Paging "Senator" Ashcroft?

On October 16, 2000, Missouri governor Mel Carnahan was killed in a plane crash, while campaigning for the Senate against incumbent John Ashcroft. Under Missouri law, Carnahan's name couldn't be removed from the ballot; after a several-day hiatus, Democrats announced a "Stick with Mel" campaign. On November 7, a narrow majority of Missouri voters cast ballots for Carnahan, meaning that the governor would appoint the state's next senator. Governor Roger Wilson named Carnahan's widow, Jean, to the seat.

Under the logic employed by the Durham Herald-Sun, John Ashcroft won the 2000 Missouri Senate race; indeed, he ran "unopposed." Or so you'd have to conclude from the Herald-Sun "votebook" page on D.A. Mike Nifong. The heading? "Candidate is Unopposed."

This revelation will, no doubt, come as news to Mike Ashe, director of the Durham Board of Elections. Last month, Ashe indicated that two, not one, names would appear as candidates for Durham district attorney: Nifong and County Commissioner Lewis Cheek, who collected more than 10,000 signatures to appear as a petition candidate. (The ballot also will contain a space for write-in Steve Monks, a spoiler candidate whose goal seems to be to split the anti-Nifong vote.) For his part, Cheek announced in July that, if elected, he would not serve, leaving Governor Mike Easley to appoint a replacement for Nifong. The replacement would serve until 2008, when another election would occur.

The "votebook" inaccuracy isn't the first time the Herald-Sun has wildly distorted news regarding the Cheek effort. In a July 30 editorial, editor Bob Ashley opined,

On Thursday, Cheek said being district attorney would be too much of a distraction from the business of his Durham law firm, so supporters shouldn't vote for him after all.

In fact, Cheek had said exactly the opposite regarding how his supporters might vote. As N&O reporter Benjamin Niolet noted after the county comissioner's press conference,

Cheek . . . said anyone dissatisfied with Nifong could vote for him. Cheek said that he would vote for himself but would stay out of the election and the campaign.

Why would Ashley misrepresent Cheek's statement? This error, unfortunately, forms part of a pattern of the Herald-Sun distorting developments that call into doubt Nifong's crusade to bring about a trial. The paper, in fact, never even reported a variety of events that couldn't be spun in a pro-Nifong direction, including but not limited to:

• That Durham city procedures contain General Order 4077, which requires all eyewitness ID lineups to contain five fillers per every suspect, an independent investigator to run the array, and informing the eyewitness that the suspects might or might not be in the array; and that nothing in the General Order allows police, as occurred in this case, to conduct a photo ID lineup with the accuser whose results are then ignored.
• That because of these procedural improprieties, Duke law professor James Coleman, a former chief counsel to the House Ethics Committee (when the Democrats controlled the House), publicly demanded appointment of a special prosecutor.

Meanwhile, following up on Ashley's false description of Cheek's press conference remarks, the Herald-Sun published an August article that John in Carolina correctly deemed a "fake" story. The article claimed to have revealed "previously undisclosed matches" of DNA to Dave Evans and Matt Zash--even though, as the N&O noted, this information had been disclosed by defense attorney Joseph Cheshire in April.

Perhaps Ashley's insistence on describing Nifong as "unopposed" and informing his readers that Cheek said "supporters shouldn't vote for him after all" suggests that he fears the strength of the Recall Nifong-Vote Cheek movement. The group looks and acts very much like a campaign that is urging Durham County residents to vote against the "unopposed" district attorney by selecting the other name on the ballot:

• The RN-VC effort is raising money.
• It soon will be distributing campaign signs.
• It has received public endorsements from Durham residents.
• Its coordinator, Beth Brewer, has made public appearances urging voters to select Cheek, the name on the ballot other than the "unopposed" district attorney.

The Recall Nifong-Vote Cheek effort has the potential to be this year's Carnahan campaign--performing the unprecedented by unseating a sitting district attorney through a petition campaign. Perhaps Durham residents should begin a petition campaign directed at Paxton Media Chain to unseat Editor Ashley as well.

[Update, 1.18pm: John in Carolina has a revealing comparison between how the N&O (fairly) and the Herald-Sun (with bias) covered the Nifong motion of yesterday.]

Cracking Up?

I imagine that seeing his prosecutorial misconduct exposed before the entire country must be emotionally trying for Mike Nifong. But in the last two days, he's demonstrated signs that almost suggest emotional instability.

Yesterday, a New Jersey retiree sent Nifong an email saying that he was considering moving to Durham so he could vote for the Recall Nifong-Vote Cheek option. The writer didn't say where he was from. Nifong responded,

Michael.B.Nifong@nccourts.org

Gee, Bill. Does this mean you are moving down here from NJ just to vote against me? I am flattered. Bad news, though. You'll be stuck with me at least until the end of December.

The emailer sent me a copy of the email to confirm its legitimacy. Nifong, it seems, has time to look up the residence of people who email him and send back sarcastic replies, but not to read the Kirk Osborn motion detailing Reade Seligmann's alibi?

Then, the N&O just noted that Nifong filed a court motion asking the judge to order defense attorneys to testify about their involvement in a poll of Durham County voters, which he claims was designed to influence the jury pool and therefore violated the state bar's code of ethics. I assume Nifong didn't deal with any change of venue motions when he was in traffic court, so perhaps he's unaware that to justify a change of venue, the defense would need to prove that Nifong's inflammatory early statements--which unquestionably did violate the ethics code--poisoned the jury pool.

The odd item about Nifong's motion? His only affidavit about the poll's terms comes from . . . his wife. (Seeing that Nifong previously had his sister write in to defend his integrity, this seems to be part of a pattern for him.) I suppose next up will be an affidavit from his dog.

So, the DA is sending crank emails while his wife is detecting grand conspiracies of defense lawyers to undermine him. Just another week's work for Durham County's "minister of justice."

[Update, 9.15pm: At Liestoppers, the always witty Joan Foster gives her take on Nifong's crack-up.]

Heights of Hypocrisy

La Shawn Barber has discovered what she correctly describes as "jaw-dropping" information: in response to a voter information form, Mike Nifong listed as among his favorite novels To Kill a Mockingbird. The book revolves around a courageous Southern lawyer who defends an innocent man railroaded on a rape charge in an atmopshere inflamed by racial passions.

As Jason Whitlock noticed months ago, the Duke lacrosse case is a real-life version of To Kill a Mockingbird. How, then, to explain Nifong's attraction to the story? It would seem, unlike most who read the Harper Lee novel, Nifong saw little of himself in Atticus Finch, the defense attorney who holds sacred the law and legal procedures. Instead, the Durham D.A. seems to have been attracted to Mr. Gilmer, the prosecutor who played to the basest prejudices of his community and who sought not justice but a conviction at all costs.

Nifong has some other "jaw-dropping" comments in the voter guide. He lists four basic qualifications for a district attorney:

• First, the District Attorney's Office must be, and must be perceived as, a place of unquestioned integrity.
• Second, that office must be, and must be perceived as, a place of absolute fairness.
• Third, that office must be, and must be perceived as, a place of demonstrated competence.
• The mission of the District Attorney's Office is not simply to obtain convictions: it is to achieve justice, and to prevent injustice.

These claims are breathtaking in light of Nifong's performance over the past six months. This is a man who has violated provision after provision of the state bar's ethics code; whose sense of "fairness" was so skewed that he refused to meet with defense attorneys to consider exculpatory evidence; whose competence is so dubious that we hear almost daily revelations about what wasn't investigated in this case; and whose name has become a national symbol for promoting injustice.

Indeed, yesterday featured another searing critique of Nifong on all four of these grounds, penned by Wendy McElroy. Her viewing of Nifong's actions prompted the question, "Do the principles of justice still operate in American courtrooms?" The answer, she has discovered, is no, and as a result the case "has become a litmus test for the American justice system," with Nifong "acting with willful disregard for both the evidence in the case and the Constitutional rights of the accused. In this case, I believe the legal system is the enemy of justice...and nakedly so." McElroy then pointedly details the prosecutor's myriad procedurally dubious actions over recent months. In describing Nifong's refusal to consider Reade Seligmann's airtight alibi, she notes,

The assumption that a defendant is 'innocent until proven guilty' has been reversed. Seligmann is assumed to be guilty. But more than this. It is as though Seligmann is not allowed to prove his innocence no matter how much evidence he produces.

McElroy provides a useful history lesson that appears to have been lost by most of Nifong's enablers. "The purpose of spelling out due process," she notes, "was not primarily to protect a defendant against his or her accuser. Their inclusion in the Constitution was meant to protect defendants against the power of an abusive court — that is, against an abuse of government."

