Friday, July 18, 2014

Closing Comments

When I first started writing about the lacrosse case, at a joint historians’ blog called Cliopatria, I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible betrayal by professors of their own school’s students, an action that contradicted many of the basic values on which American higher education rests.

Absent the Group statement, I doubt I would have noticed the case at all—in spring 2006, I didn’t even know that Duke had a lacrosse team, much less know any of its members. But as I remained interested in the case, the editor of Cliopatria suggested I spin off into a focused blog. When I did so, in August 2006, I envisioned a six-week effort, which would perhaps provide background for people interested in the case from the 60 Minutes broadcast, which I had heard was scheduled for early October. Instead, a flurry of events—the delay of the broadcast, then the November 2006 election, the Meehan hearing, the Nifong ethics charges, the culmination of the criminal case, and the two Nifong hearings—sustained the blog on a daily basis (the blog had more than 1000 posts during its first 14 months) through September 2007.

I stopped daily posts in fall 2007, and since then have averaged only about a post a week. I extended the blog to follow the civil cases, which struck me as likely to establish important precedents. (They did so, though in ways that trouble me—suggesting that in the 4th Circuit colleges have no obligation to enforce the student bulletin or faculty handbook, at least in cases where disfavored groups of students are targeted by powerful faculty interests on campus; and victims have no grounds for a federal civil rights lawsuit when prosecutors and police conspire to frame innocent people, provided the police are internally candid about their lack of evidence and the prosecutor obtains a grand jury indictment.) The civil cases dragged on for much longer than I had anticipated, largely due to Durham’s high-risk, but ultimately high-reward, strategy of filing multiple interlocutory appeals to avoid any discovery.

This delay, ironically, meant that the blog remained active during two unanticipated but important events.

The first came when Duke employed the civil suit discovery process to try and obtainmy private correspondence with confidential sources for the book and blog. For reasons neither the university nor its attorneys ever explained, I was the only person who covered the case to receive such a subpoena; even UPI co-author Stuart Taylor wasn’t targeted by Duke. Thanks to excellent representation from my attorney, Patrick Strawbridge, and assistance from the Reporters Committee for Freedom of the Press, I resisted the subpoena. A limited setback before a Maine magistrate judge evaporated in the courtroom of Maine district court judge Brock Hornby, who peppered the Duke attorneys with questions, eliciting the extraordinary statement that Duke would be happy for its professors to live under the same standards the university expected of me. (Unsurprisingly, no member of the Brodhead administration ever informed Duke faculty members of this new policy, which would decimate the freedom to research controversial topics at Duke.) In the aftermath of the hearing, and after the Carrington settlement, Duke withdrew its subpoena before Hornby could render a decision. The magistrate judge’s decision subsequently was vacated.

The second significant event occurred with publication of the revisionist book by William D. Cohan. In his up-is-down opus, Cohan portrayed Mike Nifong as victim, “crucified” by the efforts of an amorphous conspiracy that included defense attorneys, the State Bar, some members of the media, Judge Osmond Smith, the Disciplinary Hearing Commission, families of the lacrosse players, senior prosecutors in the North Carolina attorney general’s office, and Northeastern lawyers whose identities he declined to reveal. Cohan reached this startling conclusion not by interviewing any members of the alleged conspiracy, but instead by speaking to Nifong at length, and then uncritically accepting the version of events offered by his chief source, a convicted liar. The result: a book praised by many of the papers who got the story wrong at the start, and sharply criticized by virtually every reviewer who knew anything about what occurred in Durham.

With the Carrington and Evans lawsuits having concluded, and with the Cohan book consigned (to borrow Judge John E. Jones, III’s recent usage of Ronald Reagans famous line) to the “ash heap of history,” it seems like an appropriate time to bring the blog to a close.

Before doing so, however, allow me to offer three general reflections:

The Academy

Higher education is perhaps the only product in which Americans spend tens or even hundreds of thousands of dollars without having any clear sense of what they are purchasing. Few parents, alumni, legislators, or prospective students spend much (if any) time exploring the scholarship or syllabi offered by professors at the school of their choice; they devote even less effort to understanding hiring patterns or pedagogical changes that have driven the contemporary academy to an ideological extreme on issues of race, class, and gender. At most, there seems to be a general—incorrect—impression that while colleges have the occasional “tenured radical” who lacks real influence on campus, most professors fall well within the ideological mainstream.

