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 4^th 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 Reagan’s 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.

Nifong

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.

Media

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.

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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.