"As long as Nifong is the face of government," McElroy concludes, "I find no reason for public confidence." I suspect that Harper Lee would share the sentiment.

The Travails of Karla Holloway

You don’t need a weatherman to tell which way the wind is blowing for sports and the Duke Campus Culture Initiative. That the administration would place Peter Wood in charge of the “athletics” subgroup speaks volumes about Duke’s campus culture. Wood’s statements, however, almost appear temperate when compared to those of Karla Holloway, who chairs the CCI's “race” subgroup. Holloway, a member of the Group of 88, attracted some attention in June, when she wrote a letter to (of course) the Herald-Sun complaining about her burdensome summertime duties as CCI race chair, even as she sent e-mails saying she would be out of her office until August.

But even that public demonstration of self-pity couldn’t have prepared anyone for Holloway’s latest—an article in an obscure journal, The Scholar and Feminist Online. Written in a style suggesting a parody of academic jargon, Holloway’s article dismisses the significance of the legal process; denounces all men’s sports; and assaults women athletes whose behavior has been beyond reproach. That such a document comes from a professor charged with shaping “campus culture” is beyond belief.

Holloway advances four basic arguments:

1.) The courts will not reach the desired outcome to advance her on-campus aims, and so their results must be preemptively dismissed.

“Justice,” claims Holloway, “inevitably has an attendant social construction. And this parallelism means that despite what may be our desire, the seriousness of the matter cannot be finally or fully adjudicated in the courts.” Therefore, since the presumption of innocence “is neither the critical social indicator of the event, nor the final measure of its cultural facts,” judgments about the case “cannot be left to the courtroom.” In a sentence that captures Holloway’s obtuse writing style, she asserts, “Despite the damaging logic that associates the credibility of a socio-cultural context to the outcome of the legal process, we will find that even as the accusations that might be legally processed are confined to a courtroom, the cultural and social issues excavated in this upheaval linger.”

Coming from a professor who is teaching a course called “Language of Constitutional Law,” this viewpoint is chilling. But those who have such a dismissive attitude toward events “confined to a courtroom” are unlikely to champion due process and standard procedures. In this respect, the article helps explains why Holloway had no trouble signing the Group of 88's statement, despite its blatant dismissal of principles of due process.

2.) The culture of male athletics is inherently immoral.

“The ‘culture’ of sports,” explains Holloway, “seems for some a reasonable displacement for the cultures of moral conduct, ethical citizenship and personal integrity.” Who exalts immoral and unethical behavior through sports she never reveals, though they’re usually males (she frets about “the culture of men’s sports in particular, with its elevations and hierarchies, with its often brutal physical contact, and with its body-intense loyalties”) or those who disagree with her ideologically (who she claims define “the ethic of sportsmanship” as tolerating “aberrant behavior”). Holloway contends that Duke must exploit the lacrosse affair to “recognize that sports reinforces exactly those behaviors of entitlement which have been and can be so abusive to women and girls and those ‘othered’ by their sports’ history of membership.”

At least Orin Starn was willing to allow the New Duke to retain club sports. CCI subgroup chair Holloway, it appears, wants to see all (male, at least) athletics banished from the Duke campus.

3.) Women athletes are effectively traitors to their gender.

Ironically for a journal issue that ostensibly celebrates Title IX, Holloway’s article provides an equally bleak view of women’s athletics. Her target? The women’s lacrosse team. As they advanced to the Final Four last spring, women’s lacrosse players wore armbands expressing sympathy with the players targeted by D.A. Mike Nifong, while Coach Kerstin Kimel spoke out on behalf of the character of the men’s players.

Holloway confessed that upon hearing of the players’ actions, “I wanted to write to them to ask if they might, instead, consider writing the word ‘justice’ onto their gear, a word whose connotations run deeper than the team-inspired and morally slender protestations of loyalty that brought the ethic from the field of play onto the field of legal and cultural and gendered battle as well.”

Had Holloway made such a request, the women’s lacrosse players might have asked why she and her 87 cohorts, relying solely on the version of events presented by Nifong, felt entitled to sign the April 6 statement defending not justice but the campus protesters who had publicly branded the lacrosse players rapists. Moreover, Holloway’s reaction seemed out of character for a figure who had previously rationalized her membership in the Group of 88 as that of a professor determined to “understand and encourage the free speech rights” of her students. As far as I know, the members of the women’s lacrosse team are Duke students–but it seems as if Holloway isn’t too interested in understanding and encouraging their ideas.

4.) The “victim” in this affair is . . . Karla Holloway.

Most college professors perform three tasks: teaching, research, and service. At Duke, Holloway teaches two courses per semester, while she has produced such scholarly publications as “Cruel Enough to Stop the Blood: Global Feminisms and the U.S. Body Politic, or: ‘They Done Taken My Blues and Gone’.”

With a likely salary in the low six-figures, she probably would be considered well compensated, even if she, like other faculty members all over the country, also has to perform some committee service. Holloway, however, believes otherwise. Regarding her service with the CCI, she explains,

My decision has vacillated between the guilt over my worry that if not me, which other body like mine will be pulled into this service? Who do I render vulnerable if I lose my courage to stay this course? On the other side is my increasingly desperate need to run for cover, to vacate the battlefield, and to seek personal shelter. It does feel like a battle. So when asked to provide the labor, once again, for the aftermath of a conduct that visibly associates me, in terms of race and gender, with the imbalance of power, especially without an appreciable notice of this as the contestatory space that women and black folk are asked to inhabit, I find myself preoccupied with a decision on whether or not to demur from this association in an effort, however feeble, to protect the vulnerability that is inherent to this assigned and necessary meditative role.

Cutting through the jargon: Holloway doesn’t like the time and effort associated with committee service. Who does? That belief entitles her to no more self-pity than any other college professor in the country, of any race, ethnicity, or gender.

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Holloway’s essay contains what might be the single most incredible passage to come from a Duke professor during the last six months. Innocence and guilt, she maintains, must be “assessed through a metric of race and gender. White innocence means black guilt. Men’s innocence means women’s guilt.”

This statement is transparently absurd. The inevitable dismissal of charges against the accused players will expose not the “guilt” of their accuser, a black woman, but the ethical and possibly criminal misconduct by two white males, Mike Nifong and Sgt. Mark Gottlieb. Holloway’s reflexive interpretation of events renders her no more able to comprehend Nifong’s behavior than she could understand the willingness of the women’s lacrosse players to celebrate due process.

Describing herself as among the “weary bodies of black and women faculty and students at Duke,” Holloway suggests that the burden of her committee service leaves her barely able to make it through the day. For her own good, then, Duke should relieve Holloway of her service on the CCI. That such an outcome will also benefit the institution shows that good deeds are sometimes rewarded.

Twenty Questions

Today’s N&O reveals the latest in the Durham Police’s inexplicably shoddy investigation into the Duke lacrosse case. On March 14, police initially took the accuser to the Durham Access Center, where involuntary commitment loomed. Three people saw the accuser at the Access Center; one asked her if she had been raped; when she responded yes, this case took a new turn.

Mike Nifong long has claimed a single-page log sheet constitutes the only record of the accuser’s 40-minute stay at the Center. A defense motion filed yesterday, however, asserts that at least one Access Center employee took handwritten notes of the accuser’s arrival. No explanation exists as to why Nifong has not turned these notes over to the defense, as state law requires him to do.

Much more important, the defense motion contends that–months after the event–police hadn’t interviewed any of the three Access Center employees who saw the accuser before she went to the hospital on March 14. It’s hard to fathom an innocent explanation for this oversight: could it be the Durham Police fear what the Access Center employees might have revealed, and so made little or no effort to track them down?

The suddenly “discovered” Durham Access Center notes are the latest in a long line of unusual police procedures. Those who didn’t know better would almost assume that the police acted as they did so as to ensure they would possess as scant evidence as possible to take to the grand jury.

Some questions to ponder include:

1.) Why, as a recent law enforcement post on Liestoppers asked, did the police not immediately dispatch a unit to the scene of the alleged crime to secure it; and rouse a judge from sleep to obtain a search warrant? “The one reasonable conclusion that could be reached: For this basic tenet to be ignored, the accuser’s alternating and conflicting versions of events could have been determined immediately to be not credible.”

2.) Why, on March 16, did Durham Police not tape record their initial interview with the accuser? That way, the debate over the wildly divergent descriptions she allegedly gave could have been easily settled.

3.) Why, after obtaining access to the captains’ email accounts on March 16, have the police still not (according to a claim by Nifong in his last court appearance) completed their examination of the captains’ emails? What if a crime had actually occurred, and the players had discussed the perpetrators in their emails?