But while most outsiders have neither the time nor the inclination to challenge faculty on scholarly or curricular matters, the lacrosse case was different. Here, the relevant facts were public knowledge. The event was high-profile, and the more evidence that emerged, the less likely it appeared that a crime occurred. At the least, it was clear by 1 May 2006 that at least one innocent Duke student (Reade Seligmann) had been indicted.

And yet for dozens of Duke faculty, this evidence appeared irrelevant. Eighty-eight of them rushed to judgment, signing a statement (whose production violated Duke regulations in multiple ways) affirming that something had “happened” to false accuser Crystal Mangum, and thanking protesters (“for not waiting”) who had, among other things, urged the castration of the lacrosse captains and blanketed the campus with “wanted” posters. As the case to which they attached their public reputations imploded, Group members doubled down, with most issuing a second statement promising they would never apologize for their actions. (Only three Group members ever said they were sorry for signing the statement, and two of that number subsequently retracted those apologies.) For months, the Duke administration was either in agreement with the faculty extremists or cowed by them—or some combination of both.

The lacrosse case provided a rare opportunity to glimpse inside the mindset of an elite university—and the look was a troubling one. There is no evidence of any accountability at Duke: the university has the same leadership and the same hiring patterns it had in 2006. Several members of the Group of 88 have gone on to more prestigious positions, their efforts to exploit their students’ distress causing them no problem in the contemporary academy.


In this respect, Duke isn’t exceptional: if the lacrosse case had occurred at another elite university, something like the Group of 88 probably would have formed there, as well. (Hypothetical Groups at other schools might not have been quite as large—the effects of ex-president Keohane and ex-provost Chafe on maximizing race/class/gender hires did have some additional effect.) Nifong, on the other hand, was unusual.

Prosecutorial misconduct is a blight on the American justice system, but few prosecutors violate quite as many ethical rules in a single case as did the disgraced former DA. Of course, Durham’s particular circumstances accounted at least to some degree for the extent of Nifong’s perfidy: he had to violate ethical guidelines to create “evidence” of a “crime” that never occurred; and then he had to violate more ethical guidelines to create “evidence” to point to the “perpetrators” of this non-existent crime.

It’s worth remembering, however: lots of people seemed quite untroubled with Nifong’s actions. He did, after all, win the primary election—the day after Durham voters saw on their TV screens a video of Reade Seligmann at an ATM machine at the time Nifong claimed a rape was occurring. And he did win the general election—even after Durham voters were exposed to massive evidence of his ethical improprieties, thanks to reporting from the N&O and 60 Minutes. Moreover, Nifong almost managed to bring the case to trial. The State Bar vote to go ahead with the prosecution before the end of the case passed only by one vote, with the chair of the relevant committee casting the tie-breaking ballot. If not for the brilliant cross-examination from Jim Cooney and Brad Bannon, plus the inability of Dr. Brian Meehan to carry off the conspiracy, would the Bar have acted when it did?

Despite his apologists’ best efforts to rehabilitate his reputation, Nifong’s behavior might have had one salutary effect: he now personifies the position of rogue prosecutor. Journalists, legal commentators, and the public at large now have a reference point when they hear defense attorneys speak of the importance of due process, or caution against prosecutors violating ethical norms. And DA’s inclined to ignore ethics to advance their political careers will (hopefully, at least) recall Nifong’s fate.


Excellent coverage of this case came from some quarters of the traditional media—from the 2006-2008 staff of the Duke Chronicle; from Joe Neff at the N&O; and nationally from 60 Minutes and ABC’s Law and Justice Unit. But the terrible traditional coverage—from the New York Times, the Herald-Sun, op-ed commentators such as Selena Roberts and Eugene Robinson, and other outlets in the early stages of the case—was terrible indeed.

