Reflections on the Law School Conference, II

Though President Brodhead’s apology attracted the most attention at the Law School’s Court of Public Opinion conference, several other presenters offered insightful case-related comments as well.

Paul Haagen. For me—and for others coming into the case from outside of Duke—the introduction to Haagen was not a welcome one: his “helmet sports” remark from the deeply flawed N&O March 25 article.

Yet as I learned more about the case, it became clear that Haagen’s role was almost wholly a positive one. As chairman of the Academic Council, Haagen ensured Jim Coleman’s appointment as chairman of the committee that investigated the lacrosse players’ behavior. He also promoted one of the few unequivocally good ideas to come out of the whole affair—the faculty athletics associate program.

That his successor, Paula McClain, said that (unnamed) colleagues were “aghast” that Haagen’s idea would even be considered gives a sense of what might have occurred had the Academic Council been under less inspired leadership. As Sports Law Blog tartly observed, “Apparently, Professor McClain—who is co-director of Duke’s Center for the Study of Race, Ethnicity, and Gender in the Social Sciences—believes that in the aftermath of the Duke lacrosse scandal, the University needs to distance itself from its sports teams, rather than embrace them.”

At the law school conference, Haagen offered a detailed explanation of his approach to the case:

1) He believed (correctly) that Duke faculty needed to avoid specific comments on the criminal case.

2) He did everything he could to have the response conform to existing procedures and to create a common base of information to the shifting set of questions about the team. The Coleman Committee resulted from these goals.

3) He wanted to minimize the sense of isolation among Duke athletes and their coaches, and he personally reached out to facilitate exchanges.

4) He hoped to minimize tensions among the faculty—no easy task when Steve Baldwin, the first professor to criticize the Group of 88, was greeted with an implicit call for violence from one colleague and an intellectually dubious claim of racism by another.

In the end, Haagen hailed the “remarkable” performance of Duke coaches—people who felt “assaulted,” but didn’t become bitter and showed impressive self-restraint. And he raised a question that should form an important lesson of the case: when professors have an opportunity to raise their issues, how aggressively should they exploit that, and what are their other responsibilities? Haagen noted that his “deepest concern was that a number of people didn’t ask very seriously what the tradeoffs were when they used an opportunity to push an issue.”

Sergio Quintana. Quintana, a reporter for NBC17,* recalled that when the crisis began, he spoke to some Duke students who felt that the University was throwing the players under the bus. These students, however, were afraid to speak on camera, lest they get in trouble.

Indeed, if any "listening" ad with anonymous student quotes needed to appear in spring 2006, it was from these students, who understandably feared speaking out. With one grade-retaliation lawsuit so powerful that Duke settled out of court with a public announcement that the grade was changed; and with at least five cases of unprofessional classroom behavior documented in UPI, the students’ concerns seemed reasonable.

Such fear of retaliation wasn’t confined to the student body, of course. Take the case of History professor and Group of 88 member Susan Thorne. Last winter, Thorne told a lacrosse player (in writing) that she understood the harm that the Group’s statement caused, and planned to pen a public essay expressing her regret for the statement. Instead, a few weeks later, she signed the “clarifying” document, whose signatories reaffirmed the Group statement and announced that they would not apologize.

When asked why she had gone back on her word and not published her apology, Thorne coldly replied that “If I publish something like this . . . my voice won’t count for much in my world.”

Quintana’s recollections and Thorne’s behavior serve as reasons why the “Campus Culture Initiative” seemed so misguided. What accounts for a faculty culture where a tenured professor like Thorne believes that she has to betray her own students to maintain influence; or where a host of professors considered it proper to use class time to denounce the lacrosse team?

Those questions about campus culture few, if any, figures in the administration have proved willing to address, even as the CCI focused on the race/class/gender ideological triumvirate so appealing to the Group of 88.

Michael Cassidy. Another clearly good thing to come from the lacrosse case: Duke’s commitment of $1.25 million over five years to expand the Law School’s Wrongful Convictions Clinic and Innocence Project.

Cassidy, a former Boston prosecutor who now teaches at BC Law School, represented a quite different approach to confronting prosecutorial irresponsibility. Cassidy criticized the DHC ruling on Mike Nifong’s unethical comments, contending that Nifong—as a candidate for election—should have had wide latitude to speak out. Yet the comments Cassidy referenced (a) announced that a crime occurred or (b) denounced the character of people Nifong’s office had publicly identified as suspects.

