’s evidence scant? Who knows? Is the document truthful or not? Who knows? Far be it from Penn State faculty members to examine the evidence presented in the report and demonstrate items in the report that are factually inaccurate.

Such work, it seems , isn’t necessary—because “as scientists and scholars, we can say with conviction that the Freeh Report fails on its own merits as the indictment of the University that some [who?] have taken it to be. Evidence that would compel such an indictment is simply not there.” The evidence for this sweeping assertion? The “scientists and scholars” present none. Perhaps they ran out of ink.

The “scientists and scholars” seem particularly perturbed with the Freeh Report’s (and the NCAA’s) remarks about Penn State culture. “Not only are these assertions about the Penn State culture unproven,” they thunder, “but we declare them to be false.”

The evidence for this sweeping assertion? Their own personal experience. “As faculty members with a cumulative tenure at Penn State in the hundreds of years, and as former Faculty Senate chairs with intimate knowledge of the University stretching back for decades, these assertions do not describe the culture with which we are so very familiar. None of us has ever been pressured or even asked to change a grade for an athlete, nor have we heard of any cases where that has occurred . . . Some of us have privately witnessed swift and unyielding administrative actions against small transgressions, actions taken expressly to preserve academic and institutional integrity.”

The “scientists and scholars” apparently didn’t notice the interference by the former football coach in the disciplinary process—in instances far more significant than “small transgressions”—that were revealed in the Chronicle of Higher Education. Do the professors “declare” those “to be false,” as well?

The professors’ letter is an embarrassment to their institution. As “scientists and scholars,” they should know better.

A Comment on the Herald-Sun

Careful (or even not-so-careful) readers of the Herald-Sun cannot help but notice its recent pattern of inserting unexplained editorial judgments into “news” articles that reference either Durham-in-Wonderland or Until Proven Innocent. (Curiously, the articles in question do not mention the title of either the book or the blog.) In a way, this development represents a welcome change from the paper’s approach during 2006, when its “news” articles concealed an almost comical pro-Nifong spin behind a pretense of faux objectivity.

The most recent instance came in a Ray Gronberg article that described Bob Ekstrand’s resisting Duke’s efforts to compel testimony from him regarding exchanges he had with non-lacrosse players, including President Brodhead, Tallman Trask, Stuart Taylor, and me. (Ekstrand represents three of the former players suing the university.) In his article, Gronberg—without citing even one piece of evidence—describes Until Proven Innocent (again, without referencing its title) as “a 2007 book sympathetic to the players.” It’s quite true that both the book and the blog exposed ways in which Duke, Nifong, the Durham PD, and certain media sources (including the Herald-Sun, in behavior for which the paper’s editor very belatedly issued a half-hearted apology) mishandled the case, but Gronberg’s article doesn’t suggest that any relevant statement made in the book or blog about the lacrosse case that was incorrect. As even the H-S is fully aware, critical commentary about one side’s behavior does not necessarily constitute a “sympathetic” portrayal of the other side.

Gronberg then insinuates—but carefully does not specifically allege—collusion. In writing about how the book and blog portrayed Sgt. Mark Gottlieb, the H-S reporter notes that “Ekstrand’s most prominent contribution to the case is a theory—embraced by Johnson, Taylor, and all three of the legal teams now pursuing lawsuits against Duke and the city—that the police sergeant [Gottlieb, whom Gronberg doesn’t name] who supervised the investigation of Mangum’s claims was a rogue cop pursuing a vendetta against Duke students.” [Emphasis added]

Leaving aside the dubious claim that this “theory” constituted “Ekstrand’s most prominent contribution to the case,” I gladly would have told Gronberg had he asked me (for the record, he did not do so, nor did he contact Stuart) that I found all the evidence I needed to conclude that Gottlieb was a rogue cop in summer 2006, solely by reading the Gottlieb “notes”—the straight-from-memory report typed months after the fact by the ex-DPD officer. The document, which Gronberg doesn’t mention in his “news” article, conveniently plugged many of the holes then existing in Nifong’s case, often by contradicting contemporaneous written notes from other police officers.

