Nifong's Continued Evasions

Liestoppers just posted a copy of Mike Nifong’s January 16 response to the Bar, the D.A.’s last, desperate attempt to avoid the Bar’s amended and expanded January 25 complaint. While not as delusional as his December 28 letter (the document that concluded by attacking Jason Trumpbour and Friends of Duke University), Nifong’s January 16 missive continued his pattern of evasive responses, non-denial denials, and peculiar conceptions of his duties as district attorney.

By the time he wrote this document (which, oddly, appeared on the official stationery of his office, a violation of professional norms), Nifong had hired counsel and had recused himself from the lacrosse case. He also had offered no fewer than six separate excuses—ranging from a stated concern with the privacy of players he had labeled “hooligans” to the demands of running for office while also serving as district attorney—for his failure to turn over the DNA evidence.

The highlights of the January 16 document:

1.) A “summary” report need not contain all test results; and, indeed, can be confined to those results that the prosecution desires to report.

Nifong asserted that the Meehan report “was a summary report, which I would define as a report that states what tests were performed and either lists all positive results (i.e., those in which something is revealed) or states that there are no positive results.”

Alarmingly, the district attorney states that this type of report has “always” been the type that he has requested “in my 28+ years as a prosecutor,” that Meehan’s was “the type of report with which I have always dealt in cases involving forensic testing.” This admission begs the question of whether Nifong has engaged in games of hide-the-evidence previously.

2.) No law enforcement official from Durham took any notes at any point during any meeting with Meehan.

In an astonishing claim, Nifong asserts that he, Sgt. Mark Gottlieb, and Inv. Ben Himan drove to Meehan’s Burlington lab on at least two occasions, sat across the table from the lab director for over an hour in total, and that none of them ever wrote anything down about what they discussed with Meehan. Why, then, did the three of them even bother to make the trip—or is Nifong contending that all three have photographic memories, and would be able to recall the key details of the conversations months later, when the trial began?

This, it seems, is the Durham Police Department’s response to North Carolina’s Open Discovery statute: since all notes now must be turned over to the defense, just don’t take any notes.

3.) Nifong used the January 16 letter to offer what was then his seventh excuse for withholding the DNA evidence.

Nifong admits that he knew of the presence of DNA traces from multiple males. But, he told the Bar, “the specific fact that the May 12 report from DNA Securities did not contain any information about the presence of partial DNA profiles who were not members of the Duke lacrosse team (which would not be a negative result), however, failed to register with me at all at the time I received the report.”

In other words, it seems the district attorney believes that state law requires disclosure of “positive” and “negative” test results, but not of test results that the D.A. and private lab directors decide between themselves are neither “positive” not “negative.” Nothing in the relevant statutes, however, seems to justify that interpretation.

A side comment: perhaps Meehan’s failure to file a complete report would have “registered” with Nifong had he or a police officer taken notes at their meetings with Meehan, so he could have compared what Meehan told them with the document that Meehan submitted on May 12.

4.) Nifong has conceded another ethics violation.

Rule 3.8, comment 1, affirms that “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.”

Yet in his January 16 letter, Nifong states that at one meeting with Meehan, he was functioning solely as an advocate, seeking not justice but evidence to convict. He states that his purpose at the April 21 meeting—which he asserts, contrary to the recollections of all other participants, was the first time he met Meehan—was to determine whether Meehan’s test results would help him establish “conclusive identification of the third assailant.”

Evidence that exonerated the two people he already had indicted, Reade Seligmann and Collin Finnerty, appeared not to interest him. Evidence that cast doubt on the accuser’s myriad tales as a whole appeared not to interest him. His explanation for this peculiar approach?

“I knew that testing had not yet been completed on other evidence items . . . I also knew that all test results, and the underlying data from those tests, would be provided to anyone who was indicted as a defendant in this case upon request.”

This passage previewed paragraph 212 of Nifong’s official response to the Bar’s complaint, which conceded that his interest was solely in evidence that related to his theory of the crime.

5.) If true, Nifong’s explanation for the April 10 non-meeting suggests an improper conception of his duties.

Given that Meehan, Himan, and Gottlieb all contend that Nifong was present at a meeting of which he has no recollection (again, this is why people take notes), it seems very likely that the D.A.’s sudden memory loss will not carry the day.

But let’s take Nifong at his word, with his new claim that he did not meet with Meehan until April 21, or four days after he obtained indictments against Seligmann and Finnerty. He had taken the unusual approach of seeking additional tests from a private lab after the state lab didn’t return the results that he wanted. He claims that he was interested in receiving from Meehan “evidence that either directly implicated or specifically exonerated anyone.” Assuming that he first encountered Meehan on April 21, Nifong had no way of knowing, in advance, what Meehan’s test results would reveal. For all he knew, Meehan’s test results could show DNA matches between items in the accuser’s rape kit and three lacrosse players other than the ones he had indicted.

Given that fact, what legitimate law enforcement purpose did he have in seeking to obtain indictments before (as he now claims) meeting with Meehan to review the results of Meehan’s tests? Nifong obviously had a political motive for acting as he did: he needed to obtain indictments before the primary.

It’s little wonder after receiving this document that the Bar proceeded with such a powerful amended complaint.