Finally, the institutional response panel provided a useful reminder—while Duke might have had to base its decisions in this case on incomplete information, that condition applies to all crises.

[Note: I am traveling to Boston today for a talk at the Harvard Club; comment moderation, therefore, will be sporadic at best.]

*--corrected

Reflections on the Law School Conference, I

Although his remarks were brief, President Brodhead effectively apologized for five different elements of his administration’s conduct over the past 18 months.

1.) The treatment of the 47 lacrosse players and their families.

As Brodhead noted, “Given the complexities of the case, getting this communication right would never have been easy.” Yet, as he also conceded, “We did not get it right, causing the families to feel abandoned when they most needed support.”

In retrospect, the president clearly erred when he refused to meet with the lacrosse parents on March 25 (the day he canceled the Georgetown game)—especially since he did meet shortly thereafter with a host of campus or Durham groups that were hostile to the team.

The administration also erred in other ways on this front. For instance, despite the extraordinary nature of the crisis that engulfed the team, and despite the seeming good intentions on the matter of Dean Sue Wasiolek, Larry Moneta’s student life apparatus did nothing to reach out to the lacrosse players at any point in the spring of 2006. The (unsurprising) impression: that the administration cared little about their fate.

2.) The activist faculty’s statements and actions.

As Brodhead noted, “Some of those who were quick to speak as if the charges were true were on this campus, and some faculty made statements that were ill-judged and divisive.”

In one respect, the president was only conceding the obvious with these words. (How could the Group of 88’s statement not be considered “ill-judged,” or the remarks of people like Grant Farred or Peter Wood not be considered “divisive”?) That said, Brodhead had shown an unwillingness to recognize the problem until Saturday.

3.) The activist faculty’s presumptiveness in speaking for the institution.

As Brodhead noted, “The public as well as the accused students and their families could have thought that those [statements] were expressions of the university as a whole. They were not, and we could have done more to underscore that.”

In fact, Duke did almost nothing on this score—the administration’s sole action was Peter Lange’s powerful response to Houston Baker’s racist screed of March 29, 2006. Since the Group of 88’s ad (falsely) claimed the formal endorsement of five academic departments, it’s not difficult to understand why many (even on campus) might have assumed that the Group spoke formally for the institution.

4.) The failure to defend the presumption of innocence.

As Brodhead noted, “By deferring to the criminal justice system to the extent we did and not repeating the need for the presumption of innocence equally vigorously at all the key moments, we may have helped create the impression that we did not care about our students.”

In one respect, the president was only conceding the obvious with these words: whatever Brodhead’s intentions, he did not defend the presumption of innocence—at all—in his key statements from April 2006. That said, Brodhead had shown an unwillingness to concede this fact until Saturday, and his accepting the truth is a positive step.

5.) The failure to defend due process.

Brodhead had an opportunity to avoid this problem in July 2006, when the Friends of Duke open letter explicitly asked him to comment not on the players’ guilt or innocence, but to demand that they be treated just like any other Durham resident. I’m sure if he could do things over, Brodhead would have responded to the FODU letter differently.

Brodhead’s apology contained one clear absence: he didn’t apologize for his administration’s failure to investigate the credible spring 2006 reports that several several arts and sciences professors had behaved inappropriately toward lacrosse players in their classes. On that front, however, the president probably was restrained from speaking out by University counsel.

---------

What long-term effect will the president’s statement have? Brodhead had three targets for his remarks.

1.) The trustees. Board deliberations are, obviously, private; and no Trustee except Bob Steel has spoken out one way or the other regarding Brodhead. But several Trustees attended the speech, and it’s hard to believe that the Trustees aren’t thinking hard about what the administration did right and wrong.

2.) The 2006 lacrosse players and their families. No family members commented publicly on Brodhead’s speech. But given the president’s apologetic sentiments, it’s hard to believe that the remarks were not a precursor to a settlement with the families of the unindicted players.

3.) Duke alums and students. Brodhead’s fate, like that of any major university president, will ultimately be decided by alumni support (and donations). Jay Bilas, who last week became the highest-profile Brodhead critic among Duke alums, told the N&O that Brodhead’s apology was appropriate but “woefully late . . . The confidence in his ability to lead has been eroded. While Dick Brodhead is a terrific person and would make a wonderful head of the English department, he has demonstrated his ineffectiveness and his inability to lead, especially in a crisis.”

