Lacrosse, Litigation, & Editorial Strategy

Earlier today, the Duke lacrosse team narrowly defeated Notre Dame in the national championship game. In the run-up to the event, CBS Sports had an article on Casey Carroll, a member of the 2006 team whose life has taken an extraordinary turn since then. Carroll graduated from Duke in 2007, and, inspired by the legacy of former Duke lacrosse player Jimmy Regan, a U.S. Army Ranger who was killed in Iraq in February 2007, Carroll enlisted in the Army. He had four tours of duty in Afghanistan and Iraq. He also married his college girlfriend, and the couple has two children.

After Carroll’s time in the military, he returned to Duke, using GI Bill benefits to enroll in the business school. And with one year of eligibility left (thanks to the efforts of Duke’s Chris Kennedy), he returned to the lacrosse team—where this year, at age 29, he was a regular starter on defense. He was named ACC defensive player of the week in his first week back at Duke (a span of nearly 2500 days between games). And he started in the national championship game, which was held on Memorial Day.

ESPN2 led its broadcast with a discussion of Carroll (and of Regan’s parents, who attended the game). It’s easy to see the journalistic significance.

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Carroll’s is exactly the kind of story that seemingly would have yielded itself to telling in William D. Cohan’s “definitive, magisterial” account—especially given Cohan’s suggestions as to how he benefited from the passage of time in putting together his publication. Yet there’s no evidence that Cohan ever sought to interview Carroll, even though Carroll was back on the team (he missed the 2013 season due to an injury) during the time Cohan claims that he was engaged in a frantic effort to “just gather up everything I could about what happened, talk to anybody and everyone who would talk to me.”

Indeed, while the three falsely accused former students declined to speak to Cohan, it doesn’t appear as if Cohan sought to interview any of the unindicted players, except for Ryan McFadyen. This unusual strategy differed from how Stuart and I approached UPI; we interviewed 15 members of the 2006 team on the record. (We also did off-the-record interviews.) We spoke to people from each of the four classes; to those who were at the party for the duration, those who left the party, and those who never attended the party at all. The idea was to obtain (to borrow a term) as definitive an account as possible of the lacrosse team’s experiences.

(Perhaps Cohan shied away from trying to speak with Carroll because it would have been difficult for him to have described a person with Carroll’s experiences as a “boy,” the author’s preferred term of reference for the now-late-20s/early-30s lacrosse players targeted by his book’s protagonist, Mike Nifong.)

Even if Cohan didn’t see Carroll’s recent story as significant enough to fit into a 621-page book, it’s hard to come up with an explanation as to why the author apparently tried to speak with only one of the 44 unindicted players. It’s even harder to come up with an explanation as to why, having chosen this odd tactic, Cohan then selected McFadyen as his sole subject.

Alone among the unindicted players, McFadyen wasn’t on the Duke campus for the entire spring semester in 2006 (he was suspended in early April), so on those grounds would seem the least suitable candidate for a sole interviewee. Moreover, because of his e-mail, McFadyen probably has a more negative public reputation than any former member of the team except for Matt Zash. It’s almost as if, by choosing McFadyen as the sole interview subject among the 44 unindicted players, Cohan wanted to create the impression that McFadyen was typical of the team as a whole.

There is, in the end, one clear difference between Cohan’s treatment of McFadyen and of Carroll. As he has cast aspersions on the finding of innocence while advancing his “something happened” thesis, Cohan has definitively excluded McFadyen from his insinuations. (“He was never, you know, in or near the bathroom. He was never accused of anything. He was just, you know, doing, you know, the usual underage drinking that’s so prevalent.”) Relying on the exact same evidence, Cohan has refused to make such a declaration for Carroll, or any of the 45 other members of the 2006 team. (“There is an incredible amount of evidence [which he won’t identify] that something untoward happened in that bathroom . . . Who did it [emphasis added], when they did it, what they did is absolutely just still not clear.”)

The “dispassionate” author at work.