Paula McClain: On the Administration

In a summertime interview with the Chronicle, Group of 88 member Paula McClain, the newly elected chairwoman of Duke’s Academic Council, stated that

the consensus among many black professors that the University responded too slowly to the racial aspects of the case is “depressing and demoralizing for faculty.” No top administrator has met with members of the black faculty to explicitly address the issues broached by the lacrosse incident, she added.

But according to a University-prepared timeline of the administration’s actions, President Brodhead himself met with black faculty on April 3 to discuss the incident.

That meeting, it’s worth noting, occurred only three days before the Group of 88 issued its statement. No public record exists of what was discussed in the meeting, but it would seem as if McClain’s claim to the Chronicle was incorrect.

Indeed, the assertion that over the past 11 months, the Brodhead administration has paid insufficient attention to the recommendations of black faculty is hard to take seriously. The administration largely bowed to the demands of two black (Houston Baker and Wahneema Lubiano) and one white (Peter Wood) professors issued at the March 30 faculty meeting. Two of the five committees set up last April (the CCI and the Bowen/Chambers Committee) were explicitly oriented around a “diversity” agenda. The administration remained silent as Grant Farred preposterously alleged a “secret racism” among Duke students; it remained silent as Karla Holloway sent out an e-mail containing unsubstantiated, fifth-hand, slanderous allegations against Duke students.

Neither at the time nor since did McClain say what more she wanted the administration to do. McClain did not respond to an e-mail requesting comment.

Sanday's Structure

In a recent article at Inside Higher Ed, Penn anthropologist Peggy Reeves Sanday announced that she was going to place the “Duke case in perspective.” What “perspective,” precisely? “The eye-witness accounts of campus gang rape I present in Fraternity Gang Rape.”

Oh.

But first, she had a couple of questions she would be “leaving aside”:

(1) “whether a sexual assault took place at the party”;

(2) “whether the district attorney botched the investigation.”

This approach harkens back to Wahneema Lubiano’s April remarks that the Group of 88’s crusade would continue “regardless of the ‘truth’ established in whatever period of time about the incident at the house on N. Buchanan Blvd.”

Sanday’s column could be confused with a parody of extreme political correctness:

• She spends almost two paragraphs on the McFadyen e-mail without ever mentioning it was a take-off from American Psycho. (Are the professors who assigned the book contributors to Duke’s “culture of crassness,” as well?)

• She says the players “didn’t give a moment’s thought to hiring two minority ‘exotic dancers’ to perform for them” without ever mentioning that the players didn’t, in fact, request “minority” dancers. (And was she present when the issue was discussed at the party, to know whether or not they gave a “moment’s thought” to the issue?)

• She writes that while she was “not surprised” that “the rape charges were dropped in the Duke case in light of the absence of DNA evidence,” it “is noteworthy that the sexual offense and kidnapping counts have not yet been dropped.” (“Noteworthy” in what way—as an example of prosecutorial misconduct?)

• She contends that “according to the dancer who did not take the drink the accuser was sober when she arrived at the house,” and “it was when they began their strip show that she ‘began having trouble.’” (Has Sanday decided to “leave aside” the accuser’s own admission of taking Flexeril with alcohol, or that Kim Roberts gave a much different account to Ed Bradley?)

• She concludes with fulsome praise for the “honesty” and “moral leadership” in the Campus Culture Initiative report.

Indeed, apart from the CCI’s report, nothing in Sanday’s column suggests that she has read anything about the case since late April. But she still pronounced herself qualified to put events “in perspective.”

Sanday’s name might sound familiar to those who have followed the case closely: her Fraternity Gang Rape, which “updates the incidences of fraternity gang rape on college campuses today, highlighting such recent cases as that of Duke University,” is required reading in Anne Allison’s springtime class, “Hook-up Culture at Duke,” a/k/a “Group of 88 for Credit.”

The arguments in Sanday’s book raise troubling questions as to Allison’s motive for assigning it. “Enough is known of the context surrounding the alleged gang rape,” Sanday writes, “to suggest that the activity is similar to what I describe in these pages.” Keep in mind that in every other case she describes, she alleges that a gang rape definitely occurred.

“However pathological the [players’] behavior might be,” Sanday adds, “it is necessary to understand its roots before effective change is possible.” And what are those roots? In the lacrosse case, like the other episodes she studies, “the event operates to glue the male group as a unified entity; it establishes fraternal bonding and helps boys to make the transition to their vision of a powerful manhood — in unity against women; one against the world. The patriarchal bonding functions a little like bonding in organized crime circles — generating a sense of family and establishing mutual aid connections that will last a lifetime.”

A brief search through webshots.com, a photo hosting service, shows that “spring break party” reveals 285,845 photos; “spring break drunk” reveals 60,341 pictures; “spring break beer” brings up 39,483 snapshots; and the number for “spring break naked” is more than 6,500. Youtube reveals thousands of videos of sexually tasteless activities over spring break. Is Sanday suggesting that each of these incidents resembles “bonding in organized crime circles”?

The lacrosse case, Sanday concludes, is clear-cut. “The debate shows a split between those who continue to blame the victim and those who are more likely to hold institutions and individuals responsible.” In other words, anyone who has concluded that the only crimes that occurred in this instance were committed by Mike Nifong is guilty of “continuing to blame the victim.” Evidence, it appears, carries no weight for Sanday.

And this is the book selected by CCI gender subgroup co-chair Anne Allison for her spring term class, where she has assigned her students to function as de facto snitches, to observe and report back on other Duke students, especially sports teams or fraternities, “in terms of the themes covered so far in class: gender, race, heteronormativity, power, everyday culture, image and prestige of Duke. Consider the role of alcohol in these cultures.” As Sanday makes clear, the facts are irrelevant in such a quest.