The question now is whether Brodhead will demonstrate effectiveness and an ability to lead in implementing the principles laid out in his apology.

For instance, he’s admitted that members of his faculty made “ill-judged and divisive” statements about their own school’s students. It would seem obvious, therefore, that the administration needs to ask some hard questions about why so many Duke professors so readily rushed to judgment.

Have the staffing patterns in many humanities and some social sciences departments made these departments unusually susceptible to the shortcomings of groupthink? What concrete steps will the administration take to remedy the situation, to ensure that Duke’s faculty in future, if not in the past, is staffed by professors who don’t tend toward divisiveness, and who exercise better judgment?

Students and alumni should expect answers to such questions as the University moves forward from Brodhead’s remarks; and hopefully, given the tenor of his statement, Brodhead will be equipped to supply the appropriate responses.

Judges' Panel

Hengslter: who is making editing decisions with news as commodity? Grace, O'Reilly

how can courts deal with fact that justice is becoming entertainment and a commodity--ie, with protective orders? If people who know about case, who will talk? People who speculate.

Millette: (judge) in high-profile cases, judges need to ensure that good defense attorneys if defendants can't afford them

MD sniper cases--both sides were conscious of need to keep case out of trial

change of venue is a tool judges need to use to minimize effects of media

3 things judges worry about with high-profile cases:

1) preserve sense of normalcy in courtroom
2) select an untainted jury
3) keep jury impartial

Ruckriegle: Bryant case--lawyers for the accuser speaking to the media; how to deal with such a blitz?

out of 300 jurors, 174 passed voirdire

Walton: judge in Scooter Libby case

from inception, knew that biggest challenge would be empaneling fair jury for Libby given DC's overwhelmingly Dem nature

DC population: "wholesome degree of skepticism" about prosecutor and the government

Sellers: court public information officer is new position--increasingly prominent in court system over past 25 yrs; liaison between court and media

cameras, technology, seating, jurors, verdict--5 key concern

cameras in courtroom feeds the media interest; technology--keep cameras out? but what about text-messaging, etc.?

dangers of jurors who blog about experience or who read blogs and take influence from them

Levi: what can the judiciary do to restrain Nifong-like statements?
Millette: very difficult to answer--people in VA don't act like that

need to look to bar association for assistance; but judiciary doesn't really have tools to deal with this at this stage

Ruckriegle--trial court doesn't have ultimate legal ability to control leaks

Public Interest Panel

Gross: danger of one-sidedness in coverage of crime; tends to treat presumption of innocence as formality

presumption of guilt in general public

normal case in crime coverage is the opposite of what was seen in Duke case--(local news)--tends to be slanted against black criminals

"crime script"--crime is violent, perpetrators are black; statistically, blacks are over-represented in media coverage as violent criminals; association between race and violence in media coverage

on lacrosse case: difference between early coverage and what happened when DNA test results released

distinguishing among media outlets; opinion from commentary

Early coverage problematic--news norms (defer to elite sources) caused problems in this case, more problematic in national coverage--very slanted

more mixed in taking longer view

Scott Bullock (Institute for Justice): incorporate media strategy into their litigation

public interest law; can lose in court, but win in court of public opinion (eminent domain cases a good example)

train their lawyers in how to deal with media--speak passionately, not in legalese

unlike criminal justice cases, need to put client up front--have client talk to media

Shapiro (ACLU): also--can win in court of law, but lose, in court of public opinion (ACLU has seen this)

difficulty of sharping message in media battle where perception too often trumps reality

many other prosecutors like Nifong; why not action against them? [again, no mention on who, precisely, these prosecutors are]

issue of how to frame discussions in a way that public will care about it

Brodhead Remarks

[General: this was a powerful and emotional address, one that touched on several important points in an impressive fashion. Especially well-considered were the president's comments about Duke's handling of the issues of standing up for due process and ensuring that some "ill-judged" faculty remarks weren't constructed as speaking on behalf of the University.]

conference about broader issue--legal case that creates a national community of attention

typically combine elements of scandal and other social issues (race/class/gender, etc.)--cases highlight crucial problems (justice, fairness, how American public is informed and misinformed)

facts weren't equally clear throughout the process; DA made series of statements expressing absolute confidence that crime had occurred--deep uncertainty about what had happened

then local and national media saturated coverage

RB position based on three principles:
(1) type of crime that had been alleged had no place in community
(2) presumption of innocence
(3) entrust case to criminal justice system

hopes that the aftermath is time of learning; last person to learn lessons from what has occurred

(1) regrets failure to reach out to lacrosse players and their families "in time of peril"---"This was a mistake. I take responsibility for it."