The bad work suffered from two problems that reinforced each other. The first comes from the media’s general ideological biases. While not as left-wing as the typical elite school’s faculty, the media obviously leans left, especially on issues of race and gender; and in spring 2006, the facts offered by Nifong seemed for too many too good to be false. So rather than challenging Nifong’s presentation of the case, the Times, the H-S, and politically correct commentators and authors served as de facto stenographers for the prosecutor, uncritically passing along whatever version of events he happened to be offering at the time.

The second general problem exposed by the case was the media’s poor coverage of procedure and procedural issues. It’s no coincidence that the best reporter on this case—Neff—was comfortable with procedure, and that the worst—Duff Wilson and self-described “serious investigative journalist” William D. Cohan—appeared clueless on procedural matters.

For the media as a whole, covering procedure can be difficult—it’s often technical, and it doesn’t exactly sell newspapers. But as the lacrosse case demonstrated, explaining the role of procedure in policy and legal matters is a critical role that journalists play in society. And while there’s been some progress in this regard (consider, for instance, the Washington Post partnering in its blogs with Volokh Conspiracy or Radley Balko), as a whole, the media tends to do a poor job at illustrating procedural matters. Jim Fallows’ laments about the mainstream newspapers’ frequent failures to explain the Senate’s filibuster process is a good example of the broader problem.


DIW was a blog of a particular time and place. If the lacrosse case had occurred a few years earlier, the blog likely never could have been launched. In the initial months, I relied heavily on primary source material posted by others (the N&O and WRAL for discovery documents; the State of North Carolina for various ethics and election items; Duke and electronic resources for academic matters). As recently as the late 1990s, this type of material often was not available online, so initially covering the case from New York or Maine (as I did, most of the time) would not have been possible—meaning that I never would have developed the local sources whose willingness to answer questions from me (and not infrequently provide me with tips) helped the blog to break stories.

If the lacrosse case occurred today, on the other hand, the blog’s reach almost certainly would have diminished; the blog’s biggest readership days (over 100,000 each day) occurred during the live-blogs of the Nifong ethics proceedings; most of that information would now be communicated via twitter, not through live-blogs, which have become passé.

It might well be—as any number of commentators have contended—that blogs, at least of this type, will be much less common in the future. (I’ll still be writing on higher-ed matters, at the Manhattan Institute’s Minding the Campus, and readers can follow me on twitter; obviously my academic work is still on my homepage.) That said, many of the strengths of a blog—namely, the sense of community from readers and commenters—aren’t easily replicable on twitter or in other forms. Moreover, the structure of the blog certainly aided me; over the course of the case, I learned a lot about criminal procedure, legal ethics, the nature of journalism, and North Carolina issues, courtesy of exchanges with readers, commenters, and other bloggers.

To DIW’s readers and commenters, my thanks.

Sunday, July 13, 2014

The Group of 88 & Wikipedia

Some interesting comments in a Wikipedia discussion thread regarding efforts to remove mention of their membership in the Group from Wikipedia bios of Group of 88 members. The evidence regarding Cathy Davidson, author of the infamous N&O apologia for the Group, is particularly troubling, in that the editor/whitewasher was traced to a CUNY IP on the same day that Davidson began her CUNY service.

I welcome insights from any Wikipedia editors in the comment thread.

Friday, July 11, 2014

Howard Update

Anne Blythe reports in the N&O that Judge Hudson has said he wants to grant bail to Darryl Howard, whose prosecution, writes Blythe, the judge described “as one of the most 'horrendous' prosecutions he had seen in his 34 years on the bench.” The prosecutor in the case was, of course, disgraced ex-DA Mike Nifong.

As he has deemed Nifong as honorable and quite credible, author William D. Cohan has yet to comment once on the Howard case.

Monday, July 07, 2014

Gottlieb News

WRAL's Julia Sims is reporting that former Sgt. Mark Gottlieb died on Saturday, apparently of suicide. He had, according to WRAL, been living in DeKalb County, Georgia, where he had worked as a paramedic after leaving the Durham Police. I will post more information if and when it becomes available.

