What Did Nifong Know, and When Did he Know It?

Timelines are unusually significant in the Duke lacrosse case. Sunday’s N&O article by Joseph Neff, and subsequent correction of the date of a key memo whose existence Neff first revealed, provides more timeline clues. For the first time, it seems more than plausible to suggest that D.A. Mike Nifong’s misbehavior extended beyond procedural misconduct.

Thanks to the N&O, a new timeline of the case’s investigation exists. Dates of items first publicly revealed from the Neff exposé are bolded.

March 16: Operating under the assumption that, as the accuser had claimed, her attackers were named Matt, Adam, and Brett, the Durham police constructed a photo lineup array. The lineup loosely conformed to Durham’s guidelines (which are among the state’s weakest): the accuser was told that her attackers might or might not be in the array, and she was shown five “filler” photos for every suspect. These “filler” photos, however, were of other lacrosse players, not people uninvolved with the case, as the guidelines suggest. (The photos came from the Duke lacrosse website.) Since the team had two students named Matt, the accuser looked at four arrays of six photos each. She identified no one as her attacker.

March 21: When the accuser returned to the police station to pick up some of her other items, she was shown two more six-player arrays. The accuser identified no one. That outcome should have come as little surprise to the police. In extraordinarily vague terms, she had described one of her attackers as “chubby” and said a second weighed about 270 pounds. Duke’s lacrosse team, an elite Division I athletic squad, had no “chubby” players, nor did any of its players weigh anything close to 270 pounds.

March 23: Nifong’s office obtained a court order for all 46 white players on the team to submit DNA samples. The motion neglected to inform the court that the accuser had failed in photo lineups to identify as her attackers at least 36 players on the team, including at least two (Reade Seligmann and Dave Evans) she ultimately would select. With the wording of the order, authorities abandoned their March 16 belief that Adam, Matt, Matt, and Brett were their targets; now all 46 white players were suspects. At the time, Nifong promised, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

March 27-28: In his first public comments on the matter, Nifong repeatedly expressed confidence—in interviews with MSNBC and with North Carolina stations WRAL and NBC-17—that the DNA evidence produced by the court order would solve the case.

March 29: In an interview with the N&O that was published March 30, Nifong suddenly and dramatically reversed course on the significance of DNA to the case. He now suggested that the attackers could have used condoms—even though the accuser had denied her alleged attackers used condoms, which the district attorney would have known had he read his own file before speaking out publicly. "How does DNA exonerate you?,” mused Nifong. “It's either a match or there's not a match. If the only thing that we ever have in this case is DNA, then we wouldn't have a case." He no longer mentioned a relationship between the return of the DNA results and closing out the case, and offered no public explanation for his new viewpoint.

March 31, 12.23pm: In a meeting with the two chief police investigators on the case, Nifong ordered a second photo lineup. Only this time, he told the officers, they were to ignore Durham’s procedures and these Nifong-mandated procedural irregularities “strongly suggest[ed] that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.”

April 4, 11.29am: The accuser’s procedurally flawed photo ID session began. Eventually, the accuser identified four players, of whom Nifong charged three. (He couldn’t charge all four, since none of the accuser’s myriad stories had cited an attack by four players, though she had claimed at one point that five had attacked her.) Nifong has never publicly explained how he chose the three that he did; the accuser said she was 100% certain that Seligmann looked like a person who attacked her, while she commented, after seeing a photo of Evans, to be 90% certain that the photo resembled someone with a mustache who attacked her. Evans has no mustache.

April 4, 3.59pm: Police Investigator Michelle Soucie memorialized a conversation in which she gave Nifong price quotes for DNA tests at a private lab. In his pre-primary publicity barrage, Nifong had never suggested that he would request a second round of tests: he had stated, repeatedly, that he would indict based on the results from the state lab. Indeed, the fact that the prestigious SBI lab handled his request on an expedited fashion suggested that its word would be definitive. Nifong’s only motive for seeking a second round of tests, of course, was bad news from the SBI. In short, sometime before 3.59pm on April 4, the district attorney knew that the first DNA tests would all come back negative. Alas, the N&O, since it dated the memorandum incorrectly in an error unrelated to the content of the story as a whole, has removed this document from its website.

April 10: Nifong supplied the DNA test results to defense attorneys, who publicly announced that all 46 were negative.

This timeline reveals an investigation whose basic evidentiary goal veered dramatically whenever findings contradicted the district attorney’s public theories and political needs. The theories drove the search for evidence; the finding of evidence had no impact on the theories. As a result, the inquiry divided into three, distinct, segments.

First, from March 14 through March 21, the police employed standard tactics, showing the accuser a photo lineup that, more or less (less, in this case), conformed to the spirit of city guidelines. The accuser identified no one; her descriptions of at least two of her alleged assailants did not resemble anyone on the team.

The second stage began sometime between March 21 and March 23, when Nifong seized control of the case. The district attorney argued now that DNA, not results from a photo lineup, would provide the key evidence, and obtained an extraordinarily broad court order to get the evidence he wanted.

Then, no later than the morning of March 31, Nifong completely reversed himself: a photo lineup, not DNA, would supply the key evidence—even though, just 10 days earlier, he had gone to the court on the grounds that DNA, not photos, would make his case. In the new reality, moreover, authorities would simply pretend that the first photo lineup had never occurred. To ensure that someone would be picked that he could indict before the May primary, the district attorney ordered the police to conduct a lineup that violated Durham’s procedures by consisting solely of suspects, and by telling the accuser of this fact.

The transition from phase one of the investigation to phase two—i.e., from reliance on photo IDs to the mass gathering of DNA evidence—was irregular: the courts generally frown on demanding DNA solely on the basis of group membership. As Durham attorney Alex Charns noted at the time, “I can't imagine a scenario where this would be reasonable to do this so early in the investigation. It seems unusual, it seems over-broad, and it seems frightening that they're invading the privacy of so many people." To interpret Nifong’s actions in the most favorable light to the district attorney, perhaps he wished to give every conceivable benefit of the doubt to the accuser.

There can be, however, no benign explanation for the transition from stage two (DNA as the inculpating evidence) to stage three (back to photos, but with a lineup that violated all procedures). The question, therefore, becomes when, and especially why, Nifong made this decision. The Soucie memo confirms that the district attorney had word of the negative DNA results at least six days before they were publicly revealed. How much earlier had he gained access to this information? Did he know of the likely negative outcome on March 29, when he inexplicably started to downplay the significance of DNA in his public statements?

Regarding the negative DNA tests, the question is: what did Nifong know, and when did he know it?

Specifically, why, on March 31, did he order the Durham police to orchestrate a second lineup that violated their own procedures in virtually every way, even though they had already conducted a lineup whose results he ignored? Did he do so in response to a heads-up that the DNA tests he had promised would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack” instead produced no matches? If so, he dangerously abused his authority, in a manner well beyond his (by now routine) violations of the state ethics code.

It’s unlikely that the Herald-Sun, whose ardently pro-Nifong editorial stance has recently seeped into its news coverage, will explore these matters; and, from the look of things, the Herald-Sun is the only media outlet to which Nifong speaks.

Perhaps, in any case, the questions of what Nifong knew and when he knew it are more appropriate for federal authorities to ask. It’s high time they did so.

Hat tip: Greg Kidder.

The Soucie Memo

At a time when most reporters in the state have either moved on to other matters or—as in the case of the Durham Herald-Sun—seemed to uncritically evaluate the motives and statements of D.A. Mike Nifong, one North Carolina journalist has consistently been ahead of the pack: the N&O’s Joseph Neff.

Neff’s latest story provides a devastating account of Nifong’s procedural misconduct and lack of evidence in the lacrosse case, uncovering critical and heretofore unrevealed information about the medical reports, the accuser’s initial descriptions of her alleged assailants, the odd timing of the accuser’s ultimate statement to police, and Nifong’s hands-on involvement with the police investigation. Neff made a rare error, however, in the story, inaccurately describing a memorandum by Durham PD Investigator Michelle Soucie as having been penned on April 17, when actually the memo was written on April 4. The N&O promptly issued a correction.

The error, however, meant only that Neff’s story was excessively kind to Nifong, and affected none of the story’s conclusions. The material in the excerpted portions of the Soucie memo, in combination with other facts and documents already publicly available, reinforces the pattern of this case: the more material released, the more indefensible Nifong’s behavior appears.

The previously unreleased Soucie memorandum brought four items to light. In its correction statement, the N&O writes that the corrected date for the memorandum (from April 17 to April 4) “changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.” The words of the correction were poorly chosen. For, in fact, as Neff’s original article claimed, “the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.”

Before April 4, Nifong gave dozens of interviews to the state and national media commenting with certainty on the “events” of the “rape.” Here are three typical examples of his remarks:

March 29, MSNBC: “The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.”

March 29, WRAL: “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

March 30, CBS News: "The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases. And the investigation at that time was certainly consistent with a sexual assault having taken place.”