(2) "Some faculty made statements that I believe were ill-judged"--people could have thought they were expressions of university--should have done more to make clear this time that they weren't

(3) didn't repeat presumption of innocence at all times, and could have given impression that he didn't care about the concept

(4) thought it was essential to resolve situation in criminal system, but didn't make clear enough that system could be undone by failure of men
"relying on the criminal justice system in this case" had limits

concerned that if Duke spoke out in more aggressive fashion, it could have led Nifong to drop the case

but Duke needed to be clear that it demanded fair treatment for its students; took it for granted, "should have been more explicit" about it

State needs to do more to limit the power of rogue prosecutors--if another Nifong comes along, will be sure that the lessons of the case are unlearned

questons raised by case:
how does university advise them? show to interact with parents? how to deal with students on campus? Colleagues will be going over these questions in future--Duke will host national conference on this issue

"actual human lives were at the mercy of so much moral certainty"--lesson of danger of prejudgment

This was a very powerful speech. [I'll post it as soon as it becomes available.]

Living through Lacrosse Panel

John Burness: need to understand the degree of media frenzy in this case
3400 stories about Duke in month before case in national and int'l media--95% were positive
7300 in March
33,000 in April 2006

"intensity and duration of this story is in my experience unprecedented"

in early stages of case, almost didn't matter what Duke said or did; media rushed to stereotype [as of course, did activist Duke profs]

"variable that made this story so powerful, in the end, was Duke University"--Duke had been on pedestal

nothing that knocked story off front pages or 24-7 cable news networks

if Duke could have done it again:
1) didn't anticipate degree to which frenzy would overpower Duke's preferred message; universities not used to investing in pr firms like corporations would do
2) didn't anticipate synergy between role of blogs and press--blogs created information for press, also fanning flame; heightening perception of story that from Duke's perception 'wasn't particularly accurate"

Coleman:

agreed as a committee that the report would speak for itself--Coleman had press conference--said "this is our report; you should read it'--wanted disagreement to be one about facts

"public doesn't fully appreciate how easy it is" for innocent people to be convicted; once it happens, very difficult to undo

what would he have done differently? wish he had met with Joyner to speak about mutual concerns--normally he and Joyner agree--might have made a difference if he had expressed an impact the case had on defendants

Faulks (NCCU law professor)

NCCU law school much more reserved in response than NCCU as a whole (Joyner the exception)

if done differently: "I would hope that the university would have made better choices about how they showed support for the accuser" rather than rushing to take more political stance

hopefully, Duke and NCCU will communicate more frequently in aftermath of case

Haagen: emergency faculty meeting--"level of interest and excitement" that was greater than he had anticipated

basic principles:

1) had to stay out of criminal case;
2) follow existing procedures--could be no individual discipline related to actions associated with party

wanted to create common base of information to shifting set of questions--turned to Coleman as chair of committee, with promise to back him wherever his information was

3) went to athletic department to speak with some of the coaches--immediately became clear to him that coaches were quite isolated within institution--led to creation of faculty/athletics associates program

tried to stay away from anything specifically related to the case, rhetorically

4) hoped to maintain collegial relations throughout

what would he do differently?

did 50 hrs of press interviews in first week after crisis erupted--wished he had been more effective in communicating; thinks some of his language just wasn't understood

probably needed to blunter to ensure that message got out

Quintana

general assignment reporter--local TV news
irritating at times to see national media get access to sources they didn't--given that he was local reporter

interesting to see story take on broader context given the national press coverage

story was like a hydra--had many different sides

spoke to some Duke students who felt the players were being thrown under bus--but afraid to speak on camera, because feared getting in trouble
wishes that he could have done more to get this aspect of the story out

Rotberg (ex-Chronicle reporter):

closer to students than any more powerful media sources; but also were students first--had their exams, etc.

Chronicle steamrolled to some extent--in retrospect, should have done more to limit access to student reporters; but in retrospect, Chron handled the case well

Q: What should other groups (faculty, adm., media, defense counsel) done better?