4.) Why did police, in their March 16 and March 21 photo arrays, use lacrosse player photos as the filler photos, even though city procedures required use of fillers uninvolved in any way with the case?

5.) When and how did the police clear Kim Roberts as a suspect for robbery, as the accuser repeatedly alleged in her early statements? Did this matter account for the strange delay (8 days after the alleged incident) before they interviewed Roberts? If not, why did the police wait so long to track down such an important witness?

6.) When Roberts gave her statement to police on March 22, why did they not show her a lineup–rather than wait until May 11, almost two months later?

7.) What accounts for the police not immediately clearing up whether or not non-lacrosse players attended the party? What if a crime had actually occurred and non-players were responsible?

8.) Why did police (or Nifong) not immediately learn of the accuser’s previous allegation of a three-man gang rape?

9.) On March 23, Nifong's office asked the court to order non-testimonial photographs. What justification did the police and Nifong have to have avoided mentioning that the department had already done lineups with the lacrosse players’ photos; and had obtained descriptions of the possible attackers from the accuser; and in those lineups, the accuser couldn't identify any suspects?

10.) What rationale did the police have for allowing the accuser to wait until 23 days after the incident to give her statement, since that statement should have formed the basis for their inquiry?

11.) Why did police wait until 23 days after the incident, or April 6, to obtain a statement from the accuser’s “driver,” Jarriel Johnson–a statement that revealed some troubling behavior by the accuser in the days before the incident?

12.) Why did the police and Nifong not investigate the accuser’s cellphone records before securing indictments? What if the accuser had placed a phone call describing her alleged attackers?

13.) Why did Nifong and the police not investigate the alibis of Reade Seligmann and Collin Finnerty before arresting them?

14.) Why did the police not search suspects’ rooms before securing indictments?

15.) Why was Nifong’s chief investigator, Linwood Wilson, apparently unaware that the accuser had changed her story in statements to police?

A few questions of evidence preservation also seem self-evident.

16.) Why have police not turned over, as required, the March 14 radio call of Sgt. Shelton to police headquarters–the initial contact between law enforcement and the accuser?

17.) Why have police not turned over, as required, their internal e-mails on the case–documents it should take virtually no time to produce?

18.) Why did Sgt. Mark Gottlieb apparently take handwritten notes on only one day during the entire investigation?

These questions lead to two other questions, which are not mutually exclusive:

19.) Are the officers handling this case, headed by Sgt. Gottlieb, as stunningly incompetent as the above record suggests?

20.) Did the officers handling this case, headed by Sgt. Gottlieb, understand that once Nifong publicly proclaimed that a rape occurred on March 27, they needed to avoid uncovering any and all evidence that could contradict the D.A.’s theory?

One bonus question: How could other North Carolina figures in law enforcement allow this record to stand uncondemned, thereby presenting an image to the country that the state routinely conducts investigations in this manner?

Herald-Sun Hilarity

Newspaper readers in the Triangle have an interesting choice when reading about the Duke lacrosse case. The N&O’s initial coverage was, in retrospect, terrible: articles presumed that a crime occurred; a March 25 story presented at best an incomplete picture of the accuser and her past; and several op-ed columns were inflammatory. But in mid-April, the paper regained its equilibrium; and in recent months, N&O coverage has been first-rate–important investigative stories by Joseph Neff, fair-minded case-related and Duke-focused coverage by Benjamin Niolet and Anne Blythe, and increasingly passionate op-ed columns by Ruth Sheehan.

Despite criticism on this point, it’s unlikely that the paper will openly acknowledge its early errors, and right now it seems to me that it should be devoting more resources to breaking down the Durham Police’s “blue wall of silence.” But apart from a pallid editorial page–based solely on its own reporters' revelations, the N&O long ago should have joined the Charlotte Observer, Winston-Salem Journal, and Rocky Mount Telegram in demanding a special prosecutor–the paper has performed impressively since mid-April.

Then there’s the Durham Herald-Sun, which has combined plodding pro-Nifong editorials with “news” articles whose one-sided nature borders on journalistic fraud, topped off by a pattern of simply ignoring newsworthy items that can’t be framed in pro-Nifong terms. The Herald-Sun’s role in the lacrosse affair does offer one redeeming quality. With the exception of witty cartoons and poems from Liestoppers, this case has lacked levity. Herald-Sun coverage, however, is frequently so bad as to provide (unintentional) humor.

Take, for example, yesterday’s lead editorial praising Durham’s periodically absent police chief, Steve Chalmers, for firing two Durham officers involved in a Raleigh bar fight. “We applaud Chief Chalmers,” the Bob Ashley-led editorial page intoned, “for dealing with this issue forthrightly and in the open. It was important that he did so to retain the public’s confidence in the department.”

This sentiment was worthy of Orwell. Chalmers’ “openness” consisted of:

1. reneging on an earlier commitment by City Manager Patrick Baker to make public the full results of the department’s Internal Affairs investigation into the incident;
2. concluding that none of his officers drove under the influence of alcohol by citing their bar tabs (!);
3. dismissing allegations that one or more of the officers had used a racial slur–without, apparently, ever talking to the African-American cook who made the allegations in the first place.

Liestoppers caught the strangest element of Chalmers' remarks.

"Chalmers said investigators are confident of their findings. 'It was an open-and-shut thing and the statements were consistent,' he said."

Consider that claim of Chief Chalmers in the context of a 55-day internal investigation that preceded his press conference. If 55 days is the duration of an open and shut case, it makes one wonder again about the 13 days of investigation that preceded DA Mike Nifong’s proclamations of guilt in the Duke Hoax. With this in mind, one can only conclude that in Bizarro PD Land it takes 55 days to conclude an investigation into an “open-and-shut thing” but less than two weeks to determine guilt in a complex hoax. Yep, Chief, our confidence is certainly growing.

Of course, the Herald-Sun didn’t ask why this “open-and-shut” inquiry took such an unusually long time to complete.

The Ashley editorial also heralded the effort of lacrosse case officer Mark Gottlieb, who was at the scene during the attack. What did Gottlieb do to earn such praise? Intervene to stop the fight? Help the alleged victim? No, revealed the Herald-Sun: the sergeant “called the [Durham] District 2 watch commander the same night to report the incident, although he did not witness it himself.”

How the Herald-Sun determined that Gottlieb didn’t witness the incident is unclear; if Gottlieb didn’t see the fight, how did he learn of it “the same night”? More to the point, in reporting a crime that occurred in Raleigh, why did Gottlieb eschew calling 911–the normal procedure when learning of a crime–and instead phone the watch commander of the Durham police district where he’s a supervisor? Presumably these items are discussed in the report Chalmers “forthrightly and in the open” won’t release.

Ashley’s defense of Gottlieb, however, might well have backfired. Last week, the editor swung into action after the N&O and the Duke Chronicle revealed the sergeant’s disturbing record of arresting 10 times as many Duke students as the three other District 2 supervisors combined; and his tendency to run roughshod over students’ constitutional rights when he made his statistically disproportionate number of arrests.

The Herald-Sun responded with an “article” claiming that Gottlieb was following the Durham Police Department’s official anti-Duke student policy. The paper described this policy as encouraging officers “to arrest students and take them to jail, rather than issue warnings and tickets, because experience showed lesser measures lacked deterrent value.” The article never explained how Gottlieb could have a 10:1 arrest ratio as compared to others at comparable ranks if he was merely implementing a departmental policy.

Demonstrating what passes for journalistic excellence at the Herald-Sun, reporter Ray Gronberg gave no indication of even having looked at the arrest case files–which are part of the public record. He instead claimed to have spoken to someone named “Bethany” in the office of Durham attorney Bob Ekstrand, who refused to do his work for him and give him the files–yet on Friday, I confirmed that no one named “Bethany” works for Ekstrand.

Despite attempting to whitewash Gottlieb’s actions, the article actually created problems for the Durham police–by revealing, for the first time, the official policy of unequal enforcement of the law based on group identity. (Imagine if, for instance, the Durham P.D. announced a policy of arresting Hispanics rather than issuing them tickets when discretion existed as to the punishment, because “experience showed lesser measures lacked deterrent value” with this particular group.) In short, the admission of group-based punishment supplies a rationale for Justice Department intervention.