Paula McClain: On Athletics

Duke’s Academic Council recently elected Group of 88 member Paula McClain as its new chairwoman. (The council “meets weekly during the school year, and as necessary during the summer months. It meets monthly with the chief officers of the University, and several times each year with the Executive Committee of the Board of Trustees. It serves as the Committee on Committees [the body that assigns professors to all committees] for both the Council and the University Faculty.”)

Last fall, the current chairman of the council, Paul Haagen, offered a common-sense proposal to pair individual professors with athletic teams, to give the faculty a better sense of athletic life for Duke students. The proposal was hardly a panacea, but given the anti-athlete bias expressed by some Duke professors, it seemed as if no one could object to Haagen’s proposal.

Not McClain. She told the N&O that of colleagues she had encountered, “people are just aghast that it’s being considered.”

The remark brings to mind Wahneema Lubiano’s comment that she encountered no one who thought the Group of 88’s ad was a bad idea.

And, when shown a sophomoric spoof of the Haagen proposal, the N&O reported that McClain “chuckled at the document.”

As Sports Law Blog tartly observed, “Apparently, Professor McClain--who is co-director of Duke's Center for the Study of Race, Ethnicity, and Gender in the Social Sciences--believes that in the aftermath of the Duke lacrosse scandal, the University needs to distance itself from its sports teams, rather than embrace them.”

McClain’s term as the Duke faculty’s elected leader lasts for two years. She did not reply to an e-mail requesting comment.

Add Tiahrt to the List

Kansas Congressman Todd Tiahrt has become the latest member of the House (joining Walter Jones, Carolyn McCarthy, and Peter King) to demand that AG Gonzales open a federal inquiry into the behavior of Mike Nifong.

A poster at Liestoppers received the following e-mail from Tiahrt:

It is always good to hear from constituents, even if it is regarding tragic situations.

I too am troubled by the conduct of the Durham District Attorney in the case. It would appear that Mr. Nifong violated police procedure in suspect identification and made improper and inflammatory remarks to the media. Most troubling is the claim that he withheld potentially exculpatory DNA evidence.

One of the pillars of our judicial system is the right to a fair trial. I have contacted the U.S. Attorney General, Alberto Gonzales, to look into the matter. I hope he will do so and determine whether it constitutes prosecutorial misconduct.

The more political pressure, the better.

Josh Perlin Discusses Due Process and Civil Liberties

On several occasions, I’ve noted that the college press has featured a higher percentage of quality articles than its counterparts among mainstream print publications. Every once in awhile, however, a column comes along to shock the senses. Such was the case in a piece last week from a Cornell student named Josh Perlin.

Headlined “Seligmann Not Worth the Hassle,” Perlin’s article, which strongly condemned Brown other Ivy League institutions for a “lack of judgment” in recruiting Seligmann, featured some of the most tortuous logic to appear anywhere in print about this case.

Perlin worried about whether the campus could have handled things “if Seligmann had come to Cornell after the scandal broke.” Leaving aside the inconvenient fact that Seligmann is not even now looking to transfer to Cornell, Perlin seems to believe that Seligmann could have called up the Cornell coach the day after last March’s party, immediately been accepted into the school, and then started play on the lacrosse team the next day. Perlin’s hypothetical, in other words, is about as useful as speculating on what would have happened if Mike Nifong had suddenly become Ithaca district attorney.

Perlin then proceeded to what appears to be his real issue—the fact that recruiting Seligmann implicitly states that Mike Nifong’s case has collapsed. “There is a wealth of information floating around the media pointing to the three players’ innocence, but only a few people truly know all the details of the case.” Perlin lectures his readers that “I don’t think I have a right to judge, either way. No one does. That is why I’m surprised Ivy coaches are so willing to truly overlook his impending trial.”

About Seligmann, we know that:

• His electronic alibi evidence includes cellphone records and an ATM video showing him someplace else at the only time any “crime” could have occurred.
• The DA refused to meet with Seligmann’s attorneys to consider this evidence.
• He was chosen—despite not matching any of the accuser’s initial descriptions—after a lineup in which the prosecutor instructed the police to violate their own procedures.
• In the latest of her myriad, mutually contradictory stories, even the accuser doesn’t actually accuse Seligmann of doing anything (other than saying he was getting married the next day).
• No DNA of his was found in the accuser’s rape kit.
• The DA conspired with a lab director to withhold exculpatory DNA evidence from Seligmann’s attorneys.
• Shortly thereafter, the state bar field an ethics complaint against the DA.

What more, exactly, did Perlin want to know? He didn’t say. He did say, however, that he was “tired of this case . . . tired of all the leaked information about what did or did not happen.” He’s “sick of the implications and everything else brought on by the media. Let’s wait for the trial, make sure justice is served and move on.” If Perlin is “tired of this case,” perhaps he might want to speculate how fatigued Seligmann might be.

For a glimpse of how a college newspaper could fairly address the issue of Seligmann’s transfer, Perlin could glance at the Harvard Crimson story on Seligmann’s possibly coming to Cambridge (“Accused Duke Star May Transfer,” March 1). The article describes the transfer process and includes fair quotes from both the coach and members of the team. For instance, the team’s senior co-captain, John Henry Flood said, “He’s a great person and he’s definitely a great lacrosse player. If the case turns out to be dropped, he’d be a great addition to the Harvard lacrosse team as a person and a player.” Coach Scott Anderson added that Seligmann is “a great student and I think he’s an excellent young man.”