Yet, days after Nifong made these and other similar statements, Soucie recorded the following, according to the memo the N&O uncovered: "Mike Nifong stated that: Also need documentation on escort service and how they do business. Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident—with witnesses." Neff’s original conclusion is correct: Nifong “had said repeatedly on national television that he was certain the dancer had been raped. Yet the prosecutor was still trying to rule out other explanations for the vaginal swelling a hospital noted in its examination of the accuser. The words and actions of police and prosecutors had outpaced the facts in the file, and not for the first time.”

This memo, in short, is the clearest example of date of misconduct by Nifong in his public remarks. Not only was he violating the state bar’s prohibition against statements “that have a substantial likelihood of heightening public condemnation of the accused,” he was, to put it bluntly, dissembling. Shortly after he dismissed “the alternate explanation” for the accuser’s alleged injuries (which, as things turned out, were far less severe than the D.A. claimed) to MSNBC, Nifong admitted to Soucie that he wasn’t sure if an “alternate explanation” did exist—namely, that “what [the alleged] victim did on the day before arriving at 610 N. Buchanan” could explain her trauma. Neff’s words—“the words and actions of police and prosecutors had outpaced the facts in the file”—are charitable in describing the misconduct here.

The N&O obviously had to issue a correction regarding the date of the Soucie memorandum, pointing out that it was written before Nifong sought indictments. But, contrary to the insinuation of the correction text, the memo’s earlier date actually raises more questions about Nifong’s conduct, rather than weakening any of the article’s conclusions. Three matters are immediately apparent.

First, the order contained in the Soucie memo had one immediate effect: the obtaining of the statement of Jarriel Johnson, the figure generally described as the accuser’s “driver.” Johnson provided his statement to police two days after Nifong instructed Soucie “to nail down what victim did on the day before arriving at 610 N. Buchanan.” Unfortunately for the district attorney, however, Johnson’s affidavit (reproduced at page 27 of this motion) provided no help in showing “that [the accuser] did not receive trauma prior to the incident.”

Johnson revealed that the accuser had engaged in a variety of private “events” in the hours before the lacrosse party, including at least one that involved use of a vibrator. As Liestoppers blog explained yesterday, “While Nifong instructed DPD to find witnesses to show that the accuser's nether region was unswollen, instead they found him Jarriel Johnson whose description of accuser's activities seemed to do the exact opposite. Nifong asked for proof that the swelling couldn't have been caused by the accuser's escort service activities, and instead found proof that it could very well have.” Yet he sought indictments anyway. The correct dating of the Soucie memo thus shows Nifong’s closed-mindedness to any evidence contradicting his theories as early as April 6. So much for his duty, under the state bar’s ethics code, to serve as “a minister of justice.”

Second, the initial part of the memo is highly unusual: it details Soucie’s efforts, acting on Nifong’s orders, to schedule DNA tests at a private laboratory. But Nifong had already sent the DNA samples to the state lab, and was, in theory, awaiting results on April 4. On March 28, he announced, “There won't be any arrests before next week. I have decided not to make arrests until DNA evidence is back.” Two days later, however, he downplayed the effects of DNA in comments to the N&O, and now we know that on April 4 (six days before defense attorneys received results showing that there was no DNA match between the lacrosse players and material from the accuser’s rape kit), Nifong was telling the Durham police to schedule more testing.

Why does this date matter? On April 4, Nifong arranged a photo lineup for the accuser. In yet another scoop from the story, Neff reveals that the accuser already had gone through a photo ID session, at which she failed to identify any player as her attacker. (Hints of this lineup array existed in an earlier defense motion, but since then, the matter had received almost no public discussion until Neff’s exposé.) Given that Soucie was searching for an alternative private testing lab as of April 4, it seems more likely than not that the impetus for this second photo lineup came from Nifong’s discovery of the negative DNA tests.

This photo ID session violated Durham procedures and North Carolina norms in four major ways. A fifth violation can now be added to the list: no North Carolina lineup procedures that I examined contained even a mention of doing a second ID with photos of the exact same group of suspects if the accuser couldn't come up with a match the first time.

The April 4 session resulted in the accuser identifying Reade Seligmann with 100% certainty as “looks like one of the guys who assaulted me sort.” On this basis, and this basis alone, Nifong sought Seligmann’s indictment—even though Seligmann didn’t resemble any of the accuser’s original descriptions of her attackers. (He is 6’1”, 215 lbs.; as Neff’s story reveals, the accuser described one of her attackers as “chubby”; a second as weighing 260-270 pounds; and a third as “short.”) Despite this anomaly, which suggested that a procedurally flawed photo ID had yielded a flawed result, and although 13 days passed between the photo ID and the indictment, neither Nifong nor anyone from the Durham Police Department ever spoke with Seligmann or his attorney. (To this day, no one from the Durham Police Department has spoken with Seligmann.) And on the day of the indictment, in violation of yet another provision of the state bar’s ethics code, Nifong refused to meet with Seligmann’s attorney, who offered to present exculpatory evidence.

The inference from the Soucie memo: as soon as Nifong learned that the DNA tests, which he previously had promised would identify the guilty, instead came back negative for all, he orchestrated the procedurally improper photo ID session. When the accuser identified someone who hadn’t even been considered a serious suspect until that point, Nifong, despite his obligation to act as “minister of justice,” went out of his way not to seek any additional information about Seligmann before the next session of the grand jury—which he had already announced would be the final possible meeting before the D.A. primary at which he would seek indictments.

Finally, the Soucie memo provides additional evidence of one of the odder aspects of this case: Nifong’s service as de facto police commissioner. The district attorney was telling the police to conduct more DNA tests. The district attorney was ordering the police how and in what manner to conduct their investigation. Where was the police chief? The deputy police chief? Why was Nifong doing their jobs?

Nifong’s defenders have frequently pointed to his long record in the district attorney’s office to justify his handling of this case. But he never served as a police officer (he did spend three years as a social worker after college), and he therefore had never, before this extremely high-profile case, run a police investigation. As the Soucie memo shows, Nifong wasn’t cut out for such activity. His orders to the police department included getting “documentation on escort service and how they do business.” I suspect few police lieutenants would have needed to investigate how escort services “do business.”

Contrary to the ABA’s suggested guidelines (Standard 3-2.10), North Carolina lacks a mechanism to constrain runaway prosecutors, and, as the Soucie memo shows, Nifong has positioned himself as a quasi-police commissioner in Durham. The governor and attorney general have shown no willingness to step in. In the 1950s and early 1960s, the federal government involved itself with the FBI and the Justice Department when renegade Southern prosecutors overrode procedures to fulfill their political or personal crusades.

Echoing a point that MSNBC’s Tucker Carlson has been making for some time, a DBR editorial recently stated, “There have been calls for special prosecutors in this case before, but the idea has been they would replace Nifong. At this point, given what is now known, perhaps Nifong is the one who needs to be prosecuted.” What threshold of misconduct must become documented before the FBI involves itself? Given the performance of the Raleigh/Durham media to date, Neff seems to be the most likely reporter to reveal additional misconduct—and, given what he showed in Sunday’s article, additional misconduct almost certainly exists.

Boasting of Closed-Mindedness

Duke president Richard Brodhead—having declined to protest a system in which local authorities refuse to follow their own procedures when investigating his own institution's students—now has publicly claimed that three Duke students will have the opportunity “to be proved innocent” in a situation that “only the criminal justice system can resolve.” In the Alice-in-Wonderland world that is Durham justice, such sentiments, which turn American judicial philosophy on its head, are all too common—as in a peculiar editorial from the Durham Herald-Sun, which praised D.A. Mike Nifong for stating at a recent press conference, “I have not backed off from my initial assessment of the case.” This comment provided a “boost of confidence” to those, like the Herald-Sun editorial board, who support Nifong.

Following up on several posts from John in Carolina, which have raised serious doubts about the Herald-Sun’s journalistic integrity, a recent letter to the editor by Friends of Duke University spokesperson Jason Trumpbour eviscerated the editorial. As Trumpbour noted, the editors “stated that Nifong ‘still believes he has a good case’ and find that significant for some reason. Yet, Nifong apparently lacks the courage of those convictions. After ramrodding evidence through a hopelessly backlogged SBI crime lab and racing to get indictments before the election, Nifong is now trying to postpone the day of reckoning until next spring. Nifong refused to even look at any of the exculpatory evidence proffered to him by the defense. This action violated North Carolina Rule of Professional Conduct 3.8 which prohibits a prosecutor from avoiding ‘pursuit of evidence merely because he or she believes it will damage the prosecutor's case.’ In hiding his eyes from that evidence, Nifong abdicated the responsibilities of the office to which he was appointed and should have no further claim to it.”

An even firmer version of Nifong’s press conference claim came in an e-mail to Newsweek dated June 13, 2006, when the D.A. asserted, “None of the ‘facts’ that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially.”

Nifong’s own words contradict his statement.