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What explains the Herald-Sun's novel approach to journalism? Ideology doesn’t appear to be a motive. The Ashley editorial page doesn’t subscribe to an extreme feminist viewpoint–it didn’t concern itself, for example, about Nifong’s high dismissal rate in other rape cases. Nor does the paper seem all that concerned with racism as a whole–after all, Ashley had no problem with Chalmers dismissing allegations of a racial slur without even talking to the acknowledged victim. Nor does the Herald-Sun regularly advocate the Nifongesque blanket dismissal of civil liberties it has championed in this case–indeed, it often expresses support for civil liberties. In an August 21 editorial, for instance, Ashley asserted,

We think that warrantless wiretaps give the president too much power, especially when he already has the FISA court, a fast and legal way to wiretap terrorism suspects. The founders would see the latest chapter in the long-running feud as a tip in the balance toward the presidency that needs to be righted.

If Herald-Sun editorial or news policy lacks ideological consistency, economic motives seem to loom very large in its decisionmaking process. I suspect that few, if any, Duke students subscribe to the Herald-Sun–while the paper’s dwindling subscription base presumably includes at least some of Durham’s African-Americans and perhaps even some of the Group of 88. Working to keep Nifong’s trial hopes alive, even at the expense of its journalistic integrity, allows the Herald-Sun to appease some of its subscribers while alienating few people who actually buy the paper. No wonder a lengthy article by the local alternative weekly discovered that "some reporters have described the [paper's workplace] atmosphere as toxic," a place where "resentment lingers like an odor that won't come out of the carpet."

In the lacrosse case, Ashley has failed at performing the basic journalistic task of speaking truth to power–and in an affair where the representatives of "power" desperately need rebuke. But he’s not a very good propagandist, either. His paper’s columns and articles are either comically heavy-handed (as in the editorial praising Chalmers’ alleged openness) or unintentionally helpful to critics of Nifong and Gottlieb. No wonder the Herald-Sun’s circulation figures continue to plunge. Hilarity on the news and editorial pages, whether intended or not, isn’t a good selling point.

The Arrogance of Starn

You’re sure to be disappointed if you believe that individual Duke professors will cease exploiting Mike Nifong’s procedurally dubious targeting of three Duke lacrosse players. In recent weeks, Peter Wood went out of his way to seem to slander Reade Seligmann, while adding unsubstantiated allegations against the team as a whole. Then Wahneema Lubiano conceded that she and other members of the Group of 88 were fully aware that “some would see the [Group of 88] ad as a stake through the collective heart of the lacrosse team.” Friday’s Herald-Sun features the latest in this pattern, an op-ed from Orin Starn.

Starn denounces the alleged arrogance of Duke athletics as part of his campaign to transform Duke into a watered-down version of Haverford. In the process, he imitates the Times’ Duff Wilson in superficially presenting both sides of the legal case while actually offering a one-sided interpretation hostile to the players. No wonder Herald-Sun editor Bob (“Eyes Wide Shut”) Ashley rushed the piece into print.

Like Wood and Lubiano, Starn’s ideological agenda has blinded him to the facts before: John in Carolina called out the cultural anthropology professor when he distorted Coach K’s remarks back in June. In his Herald-Sun piece, Starn again blasts Coach K, this time for having “stubbornly refused to learn the lessons of these last months. An arrogant sense of victimization and entitlement seems to have replaced any semblance of clear-thinking or self-reflection in Duke sports circles.” The description, however, is more appropriate for Starn: the cultural anthropology professor would seem the perfect protagonist for William Anderson’s fascinating piece deeming the case Duke’s “Reichstag fire.”

In a half-hearted critique of Nifong’s actions, Starn claims that there’s “plenty of reason to doubt District Attorney Mike Nifong’s fairness with the lacrosse charges” and says that he signed a petition to put Lewis Cheek on the ballot. It turns out, however, that the professor’s doubts about Nifong’s fairness are of a distinctly limited variety.

He reports that “most Durhamites want to hear all the evidence before passing judgment.” I’d be curious to know what evidence Starn would like to hear “before passing judgment” that Reade Seligmann was either on the phone, in a cab, or more than a mile away at an ATM machine—and on a videotape, no less—at the time of the alleged attack. Or what evidence Starn would like to hear “before passing judgment” that Nifong violated Section 3.8 of the state bar’s ethics code. Or what evidence Starn would like to hear “before passing judgment” that the Nifong-ordered April 4 lineup—the only evidence used to indict Seligmann and Collin Finnerty—violated multiple Durham procedures and statewide patterns and therefore must be suppressed.

Like Wilson at the Times, who contended that while Nifong’s case had holes, the DA had more than enough evidence to bring to the jury, Starn seems to believe that the public, the media, and the academy should simply stand aside while Nifong engages in what Susan Estrich has correctly termed “mindboggling” violations of standard procedure. Had Starn sat on the Warren Court, I assume he would have bitterly resisted Mapp v. Ohio, since the exclusionary rule prevents localities from “hear[ing] all the evidence before passing judgment” when police or prosecutorial misconduct occurs.

Starn promises to remain “vigilant in ensuring that both [the players] and their accuser receive fair treatment from the justice system.” A tenured professor who conflates the rights of an accuser in the “justice system” with those of defendants needs a refresher course on the Bill of Rights.

In any case, if the Herald-Sun op-ed represents a “vigilant” Starn ensuring that the players “receive fair treatment from the justice system,” I can’t imagine what he’s like when passive about protecting civil liberties. For he spends most of his time denouncing the behavior of a handful of lacrosse players—none of whom, as far as we know, are among those ultimately targeted by Nifong—to bolster his claim that Duke should abolish all athletic scholarships and retreat to club sports.

“It was revealed this spring,” Starn reminds Herald-Sun readers, “that almost one-third of the lacrosse team had been arrested on public drunkenness and on other charges.” After a week in which we’ve learned that the Durham Police Department adopted an official policy of targeting Duke students for arrest, this statistic carries considerably less weight than it once did. (I’m surprised that someone with Starn’s vigilance about judicial fairness neglected to mention this finding—but, alas, it doesn’t fit his anti-athlete thesis.) The professor also ominously notes that “good evidence suggests that a team captain gave a false name to hire strippers." (Former lacrosse captain Dan Flannery called himself Dan “Flannigan," but promptly showed his ID to the second dancer—hardly the actions of someone with a flawed character.)

Starn concludes by denouncing any player who engaged in racial slurs—a far more serious, and far different, offense than drinking. By linking underage drinking with the racial slurs Starn trivializes the latter. Moreover, he provides not a scintilla of evidence that this clear character flaw had anything to do with participation in intercollegiate athletics. Are athletes more inclined to be racists? Starn implies it is so, as if no one could deny the proposition. Why should we think that if Duke transforms itself into a watered-down version of Haverford and has only club athletics, it still won't have a few students with horrible beliefs? And, of course, Starn is selective in the behavior that he describes: he ignores the Coleman Committee report’s many positive findings about the lacrosse team—that the players were strong students (with not even one instance of academic disciplinary action); that they had impressive records of community service; that they unfailingly treated staff politely and with respect; that they showed no evidence of sexist or racist behavior on campus. These facts don’t fit Starn’s thesis; he prefers to paint an one-sidedly negative account of the players’ behavior.

“None of this,” Starn hastens to add, “means that the three indicted lacrosse players are guilty.” That he chose to preview Nifong’s opening argument to boost his own case against Duke athletics is, I suppose, an unfortunate necessity. Perhaps he’ll offer a private apology to the three players about how he needed to sacrifice their standing to pursue the greater good.

As I’ve noted before, Starn’s approach to protecting his students seems to depend on whether doing what’s right conflicts with his on-campus agenda. In the case of Yektan Turkyilmaz, a Starn graduate student arrested on procedurally dubious grounds in Armenia, the professor, commendably, traveled halfway around the world to show support for his student. In the case of Reade Seligmann, a student in one of Starn’s classes arrested on procedurally dubious grounds in North Carolina, Starn has done nothing—except pen an op-ed calling for the case to go to trial, since “most Durhamites want to hear all the evidence before passing judgment.”

Does Starn have an opinion of his former student’s personal character? Apparently the professor couldn’t find space in his op-ed to discuss that issue. Joining the chorus of those who have praised Seligmann wouldn’t advance Starn’s anti-athletics cause, since Seligmann is himself a Division I athlete who virtually everyone considers an asset to Duke. Better, I suppose, for Starn to allow Herald-Sun readers to retain a false impression of his former student’s character.

What does Starn envision replacing funding for Division I athletics at Duke? “New money should be invested in academic merit scholars,” he contends, “for deserving African-American and other applicants from underrepresented groups to strengthen Duke diversity and excellence.” Leaving aside the fact that race-based scholarships are almost certainly unconstitutional in the post-Grutter environment, Starn supplies no evidence that funding for athletics has taken away from Duke offering academic merit scholarships to students from underrepresented groups. As with his insinuation that athletes are more likely to be racists, I guess we’re just supposed to take his word for the assertion. Somehow, I’m not persuaded.