Burness: "This was not the media's finest hour."
media went to stereotype from the start--and think things are continued to be stereotyped

He was more conscious of giving local media rather than national media the access

tried to get media to understand the power of how the stereotypes were affecting the story

"some of the columns in the best newspapers in this country were egregious in their errors"--NYT early coverage (requested 10 NYT corrections early on, got five, should have gotten ten)

early tactical error by defense attorneys: (1) perp walk, put sweatshirts over their heads;
(2) no speaking 4-5 early days (though now understand the reasons for this silence--construction of digital alibi, etc.)

also conscious of where the administration could have done a better job: Burness first statements said that students were cooperating; Brodhead first statement said that there were differing versions of the story

weren't as effective in taking messages Duke had (available on website) to the public--too passive, people wouldn't look for it

Coleman

a lot of people who performed in 'admirable" ways; some disappointments

a lot of people who were in position to affect what public's lesson should have been failed

guesses "that a lot of the 88 didn't carefully read what they had signed"

case could have been a bridge, but becoming more of a wall
accused students came out of it surprisingly calm--lacrosse supporters came out of affair very angry

failure to appreciate anger of poor who have suffered in earlier miscarriages of justice

he did what he's done in any such cases--main difference is that people were paying attention in this case

Faulks: her surprise that Duke told students not to get lawyer
surprised by media's failures--but more so institutional failures (Duke/NCCU) in using this instance to discuss sexual violence against women, athletes and problems
[but, of course, nothing occurred in this instance??]

media had opportunity to get perspectives from faculty at NCCU--such as a specialist in under-reporting of rape, prevalence of date rape at universities

serious misconduct of DA not as much of an aberration as people thought--problem is often that prosecutors rush to judgment
need to make fundamental changes on limiting power of prosecutors

Haagen: it is very disputed that students were told not to hire lawyers
one of key problems in this case was that people would know things that were in fact disputed

thinks Duke did try and reflect--though not sure that discussions were as productive as they might have been

in the end, eventually things went well (State Bar action, AG, etc.)

failure of a a variety of groups of people to recognize that they should make common cause

Duke coaches were "remarkable" in their performance--felt "assaulted," but didn't become bitter, self-restraint was impressive

tough matter: when you have an opportunity to raise your issues, how aggressively should you exploit that? what are your other responsibilities?

"My deepest concern was that a number of people didn't ask very seriously what the tradeoffs were when they used an opportunity to push an issue."

Quintana: the case was completely tried in the public; wouldn't have happened if the defense attorneys hadn't realized this early on

University seemed to be overly conscious of image

story was about "privilege getting its comeuppance"

wasn't a face of the university to which the Univ. had access

Rotberg: "complete confusion in which all of these events were taking place"

"complete departure from everything we were raised to believe" to see that Nifong's goal wasn't to look after public, but himself

Final thoughts:

Burness: opens an interesting lens in what goes on in American society; rush to judgment, stereotyping; and how people get and process information
willingness to accept something just because it's put out

Nifong's behavior might not have been unprecedented, but his visibility was unprecedented in pursuing a fraudulent case

Coleman:

accept that students were innocent, because of extraordinary series of events
too easy to look back and try and deconstruct the case; importance to consider, in that process, how these things would have changed the overall outcome

what Duke did affected what others did

Faulks:
media needs to be more innovative in covering stories related to race, class, gender, and region; old way is completely unfair

society needs to be better in regulating the criminal justice process

Haagen:

rushing to judgment is a systemic problem
story of case: "all the news that fits we print"

Rotberg:

"case exposed the basest character of the media"

Institutional Response to Crisis Panel

1) How do and should institutions respond to crises, in real time?

2) In what ways have and can institutions respond to crises that become springboard for long-term change in institution?

Levick: Institutions never have enough information--have to exist and make decisions. Generally, what happens in the first 24 hrs determines who wins or who loses. Duke lacrosse case an exception here.

Perception generally trumps reality--facts won't carry day in the media.

Always going to be a villain in every crisis--Nifong becomes the villain.

General pattern over last generation--decline of objective news; news as entertainment increasingly.

"Oklahoma land rush" for the new media--plaintiffs' bar has used it well.