Checking in with the Group of 88

As I wind down the blog after the resolution of the Evans and Carrington lawsuits (I’ll have a closing post next Monday), I thought it might be useful to check in on some members of the Group of 88. An utter lack of accountability within the academy for those faculty members who abandoned due process (and, in some cases, appeared to violate Duke regulations) was apparent almost from the start in the case, and remains so today.

No fewer than nine Group members were hired away from Duke, often for more prestigious positions, despite (because of?) their activism in the Group. Cathy Davidson—author of the Group apologia that invented a spring 2006 that never existed—was the latest, having just joined the faculty at the CUNY Graduate Center. She joins Grant Farred (Cornell, which got a taste of the contempt for students he had demonstrated at Duke); Houston Baker (Vanderbilt); Charles Payne (University of Chicago); and Rom Coles (Northern Arizona, endowed chair) in moving onto greener pastures. Meanwhile, three signatories who were members of the University Writing Program received full-time, tenure-track positions—Jason Mahn at Augustana, Matthew Brim at the College of Staten Island, and Christine Beaule at the University of Hawai’i—while a fourth (Caroline Light) was appointed to an administrative-teaching position at Harvard’s women’s studies program.

Several other Group signatories advanced at Duke. Srinivas Aravamudan currently serves as Duke’s dean of the humanities. Lee Baker is dean of academic affairs at Trinity College. And Paula McClain is dean of the graduate school, and vice provost for graduate education. Clearly the role of their behavior in causing a multi-million dollar settlement was no barrier in the Group members’ standing at Duke.

Imagine if the lacrosse case had featured a race-baiting DA, on behalf of a white false accuser, going after African-American students to advance his political career. Does anyone believe that professors who abandoned due process to stand shoulder-to-shoulder with the DA, affirming that something “happened” to the false accuser, would not have faced professional repercussions in the contemporary academy?

And then there’s the principal author of the Group statement, Wahneema Lubiano. Those waiting for her perpetually “forthcoming” books (Like Being Mugged by a Metaphor: “Deep Cover” and Other “Black” Fictions; and Messing with the Machine: Politics, Form, and African-American Fiction) continue to wait; 15 years after Lubiano advertised their coming appearances, the books remain nowhere to be found.

Lubiano, befitting someone who believes that she participates in what she calls “public intellectualism,” has sporadically shared her insights via twitter. In February, for instance, she revealed that she has spent her “entire adult life addressing the US public’s murderous imagination when it comes to the lives of black Americans.” As always, temperate analysis from the tenured professor.

Lubiano hasn’t tweeted in a few months. She doesn’t appear to be academically active, either. According to her departmental CV at Duke, the Group of 88 leader has a grand total of . . . one . . . academic publication in the past six years, an article entitled, “Affect and Rearticulating the Racial ‘Un-sayables.’” The four-page essay appeared in the journal Cultural Anthropology.

(Lubiano appears to be comfortable with this length; her previous publication, subtitled “An Interview with Wahneema Lubiano,” also spanned four pages.)

In the event, Lubiano’s recent publication builds off her work in teaching a first-year seminar at Duke, “Prison, the U.S., and the Citizen.” The course, according to the Group leader, explores “the inability of general public discussion—what my students are aware of in abundance but which they understand as ‘natural’—to accommodate elaborated and unelaborated discourses for cathected critical engagement, e.g., white supremacy and its connection to prison.” Lubiano lamented that, in the class, she often ran “up against the difficulty of moving our students from that hegemonic subjectivity to something more specifically critical.”

The Duke professor expressed her concern that “what I have in the classroom” could “best be described as a fierce (albeit inarticulate) obedient state subject who resists a critique of the state and of prison, a resistance that might be described as white supremacist common sense.” [emphasis added] Lubiano further contended that “because of [her students’] resistance to the basics of empathy with regard to mass incarceration, they’ve taken up the position of aestheticized white supremacist subject instead.” In other words: parents can spend $50,000 a year to have Duke faculty suggest that their son or daughter exhibits “white supremacist common sense.” You’d almost think that Lubiano is a fiction, invented by David Horowitz or another right-wing critic of the academy to discredit the entire higher-ed enterprise.