Understanding SANE

At this stage, no serious observer of events in Durham could deny the magnitude of D.A. Mike Nifong’s procedural improprieties. Medical procedures, on the other hand, have received far less attention. It seems almost inconceivable to believe that the DNA test would yield no matches, given the specific type of attack alleged and the short time thereafter until the accuser’s arrival at the hospital. I’m not alone in this skepticism, of course; the D.A.’s office itself assured the court on March 23 that “the DNA evidence requested will immediately rule out any innocent persons.”

Beyond the DNA, those of us without medical knowledge must rely on the experts. Fortunately, a new and comprehensive site has recently appeared. Forensics Talk is the work of Kathleen Eckelt, a certified Forensic Nurse Examiner with over 30 years of clinical nursing experience. She’s also president of Harford Medlegal Consulting, which specializes on issues relating to forensic nurses.

The site provides a wealth of material, but three items particularly jumped out at me.

1.) The accuser’s injuries are inconsistent with the attack that she described.

The accuser alleged a violent, 30-minute, gang rape, in which she was kicked and hit; and in which she scratched her attackers. Eckelt observes that as "kicking is usually done with shoes on,” there “may be an imprint bruise from the tread of the shoe,” or a “swinging kick may result in a curved imprint,” with injuries most likely to occur to the face, neck, groin, back, and chest. No such injuries appear to have been documented in this case.

Likewise, recent prosecution claims that the accuser experienced blunt force trauma seem dubious; Eckelt describes the condition as characterized by contusions, lacerations, abrasions, and bites—all injuries that the accuser didn’t possess. According to the SANE nurse-in-training, Tara Levicy, the accuser did show diffuse edema on the vaginal walls—which Eckelt argues often isn’t even classified “as consistent with sexual assault.” She can say definitely, however, that she has "not seen simple edema (alone) as a classification of blunt force trauma. If it's not a classification of blunt force trauma, then how could it be consistent with it?”

Finally, Eckelt all but dismisses insinuations that the accuser might have been given a date rape drug. She reports, “Although each person can react differently to any drug, the amnesia produced by these drugs is pretty acute. It’s not usually a matter of a person's memory just being a bit fuzzy. It’s usually a matter of not remembering anything at all past that first drink.” The accuser, of course, alleged no such thing.

I wonder how many experienced SANE nurses New York Times reporter Duff Wilson spoke to before publishing a front-page article implying that diffuse edema is consistent with blunt force trauma and a date rape drug could have been used?

It’s worth noting that the Department of Justice’s SANE Development and Operation Guide reinforces Eckelt’s observations. The guide goes to great lengths to contend that the absence of evidence ought not be determinative, but also (page 69 of this link) lists a variety of injuries to be expected in a violent rape. The accuser, in this case, had none of these injuries.

Take, for instance, injuries associated with choking—the part of the attack that Nifong personally demonstrated on national television. "Since most assailants choke using their dominant hand,” reports the DOJ guide, “the fingertip pattern can identify the assailant’s handed-ness. A righthanded assailant can usually . . . leave a single thumb bruise at the right lateral neck and several finger tipbruises to the left lateral neck.” The SANE nurse-in-training’s report recorded no such evidence of fingertip bruises.

2.) Sgt. Mark Gottlieb’s “notes” lack procedural credibility.

The Times has reported that Gottlieb produced a typed set of notes, many months after the fact, that were not corroborated by any contemporaneous handwritten notes. The many inconsistencies between Gottlieb’s document and the pre-existing case file included his recapitulation of an alleged conversation with Levicy on March 21, in which Levicy allegedly described the accuser’s injuries in terms far more severe than she documented in her report.

According to Eckelt, if Gottlieb’s notes are true, then Levicy was negligent. “Everything is supposed to be documented,” she notes, “at the time of the exam. Now I've had detectives call me up and ask questions. However, it’s usually been during, or right after, the exam and the answers to questions about any evidence or trauma is already in the chart. I always document it as I observe it.” Indeed, “in the medical field, whether written by physicians, nurses, physical therapists, or nursing technicians, the standard protocols for our documentation are all the same. We’ve all been taught that, according to the courts, ‘If it’s not written, it’s not done.”

Eckelt has other reasons for suspecting that Gottlieb’s reminisces are fictional. Indeed, the sergeant has a reputation in Durham for going overboard with his tales, as he seems to have done in this case. In addition to the new description of “blunt force trauma,” Gottlieb’s notes claim that Levicy told him the accuser uncontrollably screamed after a male nurse unexpectedly entered the examination room. The SANE nurse-in-training, alleges Gottlieb, had to race back down the corridor to calm the accuser.

After reading of Gottlieb’s version of events, Eckelt writes,

I was just floored with that statement and really question it. The standard protocol for sexual assault victims is to provide a private room, preferably locked, in which to do the exam . . . We do not have hospital personnel walking in and out of the room during an examination. That simply isn’t done. We maintain strict privacy for our patients and control over all evidence. Once an exam is finished, we call security and have the evidence locked up until the detective can pick it up. Never would we allow someone, especially a male, to just walk in to get supplies or anything else and I can’t imagine any other SANE nurse allowing it either.

Once again, the DOJ guidelines reinforce Eckelt’s arguments. Page 68 of the above link observes “physicians need not be concerned that injuries will be missed by the SANE if they understand that she will err on the side of caution when evaluating and referring sexual assault victims to them.” Yet in this case, Gottlieb implies that Levicy showed more restraint when dealing with other medical professionals and in her medical report than she showed five days later in a private, undocumented talk with him?

3.) Duke Hospital appears to have violated protocol.

Eckelt observes that “experienced SANE nurses can make a conclusion as to whether any injuries are ‘consistent with’ sexual assault,” but the “key word here is experienced.” Such experience, Eckelt believes, is necessary to testify as an expert witness, although she concedes that the standards in North Carolina might be looser on this score.

In any case, Eckelt argues that “standard protocol” dictates a SANE nurse-in-training—like Tara Levicy in this instance—“must have another experienced SANE nurse, or a physician, in the room with her during the whole exam, so that she can be evaluated and later certified to perform exams on her own.” Moreover, this observation must be documented: “the supervising SANE nurse’s (or physician’s) name should have been written on the standardized examination form. If there is no name written there, then that means there was no one supervising the new SANE nurse ‘in training.’”

Who supervised Levicy during an examination that Gottlieb’s notes describe as having lasted several hours?

At this stage, I suppose no one should be surprised that the procedural irregularities in this case dated from its inception.

Clarifying the Record

A few days ago, I noted that significant aspects of this case are available on the public record--open to any journalist who wanted to take the time to examine the material and explain its significance. Shortly thereafter, I received a gentle reminder from a person who knows the case much better than I do that while an unusual amount about the investigation has been made public, it's almost certain that much remains unknown about this affair.

My correspondent was, of course, absolutely correct. But--Byron Calame's journalistic advice notwithstanding--it's unlikely we'll see much new information emerge about the lacrosse team, or that this matter represents the critical unknown at this stage.

On the other hand, the public record contains virtually nothing about internal conditions in the Durham Police Department. In the Mostafa trial, Nifong investigator Linwood Wilson took the stand to impeach the testimony of Inv. B.W. Himan (regarding the claim in Himan's notes that Nifong wanted to be contacted immediately after police arrested Mostafa). A piece in Wednesday's Herald-Sun--confirming every day its status as a Nifong house organ--implied that the three other District 2 supervisors weren't following Durham Police policy regarding the targeting of Duke students. (The article sought to excuse Sgt. Mark Gottlieb's record of arresting 10 times as many Duke students as the other three supervisors combined.) The willingness of Nifong&Co. to suggest incompetence for any police officer whose conduct in any way might hurt the state's position in the rape case can't be good for morale.

We also know relatively little about the attitudes and actions within the Duke administration between March 14 and April 5. (The Bowen/Chambers report was supposed to investigate this question, but instead, as Stuart Taylor observed, produced a "parody of race-obsessed political correctness.") In recent weeks, Duke has presented an image of the administration going out of its way to protect the rights of its students, while dealing with overwhelmed, even "frightened," lacrosse parents. I suspect that the more we learn about the administration's actions during those critical three weeks, the less defensible Duke's approach will appear. Along these lines, I reproduce below comments that I recently received from a lacrosse parent.