In a motion filed with the Durham court to compel all 46 white players on the team to produce DNA samples—the district attorney’s initial expression on the case—Nifong’s office affirmed, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” The players gave the samples on March 24; three days later, the D.A. made his first public comments to journalists. Shortly thereafter, Nifong told the media that he looked forward to the DNA results: “By next week, we'll know precisely who was involved.”

On April 10, defense attorneys announced that the DNA tests from the accuser’s rape kit contained no matches to any of the players. Nifong’s response? The very next day, he changed his mind: “DNA results can often be helpful, but, you know, I've been doing this for a long time, and for most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

So, despite his repeated assertions, Nifong’s “initial assessment” did change—and change completely—as a result of evidence produced after March 27. Before that time, DNA tests would “immediately rule out any innocent persons” and “show conclusive evidence” of the guilty. After the results were produced on April 10, DNA evidence was effectively irrelevant to his case.

The district attorney’s press conference and Newsweek statements are troubling for another reason. His twice boasting of having made up his mind a mere 11 days into the investigation—even though, at the time, the police had done very little work on the case—contradicts the spirit, and possibly the letter, of Section 3.8, comment 1, of the state bar’s ethics code. This section maintains, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice.” Surely the duty to “seek justice” in the role of a “minister of justice” requires an open-mindedness to new facts as they become available.

North Carolina’s open discovery law means that we have a clear sense of what evidence Nifong possessed when he expressed his “initial assessment” of the case on March 27. This material included: (1) various police reports of early interviews with the accuser, where she offered at least five different versions of events, most of which were mutually contradictory; (2) the report of a police officer indicating that the accuser couldn’t identify her attackers when shown photos of the lacrosse players, coupled with descriptions of the attackers that bore no resemblance to at least two of the three people she ultimately picked; (3) the second dancer’s statement, which contradicted the accuser’s in almost every way and labeled the accuser’s allegations a “crock”; (4) the statement of the neighbor, who described a loud and alcohol-filled party but also placed the comings and goings of the dancers in such a way to limit the window in which a possible crime could have occurred; and (5) the statements of the three lacrosse captains, along with their (spurned) offer to submit to lie detector tests by the police.

It’s hard to believe that any “minister of justice” would have proceeded with a case based on this evidence and this evidence alone. In Nifong’s case, it’s impossible to entertain such a belief. The N&O’s Joseph Neff has revealed in two extraordinary articles, the most recent of which appeared in Sunday’s paper, that numerous public statements made by the district attorney on or very shortly after March 27 were unsupported by the material to which he had access. As Neff wrote yesterday,

To get warrants, police made statements that weren't supported by information in their files. The district attorney commented publicly about the strength of the medical evidence before he had seen it. He promised DNA evidence that has not materialized. He suggested that police conduct lineups in a way that conflicted with department policy.

As with the pre-“initial assessment” evidence, we have a good sense of the evidence that appeared after March 27. That material included: (1) the procedurally flawed lineup through which the accuser made her identifications (which she previously had been unable to do on at least two occasions); (2) time-stamped photographs of the accuser at the party, which showed what time her dance concluded and when she left the premises; (3) the statement of the person generally described as the accuser’s “driver,” which discussed the accuser’s various pre-party “appointments” and outlined her erratic behavior on the day of the party; (4) the two rounds of DNA tests, which contained no matches to two of the accused players and a match to the third on a towel in his own house; (5) the accuser’s cellphone records, which included a 12.26 call to another escort service and an 11.36-11.39 call before she arrived at the party; and, according to Neff’s story, (6) two medical reports, one from Duke, which “made no mention of bruises, tears or abrasion to either the vagina or the anus, [and] . . . noted a scratched heel, and no other signs of physical assault”; the other, the next day, from UNC: “[The accuser] states she was drunk and had a lot of alcohol that night.”

The post-March 27 evidence also includes (7) material produced by one of the players that Nifong targeted, Reade Seligmann—evidence that Nifong refused to consider before seeking indictments, despite the specific mandate mentioned in Trumpbour’s letter to the editor. That material includes cellphone records, two affidavits, and an ATM video showing Seligmann was either on the phone, in a cab, or at an ATM machine a mile away during the only time block in which a rape could have occurred.

Taken together, the post-March 27 material suggests a few linked themes: (1) the combination of the accuser’s cellphone records and the party photos gives the lie to Nifong’s bizarre statement that he had his own timeline of the case (“my timeline,” as he described it) that presumably placed the crime sometime before midnight. Given that Seligmann has electronic exculpatory material after 12.06, the post-March 27 evidence shows him demonstrably innocent--I would hope even to President Brodhead's satisfaction.

(2) The medical evidence—once assumed to be the heart of Nifong’s case—in fact provides him no assistance, and is, moreover, internally contradictory. While the Duke doctor “noted a scratched heel, and no other signs of physical assault,” the accuser claimed the next day at UNC that she had been repeatedly beaten and hit her head on the sink in the attack—signs of which surely would have been apparent to the Duke doctor the previous evening.

(3) Nifong needed to engage in a massive, multi-faceted, violation of procedural norms—the April 4 photo ID session—to manufacture any evidence to get indictments before the May primary; the photo IDs provided the only evidence used to specifically target Seligmann and the second player indicted before the primary, Collin Finnerty. For this offense alone, it’s hard to see how any fair-minded state bar inquiry could not recommend suspending him from the bar.

Given this record, and given what he possessed on March 27, how can Nifong seriously maintain that “none of the evidence that I have seen from any source, has changed the opinion that I expressed initially”? Such a claim violates common sense. More important, how can Nifong’s repeated assertion of this sentiment be consistent with his requirement to be an open-minded minister of justice?

The “minister of justice” requirement is among the most serious in the North Carolina ethics code: the provision holds that a “systematic abuse” of its terms in and of itself could constitute prosecutorial misconduct. The guidelines suggest reference to the ABA Standards for further guidance.

These ABA guidelines, like those of the state, suggest discomfort with a prosecutor announcing closed-mindedness 11 days into an investigation, when most of the evidence remained forthcoming. Standard 3-1.2(b) requires the prosecutor to “exercise sound discretion in the performance of his or her functions,” since, according to subsection (c), “The duty of the prosecutor is to seek justice, not merely to convict.” Standard 3-3.1(b) prohibits a prosecutor from exercising “improper consideration”—i.e., the need to placate a critical voting bloc on the eve of a primary—“in exercising discretion to investigate or to prosecute.” It’s difficult to reconcile Nifong’s behavior with these ABA mandates.

So what, exactly, is worthy of praise in Nifong’s statement that “I have not backed off from my initial assessment of the case”? A district attorney misleading the public, when he erroneously claimed that no evidence produced after March 27 altered his “initial assessment” of the case? A district attorney misleading the court, having sought DNA evidence under specific promises, only to abandon them once the evidence didn’t turn out as he wanted? Or a district attorney boasting of approaching the case with a closed mind rather than as a “minister of justice,” despite the ethics code’s clear suggestion that such behavior constitutes prosecutorial misconduct?

Update, 1.33pm: The N&O has just posted a correction, noting that a memo cited in the article (not mentioned in my post) in which Nifong ordered a Durham police officer to track down the accuser's movements before the party occurred on April 4, not on April 17, as the article originally stated. This change, however, has no effectr on analyzing Nifong's closedmindedness. Taking the district attorney at his word (that he hasn't changed his opinion of the case from the time of his "initial assessment"--which would be March 27), the fact that he was trying to track down the accuser's movements, whether it was on April 4 or April 17, shows what the N&O correction terms an "example of the words and actions of police and prosecutors outpacing the facts in the file."

Scapegoating

Richard Brodhead’s recent denial of “scapegoating” the lacrosse team seems unsustainable. In the Duke president’s public response to Friends of Duke University, the sole evidence that he cited to substantiate his claim that he hasn't scaegoated the team was the existence of the Coleman Committee report. But he had described this document to the University community as favorable to the lacrosse team only in that it did not “confirm the worst allegations against this team”—which, of course, were that three players committed gang rape and dozens of others covered it up. Many people would consider Brodhead’s failure to mention that the report detailed the players’ positive academic performance, excellent relations with Duke staff, and extensive record of community service confirmation of the charge of his scapegoating the team.

More important, the Coleman Committee report conclusively showed how Brodhead already had scapegoated the team when he forced the resignation of lacrosse coach Mike Pressler. As William Gerrish, whose son captained the 2005 Duke lacrosse team, recently noted, Pressler “is perhaps the only one who did nothing wrong during this incident, and yet he ended up paying for it.”