As a reminder: Lubiano was hired by Duke on the basis of two “forthcoming” books that, to date, have never appeared.

Tuesday, July 01, 2014

Cohan's Trials

Now that his publicity tour appears to have ended, I thought it might be worthwhile to have two short concluding comments on the work of William D. Cohan. (You can read all of my Cohan-related posts here.)

First: a mantra of Cohan’s tour was the author’s purported intention to have the book function as a trial in the case. He described the book in this odd manner on Morning Joe, WNYC, WAMC, C-SPAN, the Michael Smerconish Show, and the Diane Rehm Show.

Leave aside, for a moment, the obvious: in the United States, political trials of the type that Cohan seems to have wanted don’t occur. Instead, when prosecutors (in the lacrosse case, Jim Coman and Mary Winstead, and through them Attorney General Roy Cooper) believe that the defendants are actually innocent, the prosecutors have an ethical obligation to dismiss charges.

But, again, leave aside basic rules of legal ethics. In a sexual assault trial, at a bare minimum four people speak: the judge, the prosecutor, the accuser, and the defense attorney. (Obviously in most cases, more people than four speak.) The defendant might or might not take the stand; in many cases, for various reasons, the defendant doesn’t testify.

In Cohan’s model of the book-as-trial, author Cohan functioned as the judge, and he certainly spoke (as, for instance, when he praised Nifong’s defense, which the State Bar wholly rejected, as “cogent”). Accuser Crystal Mangum was given the opportunity to speak, in a jailhouse interview in which she told still more tall tales (that medical staff had to pull wooden shards from her, that one of the students she falsely accused carried her to the car). And Nifong was allowed to speak. And speak. And speak. And speak some more, virtually always without challenge—even though in a real trial, a prosecutor who bore false witness would be silenced by the judge.

But in William D. Cohan’s “trial,” Judge Cohan never asked the defense attorneys to speak. He solicited no interviews from Brad Bannon, Jim Cooney, Joe Cheshire, Wade Smith, or Doug Kingsbery. Nor, when Nifong became the defendant, did Cohan seek to interview the men and women who prosecuted him, either before the State Bar or in the contempt trial. The author never explained this curious editorial decision, either in the book itself or in his myriad post-publication interviews. Indeed, to the best of my knowledge, he never was asked, in any interview, why he deliberately did not solicit interviews from such key figures in the case.

In this manner, Cohan imitated the conduct of his book’s protagonist, when Nifong notoriously refused to speak with multiple groups of defense attorneys before the indictments. This approach was one of the many ways in which the line between Cohan and the disgraced prosecutor blurred to such an extent as to be almost invisible.

Second: consider one element from Cohan’s presentation of the ethics hearing, courtesy of the “honorable” and “quite credible” Mike Nifong. Discussing Reade Seligmann’s testimony during the proceedings, Cohan wrote the following, mostly consisting of quotes from his interviews with Nifong (p. 554):

“‘They [the State Bar prosecutors] were very surprised to find that Reade Seligmann came across very well, even though some of what he said might not have been true. And actually, he did come across very well . . . . [ellipsis in original] Not everything he said was true, but he did come across very well.’ Nifong was reluctant to specify what exactly Seligmann had said in his testimony that wasn’t true. ‘Some of the things that he said about the party, we had other things to show otherwise,’ [Nifong] continued. ‘There’s no point in getting into any of that. I’ve already talked to you [Cohan] about how his actions after the party indicated that in leaving he showed that he knew that there was something about that that he had to distance himself from. There were some other things that I pointed out that he said, about [how] [brackets in original] he was going to get married, which, of course, is exactly what Crystal Mangum said about the person she identified as Seligmann.’”

In the critiques of Cohan book, this passage hasn’t received much attention, presumably because the allegations are bizarre even for the reality-challenged Nifong. But the passage is revealing about the deeply troubling editorial standards that Cohan employed in his book, which Scribner’s editorial and legal staff tolerated.