I read with interest your recent post and the link to the March 27 Chronicle story. The article referenced a meeting the team parents had the afternoon of March 25 with university officials after they had cancelled that day's game against Georgetown. Larry Moneta, the vp for student affairs, was quoted in the story as stating that the meeting was to "keep the parents informed and focusing on the consequences for their kids and the way we will proceed pending the conclusion of the investigation." Moneta also said "the parents were frightened and nervous for their children."

This statement, like so many other statements put out by Duke officials, was misleading and false. I was one of the 40 or 50 parents who were at that meeting that day. We were nervous for our sons, but we were also furious at Duke. That was the day we all realized that Duke was not on our side and was not going to do anything to protect its students. That was the day Brodhead turned his back on our sons.

When Duke forfeited that day's game, Coach Pressler asked the parents who were in town for the game to meet with Athletic Director Alleva and Dean Wasiolek. The two of them told us that this game and the next had been forfeited as the team's punishment for holding the party. Alleva said the "party was inconsistent with the values of Duke athletics and Duke University and is unacceptable." He could not tell us when, or if ever, a Duke team had forfeited a game for disciplinary reasons. He could not explain why he had not forced all of the other Duke athletic teams, fraternities, and sororities which had held similar parties to forfeit their games or activities. And he refused to admit that his actions canceling the games just might make it look like Duke thought the team was guilty.

We were furious, and felt totally betrayed by Duke. We knew our sons were innocent of these outrageous allegations, and so did Duke. We had all grilled our sons about what happened, and so had Duke officials. No charges had been filed, and the Duke police had told university officials the allegations were not credible. A university lawyer had told team parents there was nothing to the allegations and they would go away. Top university officials, including the number two man EVP Tallman Trask, Alleva, and Wasiolek,* had met with the four team captains the previous afternoon, learned exactly what had and had not happened, including the extent of their cooperation with the police, and had told them they believed they were innocent. In fact, Trask told the four captains as they left the meeting to "Beat Georgetown." Yet less than 24 hours later, Duke was forfeiting the games and putting out statements that moved this story from the local papers to the front page of the New York Times.

During the meeting, we pleaded with Alleva to amend his statement to say that Duke officials had met with the team captains, knew they were cooperating with the authorities, and believed they were innocent. When Alleva refused to do that, we asked to meet with President Brodhead. After a short break, Alleva returned with Trask and Moneta, who told us flatly that Brodhead would not meet with us. When we asked them to put out a statement from Brodhead saying that Duke was confident that its students were innocent, they refused, and informed us that no further statements would be released by anyone at Duke. They also told us that no further action would be taken by Duke against the team until the legal investigation was concluded, and that steps would be taken to ensure that the team members would be treated fairly by their professors.

As it turned out, none of these assurances from the Duke officials were true. Less than an hour after the meeting broke up, Brodhead issued a statement praising Alleva's action and stating that "physical coercion and sexual assault are unacceptable in any setting and have no place at Duke. The criminal allegations against three members of our men's lacrosse team, if verified, will warrant very serious penalties." Brodhead also urged everyone on the team to cooperate with the authorities. With this statement, Brodhead turned his back on his students, and threw them to the wolves, and helped create the media firestorm that erupted.

We were shocked and dismayed. How could Duke take such a radical turn…moving from "we believe you are innocent" to issuing a statement that all but declared the team was guilty? We now know that Brodhead caved to a small but very vocal group of professors who wanted to drive athletic teams off the campus. At a faculty meeting that Friday afternoon and another meeting with faculty that Saturday morning, Brodhead was severely criticized for not forcing the team to cooperate with the investigation and for not disbanding the team. Instead of explaining to these officials the constitutional rights of their own students, Brodhead caved to their pressure and took the side of the mob. He has been there ever since.

The apparent unwillingness or inability of Duke administrators to follow through on their minimal promise in this meeting--that the institution wouldn't tolerate academic harassment of lacrosse players by their professors--represents one of the most disturbing, if least examined, aspects of this affair. It does seem that a few people within the Duke administration--Trinity College dean Bob Thompson, for instance--that tried to approach this case with the fairmindedness it required. Unfortunately, Moneta, Trask, and Wasiolek appear to have carried the day.

[*--Update: I have been told that Wasiolek was not in the meeting with the captains, though Trask and Alleva, as the parent recalled, were.]

Some Stats

Interesting case figures:

12 of 25: As revealed by Liestoppers, the number of rape cases dismissed "without leave"--i.e., by the prosecutor--by D.A. Mike Nifong between July 2005 and June 2006.

It's rather difficult to reconcile that figure with Nifong's (false) claim during the primary season, at NCCU, that “anytime you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence.” [emphasis added]

10 to 1: As revealed by the N&O, the ratio of Sgt. Mark Gottlieb's arrests of Duke students over a several-month period in late 2005/early 2006 to the arrests by the three other police supervisors for the same district.

John in Carolina notes that the Herald-Sun's defense of this ratio accidentially raises some questions for both Duke and Durham authorities.

Zero: The number of rape cases tried by Nifong since 1999. Now that we know his office dismisses so many, perhaps this figure is more understandable. (And, of course, Nifong didn't deal with any rape cases during his lengthy stint in traffic court.) Perhaps this inexperience with rape cases in the modern era explains his preference for ignoring DNA findings that he promised the court would exonerate the innocent and instead dealing "with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

Press (In)Action

In late April, New York Times sports editor Tom Jolly announced, “I’m very comfortable with our coverage. From the beginning, we’ve felt this story had two main elements: one was the allegation of rape; the other was the general behavior of a high-level sports team at a prestigious university.”

Unfortunately, Jolly’s analysis proved off-base. The race/privilege/gender prism through which the Times–and, with it, the mainstream media–approached the Duke lacrosse case blinded journalists to evidence of prosecutorial misconduct on a massive scale. Over the past five months, events in Durham have featured a district attorney who:

• ordered police to violate city procedures in multiple ways regarding eyewitness ID lineups, after the accuser couldn't identify any suspects in an earlier lineup that loosely conformed to procedures;
• blatantly ignored varied ethics guidelines of the State Bar, most particularly an obligation to consider exculpatory evidence, which led to the indictment of a demonstrably innocent defendant, Reade Seligmann, who had proof he was either on the phone or not even at the house for virtually the entire time in which an attack could have occurred;
• issued misleading (or outright false) public statements, which seemed designed primarily to inflame sentiments in the African-American community, whose votes he desperately needed to win a primary against a rival who he had fired in his first week in office;
• announced that he had evaluated the case before most of the evidence was delivered despite an obligation that he serve as "minister of justice," not an advocate.

This record has, appropriately, outraged some powerful voices of the legal left, who recognize the importance of ensuring that government officials follow procedures for all:

• Duke law professor and former House Ethics Committee Counsel James Coleman wrote, “Virtually everything that [Mike] Nifong has done has undermined public confidence in the case.”
• USC law professor and former Dukakis campaign manager Susan Estrich lamented a “failure to follow standard procedure that is rather mind-boggling.”
• Duke law professor and longtime ACLU stalwart Erwin Chemerinsky said he couldn’t think of any case in the last 15-20 years where the public had learned of this extent of procedural irregularities by this stage of the process.

Flawed procedures beget flawed results, as this case certanly has suggested. After all, we now know that, even though the accuser alleged a violent rape in which her attackers ejaculated, no DNA matches to the lacrosse players were found. The accuser gave multiple, mutually contradictory, stories of what happened; the second dancer initially deemed the charge a "crock." One defendant, Seligmann, has an airtight alibi; a second, Collin Finnerty, didn't even come close to resembling the descriptions the accuser initially gave of her alleged attackers. And the investigation was overseen by a D.A. desperate for black votes and a police sergeant with a documented record of disproportionate arrests of Duke students.

But as evidence mounted that Nifong effectively manufactured a high-profile case out of whole cloth–and benefitted politically from doing so–the mainstream media started steering clear of Durham.

This wasn’t always the case, of course. The avalanche of early coverage operated under an unspoken, if powerful, presumption that a rape occurred. A late March article in USA Today read like an op-ed: featuring a photo of the campus vigilante poster–“40 faces of young men, smiling smugly for the camera”–it noted of the team members, “Their fellow students want them to come forward about what happened in a shabby off-campus house March 13.” The Washington Post served as a hotbed of one-sided, intellectually dubious, commentary about the case. After the first two indictments, Newsweek splashed mugshots on its cover, under the prejudicial title of “Sex, Lies, and Duke.”