The comment thread on Perlin’s column featured appropriate expressions of outrage. Noting Perlin’s admitted fatigue, commenter PJ Pluth observed that “to ease his weary soul, he proposes to keep burdening Reade Seligmann with the residue of a false prosecution . . . Watergate took more than two years to unravel. Ten months, evidently, taxes the mental stamina of the assistant sports editor of this little student newspaper. Woodward or Bernstein he ain’t.” Another reader urged Perlin to “be completely informed of all developments in the Duke Lacrosse rape hoax before he opines on the matter.”

Lacrosse parent George Jennison termed himself “offended” by the column, especially its title. Cornell, according to Jennison, would be lucky to have someone like Seligmann as a student; instead, Perlin’s “statement basically is, ‘not in my back yard’”—which amounts to “turning your back on supporting truth, supporting a fine young man, and are condoning the lies and misconduct that led to this situation.”

Perhaps the most effective response to Perlin came yesterday from fellow Sun columnist—and, ironically, Cornell lacrosse player—Andrew Webb. Webb notes, correctly, “The errors in ethics, judgment and sheer writing ability in Perlin’s column prove to be one of the worst cases of journalism that I have ever had the misfortune of reading.”

In Perlin’s view of the world, Webb contends, people should stray “from doing things that are right just because it would bring attention to the cause.” Webb wonders whether Perlin was “one of those who rushed to judge these three students before any of the facts came out.” (Somehow, I doubt that Perlin joined the ranks of Nifong’s critics.) By publishing his column, which then appeared on Insidelacrosse.com, Perlin not only “damaged Cornell University, Cornell Lacrosse and The Cornell Daily Sun’s reputation, but he has also single-handedly decided to make us Cornellians look like judgmental, exclusive jerks.”

Perlin’s column also seems to have misused quotes from Cornell men’s lacrosse coach Jeff Tambroni, who told Webb, “I regret the way in which I was portrayed in an article that I did not agree with.” Webb concludes,

I wonder if Josh Perlin would like it if he or someone close to him had to pay millions in legal defense, withstand unthinkable/undeserved cruelty from most of America and wait for an indefinite amount of time to see if he had to be punished for a crime that he never committed. And then also have to read from some college sports “columnist” (whose writing style and content are not original) about how the writer thinks that Perlin or someone he loves is not deserving of being a member of “his” community?

Webb’s words provided a useful reminder that Perlin does not reflect the values of many Cornell students. That Webb ends his effectively argued column by noting that he is a lacrosse player himself was, somehow, fitting.

Paula McClain: Rationalizing Nifong

In its December filing against Mike Nifong, the state bar accused the D.A. of making improper commentary on the lacrosse players’ invocation of their constitutional rights; on the evidence to be presented in the case; about the guilt of the accused; and about the “character, credibility, and reputation of the accused.” It also accused Nifong of improperly using hypothetical comments to explain away the existence of exculpatory evidence and improperly making statements that heightened public condemnation of the accused. Finally, the bar alleged that “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

In a May article, here’s how the newly elected chairwoman of the Duke Academic Council, Group of 88 member Paula McClain, described Nifong’s remarks:

Paula McClain, a professor of political science and co-director of Duke’s Center for Race, Ethnicity and Gender in the Social Sciences, says nothing Nifong could have done would have shielded him from criticism.

“No matter what you do, someone’s going to say you’re making this political. He’s probably done some things he should not have done, but whether what he’s done has made it more political?” McClain asked. “This would have been political, regardless.”

If that line of argument sounds familiar, it should: it is almost identical to excuses for his pre-primary publicity barrage offered by Nifong.

McClain also echoed Nifong’s line in her assertion that “the politically astute thing for whoever wins to do would be to let the justice system to run its course. Anything short would be detrimental. People want resolution.”

Of course, the justice system is supposed to be about a search for the truth, with the prosecutor adhering to city and state procedures, not using the process to achieve what the “people want.”

So not only did McClain, who also signed the “clarifying” letter, refuse to make a statement supporting Duke students’ due process rights, but she rationalized Nifong behavior that the bar (and most legal observers) deemed unethical.

McClain did not respond to an e-mail requesting comment.

The Sports Reporters

This case has revealed contempt for athletes—bordering on prejudice, as Nicholas Kristof observed in a June column—among some quarters of the media and Duke’s arts and sciences faculty. Given this response, it might have been expected that sports publications would have provided some balance. Yet the two major spots websites—espn.com and cnnsi.com—instead have featured some of the worst coverage of the case.

As two excellent posts at Liestoppers pointed out, Bomani Jones’ recent espn.com column reveled in its prejudice. It dripped with contempt for the lacrosse players and revealed a mind (like so many in Durham) unable to process the information that has come to light since April 6.

Given Jones’ branding the entire lacrosse team as racists because one player uttered a racial slur as part of a racially charged argument, Joan Foster wonders why the espn.com author elected to ignore the findings of the Coleman Committee report on the question of the team’s racial attitudes. (After a comprehensive inquiry, the committee discovered no evidence of racist or sexist on-campus behavior.) Moreover, if we are to adopt Jones’ standards, Foster notes, should “the entire English Dept at Duke be called ‘racist’ in turn for their then-colleague Houston Baker’s racist remarks in a letter last spring?”