And I reached the conclusion that Gottlieb was targeting Duke students by reading of his behavior in the newspaper. In September 2006, the N&O exposed the existence of and the Chronicle fleshed out the effects of the separate-but-equal arrangement in which the Duke administration and the DPD agreed that Duke students would be treated more severely than any other Durham residents for similar allegations of alcohol-related crimes. Gronberg doesn’t mention the N&O’s or the Chronicle’s reporting as my sources, even though I cited both; doing so, of course, might have reminded H-S readers of how late the paper came to this major story from its own backyard, or even of Gronberg’s own ineffective efforts to discredit the reporting of his rivals.

Both the book and the blog devoted considerable space to exposing the Herald-Sun’s shoddy reporting on the lacrosse case. As UPI noted, “When the police and Nifong demonized the lacrosse players and canonized the ‘victim,’ the media were happy to provide unskeptical coverage, as the Herald-Sun did in its March 25 front-pager quoting Cpl. Addison. And when an opportunity presented itself for journalists to do their own demonizing and canonizing, they seized it with relish. Among local papers, the Herald-Sun, the only Durham-based newspaper of significant circulation (about 45,000 in spring 2006, but falling fast) was incomparably biased in the more than 300 articles and 20 unsigned editorials it churned out in 2006, savaging the lacrosse players and downplaying or omitting altogether the ever-growing evidence of innocence.” The blog provided specific occasions of this behavior, while singling out for criticism the consistent bias of the Herald-Sun’s editor, Bob Ashley.

Ashley, by the way, returned to the H-S as editor a few months ago, after he had left the paper in January 2011.

A cynical person might suggest a relationship between the Herald-Sun’s lacing its “news” articles with unsubstantiated editorial judgments and the criticism both the book and the blog made of its (and its editor’s) substandard performance during the lacrosse case. Alas, the H-S’s new editorializing style doesn’t extend to referencing this criticism, which might give readers the context necessary to understand the publication’s current approach.

To reflect on the merits of the Herald-Sun’s record regarding the lacrosse case, it might be worth quoting from the Chronicle’s post-exoneration analysis. After struggling to find media observers who had even bothered to read the paper, Chronicle reporter Adam Eaglin interviewed with Bill Green, a former Washington Post ombudsman who then lived in Durham. Green’s analysis: “The Herald-Sun has consistently failed to presume the innocence of these three people. They leapt to judgment early and stayed with that thinking.”

Two final notes: (1) The Gronberg article did contain one potentially intriguing nugget. After falsely insinuating that Stuart and I might have concluded from exchanges with then-defense attorneys that Gottlieb was a rogue cop with a vendetta for Duke students, Gronberg reported, “Police commanders have disputed that.”

Since Gronberg doesn’t cite the police commanders to whom he’s referring, it’s not clear if he based that sentence on his analysis of Durham’s legal filings (which were never quite that definitive) or from background conversations with unnamed police commanders. If the latter, this revelation would be important indeed, since it would constitute Durham’s admission that a police officer who: (a) blindly followed orders to set up a photo array in violation of DPD policies; (b) produced a highly suspicious typewritten report months after the fact that wasn’t based on his contemporaneous written notes; and (c) behaved (at best) dubiously toward non-lacrosse students wasn’t, in fact, “going rogue” (the explanation most favorable to Durham) but instead was behaving as Durham thought a DPD officer should under these circumstances. Will Durham embrace this admission in court?

(2) Stuart passes along this comment:

I agree completely with everything in KC’s post. I would add that the only sense in which we were “sympathetic” to the lacrosse players is that we were very glad to cite the overwhelming evidence that they were completely innocent of the monstrous crimes of which they were so widely presumed guilty; that they were a very decent group of young men; and that their accusers—including many in the media and at Duke as well as Durham law enforcement officials—behaved disgracefully. We also included in our book all relevant evidence of which we knew that reflected unfavorably on any of the lacrosse players.