With few exceptions, cable TV’s talking heads initially reflected this journalistic consensus, sometimes in stunningly extreme fashion. Former prosecutor Wendy Murphy explained away Nifong’s lack of DNA evidence by asserting, “The real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim– . . . watch ‘CSI.’” (Murphy later compared the indicted players to Hitler, arguing, “They’ve all done very bad things. Maybe they’ve all not been convicted of rape, but they have a very ugly history of bad behavior.”) Nancy Grace repeatedly committed herself to “talking about gang rape at Duke University”; Pam Bondi denounced the “escalating pattern” of “very frightening” behavior by “these young men, [who] were using each other's names and fake names, which really shows their intent and their premeditated intent.”

The Times, however, set the tone for coverage. Between late March and late April, it ran more than 20 stories on the Duke lacrosse case, often on the front page or the firs page in the Sports section. Opinion and news analysis columns, based on very limited (and, as it turned out, inaccurate) information, framed the case in stark moral terms; while a pattern of incomplete claims and transparent pro-Nifong bias appeared in articles penned by Duff Wilson–who, for reasons that remain obscure, replaced Joe Drape as the Times’ lead reporter on the story in early April.

Writing only a week after the first reports about the incident, sports columnist Selena Roberts indicated that, “According to reported court documents, [the accuser] was raped, robbed, strangled and was the victim of a hate crime. She was also reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.” (Roberts oddly deemed an affidavit for a search warrant a “court document” revealing uncontested facts, while her description of the medical evidence proved wildly overstated.) “To the dismay of investigators,” Roberts asserted, no players “have come forward to reveal an eyewitness account,” all part of the “lacrosse team’s code of silence” in which offering “any whisper of a detail [is] akin to snitching.” (This claim continued Roberts’ pattern of uncritically accepting Nifong’s version of events, and as a result making factual errors: the three captains voluntarily gave authorities lengthy statements and even access to their e-mail accounts.) In an April 9 op-ed, Alan Gurganus expressed an even more sanctimonious–and, in retrospect, even less defensible–moral tone. All but sneering at the mantra of “innocent until proven guilty,” he lectured, “When the children of privilege feel vividly alive only while victimizing, even torturing, we must all ask why.”

Times news coverage parroted Nifong’s version of events and therefore made (still uncorrected) factual errors. In his first story on the case–April 6–Duff Wilson asserted as fact,

Other details surrounding the incident emerged with the release of the search warrant affidavit Wednesday, including an attempt by the lacrosse players at the party to disguise their identities by using different names and by calling one another by their jersey numbers. The accuser told the police that the men told her they were members of the Duke baseball and track teams.

In fact, all three of these claims proved untrue. The police have produced no evidence that lacrosse players at the party were “calling one another by their jersey numbers.” Nor is there any evidence of “an attempt by the lacrosse players at the party to disguise their identities by using different names”–as Wilson himself would implicitly admit in an August story. And the accuser never seems to have told the police anything about the players’ athletic identities–indeed, long after the fact, she believed that, as she had initially been told, she was dancing a bachelor party.

On April 18, Wilson wrote, “Police interviews with three team captains . . . told the police that only members of the team were present.” In fact, even Nifong had conceded, several weeks before, that non-lacrosse players attended the party. (The Times’ website shows no correction for either item.) Wilson’s April 23 article asserted as fact, “A second dancer and a neighbor corroborated some of the accuser’s details.” Apart from placing the accuser at the house, the police statements of the second dancer and the neighbor contradicted, not corroborated, the accuser’s details. (No correction appeared on this item either.) And the Times considers itself the paper of record?

When critiquing this reporting in late April, Times public editor Byron Calame suggested, “The coverage has been basically fair, I think, with a few miscues mainly related to the placement and the space given articles.” He did, however, offer one significant caution: “If the rape and kidnaping charges do not hold up, the story doesn’t end. The Times should be prepared to continue covering what is done about the racial-insult allegations, given the prominence of the team and the university.”

Political correctness. Calame’s comment unintentionally explains one reason why the mainstream media has turned away from the Duke story in recent months. Even the Times can no longer seriously contend that we need additional coverage on how two or three Duke students (not, from all available evidence, any of the indicted players) engaged in an ugly, racially charged argument with the second dancer. The facts of this case, as it stands now, simply do not fit into a storyline based on a politically correct viewpoint, with a touch of Tom Wolfe for good measure.

The result: a precipitous decline in journalistic interest. A few commentators–notably Andrew Cohen of CBS and the Herald-Sun’s Bob Ashley–have rationalized this approach by claiming that it’s the media’s job to wait for a trial, as if journalists routinely ignore evidence of massive prosecutorial misconduct. Most papers have, understandably, avoided offering such torturous claims and simply scaled back coverage. Since June, the Washington Post has published two wire-service articles on the lacrosse case, while seeming to drop the inflammatory op-ed columns; the Wall Street Journal and Chicago Tribune have ignored the story altogether. A recent comment thread at TalkLeft correctly critiqued cable’s law and public affairs shows: “This case was covered extensively by all of those people, and yet now, I rarely hear anything from them.”

Ego. Ideology alone, however, doesn’t explain the media’s decision to ignore, rather than explore, the extent of Nifong’s procedural irregularities.

No one, I suppose, likes to admit mistakes, but many mainstream journalists took such an extreme line in March and April that it’s proved almost impossible for them to take a fresh look at events in Durham. On March 31, for instance, Selena Roberts concluded that reports of the players’ conduct “threatened to belie their social standing as human beings.” After suggesting that the players might be sub-human, how can Roberts’ thought process deal with Reade Seligmann? Obviously, it can’t: Roberts’ recent columns have explored such pressing issues as how Maria “Sharapova proved her game could be as intimidating as her beauty,” or how Mets’ general manager “Omar Minaya is decidedly unruffled, yet is unafraid of pushing the envelope on conventional logic.”

Duff Wilson similarly went far out on a limb, his biases perhaps best revealed in his peculiar habit of ending lengthier stories with an uplifting vignette directed toward either the accuser or Nifong. Take, for example, this April 12 item.

Some of Mr. Nifong’s friends say the extra attention he has received has not flustered him. Mr. Nifong, who had been an umpire for a local Little League for two years, is used to the pressure, they say. “He was heckled as an umpire, but he could take it because he has thick skin,” said Chuck Campbell, a league official and Mr. Nifong’s friend. “He’s handling this the same way.”

If we’ve learned nothing else over the past several months, it’s that Nifong–the man who threatened to resign from the Animal Control Board(!) because two of its members signed a nomination petition for his opponent–possesses nothing resembling a thick skin. But it’s rather hard to reconcile Wilson’s avuncular portrayal of Nifong as the Little League umpire with evidence of misconduct on a "mind-boggling" scale. Perhaps that’s why, in his widely ridiculed August story, Wilson grabbed for the only life raft available. He used as his article’s spine the after-the-fact, written-from-memory notes of Sgt. Mark Gottlieb, despite their inherently incredible nature.

Laziness. Even though the documents to show Nifong's procedural improprieties are all publicly available and can be researched on the internet, it’s still a lot harder now to cover the story than when Nifong was spoonfeeding the tale most journalists wanted to tell. Anyone could (and, it seemed at the time, did) write the race/privilege/gender storyline. Now, however, journalists must display an understanding of basic North Carolina procedure and a willingness to explain why procedure matters to the judicial process--even in a case involving Duke lacrosse players.

Stuart Taylor, of course, has recognized this issue from the start, as did sports columnist Jason Whitlock. In North Carolina, the N&O's Joseph Neff has penned several masterful articles on procedural questions. So too, though he's approached the case from a different perspective, has Cash Michaels of the Wilmington Journal. In general, after early articles that haven't stood the test of time, the N&O did what a paper should do--continue to as questions--and has covered the case fairly and comprehensively in recent months, in sharp contrast to every other paper in North Carolina. Otherwise, a June 29 article in Newsweek represents the national media's only serious attempt to move beyond its initial storyline and recognize that the key issue in Durham is the misbehavior of the local prosecutor, not of college students.

How often do we see a case where prosecutorial corruption has occurred to this scale, in the open, and with such clear-cut effects on the gathering of “evidence”? In the future, I suspect that journalism schools will study the response to the Duke case, as an example of how ingrained biases, reporters' egos, and sheer laziness led the mainstream media to miss the critical elements of a story, and then turn away from the affair once journalists' initial assumptions proved unfounded. For now, however, the reticence of the national media, formerly so enthusiastic about the case, has allowed Mike Nifong's misconduct to go unchecked. The full story remains to be told. Will anyone from the national press do so?