Pressler coached lacrosse at Duke for 16 years; in 2005, he led the team to the NCAA finals, and was named national coach of the year. That former Hofstra (and current Duke) lacrosse coach John Danowski sent his son to play for Pressler testified to his peers’ high regard for him. Parents of his former players have lavished him with praise. Nina Zash, whose son co-captained the 2006 team, affirmed that “my son went to college a boy and came out a man, and I am not naive enough to think it's all because of his parents. Coach Pressler, from the first day he stepped foot into my house, let us and my son know that he would be tough but fair, and would never demand more than he gave. He 'walked the walk' every single day my son was under his watch. He was the guardian you want your child to have when you can't be there, [and] it was an honor and a privilege to watch him work his magic with my son these past four years.”

Pressler developed a reputation as a tough but fair disciplinarian, as Duke’s own investigation subsequently confirmed. To illustrate Pressler’s approach, a lacrosse player who graduated in 2006 recalled:

During my sophomore year I was involved in an off the field incident stemming from underage drinking. Coach Pressler’s policy from the day I arrived on campus was no matter what kind of troubling situation came up he wanted to know about it before it was brought to his attention by others. I failed to follow this rule and hoped that he would not find out. When he did find out his punishment was decisive and fair. We were scheduled to travel to West Point that weekend to play the Army. I had made the travel team and was excited about the trip. My family was also coming and my father was especially looking forward to seeing West Point. Upon learning of my incident Coach Pressler pulled me aside after practice and told me to come to his office after I showered. There, he informed me that I was suspended for the Army game and that I would not be making the trip with the team. He asked me to call my dad and tell him to cancel his trip. Coach Pressler was disappointed that I had violated his trust and for weeks I could not look him in the eye without feeling ashamed of what I had done. He was upset about the incident but made more of an issue regarding my violation of his trust. I learned a valuable lesson from him.

This discipline paid dividends, on and off the field. During Pressler’s 16 years at Duke, his players had a 100% graduation rate; between 2001 and 2005, more than half of Duke’s lacrosse players made the ACC academic honor roll—more than double the percentage of any other team in the league. The 2006 squad included a former walk-on, Edward Douglas, who graduated with distinction from the Duke Pratt School of Engineering in Biomedical Engineering. Douglas’ father believes that “Edward could not have excelled in such a rigorous major without the support and understanding that, as Mike Pressler says, ‘you are students first’,” since he “knows how to work with academically gifted students and players.”

If college coaches are to be held accountable for their players’ holding spring break parties at which lots of alcohol is consumed, there would be few, if any, college coaches left (outside of Liberty and BYU). Regardless, in the early days of D.A. Mike Nifong’s pre-primary publicity barrage, Pressler and his family were subjected to death threats. Protesters taped signs to his house with such messages as “DO YOUR DUTY. TURN THEM IN.” Several days later, when the Group of 88 issued their “listening” statement, the professors offered a message for such protesters: “Thank you for not waiting and for making yourselves heard.”

Pressler’s de facto dismissal occurred immediately after the Ryan McFayden e-mail was publicly released, on April 5. (The emergence of this e-mail remains a mystery; it seems increasingly likely that the e-mail was not turned over by an anonymous lacrosse player, as initially alleged, but simply released by local authorities. The team captains had voluntarily given authorities access to their e-mail accounts even as Nifong misleadingly charged that the players had “not been fully cooperative.”) Brodhead announced Pressler’s forced departure and the cancellation of the team’s season in a public statement to the University community. The remarks strongly implied—without stating so directly—that a rape occurred, although, he added, all players were innocent until proven guilty.

In an interview with the Duke Chronicle about his decision, Brodhead deemed the coach’s departure “highly appropriate." (He did not say why.) That same story contained the following puzzling paragraph from the president:

Brodhead condemned the actions of the team, if they turn out to be true. "It seems to me there might be some part of Duke education that is not yet fully successful," he said. "It's not in the statistics, it's not in the writing, but it's in a life skill."

Generally, administrators act once they’ve discovered the facts, not on the supposition that “actions” might “turn out to be true.” In Pressler’s case, Brodhead’s move came at a time when no players had been indicted, and just before the release of DNA tests, which Nifong had promised would identify the guilty, instead showed no matches to any of the players. (Nifong had also affirmed to the court that negative tests would exonerate the innocent.) Brodhead’s move sent an unmistakable message to people off campus: the players’ actions (true or not, apparently) were beyond the pale, and Pressler was either in some way directly responsible or had bailed out on his team anticipating that the guilty would soon be brought to justice. Unconfirmed reports circulated on the internet and on cable TV shows that the administration had repeatedly told Pressler to rein in his team’s behavior, but he had refused to do so.

As one current lacrosse parent recognized, however, “The real reason Brodhead did what he did was because he was afraid to stand up to Professor Houston Baker and the other rabble rousing protesting professors on Duke's campus. [Baker’s letter demanding the “immediate dismissals” of “the team and its players” had been released the previous week; the Group of 88 was just about to publish its so-called “listening” statement.] Brodhead’s actions sent a clear message to every student, parent, and prospective parent that he cares more about protesting, politically-correct professors than he does about his own students.”

Despite Brodhead’s move, Pressler stood by the team, at a time when few were doing so. He addressed a private meeting of the lacrosse parents shortly after his dismissal, encouraging them, as one parent recalled, “to hold our heads high. ‘Hang in there,’ he said. ‘Be strong for your sons. The truth will prevail in the end.’” One of the team’s 2006 graduates recently admitted, “Throughout the ongoing Duke Lacrosse ordeal I cried only once. That was when I had to say goodbye to Coach Pressler after learning our season was over and having to face the reality that I would never suit up to play for him again.”

In the groupthink atmosphere that pervades Duke’s faculty and administration, only one voice publicly challenged Brodhead’s decision. In an April 17 letter to the campus newspaper in which he admitted fears of “arousing the wrath of the righteous,” Chemistry professor Steven Baldwin lamented that Pressler “was hung out to dry by an athletics administration that neither understood the issues nor appreciated Mike Pressler the man. Long before we learn the truth about what happened that night, and long before we learn the conclusions and recommendations of the several committees formed by President Brodhead to address the situation, the athletic department convulsed and threw the baby out with the bath water.” Baldwin described the coach as “humble, reserved, thoughtful and honest to a fault,” a man with “great integrity” who “wanted to win the right way, with players who were students first and athletes second-players who would be a credit to Duke University.” At the very least, Baldwin noted, Pressler deserved basic principles of due process, to have his tenure considered once the administration had access to all relevant facts.

Brodhead should have heeded Baldwin’s advice. The Coleman Committee, in considerable detail, established that (a) in the sentiments of one administrator, there was a “documented history that lacrosse players liked to hang out as a group and drink beer. When they were caught three or four times a year, they were disciplined, but . . . the sanctions imposed were not sufficiently severe to act as a deterrent”; (b) the Duke administration never communicated to Pressler, either orally or in writing, that it considered his players’ behavior a serious problem (a student affairs administrator, for instance, described the lacrosse players’ hangout at the Tailgate event as “one of the most 'energetic' and . . . quite entertaining”); (c) when members of the administration asked Pressler to try to modify his players’ alcohol-related behavior, he unfailingly did so, and unfailingly got results.

Even more important, the committee discovered that far from being overly loose with his team, Pressler was one of two Duke officials who did the most regarding the team’s alcohol-related offenses. According to the report, besides the “Dean for Judicial Affairs and Coach Pressler, after he was made aware of specific incidents of misconduct, no other administrator appears to have treated the lacrosse team's disciplinary record as a matter of serious concern.” This approach shouldn’t come as much surprise: in the days before Duke’s current neo-prohibitionist revival, it hardly seemed scandalous when students on campus decided “to hang out as a group and drink beer.”

(The full text of the Coleman Committee report can be found on the “Duke and Men’s Lacrosse” homepage, for those willing to look hard enough and wade past the promotions for the Robert Bliwise, A.M., speak-only-to-lacrosse-critics, alumni magazine article. Or, I have excerpted all parts of the report relating to Pressler’s performance here.)

The Coleman Committee’s findings showed that no justification existed for Brodhead’s decision to scapegoat Pressler. Despite the committee’s recommendation to restore the team, however, the president did nothing for several weeks—almost as if he hoped a reason would emerge to override the committee’s judgment. He finally acted on June 5, in the remarks mentioned above, which did not mention the committee’s positive findings about the players. But Brodhead imposed one condition on his decision: Pressler would not return as coach. The president’s only comment regarding the Coleman Committee’s exoneration of Pressler was cryptic: “I would be happy for the world to take note of that fact.” (He, of course, has done nothing to further that goal.) At Alumni Weekend, when a group of Duke graduates complained about his rush to judgment. Brodhead cited public relations as his motive. According to the Durham Herald-Sun, he said, "Pressler's presence would have been a big story." It’s not entirely clear why Pressler’s presence would have been any bigger story than the continued presence of the faculty members who taught the lacrosse players (only to publicly denounce them); or of the admissions staff who recommended their admission to Duke; or of the athletic director who supervised Duke college sports; or, indeed, of Brodhead himself.

As has frequently occurred in this controversy, Duke women’s lacrosse coach Kerstin Kimel showed courage where Brodhead did not. Kimel invited Pressler to attend her team’s quarterfinal victory over James Madison, and then asked him to address her squad before they left campus to play in this year’s Women’s Final Four.