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Only one lawsuit remains—filed by three former members of the team, with McFadyen as the lead plaintiff. Last week, Judge Beaty issued a ruling that further narrowed the suit, and ensured that former SANE nurse-in-training (and Cohan heroine) Tara Levicy would never take the witness stand to account for the full range of her conduct in the case.

Beaty (not incorrectly) noted that the “spirit” of the 4^th Circuit’s ruling demanded dismissing the claims against Levicy. Even though, as he noted, the plaintiffs claimed that Levicy produced “false corroborated evidence” as “part of a conspiracy to assist police officers in a criminal investigation,” they had no case, since Levicy was seeking “to aid police officers, among others, in a police investigation.” That this “aid” allegedly occurred as part of an effort to frame innocent people is no longer a cause for action in the 4^th Circuit—provided that the prosecutor was in on the conspiracy, and provided that the grand jury (fooled by testimony recounting the non-existent evidence) brought back an indictment.

This is the “rule of law” in the Carolinas, Virginia, West Virginia, and Maryland.

The Beaty ruling also contained a touch of humor—at the expense of Linwood Wilson, who continues to prove the aphorism that a lawyer who represents himself has a fool for a client. Wilson, who has distinguished himself throughout this litigation for bizarre legal assertions, had demanded that Beaty impose sanctions against the lacrosse players’ attorneys.

Beaty denied the request with a biting comment: “The basis of Defendant Wilson’s request for sanctions is that he believes that the claims brought by Plaintiffs in this case are groundless and vexatious and that the Court should impose sanctions in this case. However, the Court finds Defendant Wilson’s Motion itself to border on being vexatious given that it largely consists of copied and pasted paragraphs.”

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Finally: Cathy Davidson is best-recalled for her January 2007 apologia for the Group of 88 statement, in which she took to the pages of the N&O to preposterously justify the Group’s actions on the grounds that “racist and sexist remarks swirling around in the media and on the campus quad” during the time in which the ad was considered. Inventing a past that never occurred, Davidson told N&O readers, “The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women.”

Of course, “at that time,” virtually no one was “defending” any of the lacrosse players, much less Seligmann and Finnerty (who weren’t even considered suspects). Before April 6 “on the campus quad” there were “rampant” insults directed against Duke students, such as the “castrate” sign, the plastering of “wanted” posters, and one lacrosse player being surrounded on campus by black students urging him to turn in the rapists. None of these events appear to have troubled Davidson, since the lacrosse players weren’t the Duke students that concerned her.

At the time her whitewashing N&O piece appeared, Davidson also admitted privately that she had consulted an attorney, who informed her that the Group members could be legally vulnerable for their actions. A few months later, when Duke entered into an approximately $20 million settlement with the three falsely accused players (not, as William Cohan has incorrectly suggested, a $60 million payout), the settlement contained an unusual clause immunizing the Duke faculty from individual lawsuits.

So where is Davidson now? In what seems like Exhibit 200 of the lack of accountability in the academy comes from a recent notice from the CUNY trustees. The announcement indicated the arrival of one Cathy Davidson to the CUNY Graduate Center—where she will receive an annual financial supplement of $28,594 beyond her salary as full professor.

As someone who teaches at Brooklyn and the Graduate Center, I can fully understand why Davidson would consider CUNY a more appealing place to work than Duke. But consider the likelihood of her (or any other Group member) being hired away from Duke if the races in the case were changed. That is: if the case involved a white stripper making false allegations against black Duke students; and if Nifong needed to maximize the white vote to win, and broke all sorts of ethical rules to fabricate a case; and if Davidson had signed a public statement implying the guilt of these same black Duke students; and if, months later, Davidson presented an inaccurate op-ed to justify her decision to ignore the plight of these black Duke students and turn a blind eye to the prosecutor’s misconduct, the obligations of the Faculty Handbook, and basic principles of due process.

Does anyone believe that, having participated in such a scheme, someone like Davidson, or Grant Farred, or Houston Baker, or Charles Payne, or Rom Coles would have been hired away by other schools, with more prestigious appointments, given the nature of the contemporary academy?