In his defense, Jones assured readers that “any opinion I offer on anything is from an objective position . . . That’s the job. And nothing is more important to my job performance than integrity . . . Never, for a second, question whether I’m fair. I’m passionate and imperfect, but I’m not a fool. Neither are my editors. They never would have sent me to the game if they didn’t think I’d do the job right.”

Liestoppers uncovered some previous examples of Jones’ objectivity—comments such as “I’m skeptical about white women crying rape against black men,” and, “Without question, I’d say that Duke is a white supremacist institution.” It’s good to know how loosely Jones appears to define “objective” and “integrity.”

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But since Jones orders readers to take him at his word, let’s do so: he states that his editors sent him to write about the game fully aware of his prejudicial attitudes. And assigning a figure like Jones to write about the lacrosse case is only par for the course among sports coverage.

In fact, cnnsi.com is the dot.com equivalent of Nancy Grace’s Headline News Network on the air or the New York Times or Herald-Sun in print. Its most recent article featured a quote from one—and only one—outside legal source: Irving Joyner, saying that “the odds are good that it will go to trial . . . I think they will go forward.” A fair-minded reader would come away from the article believing that no one doubted that enough evidence existed to move forward with the case.

While espn.com has featured the weak but neutral Roger Cossack as its case legal analyst, cnnsi.com has employed the outrageously biased Lester Munson. “Using his legal training and expertise,” claims his website, “Munson [speaking of himself in the third person] is able to gather and to analyze material not often found in routine sports coverage. He is able to put criminal charges and civil litigation in the sports industry into a context that gives new insights into each case and into American pop culture.”

Munson’s first case-related comments came on April 18. Despite the court filing from Mike Nifong’s office that DNA would exonerate the innocent, Munson immediately downplayed DNA’s role. “There are hundreds of convicted rapists in prison,” he contended, “even though there was no sign of their DNA in the examinations of their victims . . . Lawyers for the accused players can talk endlessly about DNA, but the absence of DNA is not conclusive by itself.” He implied that the team had a history of “previous predatory conduct,” and expressed little doubt that a crime occurred: “There is always an element of brutality in what occurs. In the Duke situation, it may be the number of athletes joining in the attack. In the Tyson case, the attack was brutal.”

The next day, Munson gave an interview under the headline of “Duke lax players are staring down a tough trial.” Downplaying Reade Seligmann’s alibi evidence, he asserted incredibly, “The police and the prosecutor will scrutinize this evidence in exquisite detail, and if they find something is askew, that something doesn't fit in the alibi evidence, they will not hesitate to charge Seligmann with yet another crime. That would be obstruction of justice.” Could Seligmann in fact have been innocent? Very unlikely, proclaimed the legal “expert”: “You don’t see many alibis in criminal cases—it's a very rare thing. Ordinarily, 99 times out of 100, the police have the right guy, and you'll find that most people arrested were involved in something. Getting the wrong guy is very unusual.” Munson offered no evidence to support his extraordinary assertion.

Munson also offered a Wendy Murphy-like theory as to why Nifong had initially only indicted two players. “The question we must ask,” he not-so-sagely observed, “is whether this third player is in the process of negotiating with the prosecutor and is seeking immunity from prosecution or is seeking leniency for his testimony against the other players.” And asked on how the DNA test results would affect the case, Munson was unequivocal: “Its absence is not important. There are hundreds of men in penitentiaries across the United States who were convicted of rape without their DNA being found on the victim. It does help the defense to some extent, but it's not conclusive. The whole idea that DNA evidence was somehow conclusive was the invention of the defense lawyers.” [emphasis added] Munson obviously never read the March 23 NTO motion.

In June, Munson made what could be termed an obligatory appearance for all Nifong enablers, offering his insights on the Nancy Grace show. Remarking that he had “studied this at some length,” he assured Grace’s viewers that “the state has probably a better case than most observers are describing . . . Mr. Nifong is a seasoned, experienced prosecutor. He is not stupid . . . I think that Nifong is probably managing the discovery in such a way that there may be some surprises for these defense lawyers further down the road.” Munson seemed unaware that the state of North Carolina has an open discovery statute.

Nifong’s dropping the rape charges did not make Munson any more reasonable. The decision to dismiss the charges, he theorized, “is not a big surprise.” (It was a surprise to just about everyone else.) Munson noted that “there is little doubt that something unsavory happened at the party on March 13,” and—amazingly—looked for “the accused players to attempt to settle everything with a guilty plea on lesser charges.”

[Update, 11.27am: I e-mailed Munson to ask if he still held to his April, June, and December views; he replied as follows:

I remain convinced that something bad happened in the lacrosse captains' house on that night. The women left in a hurry. The women are working girls and they felt a sence of menace that caused them to bolt. The broomsticks may have been a factor. The police reports include an inventory of what was left behind, e.g., their money. Was there a rape? Maybe not. Probably not based on what we now know. When I report a rape case I look at the brevity of the encounter, the brutality of the sex, the injury to the victim, the outcry witnesses, and previous predatory behavior of the accused. This formula allows me to avoid the useless statement of "he said she said." Using my calculus, the evidence of a rape is minimal. Is there enough to get the case to a jury? Is there enough even to continue with the case now in the hands of the attorney general?