Brodhead’s scapegoating has had its effect. One professor at Johns Hopkins, which edged Duke by a goal in the 2005 championship, recently wrote that he had “chatted to a number of people here about Pressler and his opportunities for securing another coaching job at the top level. I continue to be dismayed at the belief that he was somehow at fault. One well informed and extremely well connected individual said that he ran ‘too loose a ship’ to be considered for serious coaching positions.”

Pressler’s players, however, have stood by him. Several have penned letters of support as he goes back on the job market. As one current player wrote:

The past four months have been some of the most trying times not only for me and my teammates, but also for Coach P. I can only imagine how hard it must be to walk away from a program that you have personally built to greatness and from a group of young men that undyingly respect you. I have never seen anyone in my life deal with the kind of adversity that Coach P has dealt with, with the courage and resilience that he has displayed.

Further, his loyalty towards every member of our team throughout this entire process has left an impression on me, something I will not soon forget. In a time of adversity, when many would have retreated in order to protect themselves and their family, he stood fast in support of our team. I have thought a lot about these events and how Coach P has handled them and only have one explanation to offer: Coach Mike Pressler is a man of character. He stood up for us not only because he knew the allegations were totally false, but also because he was and will always be our family, and we were and will always be family to him.

Whether it be the friendly chatter in the locker room before practice, or at a team bowling trip, Coach P promotes a team friendliness and bond that I have never been a part of on any other team. I credit Coach Pressler with instilling this cohesive and familial bond that has allowed our team to stick together through this incredible time of adversity.

With his professional attitude, Coach P holds each one of his players at an incredibly high standard on and off the field. I can distinctly remember a time when I received a poor grade in a class. That afternoon Coach Pressler knew and confronted me about it. He did not single me out, yet instead simply told me that I needed to pick it up. This simple interaction made me work twice as hard to get my grade up, because Coach P treats all his players like professionals and this therefore makes all the players want to return this respect and conduct themselves as professionals on and off the field.

As an unrecruited walk-on my freshman year I came to Duke not only for the academics, but also with hopes of playing Division 1 lacrosse. Coach P, during preliminary meetings, informed me that tryouts would be on a day to day basis until he had made his final decision. Therefore, each day I came to tryout, I treated it as if it were my last (because it could have been). I can remember the excitement I felt when I came for a meeting in his office a couple weeks into my tryout. When he informed me that he was offering me a spot on the team, I can distinctly remember the feeling that came over me. It was a feeling of pure excitement, obviously, but more importantly a feeling that I was now part of something bigger than myself, something more important. I had an almost surreal feeling that I was now part of a lacrosse program with not only some of the best athletes in the country, but also the best coaches in the country. I felt I had been given an opportunity to join in the ranks of a very special group of men. Never since then have I regretted joining this team.

Simply put, Mike Pressler is a winner. It is a quality that is part of his character and nature. He is a man who can't stand and will not except defeat in anything he does in life. More importantly he is a man of honor, integrity, and loyalty. This has been proven in the way he has conducted himself in the past four months.

Chemistry’s Steven Baldwin concluded his April 17 letter by commenting, “Mike Pressler deserves better; so does Duke.” At the very least, Brodhead should stand down from his claim that neither he nor his actions have been complicit in “scapegoating” the team or its representatives.

[Originally published in Cliopatria.]

The Brodhead Files

It’s easy, if wholly appropriate, to criticize the Group of 88. Indeed, a recent parody imagines the look of their infamous “listening” ad/public denunciation had race/class/gender “groupthink” not dominated Duke’s faculty. That signatory Alex Rosenberg subsequently claimed that Group members fully understood that D.A. Mike Nifong was exploiting the case for political purposes but chose nonetheless to publicly denounce their own students renders the Group’s actions even more unconscionable.

Unlike the Group of 88, Duke president Richard Brodhead can’t be criticized for an initial rush-to-judgment attitude. But over the past few months, it’s become increasingly clear that Brodhead and the Group occupy the same ideological bubble. At best, the president has been closed-minded to new facts about the case, at the expense of his own school’s students. At worst, his performance should merit an aggressive review by Duke’s trustees once this crisis has ended.

The most recent addition to the Brodhead Files occurred with the president’s response to the recent open letter by Friends of Duke University. (Disclosure: I fully support this organization, and its website has posted links to my writings on the case.) As an FODU press release explained, the open letter “asked Duke to do four things: (i) speak up for its students; (ii) be fair to the lacrosse team and encourage others to do so as well; (iii) speak up for Duke; and (iv) accept the challenges presented by the lacrosse controversy.”

Brodhead’s response ignored the first and third of these issues; whitewashed his administration’s approach to the second; rationalized Duke’s wildly one-sided handling of the fourth; and distorted FODU’s requests.

“You chide the University for not supporting the players more aggressively,” wrote Brodhead, “but the University does not have direct access to the full truth of the case now any more than we did earlier, and we can't speak with certainty of matters that only the criminal justice system can resolve.” The assertion that “the university doesn’t have access to the full truth of the case now any more than we did earlier” [emphasis added] is hard to read with a straight face. In the case of Reade Seligmann, the president now has access to myriad exculpatory evidence, culminating with a videotape showing Seligmann at an ATM machine a mile away at the time of the alleged crime. Brodhead obviously does not believe that sexual assaults in Durham can occur when the alleged perpetrator is on videotape someplace else. Is he unaware of the video? If so, why?

Regardless, the FODU letter never asked the president to “speak with certainty of matters that only the criminal justice system can resolve.” The letter was carefully worded, and it seems unlikely that the president misunderstood it.

In terms of accepting the challenges posed by the lacrosse controversy, Brodhead told FODU he’s done as much as he’s going to do: “In my view, the way to heal this anguish is not to go back and endlessly debate things people should have done in the past. It's to move forward.” A correspondent pithily summarized the president’s message:

Duke erred in (i) not reigning in the lacrosse team earlier; (ii) campus culture "problems," (iii) not taking the alleged victim "seriously" enough because her race was not communicated far enough up the chain; and (iv) having a senior administration that was not diverse enough to appreciate the sensitivity of the situation. No mistakes on rushing to judgment. No mistakes on protecting the rights of students. No mistakes on allowing the media to dictate actions.

And, it appears, no intention to even consider such issues in the future. The Group of 88 couldn’t have asked for more.

The best summary of Brodhead’s “official” version of accepting the “challenges” posed by the controversy is the Robert Bliwire Duke Magazine article on a “spring of sorrows,” featured prominently on Duke’s lacrosse media page. In that story, Bliwire quoted from only one Duke student—an African-American male who, from all accounts, was not representative of student opinion as a whole. Bliwire quoted from four Duke faculty members—the three most outspoken opponents of the lacrosse team (Houston Baker, Orin Starn, and Peter Wood), and Professor Paul Haagen, who concluded the March 25 News&Observer profile of the accuser by opining on the increased likelihood of players from “helmet sports” committing violent crimes against women.

Brodhead dismissed claims of unfairness to the lacrosse team, noting in his response to FODU “it was a report the administration commissioned, the Coleman Report, that gave testimony to the positive dimensions of the lacrosse team's history.” To my knowledge, these words constitute the first time that Brodhead has publicly stated that the Coleman Committee report contained any positive information about the team—much less that while the report spelled out the team’s excessive alcohol-related offenses, it also provided evidence that the players were very strong students, consistently treated staff with dignity, had no record of sexism or racism with their fellow students or with staff, and had impressive community service participation.

In contrast to his comments to FODU, here’s how Brodhead described the Coleman Committee’s conclusions in his June statement to the university community:

Though it did not confirm the worst allegations against this team [which, it’s worth remembering, were that three players committed gang rape and dozens of others covered it up], the Coleman Committee documents a history of irresponsible conduct that this university cannot allow to continue.

The president’s remarks on June 5 contained no mention of the “positive dimensions of the lacrosse team’s history”—nothing on academics, on community service, on personal relations, on treatment of staff. This is the sole piece of evidence Brodhead cites to deny complicity in “scapegoating” the team?

In that same June statement, moreover, Brodhead expressed unsolicited praise for “Durham leaders” who were committed to pursuit of “truth and justice”—a seeming endorsement of Nifong. (Most people, I think, would consider the district attorney a “Durham leader.”) I asked Duke spokesperson John Burness if the president intended to praise Nifong. His response:

President Brodhead’s reference to Durham leaders in his 5 June communication to the Duke Community was related to those leaders from Durham with whom he has met on a number of occasions, including particularly Durham Mayor Bill Bell, NCCU Chancellor James Ammons, and leaders of the faith community in Durham. President Brodhead has not met with the District Attorney or anyone responsible for the investigation.

I’m grateful to Burness for the clarification. It nonetheless strikes me as unusual that a person as careful with his words as is Brodhead elected not to make clear at the time precisely to which “Durham leaders” he referred.