Masback:

experience with USA Track & Field--addressing journalists without all facts; pointing fingers is not a good strategy

Clair:

problems for institutions: (1) inability to imagine: a crisis is a low-probability, high-profile event
(2) reactions to potential of threat often gets in the way of preparing for crisis
(3) inability to deal with potential threats for response

Dufresne:

need to have sense of ongoing narratives (victim v. villain; heroic v. unheroic); also need to manage balance between strength and vulnerability; knowing that you're right isn't enough

Clair:

specialist in crisis management research (soc, psych, poli sci, org. studies)
"resilience"--idea of getting back to normal after the crisis event--

(1) trauma can be transformational: many organizations have individuals who respond to traditional media--less aware of new media

(2) revision organization's philosophy

(3) renovation of underlying organizational structures--build bridges between different segments of campus

Dufresne:

outcomes sound great--but why is it so difficult to reach them?

dangers about managing tensions--conflict between "moving on" and seeking to learn from lessons of crisis

Levick: always disagreement about nature of crisis: so what? That's what a crisis is.

"when you are not able to make decisions, it gets worse"--initially, people circle the wagons around you, but eventually pull away

Masback: Balco case--"we provided the facts when no one else would"--ability to control the info
admitted mistakes to prevent this sort of thing in future, even though small # (5) and fairly low-profile track & field athletes

Levick: reporters tend to be far fairer with institutions when the institutions are open
most lawyers bring in crisis communications people too late in the game

Masback: need outside experts in response to crisis; possible to win on facts and lose in perception

Misc.

It was a fascinating day yesterday at Duke Law School’s “Court of Public Opinion” conference.

The most dubious presentation came from former Massachusetts prosecutor R. Michael Cassidy, currently associate dean for academic affairs at Boston College Law School. First, he challenged portions of the Disciplinary Hearing Committee’s rulings dealing with Mike Nifong’s disbarment. Some of Nifong’s pretrial statements, Cassidy suggested, were ethically proper.

According to Cassidy, district attorneys in the midst of an election campaign have considerable latitude, based on the First Amendment. He cited Minnesota Republican Party v. White—but this decision appeared to have little to do with Nifong’s behavior. White held that states could not prohibit judicial candidates from expressing their opinions about issues that might come before them on a court. Nifong, however, was accused of making prejudicial statements about a specific criminal case in which his office had publicly identified suspects.

Nonetheless, according to Cassidy, it was permissible for Nifong:

To make comments that expressed certainity a crime occurred;

To comment on his reading of SANE nurse Tara Levicy’s report

To inform Newsweek (after all three indictments had occurred) that no “’facts’” had emerged that had caused him to change his initial opinion, which was expressed on March 27, 2006.

At the ethics proceedings, even Nifong’s attorney conceded that the latter comment probably was improper.

Cassidy revealed his bias a bit later in his talk, when he announced that AG Cooper's declaration of innocence was disrespectful to “victim.” Several people in the audience, correctly, called out that there was no “victim.” Cassidy slightly backtracked—terming Mangum the “alleged victim.” He made sure not to mention her name.

Other highlights:

Duke Law dean David Levi saying that if 70+ of his faculty had wanted to sign a denunciatory statement about their students, he would have done what he could to dsiscourage them from acting. President Richard Brodhead, it seems, took a different approach with the Group of 88 statement.*

Michael Tigar noted that lawyers who play soundbite journalism inevitably lose—even though, sometime, defense attorneys have to develop a relationship with the media.

During the Friendly roundtable, Dean Levi, playing the role of chancellor, was asked what he would have done upon learning from police of an investigation of sexual assault against one of his school's students.

His reply? "I'd call Jim Coleman."

*--modified to prevent overstatement. Brodhead met with AAAS faculty on 4-3-06; copies to the Group's ad had circulated via email before that time. It seems very hard to believe that the topic of the ad did not come up at the meeting. Given Brodhead's defense of the ad's themes in his 4-5 and 4-18 statements; and his vigorous defense of the ad three times in winter and spring 2007, it also seems very hard to believe that he offered the kind of objection to the ad provided by Levi. Indeed, before an e-mail sent to a DIW reader yesterday, Brodhead never criticized the ad in any way.

Responsibilities of Prosecutors Panel

The big case-related name on this panel is one of the stars of the Nifong ethics trial, Charlotte ADA Marcia Goodenow. The panel also includes two former U.S. attorneys and the academic dean at BC Law School.

Tom Metzloff: what were lessons of Nifong case for prosecutors?