I am baffled by the conduct of Mike Nifong. When we began reporting on the case, we were told that he was a perfectly respectable and experienced prosecutor. That appears to be incorrect. The suppression of the exculpatory evidence is probably a crime. As a lawyer and as a journalist, I am appalled at what he did . . .

Why would another son of impressive wealth go out of his way in Georgetown to beat a gay man for no reason?

You ask for a reference on the fact that most people who are arrested are guilty and plead guilty. I believe that is common knowledge. The number of criminal cases tried to verdict in the criminal justice "system" is miniscule. If there were not plea bargains, the "system would collapse. If you need a reference, I would suggest "Courtroom 302" by Steve Bogira, a wonderful and detailed account of a year in the life of a courtroom in a busy criminal court.

It is heartening to see that Munson has now condemned Mike Nifong, which he did not do in December. The "something bad happened" argument [what, exactly?] appears to be his last defense. I know of no evidence about "broomsticks," and also the women did not leave in a hurry--they didn't leave for almost 50 minutes after the broomstick comment.

I know of no evidence that anyone associated with the case went "out of his way in Georgetown to beat a gay man." The Bogira book is an interesting read; I had asked Munson, though, for a reference to his claim that 99 percent of the people charged are guilty of something.]

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There is one sports site that has provided extraordinary coverage of the case: Duke Basketball Report. Early on, DBR provided a forum for legal experts to comment on Nifong’s handling of the case: these posts represented the first public case comments by Friends of Duke’s Jason Trumpbour, recently identified as Mike Nifong’s Public Enemy #1.

In the months thereafter, DBR has run scores of columns and summaries on the case, ranging well beyond athletics to include examinations of prosecutorial misconduct, vestiges of McCarthyism, and the role of the bar. Its forceful endorsement of the Recall Nifong-Vote Cheek line looks prescient as Nifong now appears to be on its way out.

In a case where so many in the media got the story wrong, DBR not only understood the significance of Nifong’s misconduct but also provided a model of how a sports-centered site should have covered this case.

Hat tip: E.H.

Paula McClain: No Means No

To give a sense of the continued power of the Group of 88, even if the case to which they attached their crusade has collapsed, one Group member, Paula McClain, will succeed Paul Haagen as chair of Duke’s Academic Council.

In today’s N&O, McClain strongly endorses the findings of the Campus Culture Initiative:

The reality is the world is changing, the country is changing, and we have to change. If Duke wants to remain competitive and remain a top-notch institution, it’s got to change with the times. Change is very difficult, especially for people who came through Duke years ago.

Here’s McClain, in her own words, from last summer, responding to an e-mail that was forwarded to me from a blog reader.

From: Paula D. McClain <XXX@duke.edu >
Date: Jul 12, 2006 9:07 PM
Subject: Re: Duke Chronicle ad
To: Melanie Wilson <XXX@gmail.com>

No.

Melanie Wilson wrote:

Professor McClain:

In blogs like History News Network, John in Carolina, and Betsy's Page, I've noticed the very strong criticism of the "listening" ad that appeared in the Duke Chronicle and is now posted on the AAAS website. Given the many new facts that have come out since that ad first appeared, it seems as if it's stood the test of time poorly. It's troubling that you criticized your own school's students before all facts were in.

Have you reconsidered your decision to sign the ad? If not, are you planning on making any public statements on behalf of the Duke students accused by Mr. Nifong?

Melanie Wilson

Apparently “changing with the time” means that professors are supposed to remain silent rather than defend the due process rights of their institution’s students.

Sunday Roundup

A USA Today article from last week featured the latest jaw-dropping comment from NAACP case monitor Irving Joyner. Asked about Mike Nifong’s having instructed police to violate their own regulations and run a do-over lineup that was confined only to suspects, Joyner breezily termed the procedural misconduct “really unimportant.”

As long as the accuser could identify someone in court, he implied, convictions should follow. Since this opinion wholly contradicts the traditional stance of the NAACP on due process, I assume that Joyner will soon be resigning from the organization?

John Fitzpatrick, a black defense lawyer and Nifong campaign donor, provided an equally stunning comment, in his case on the purpose of the criminal justice system. Fitzpatrick demanded a trial on the grounds that “the public has a right to hear [the accuser’s] side of the story from her mouth under oath.” (In yesterday's Herald-Sun, Fitzpatrick even more preposterously suggested that Nifong's defiant response to the state bar could be interpreted as “somewhat of an apology. It might have been a cry for forgiveness.”)

Once again, Jim Coleman provided a voice of sanity, repeating his earlier assertion that the lineup violated procedure and predicting that the case would be dropped.

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This case long ago passed the line into farce. Therefore, this week’s edition of case humor:

• An amusing youtube with a message for Irving Joyner;
• The Spoof predicts the next excuse that Mike Nifong will offer to the Bar;
• Liestoppers uncovered a leaked document from Duke’s Academic Council, revealing the newly planned Department of Scapegoatology.

Among the offerings:

Scapegoatology 101: Introduction to Scapegoatology (Prerequisite for graduation for all persons attending Duke on athletic scholarships).

Taught by Peter Wood, this course will introduce the discerning student to the concept and general practices of Scapegoatology, including an overview of the scapegoatology process and exploration of the goals of Scapegoating ... Numerous lab experiments and field exercises will be conducted. Students on athletic scholarship will have the thrilling experience of acting as scapegoats in all field exercises and lab experiments while those having declared majors in Sociology, Anthropology and AAAS will, of course, be afforded the opportunity to participate as scapegoaters.