Brodhead’s administration seems intent, within the range of options available to it, on framing the players and the case against them as negatively as possible. Take, for instance, the university’s “Duke and Men’s Lacrosse” media coverage homepage. The Bliwire article—with its laughably one-sided sourcing and conclusions—receives the same amount of space on the page as information on the newly-hired lacrosse coach, and far more space than the links to committee reports. (Shouldn’t Duke want to encourage people to see the “positive dimensions of the lacrosse team’s history” in the Coleman Committee report, which the Bliwire article all but ignored?) Alone among linked publications, the Bliwire article features an associated photograph (an empty lacrosse goal) and is introduced with fonts of two different colors. The message seems to be: if you read only one item about the lacrosse controversy, read this piece.

The only other Duke author on the page is Donna Lisker, head of the Duke women’s center. Lisker’s column appeared in a publication called “Baldwin Scholars Newsletter.” Unlike the 31 other opinion pieces featured on both the media coverage homepage and the section of archived articles, this publication has no website. Duke evidently considered Lisker’s message of sufficient importance to upload the article onto the University website itself. Among other things, Lisker faulted a Rolling Stone article on campus social life for speaking only to students who “believed staunchly in the innocence of the accused men.”

So, the message from official university publications: it’s OK to be one-sided in speaking solely to campus critics of the lacrosse team, but not in speaking solely to those who believe in the players’ innocence.

The linked articles on the media homepage also displayed an unusual pattern. Last week, the preview section of opinion pieces (which contains three articles and a link to a more complete listing on a separate page) featured the Lisker article; a July 13 column by Marc Fisher that reflected the storyline as of about April 1; and Andrew Cohen’s piece on washingtonpost.com, which faulted the media for believing defense filings (backed, he neglected to mention, by copious documents) rather than Nifong’s (misleading, as it turned out) earlier public statements. As all three articles were critical of the lacrosse players or their legal case, and the Cohen article predated a published Washington Post column by Ruth Marcus expressing strong doubt that the case ever should have been brought, I asked Burness why the homepage was confined to opinion pieces critical of the lacrosse players or their case. He replied:

Regarding the posting of opinion articles, you’ve clearly jumped to an incorrect conclusion about the three articles that have been highlighted on Duke’s lacrosse website. You are correct, of course, and I appreciate your pointing out, that the Cohen column appeared one day earlier than the Marcus column. I’ve learned that our web editor posted these in a batch. He has subsequently reordered them to be more precise.

As Burness promised, the Marcus link replaced Cohen on the homepage. But the pattern of disproportionately hostile articles also appears in the “Archive of Opinion” page. By my count, six of the pieces included could be construed as favorable to the lacrosse players or their case; 10 unfavorable to them; and the rest either neutral or on tangential issues (the image of Durham, publishing amidst a crisis, etc.). Criteria for inclusion seems to be random, with only one common denominator: ensuring more negative than positive pieces.

For instance a number of articles in major publications favorable to, and in some cases highly favorable to, the players don't have links. This list includes, among others:

---Nicholas Kristof, "Jocks and Prejudice" (New York Times);

---Robert Zelnick, "Prisoner of a False Paradigm" (Guardian);

---Alan Hirsch, "Overzealous Prosecutors, Examine Yourselves" (L.A. Times);

---Jason Whitlock, "Justice Is Getting Lost in the Duke Case," (Kansas City Star);

---Kathleen Parker, "Breathing While White" (Orlando Sentinel);

---Sidney Zion, “At Duke, Innocent Until Assumed Guilty” New York Daily News.

The Duke site contains no links to the editorials in the Rocky Mount Telegram or the Winston-Salem Journal urging appointment of a special prosecutor, nor does it provide links to N&O editorials that criticized the D.A.’s misconduct. Two of N&O columnist Ruth Sheehan's early writings have links (her repulsive March 27 column and a later neutral piece), but there is no link to her subsequent de facto retraction, which urged appointment of a special prosecutor and was apologetic for her treatment of the players.

On-line versions of print publications aren't linked (for instance, Jeff Taylor’s "Low-Tech Lynching" in Reason Online)—except when they are, as in the link to Cohen's highly negative piece, which appeared only in washingtonpost.com. Blogs (which, for the most part, have been quite supportive of the players and their case, at least in the last couple of months) don't get links—except when they do, as in the link to BlueDevilNation blog. There's a link to a neutral piece in Duke Basketball Report but none to DBR's biting editorial, "The Law Is an Ass." Some outside college newspapers get linked (Chicago Maroon, in a neutral piece); others don't (such as the Cavalier Daily, which published an op-ed stoutly defending the players). Some higher education journals are covered (Chronicle of Higher Education); others (Inside Higher Ed) aren't. Former lacrosse player Randall Drain's opinion piece in the Duke Chronicle, which strongly criticized the administration, has no link, nor does (in the news section) Peter Applebome's fine piece about Reade Seligmann in the New York Times. Shouldn’t Duke have wanted to highlight Applebome’s article, since it challenged virtually all the stereotypes about the players?

The pattern appears on the law school faculty's "recent media coverage" page as well. This page features no links to Professor James Coleman's letter to the N&O calling for a special prosecutor, the N&O article discussing Coleman's position, or the recent Herald-Sun op-ed by Robinson Everett urging a speedy trial—even though a wide variety of articles by and about law school faculty, on all sorts of issues, are linked.

So, on the one hand, there appears to be a wholly random criteria for inclusion (i.e., even Kristof’s New York Times column received no link). On the other, the randomness consistently tilts in one direction—that is, to ensure that a visitor to the opinion page will receive links to more articles that present negative views about the players and their case than to articles that present positive views.

On another front regarding fairness in treating the team, Brodhead seems to be willfully naïve about what he can do as a university president. A wide array of options exists between, at one end of the spectrum, a Group of 88-style public denunciation and, at the other, a presidential announcement that the players are certainly innocent. The president, however, seems content to pretend that these extremes represent his only two alternatives in dealing with the lacrosse situation, and as both are unacceptable, he can do nothing.

As FODU spokesman Jason Trumpbour pointed out, a college president has the power to undertake informal, private actions—which to date Brodhead hasn’t done. Trumpbour told the Herald-Sun that "someone close" to Seligmann told the group in an e-mail that the same day Duke suspended him, "an Ivy League university called him to tell him how much they believed in him and wanted him to come to their university and play lacrosse,” while “the mother of another accused player told us that they had not received a single note, card or other expression of kindness from anyone in the Duke administration.” Brodhead wasn’t always so reticent about informal contact with the team or its representatives: I’ve heard that the president joined the lacrosse team on the flight to its participation in the 2005 Final Four.

Given this record, actions such as the Bliwire article; Brodhead’s framing his June 5 remarks about the lacrosse team as negatively as he possibly could; the continued presence of the Group of 88’s statement atop the official webpage of the African-American Studies program; and the apparent pattern of boosting the proportion of negative articles about the team and its case on the Duke website seem to form part of a pattern. And this pattern brings little favor to Duke.

The most troubling aspect of Brodhead’s recent behavior, however, came in his decision to ignore FODU’s request that he issue a public statement regarding the procedural abuses that have marred the case. As Trumpbour remarked, FODU wanted Duke to “express more publicly and emphatically its own desire that the players be treated fairly.”

As I’ve noted before, Nifong’s lineup procedure (confined to suspects only) violated not only Durham’s regulations but was wholly inconsistent with practices in contemporary North Carolina. Nifong’s refusal to meet with defense attorneys to consider exculpatory evidence before seeking indictments, and his decision to seek indictments before a second round of DNA tests came in (tests that were likely to reinforce the defense’s case), clearly violated Section 3.8 of the state ethics code. Nifong’s inflammatory public statements almost certainly violated the North Carolina Bar’s ethics code.

In a must-read post, La Shawn Barber looks behind, Nifong's recent non-apology apology, his public concession that his statements were improper. The state’s largest newspaper, the Charlotte Observer, yesterday responded by calling for a special prosecutor to replace Nifong, noting in an editorial, “District Attorney Nifong has delivered himself of this confession: He talked too much about the case early on. Well, no kidding. It was hard not to read something about Mr. Nifong’s characterization of the defendants as ‘hooligans’ who he was sure had committed rape.” (The Durham paper bizarrely praised Nifong for saying he still had confidence in his case.)

In short, a situation exists in which local authorities use different sets of procedures when investigating Durham residents and Duke students. (I’m assuming the Nifong Rules apply to all Duke students and not just white male Duke students; otherwise, the D.A. would be contradicting not only city procedures and statewide norms but risking a federal civil rights action.) This condition strikes me as an item that should trouble any university president.

Silence, in this case, implies consent. Does Brodhead consider it acceptable that a separate, and unequal, set of procedures exist in criminal investigations for Duke students? Are Duke parents similarly blasé? In the future, how likely will parents be to spend more than $40,000 on tuition, room, and board to send their children to an institution whose administration has accepted this dual-procedure system?