In this passage, Cohan allows Nifong, unchallenged, to make three points:

(1) The State Bar prosecutors were “very surprised to find that Reade Seligmann came across very well”;

(2) Seligmann committed perjury on the stand during the proceedings, regarding “some of the things that he said about the party”;

(3) At some point in the case, Seligmann “said” something “about [how] he was going to get married.”

The first claim is based on Cohan’s inexplicable strategy of attempting to glean the State Bar prosecutors’ legal strategy not by interviewing them, or by interviewing their witnesses, but instead by interviewing the defendant in the case, Mike Nifong.

State Bar prosecutor Doug Brocker (to whom Cohan did not speak) confirmed to me that the Bar prosecution team was not in any way surprised by Seligmann coming across well. No sentient person could have been “surprised” that Seligmann came across well—his coming across well had been a major theme of the case by this time.

It remains unclear why Cohan printed something that he must have known was untrue. It also remains unclear why Cohan apparently made no attempt to verify Nifong’s counterintuitive assertion with the Bar prosecutors before including it, unchallenged, in what Scribner’s has termed the “definitive” account of the book.

The second item in the passage raises even more serious concerns about Cohan’s integrity. Could it possibly be that Nifong and his attorneys knew that a powerful witness against them had lied on the stand, and yet elected not to confront him with this information at the hearing? What possible rationale could they have had for such a course?

They had, naturally, no such rationale, because Seligmann didn’t lie on the stand. Indeed, on the stand, his only discussion regarding “things . . . about the party” involved material related to his alibi, as previously presented both in a defense motion and then to the special prosecutors, and verified through electronic evidence along with the statements of two other people. As with the first false statement in this passage, I confirmed with Doug Brocker that the Seligmann testimony contained nothing untruthful.

In this instance, however, Cohan wouldn’t have needed to have interviewed Brocker to have discovered that Nifong was lying. While Cohan didn’t attend Nifong’s disciplinary hearing, on page 619 of the book, he did imply that he watched the video of it: “There is also a treasure-trove of contemporaneous video recordings—from WRAL-TV in Raleigh—of events and press conferences as they unfolded.” At the least, he was aware that a video of Seligmann’s testimony existed. That video is embedded below.

Given the video’s contents, there are only two explanations for the second element of the passage above:

(1) Cohan unknowingly printed Nifong’s false allegation that Seligmann hadn’t told the truth on the stand. Cohan did so because he elected not to take one hour to investigate Nifong’s claim—even though he understood that his book’s chief source (Nifong) is a convicted liar.

(2) Cohan had, in fact, viewed the video of Seligmann’s testimony, and therefore knew that Nifong’s assertion was false. But—blinded by his partisanship for Nifong, his disdain for the falsely accused students, or some combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that Scribner’s issue a public retraction of this section of the Cohan book.

And then there’s the third section of the passage, in which Nifong reminisces that Seligmann had said “he was going to get married, which, of course, is exactly what Crystal Mangum said about the person she identified as Seligmann.”

The inclusion of this item, unchallenged, is nothing short of extraordinary. At no point in the case did Seligmann ever say something to the effect that “he was going to get married”—because, of course, in 2006 he wasn’t “going to get married.” He didn’t say anything to this effect in the Bar testimony, as Cohan could have confirmed if he had looked at the video of Seligmann’s testimony. Seligmann also didn’t say anything to this effect in any interview he gave on the case, or in any available document from the discovery file (which Cohan, despite his self-described credentials as an “investigative reporter,” seems not to have obtained).

Why, then, did Cohan print Nifong’s false assertion without any challenge or factual context?

(1) Cohan didn’t know the allegation was false, because he elected not to take one hour to confirm the veracity of Nifong’s claim, and because the book’s reporting limitations had denied him access to case-related documents that likewise had no substantiation for Nifong’s assertion.

(2) Cohan, in fact, knew that Nifong’s assertion that Seligmann said something about getting married was false. But—blinded by his partisanship for Nifong or his disdain for the falsely accused students or some combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that Scribner’s issue a public retraction of this section of the Cohan book.

Cohan’s willingness to publish serious allegations that he either knew were false or would have recognized as false with a minimum of reporting speaks volumes as to his goals in producing the allegedly “definitive” account of the case.

Hat tip: K.