Scapegoatology 103: Selecting Your Scapegoat

Taught by Wahneema Lubiano, this course explores the thrills and pitfalls of selecting or creating your scapegoat.

Prerequisites:

• Academic Jargon and Gobbledygook 101, 102 & 103.
• Ideological Indoctrination and Demagoguery 101.

Scapegoatology 107: Milking The Scapegoat Process For All You Can

Taught by the subgroup chairpersons for the Campus Culture Initiative (CCI), this course is designed as a recapitulation and reaffirmation of the previous Scapegoatology Courses, and is designed to once again tie your “For Shame” scapegoating efforts back to actualization and furtherance of your hidden agendas. The following books are required reading:

• How to Demand Campus Initiatives
• Selective Committee Stacking
• Leadership Through Ignoring Your Committee Members
• How to Make Taking Your Pet Course a Prerequisite for Graduation.

According to the leaked document, adjunct professor Mike Nifong not only will offer a course in the new department, but he will give guest lecturers in a class taught by Karla Holloway.

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Ohio’s State’s campus paper, The Lantern, examined how the case has shown the value of teammates, in the best sense of the term. To me, one of the most remarkable elements of events in Durham has been the behavior of the lacrosse players since March 14. They just as easily could have lashed out, or grown surly, or imitated the Group of 88 in shameless conduct. Instead, the players have shown character under tremendous duress.

As columnist Kevin Bruffy noted,

Publicly they were condemned, chastised and presumed guilty before the apparent facts of the case surfaced. The team in general, and the three accused specifically, were public enemy No. 1 across the country. They were called hooligans and their pictures plastered all across campus . . . Even their school turned its back on them. Still, through it all, they held together, even when it would have been much easier to tuck their tails between their legs and disappear . . .But if the remaining charges are dropped, the Duke party would be no different than thousands of other parties that happen every year on almost every major college campus in the country.

A consistent pattern throughout this case has been the high-quality, and empathetic, commentary from most in the college press.

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Mike Nifong’s bizarre crusade against Friends of Duke University has attracted media notice. WRAL recently did a report on the issue (with a web interview with FODU spokesperson Jason Trumpbour).

Trumpbour also issued a statement on the FODU site:

It is typical of Nifong’s narcissism and grandiosity that he imagines himself confronted by giants. The reality is that we are a bunch of ordinary folks who had to shoulder the burden of speaking out against him ourselves because we got tossed out on our ear at Duke. Our group’s original purpose was to get Duke to speak out in defense of its students and they did not start doing that until late December. We are mostly funded out of our own pockets. We have no experience doing this sort of thing and we are figuring it out as we go along. If Nifong were to recognize these realities, it would be a bitter blow to him. He would then have to finally confront the reality that he is responsible for his own misfortunes. All we have done is shine a light on his actions and invite others to see for themselves the nature and extent of his misconduct.

Nifong’s targeting of FODU is indeed an irony. The group exists only because the public voices of Duke’s faculty—the Group of 88 and figures such as Peter Wood or Orin Starn—rushed to judgment last spring, not only abandoning the academy’s traditional reverence for due process but advancing their personal and pedagogical agendas on the backs of their own students. So if Nifong has a complaint with anyone, he should direct it at the Group of 88.

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Bill Anderson’s latest excellent article looks at how those who expected “that Nifong would simply become background noise” had not counted on how the DA’s bar response would make him “front-and-center once again.”

To Anderson, “The arrogance of Nifong’s statements . . . tells us more about the state than we could possibly have realized.” He correctly notes that the indictments in this case were brought not by Nifong but by the state of North Carolina. So each and every day the special prosecutors keep the charges in place, “the State of North Carolina is de facto endorsing Nifong’s conduct.”

Anderson concludes,

To paraphrase Leon Trotsky, "Nifong is the state; the state is Nifong." Indeed, until (or if) the North Carolina authorities drop these charges and go after the real criminals in this case – Nifong, the Durham police, and others who pushed the charges – then the only proper thing for them to do is to hang pictures of Nifong on their office walls, since on this day, he is the very face of the "justice system" of The State of North Carolina.

Indeed.

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Many months ago, Wahneema Lubiano promised that the Group of 88 would plow forward “regardless of the ‘truth’ established in whatever period of time about the incident at the house on N. Buchanan Blvd.” The status of race relations among Duke students exemplifies the trend.

In the first stage of the Group of 88 rehab tour, the “clarifying” faculty asserted, “The disaster [of which the original Group of 88 ad spoke] is the atmosphere that allows sexism, racism, and sexual violence to be so prevalent on campus.” A month later, the Campus Culture Initiative report amplified upon the claim, asserting that interactions across racial lines at Duke were worse than at a cohort of 20 private universities.

But an alert commenter at the Liestoppers board noted that data from 2001-2002 from the Journal of Blacks in Higher Education presented an entirely different picture. The JBHE study indicated that Duke ranked #1 among 26 universities considered, and stated that the ranking provide “an excellent guide to whether a given university is committed to the education of African Americans and is providing a happy place for them to be.”

The rankings, it would seem, represent one “truth” that Lubiano and her cohort will choose to deny.