Brodhead’s record on due process matters, alas, extends beyond his silence. While ignoring FODU’s request that he speak out against the dual-procedure structure, the president did use the letter to discuss procedural matters. “We are eager,” he wrote, “for our students to be proved innocent” at trial.

This is an astonishing conception of due process. Brodhead isn’t a lawyer; his training came in English. But surely he understands—and, if not, his University Counsel does—that the purpose of a trial is not for the accused to “be proved innocent.” Brodhead’s remarks seem to confirm the thesis of Sidney Zion’s Daily News article, which posited that the players were “innocent until assumed guilty” by the administration and the Group of 88.

College presidents, obviously, receive no training on responding to the combination of a media firestorm and a renegade local prosecutor. Brodhead seems to have based his actions on one fundamental premise: the players were either guilty or a credible case existed against them. In 99 of 100 such academic crises, this approach would have made sense. But as evidence has mounted that this affair is the exception to the rule, Brodhead has proven unwilling (or unable) to adjust his strategy. The FODU letter gave him an opportunity to do so. That he rejected it is unfortunate for Duke as an institution, for its students, and, ultimately, for his tenure as president.

[Originally published in Cliopatria.]

mikenifong.com

Campaign websites, obviously, seek to offer a positive spin, usually by highlighting candidates’ strengths and downplaying or ignoring their weaknesses. Take the sites of two of the most ethically challenged figures from this House election cycle, Ohio Republican Bob Ney and West Virginia Democrat Alan Mollohan. Ney’s site touts his using his “positions of influence” to tend to local concerns. Similarly, Alan Mollohan’s website boasts, “His senior position on the Appropriations Committee allows Congressman Mollohan to fund hundreds of millions of dollars in economic development projects throughout north central West Virginia.” Neither site frames the candidates as champions of an ethical Congress: most voters might not follow the day-to-day affairs of politics closely, but they’re not stupid.

The campaign website of Durham District Attorney Mike Nifong eschews the Ney/Mollohan approach in favor of an Orwellian strategy. The unusually chatty site contains, among other items, a “conversation with Mike,” a statement of the DA’s legal philosophy, and a personal letter to Durham voters. Unintentionally revealing in some areas, outright inaccurate in at least one, the site is most notable for its tendency—which would be comical were Nifong’s misconduct not so grave—to position the district attorney as a bastion of integrity, determined to go above and beyond what state procedural regulations require of him.

In a “conversation with Mike,” the district attorney opines, “The shortsighted prosecutor concerns himself only with victory in the courtroom and is willing to take whatever advantage he can, no matter the consequence.” I wonder how Nifong would reconcile this statement with his decision to order the Durham Police Department to violate not only its own procedures but all statewide norms, and confine the accuser’s photo ID session to lacrosse players. This decision would seem the action of a “shortsighted prosecutor” concerned “only with victory in the courtroom” and “willing to take whatever advantage he can, no matter the consequence.” In this case, the consequences included the indictment of a demonstrably innocent person, Reade Seligmann.

“It is the prosecutor,” continues this conversation, “who actually bears the ultimate responsibility for seeing that the defendant has a fair trial.” Surely one aspect of that responsibility would be adhering to state ethics guidelines, such as Rule 3.8, which holds, “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.” I wonder how Nifong would explain, then, his refusal to meet with Seligmann’s attorneys, who wanted to present him with evidence that included cellphone records, affidavits from a cab driver and another lacrosse player, and, most damningly, an ATM video showing even if a crime occurred, there was no way Seligmann could have committed it.

In his “conversation,” Nifong committed himself to “treating defendants with dignity,” since “a prosecutor should never be a bully, never take unfair advantage of his authority, never demean a person based on his situation. To deny dignity is to deny justice.” I wonder how Nifong would square these admirable sentiments with his publicly labeling the team “hooligans”; or his claim that they believed their “daddies could buy them expensive lawyers and that they knew the right people”; or his questioning the players’ “manhood”. Such comments seem more appropriate for a junior high school playground than coming from an officer of the court, perhaps one reason why the North Carolina Bar ethics code prohibits prosecutors from making them.

“I have never understood,” the DA continues, “why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State's case, then the defendant is clearly entitled to have it; if it is not damaging to the State's case, why should it matter if he gets it?” These are certainly good questions. I wonder, then, why Nifong initially declined to investigate the accuser’s cellphone records (which, among other things, revealed a call from to another escort service that occurred during the time of the alleged crime), and why he took so long to have the lead investigator of the case, Sgt. Mark Gottlieb, produce his report.

In the “Meet Mike” section, the district attorney confides, “One of the benefits of my long tenure in this office is that I am known and respected by the key figures in both the other components of the judicial system--law enforcement officers, attorneys and judges--and the community at large--people such as business and civic leaders and elected officials.” I wonder whether his decision to smirk and then openly laugh when Seligmann’s lawyer discussed his client’s airtight alibi is the sort of behavior common to prosecutors who are “known and respected” on both sides of the aisle. Or how Nifong’s profanity-laced public tirade at Kerry Sutton, an attorney for one of the unaccused players, improved his standing? Or how he gained respect with his extraordinary statement, in open court that “some of these attorneys [for unaccused players] were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham”?

“Doing the right thing,” says the district attorney, “is not only the best practice in principle, but it is usually also the most economical process in the long run.” Indeed it is, making Nifong’s decision to ignore basic procedures all the more peculiar. At the very least, his actions suggest that any conviction almost certainly would be overturned on appeal—costing the city time and money, hardly an “economical process.” At the very worst, Nifong’s actions have exposed Durham to massive civil liability in a post-trial lawsuit from the lacrosse players’ families. The early signs of one possible line of assault have appeared in the work of defense attorney Alex Charns.

“For my entire career,” comments Nifong, “I have been known to be a person of the utmost integrity, and I pledge to you that I will continue to live up to that reputation.” I wonder how a person of the “utmost integrity,” desperately needing African-American votes to repel a serious primary challenge from a foe he despised (Freda Black), could have entered into an apparent conflict of interest regarding Mark Simeon, a prominent African-American attorney who ran against Nifong’s boss in 2002 only to turn around and endorse Nifong in 2006. He did so shortly after Nifong waived the bail requirements in an unrelated case for one of his clients, Kim Roberts a/k/a/ Pittman, the second dancer. Roberts a/k/a Pittman shortly thereafter changed her story from the version she reported to police to present a tale far more favorable to Nifong’s reality. Simeon has also expressed a desire to bring a civil suit on behalf of Roberts a/k/a Pittman and the accuser.

The website occasionally lapses into unintentionally revealing comments. For instance, in the conversations section, Nifong notes, “Some people believe that the job of the District Attorney is simply to run the District Attorney's Office. But I believe that the District Attorney's responsibility extends well beyond the limits of that office.” Perhaps this expansive view of his duties explains why Nifong decided to serve as de facto police commissioner in the lacrosse case, as Durham’s nominal police commissioner, Steve Chalmers, retreated into the cone of silence, from which he wasn’t heard for months at a time.

Campaign websites normally feature outsiders (friends, political associates, newspapers) saying positive things about the candidate. mikenifong.com dispenses with the middleman. “I have,” Nifong confides, “earned the reputation among my colleagues in the court system as a prosecutor of the highest level of professional skill.” (This is a man, it’s worth remembering, who had spent the previous several years in traffic court before being appointed DA.) This egoism frequently has appeared in the lacrosse case, perhaps most notably when Nifong asserted, “If I were one of those [defense] attorneys, I wouldn't really want to try a case against me either.”

The only campaign website I’ve ever seen that provides no interactive way to reach the candidate, mikenifong.com features neither an email address for the campaign nor a campaign phone number. It’s as if the candidate wants to ensure he cannot receive outside information, especially from those who might challenge his preconceived notions—just as Nifong refused to listen to Dave Evans’ attorney, who offered to provide evidence that Evans, contrary to the accuser’s assertion, never had a mustache.

Finally, in his open letter to Durham constituents, the district attorney was candid about his intentions: “I must win on November 7.” (emphasis in original). Nifong certainly has shown a willingness to violate any ethical or procedural guideline that might obstruct the victory he considers so essential.

The letter to voters contains one out-and-out false item. Nifong asserts, “Under my leadership, the District Attorney’s office is an institution of unquestioned integrity.”

It’s worth evaluating that statement in light of some of the comments made about Nifong by prominent members of the media:

• Writing in National Journal, Stuart Taylor termed Nifong a “petty-tyrant” prosecutor who should “be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.”
• San Diego Union editorialist Chris Reed wrote that Nifong was “despicable . . . a disgrace” who “deserves to be pilloried every day the rest of his life.”
• In the New York Times, Nicholas Kristof compared Nifong to the unethical prosecutors who oversaw the Scottsboro Boys trial.
• Fox News commentator Kimberly Guilfoyle, previously a defender of Nifong, recently labeled his actions “unconscionable.”