Lynch: balance between how to deal with press and how to uphold rules?
need for continual training of young prosecutors in dealing with press

Goodenow: criminal defendant has a right to be tried in the courtroom, and the media doesn't have a right to try them
clear that three falsely accused students were not presumed innocent by media

media and public have right to access to the courts--not to everything dealing with case

Connolly: most prosecutors do follow the rules
lesson of Nifong is that not everybody plays by those rules--could see this through video--"shocked at what he said" at NCCU forum; "embarrassed"--clear that there "are bad apples" among prosecutors

Cassidy: more lessons not learned from Nifong case than were learned: Nifong was going to be disbarred without improper statements to media because of other violations

contends that some of Nifong charged statements were permissible
such as: city of Durham won't tolerate such behavior; "victim" exhibited behavior consistent with sexual assault were acceptable

MN v. White decision--can't gag judicial candidates; does that apply to elected DA's as well?

Lynch: inappropriate to go after individual classes of people (ie--all blacks, or all Duke students)

Connolly: trying cases in media generally not good for case

Lynch: fear that all prosecutors have is that it's more than just Nifong

Cassidy: if there's a big settlement with Durham, this might make prosecutors more cautious in the future

Cassidy: AG Cooper's declaration of innocence was disrespectful to "victim"; several people in audience call out that there was no victim

Responsibilities of Defense Counsel Panel

This is a high-powered panel: Laurie Levenson, Michael Tigar, and Harold Haddon.

Levenson: overview of rules for defense counsel
ABA Model Rule 3.6--dates from Gentile case--no statements that lawyer believed likely to materially prejudice proceedings; or to be inadmissable in court

safety zones for comments:
--explaining the presumption of innocence
--request assistance in obtaining evidence
--information contained in public record, w/o further comment (load up motions); used very effectively in lacrosse case
--scheduling information

"tit for tat" rule--defense attorneys can respond to substantial undue effect of recent publicity not initiated by client

very difficult for court to limit public access to information

will there eventually be recognized access to cameras in courtroom?

should there be a legal code regarding legal commentators?

Tigar: media has played very significant role, throughout American history, in ensuring the innocence of factually innocent people

need to think about remedy of judges taking more of a role to rebut out-of-control prosecutors

right of media to report and opine powerful (though also dangerous)

lawyers who play soundbite journalism inevitably lose--though sometimes have to develop relationship with media

Haddon: speaking to media is very risky for attorneys

at same time: in high-profile cases, 1st impressions are indelible

never able to reverse negative impression in Ramsay case after police dept's early leaks

pressure on defense attorneys to stand up quickly; yet can be extremely risky for def. attorneys to do so

Evans statement in lacrosse case "was brilliant . . . had a real significant effect on public opinion of him and of the case"

Levenson: misperception that all defense lawyers have to have same strategy
images & not that lawyers say is critical

Line of the Day

During the Friendly roundtable, Duke Law Dean David Levi, playing the role of chancellor, was asked what he would have done upon learning from police of an investigation of sexual assault against one of his school's students.

His reply? "I'd cal Jim Coleman."

Fred Friendly Roundtable

Kimel: role of upperclassmen to welcome newer members of the team--assimilate them into team and culture.

Margaret Jablonski--student affairs person, UNC: Student Affairs has right to act independently--have to recognize conflict between individual rights and community rights

Jack Ford (as moderator); seems to be treating suspension of students charged with felonies as among the more controversial elements of the case--even though it's not my sense that Brodhead's initial suspensions were particularly controversial

Lawrence McMichael: suspension is fueling the presumption of guilt: the more that public figures weigh in, the worse the person is making things for his client

Levi: would ask faculty not to make inflammatory statements (in private meeting)--yet, of course, Brodhead, on 4-3-06 when he met with African-American Studies faculty, appears to have made no such request to organizers of the Group of 88 letter

Would have even more problems if it were a group of profs who made such a demand

Levi: "There's free speech and there's also ill-judged speech"

Jablonski: need to have pr person--deal with team members, with parents. Should have conversation with members of team and their parents

Wellman: dangerous to get too far out in front of case before knowledgeable about facts of the case

Steptoe: important for press to have presented a full picture, rather than just rely on most extreme voices; why did media not take into account prosecutor's self-interestedness

Traditional Media Panel

Sylvia Adcock:

economic pressures put on print media by large corporations--eating away at talent necessary to put out great paper; will future media be able to provide necessary firepower?