Nifong, Duke, and Gottlieb

Thanks to recent articles from the N&O and especially the Duke Chronicle, we now know that:

• for a period of several months before the lacrosse incident, Sgt. Mark Gottlieb arrested 10 times as many Duke students as the district's other three squad commanders combined;
• the sergeant--who, the N&O took pains to note, has no degree beyond high school--appears to have engaged in ethnic stereotyping, asking one foreign-born Duke student if he needed to speak to his consulate and threatening another with deportation;
• several Duke students (of varying genders and ethnicities, and all unconnected to the lacrosse team) accused Gottlieb of behaving as he has in the lacrosse case--misstating facts and violating standard procedures.

It seems to me that local journalists need to follow up with a series of additional questions. For Nifong:

1. What actions has the Durham D.A.'s office taken to ensure that police officers uphold defendants' constitutional rights? Or did Nifong's infamous statement--"One would wonder why one needs an attorney if one was not charged and had not done anything wrong"--suggest a D.A.'s office that cares little about how cases reach the court?
2. Is Nifong at all concerned with the stunning statistical disparity between Gottlieb's arrest record and that of the other three District 2 supervisors?

For Duke:

1. When the Duke administration first learn of the statistical disparities revealed in the N&O article?
2. If the administration knew of these figures before last week, why has Duke done nothing to address the problem?
   
3. Is Duke concerned about either these statistics or Duke students' allegations of troubling behavior by Gottlieb?
4. What actions does President Richard Brodhead plan to take in coming days to ensure that the Durham Police are not unfairly targeting Duke students?
5. What assurances, if any, can Brodhead give current or future Duke parents that their children will not experience the kind of treatment that Gottlieb provided Duke students in the months before March 2006?

This case too often has lacked reporters willing to ask the hard questions of people in authority. I hope they reverse this pattern, and make Nifong and Brodhead address the findings of the N&O and the Chronicle.

Mysteries of the McFadyen E-Mail

A key turning point in media coverage of the lacrosse case came on April 5, with the release of Ryan McFadyen’s “strippers” e-mail. We know now that the email–while disgusting–played off a scene in American Psycho (a pretty vile film, but one featured in several Duke classes). At the time, though, most journalists interpreted McFadyen’s words literally. CBS described the document as “a lacrosse player's e-mail rant about killing strippers and cutting their skin off in his Duke University dorm room.” The N&O approvingly quoted Duke student Simone Randolph, who reasoned, “You can’t say somebody’s guilty based off the e-mail, but it certainly does not help their case.” Duke president Richard Brodhead responded by demanding lacrosse coach Mike Pressler’s resignation and suspending McFadyen.

With several months’ perspective, three questions emerge about the revelation of the McFadyen e-mail: its source; its context; and its timing. All three cast strong doubt upon the integrity of D.A. Mike Nifong’s inquiry.

1.) The source

How did the Durham Police obtain the inflammatory e-mail? In the search warrant for McFadyen’s dorm room, police claimed to have received the e-mail from a confidential source. Looking back, there would seem to be three possibilities:

• someone from Duke obtained it and gave it to the police;
• a player on the team sent it to the police;
• the police already had it from the captains’ computers they seized on March 16.

The first option struck me as extremely unlikely, but I wanted to confirm my doubts with Duke Senior Vice President for Public Affairs and Government Relations John Burness. Burness responded,

You are correct that no one from Duke was authorized to review the emails of the players on the team. Duke has pretty strong privacy policies in that regard. As President Brodhead has noted on more than one occasion, we have been very conscious not to conduct our own independent investigation of the incident since we lack the legal authority and necessary powers (subpoena, etc.) to do so, nor have we wanted to do anything that could be perceived as complicating or hindering the police/court’s investigation.

The second option, that the e-mail came from a lacrosse player–which seemed the most likely scenario at the time, since the police had conveniently left unrevealed that the three captains had, voluntarily, provided authorities with their e-mail passwords–now seems as inconceivable as Duke handing over the email. Nifong had no “secret source” among the lacrosse players.

As (1) and (2) seem unlikely, it would appear as if the e-mail came from the police themselves. if so, however, the police lied about the source of the e-mail in their affidavit requesting a search warrant for McFadyen’s room, with the apparent purpose of leaving unchallenged false media portrayals of a 'wall of silence" by the players.

2.) The context

Even if–as seems likely–the police obfuscated about how they obtained the McFadyen e-mail, proving the lie will be almost impossible. No doubt the technician who discovered the e-mail on the computer of Matt Zash, Dave Evans, or Dan Flannery was instructed to file a "confidential" tip with Durham CrimeStoppers, to provide the department with a level of plausible deniability.

Regarding the email’s context, however, Nifong&Co. lack a ready-made excuse. Assume the facts most favorable to the authorities: that they actually did receive the e-mail from an anonymous source. We know now that the police had access to the captains’ e-mail accounts. Only an extreme incompetent would not have immediately checked these accounts to determine whether other team members made additional “threats.”

So, what did the police find? And why did they not reveal the follow-up e-mails as part of the McFadyen search warrant? The e-mail was vile. But its significance to a criminal case depends on the e-mails that followed it. Did subsequent e-mails from players discuss, say, the methods for covering up McFadyen’s proposed “crime”? Or did subsequent e-mails, say, follow up McFadyen’s e-mail with the next lines from American Psycho?

Nifong obviously knew the answer to this question by the time he publicly revealed the McFadyen e-mail on April 5. If, as has been widely rumored, subsequent e-mails from players quoted other lines from American Psycho, Nifong’s method of revealing the e-mail–shorn of all context, offered alone as if reflective of a murder scheme–represented nothing short of an attempt to deceive the public.

3.) The timing

Police served a sealed warrant on McFadyen on March 28. Yet Nifong didn’t approve making* public the warrant’s details until April 5. What happened between those two dates?

1. Nifong learned that the DNA evidence he had promised would “immediately rule out” any innocent people had, in fact, exonerated all the lacrosse players;
2. Nifong ordered the Durham Police to construct a lineup that violated their own procedures in multiple ways.

In that lineup, the accuser didn’t recognize McFadyen. So whatever purpose Nifong had in making the e-mail public, providing information to Durham citizens about a possible suspect was not among his concerns.

So why, then, did Nifong approve making the e-mail public after McFadyen no longer was a suspect? And why did he do so in a context-free manner? Could he have hoped to inflame community sentiment against the lacrosse team, so as to encourage people to overlook the DNA results–or discourage them from looking too closely at the procedurally dubious manner through which he managed to obtained indictments before the May 2 primary?

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This blog is entitled Durham-in-Wonderland because virtually everything about this case has seemed to operate through the looking glass. For instance:

• Prosecutors normally rely on facts as defense attorneys spin outlandish tales and secretly hope for jury nullification; in this case, jury nullification represents the proscutor’s only chance of victory.
• Prosecutors normally highlight the significance of scientific evidence; in this case, the head of the prosecutor’s citizens’ committee has offered a conspiracy theory to explain away DNA findings.
• Prosecutors normally are expected to prove defendants guilty beyond all reasonable doubt; in this case, defense attorneys are expected to prove the defendants innocent beyond all reasonable doubt.
• The academy normally celebrates due process and dispassionate evaluation of evidence; in this case, the public voices of the Duke faculty gleefully rushed to judgment.

The reaction to the McFadyen e-mail is one more aspect of this through-the-looking-glass case. On the one hand, we have an e-mail written by a college sophomore–tasteless and vile, but, from everything we know now, of no evidentiary value. On the other hand, we have a police department that probably lied about how it obtained the e-mail; and a prosecutor who used the e-mail to inflame public sentiments and compensate for shortcomings in his case.

In the last five months, the college sophomore has been vilified nationwide, while the actions of the police and prosecutors regarding the e-mail have escaped virtually all criticism. What’s wrong with this picture?

Hat tip: Greg Kidder

[*Update, 9.17am: Cash Michaels points out in the comment section, "If I'm not mistaken, I believe attorneys for the Durham Herald-Sun petitioned Judge Don Stephens to release the e-mail to the press, which, as part of what was retrieved per search warrant, was placed under seal. Judge Stephens, if I'm not mistaken, decided to release it, saying that the reasons for keeping it under wraps were no longer valid. Those reasons were never made clear, however."

He's absolutely right that the order releasing the email was made by Stephens--I should have made this point clear in the original post, and am grateful for the clarification. I changed the wording of the post to "approved making."

That said, we also know the relationship between the DA's office and Stephens during this part of the investigation (Stephens signing the non-testimonial order on dubious grounds, in particular). But even absent a close relationship between the judge handling the case and the DA's office, it would have been proper procedure for the D.A.'s office to have cleared any release before the judge acted.]