Even Duke professor Alex Rosenberg hopped onto the anti-integrity bandwagon, asserting that each and every member of the Group of 88 believed that Nifong was exploiting the lacrosse case for political purposes. Of course, that belief didn’t prevent Rosenberg and 87 colleagues from publicly denouncing not the DA but the lacrosse players. After all, as Wahneema Lubiano gleefully noted, these heterosexual white male athletes were the “perfect offenders,” while Nifong was working, albeit unethically, to uphold the race/class/gender trinity so treasured by many of Duke’s faculty.

It might be that Taylor, Reed, Kristof, and Guilfoyle are simply wrong. But surely it can’t be said that the integrity of the Nifong’s office has been “unquestioned.”

mikenifong.com makes one undeniably accurate claim. “The two absolutely essential traits for a prosecutor to possess,” reasons the DA, “are integrity and good judgment. People of integrity can always develop good judgment through experience, but people who lack integrity can never develop either.” Mike Nifong is a perfect demonstration of how those apparently lacking in integrity are incapable of exercising good judgment.

Hat tips: JinC; Nancy Kidder.

[Originally published in Cliopatria.]

Court TV Will Have the Answer

I haven't commented much on the media coverage of the Duke lacrosse case, in part because several other bloggers (John in Carolina, Lead and Gold) have analyzed the topic much better than I could have. But this morning, a disturbing column appeared, penned by Bob Ashley, the editor of the Durham Herald-Sun. Ashley's remarks seemed worthy of notice--partly because of their exceedingly narrow conception of what constitutes the "legal process"; partly because they might explain the remarkably passive attitude that the local press has exhibited in this case. (The work of the N&O's Joseph Neff stands in stark relief to this pattern.) The editorial pages of both the N&O and the Herald-Sun have hardly been imitators of Ben Bradlee in speaking truth to power

Ashley hailed a column a couple of weeks back by CBS chief legal analyst Andrew Cohen, which accused the media of uncritically accepting the version of events offered by defense attorneys. Cohen's column made scarce mention of the coverage in the first six weeks of the case, nor did he note that, just maybe, one reason why there's been some turn is that many journalists no longer consider D.A. Mike Nifong credible, having learned that many of his early statements were inaccurate at best and deliberately misleading at worst. Cohen also decided not to mention that defense attorneys have, by and large, backed up their key claims with hard evidence.

Cohen complained that "we haven't had the privilege of seeing the case unfold at trial the way it is supposed to." Nothing in this case, however, has unfolded "the way it is supposed to." Nifong almost certainly violated the state bar's code of ethics in his inflammatory public statements, though this conduct served its purpose in ensuring his victory in the Democratic primary. He certainly violated Section 3.8, comment 2 of the ethics code in his refusal to meet with defense attorneys before issuing indictments, and in his decision to seek indictments before investigating the accuser's cellphone records and waiting for the second DNA tests. And, as I pointed out a while back, the photo lineup that Nifong ordered contradicted the norms everywhere else in North Carolina in at least four respects, to such an extent that he seemed to be operating under an entirely different legal system. These procedural violations were massive.

Flawed procedures beget flawed results. There's nothing that could come out at a trial, or at a later stage of this process, that could change our knowledge that these flawed procedures occurred--the record is already there. It's remarkable that Cohen, a TV network's chief legal analyst, could claim that a prosecutor can blatantly disregard procedures at every stage of the process, and that such behavior nonetheless is all part of the process as it is "supposed to" occur.

In an earlier Herald-Sun editorial (written I assume, by Ashley, judging from his sentiments in today's column), the editorial board reasoned, "Nifong's critics have questioned everything from his character to his legal savvy. We think that the 25-year veteran of the prosecutor's office must have some evidence, or he would have dropped the case long ago." Such a comment, of course, requires turning a blind eye to Nifong's unethical behavior in recent months--as Craig Henry pointed out in a fine post on the matter. But it also ignores an important fact: the lacrosse case is the state's first-high profile trial since North Carolina adopted an open discovery law, which requires the prosecution to turn over all of its material--not just evidence it considers exculpatory--to the defense, and to turn over all that evidence in a timely fashion.

As a result, we know far more about the facts of this case than would occur in most jurisdictions. Even if he possessed any evidence to substantiate his claims, Nifong couldn't hold it back to spring as a surprise at trial. Items such as the police reports containing the accuser's multiple, contradictory versions of what occurred; the initial statement of Kim Roberts a/k/a Pittman, terming the accusation a "crock"; the transcript of the procedurally flawed photo ID session; and the sworn summaries of the DNA and medical evidence all represent the sort of evidence that, in most jurisdictions, wouldn't be seen until the trial (and in most trials would represent the heart of the prosecution's case, not substantiate the defense version of events). Meanwhile, the attorneys for one of the players, Reade Seligmann, decided to publicly release the exculpatory evidence that Nifong violated the state ethics code so he wouldn't have to see--namely, the statements of two witnesses who were with him at the time of the alleged attack; records showing Seligmann was on the cellphone when the attack allegedly began; and, most damningly, an ATM video showing he was more than a mile away when the attack was allegedly occurring.

Neither the media nor outside observers are jurors, with a moral or legal requirement to wait until the end of a trial to form judgments. It doesn't take a Ph.D. to figure out that someone who's on a videotape a mile away from the scene of an alleged crime at the time the crime allegedly occurred is innocent. That no medical evidence exists to support the accuser's allegations; that the ID of Seligmann resulted from procedurally dubious circumstances; and that the accuser seemed unable to come up with anything resembling a consistent story only fortifies that belief. I wonder: what, exactly, could Cohen or Ashley expect to come out at a trial that would allow anyone to believe that a college student can rape someone from the distance of more than a mile? That Seligmann has a secret twin who was actually the person at the ATM machine while the rape allegedly occurred? That normal laws of space, time, and motion don't apply in Durham, North Carolina?

The arguments of Ashley and Cohen are so intellectually peculiar as to suggest ulterior motives. It's no secret that Cohen has been manhandled on this story by Dan Abrams (NBC's chief legal correspondent) and by the legal reporters from Fox. And I wonder whether Ashley would be so blasé if Nifong's targets were Durham residents rather than out-of-staters.

This passive attitude also rationalizes Ashley avoiding asking some hard questions as to whether the revelations of this case suggest broader problems within Durham's law enforcement apparatus. News broke today that the lead investigator in the lacrosse case, Sergeant Mark Gottlieb (last seen overseeing the procedurally flawed lineup) is under investigation for assault, which allegedly included use of a racial epithet. (Can Nifong be far behind, appearing on CBS, as he did in the lacrosse case before any serious investigation had occurred, to opine, "The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible"?) Yet, as John in Carolina pointed out, the local media has, nearly 60 hours after the incident, not asked some basic questions--such as whether Gottlieb was on-duty at the time of the alleged incident and why the initial police report of the incident hasn't been made public. I suppose we all should, as Cohen and Ashley recommend, just wait for a trial to find the answers to these questions. Under this definition of journalism, we wouldn't even need journalists--court reporters could simply type up a summary of their day and release it to the papers.

An undercurrent of the columns by Cohen and Ashley, never explicitly stated but strongly implied, is that the Duke players have benefited from selective outrage--that these sorts of things occur in our criminal justice system all the time, usually without outside notice. I disagree: Nifong and Gottlieb hardly typify the American justice system. Moreover, while I'm obviously not a lawyer, I can't recall a single publicized case in recent years where procedural violations this massive were publicly known at this stage of the process. Normally, we don't hear about this sort of prosecutorial misconduct until the appeals process. (This, of course, is what happened in the Alan Gell case, which prompted the Open Discovery law.) In this respect, Nifong is the victim of his own decision to ignore the ethics guidelines and make his 50+ press appearances. He got the outside attention that served his short-term political interests--but he couldn't stop it once the primary had occurred, even though he no longer needed the free publicity.

As Chris Richardson wrote in an excellent recent post, recent massive miscarriages of justice have occurred on scales worse than what we've seen in Durham, though normally the victims were poor African-Americans. It seems to me that Chris is suggesting (and he can correct me if I'm wrong) that Rudolph Holton and James Tollman never should have gone to jail: had we known about the improper behavior of authorities in their cases at an earlier stage, the process would have been brought to a halt. What Cohen and Ashley seem to be saying, however, is no--that like the Duke lacrosse players, in the cases of Holton and Tollman the "process" should have played out, because massive prosecutorial misconduct is effectively part of the "process," and that the improperly accused (and even convicted) should have simply waited their turn, until an appeals court had time to hear their case. That Holton and Tollmann had to spend 16 years in jail as a result of the state's misbehavior? Too bad, apparently: that's part of the "process."

For journalists, who are, in part, supposed to serve as watchdogs of government officials and expose misconduct when they find it, this attitude strikes me as nothing short of bizarre.

[Originally posted in Cliopatria.]