Malcolm Moran:

"knows how painful this episode was" to people at the NYT
but things could get worse--technology might make it easier to spread false information, with 24-7 real-time environment, safety net of editorial process is gone

Eric Lieberman (attorney for Williams & Connolly, clients include Washington Post):

media tends to be very thin-skinned about its failings: ombudsman, blogosphere have potential to catch any error

"our most valuable asset is our credibility; if we lose our credibility, we have nothing at the end of the day."

Loren Ghiglione:

journalists need to be especially conscious of avoiding myths in race/class/gender stereotype

institutions within the press--ombudsmen, public editors; also bloggers--that can hold the press accountable

Ari Shapiro:

easier for government to manipulate media in terrorism cases--nature of process, government stopping something before it happens, therefore difficult to determine government's rationale for acting when it does

news media needs to act as filter--public doesn't need uncritical transmission of whatever government says

William Raspberry:

question of how news is made can put the media in a bad light--the end product is often good, but the mess in the production can look bad; in live-coverage, almost impossible for reporters not to lapse into speculation

also--tough for media to simply say it doesn't have new information--reporters have to advance the story, make it more likely to have speculation; pressure to report what competition has and leapfrog it

How to avoid this problem? Not sure it can be avoided. Editors help--but no editors on internet?; internet stories can force the hand of good editors

Beale: how can things get better?

Adcock: ombudsmen;
Shapiro: changing news consumer--no longer sense that need to get news from source that does it well, drags down the whole enterprise
Raspberry: tendency to write more than what reporters know--Whitewater good example of this.

Beale: how much of this problem can be attributed to prosecutors' behavior? Press have to report prosecutor's actions?

Lieberman: no--system supposed to be contest between press and gov't--media can't cede its obligation to have discipline and question the powers that be

Moran: in too many places, being wrong is OK, because desire is to get story out quickly

Ghiglione: when a news organization screws up, what does it do then? Praises Ruth Sheehan for apologizing for her early columns

Raspberry: dangers of making guidelines based on hugely exceptional cases

Hodding Carter Opening Remarks

Had spent a portion of his adult life in trying to get press to come to grips with own failings.

“often arrogant refusal” of press to accept that it has some responsibilities of broader citizenship—has had deleterious effect in terms of public attitudes toward press (national security issues, etc.)

Two key points:

1) “trial by media is as American as apple pie”

2) actions of AG and state bar were “extraordinary”—need to keep in mind this wasn’t the normal approach

Yes—will be lessons from this case—but will only last until next high-profile case

Recall Sacco & Vanzetti case—“try them after you convict them”

Leo Frank case another such example

Quite aware that usual victims of media lynchings were black men—accused of crimes against white; only occasional cases (Scottsboro) attracted attention to the injustices

“even now, newspapers too often blandly play the conveyer belt” for improper utterances of prosecutors

“We should all be so lucky as to live in a country where the work of the Raleigh News & Observer [in this case] was the rule”

“to read its work was to watch a newspaper turn on a dime”—began to repeatedly say things weren’t straight: work especially impressive in comparison to other newspapers, “some much better known in other parts of the country”

Media never learned lessons of McCarthyism

--Wen Ho Lee, Kobe Bryant, Jon Benet Ramsey, Barry Bonds (?), Richard Jewell, Whitewater

Recall the movie: Absence of Malice (even sometimes Hollywood gets some things right)

“cannot look to the media for a solution” in terms of media coverage of fair trial; also cannot hold media accountable for its misconduct except in very rare cases

But, unlike the media, there are clear rules for the court, the prosecutor, the police—no constitutional protections for them violating their rules, unlike the First Amendment for the media

Burden for ensuring fair trial relies on the Bar; can’t demand that media behave like lawyers

Why was this Bar intervention "extraordinary"--why not routine to curb a rogue prosecutor?

"What are canons for if not enforcement?" Why: "nothing quite so clubby as the Bar

real lesson of the Nifong horror show is that there are tools aplenty to strip a case from an unscrupulous prosecutor's hands

blogosphere has role to critique press--in a way that the press has failed to critique itself

to Nifong: "to violate every canon, every principle, every single standard emblazoned in law school texts and bar canons"

Nifong "the poster boy for all that is wrong" with prosecutors.