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The latest top-notch Duke Chronicle article comes from Zak Kazzaz, examining the peculiar record of Nifong’s chief investigator, Linwood Wilson. Kazzaz obtained an interview with Joseph Cheshire, who observed that while “all investigators are supposed to provide objective information to the lawyers that they're working with, and if you have an investigator that does not do that then justice is not served, in this case it seems that the boss did not want objective information.”

The Chronicle asked Wilson, who admits that he has investigated no more than four other rape cases since 1971, about the many complaints filed against him, along with two formal rebukes from the body that licenses P.I.’s. His response? “I don't have to explain it. They found no violation.” Nifong refused comment on why he hired Wilson—something that remains one of the big mysteries of the case.

The Chronicle piece also noted the unusual nature of Wilson’s role. While D.A. investigators normally tend to bureaucratic matters, Wilson has functioned more as a policeman, including obtaining the Dec. 21 (frame) statement from the accuser.

Kazzaz’s reporting also raises doubts as to why Wilson and Wilson alone conducted the Dec. 21 interview, since “compared to Wilson's self-admitted, minimal experience with rape cases, Himan said he has specific training for his position and a specialty in violent crimes.”

Bob Ekstrand, meanwhile, wondered why the accuser didn’t produce a new statement on December 21, given that she recanted her April 6 version of events. As he noted,

Look at what the product [of the interview] was—the product wasn't a statement. It seemed more of a hodgepodge of facts that was basically kind of an unconnected set of assertions that seemed to be trying to address enormous holes in the case.

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I admit to a strong bias in favor of JetBlue, my favorite airline. A couple of weeks ago, it had a day from hell, when weather problems at JFK exposed a major flaw in the airline’s business model. Customers on four planes were stranded on the runway for hours. Flights were canceled or delayed for several days thereafter.

JetBlue CEO David Neeleman responded quickly, issuing an apology and promising to make the necessary changes to prevent the errors from occurring again.

The Duke administration should have imitated JetBlue’s approach, apologizing for contributing to a rush to judgment and promising to ensure that, in the future, all Duke professors would respect the provisions of the Faculty Handbook regarding how they treat all of their school’s students.

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John in Carolina continues his excellent series profiling the actions of Cpl. David Addison, acting DPD spokesperson during critical days last March and DPD liaison to “Crimestoppers,” the group that produced the “wanted” poster stating unequivocally that a rape occurred at the lacrosse house.

If a federal investigation of Nifong’s behavior occurs, Addison will be on the hot seat: as JinC notes, he surely will be asked questions that “he’ll have to answer either by incriminating himself, but telling the truth or by incriminating himself even more deeply by perjuring.”

And, for the ever-growing “truth-is-stranger-than-fiction” file, JinC reveals that Addison was recently selected by Durham Jaycees as their Outstanding Young Public Servant of the Year. Just amazing.

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Steve (Spoiler) Monks is out as chairman of the county Republican Party. The figure who siphoned enough votes away from Lewis Cheek to allow Nifong to slip by with a plurality total resigned his chairmanship yesterday.

In a fitting rebuke for this Nifong enabler, a committee member successfully called for him to cut off his resignation speech--as he was delivering it.

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I spent the weekend at Williams College, where I was part of a conference discussing new historiographical trends about the Vietnam War. Here was the lead story in Friday’s campus paper, the Williams Record.

Posters heralding the “Feminist Porn Activist,” “The Amazing World of Orgasm,” and “Sidewalk Sex Clinic” are hanging around campus, outshining the typical lecture fare and ACE parties. These events are part of the Women’s Collective initiative Positive Sex Week, which began Sunday and will continue until March 3.

According to organizers, these events are meant to celebrate empowerment, educate the campus about the benefits of exploring sex and challenge the participants to think critically about the effects of sex and sexuality in society.

At the other geographic tip of Massachusetts, last week all Harvard College freshmen received an email (subject line “sexxxxxy”) from the college dean. The topic? “Hooking Up: Hot Hints For Making Your Harvard (or Future) Sex Life Great.”

The e-mail advertised a talk from Amber Madison, author of Hooking Up: An All-Out Guide to Sex and Sexuality. The dean wrote,

Want to know more about how to access pleasure, how to communicate your desires and how to make sure that you're getting what you want and need from your partner? Do you have questions about sex or sexuality that you've never had answered? You won't want to miss this!

Students who complained received a reply from Susan Marine, Director of the Harvard College Women's Center. Marine justified the e-mail by commenting, “Our role as educators is to enable all students who wish to learn about their own development to have access to accurate, meaningful information.”

If you knew nothing about how today's college professors approach gender and sexuality issues other than what we have seen in this case, you would be excused for believing that today's campus ultra-left are Victorian neo-prohibitionists. After all, Group of 88 members have portrayed themselves as shocked (shocked!) by the captains having hired strippers, and have acted as if underage drinking constitutes a deep moral flaw.

In fact, the Harvard and Williams episodes are routine on elite college campuses, and they are almost always generated by figures whose share the Group of 88’s ideological temperament. The hypocrisy of the Group’s using the difficulties of students who don't fit the preferred race/class/gender profile to "discover" their inner Jerry Falwells is one of the most depressing elements of the case.

One of Eleven

Continuing its shameless defense of Mike Nifong’s behavior, the Herald-Sun ran an editorial yesterday all but begging the state bar to give Nifong a slap on the wrist. Maybe he withheld evidence, and maybe he gave improper statements to the media, suggests the H-S. But “Nifong says the defense now has the evidence, so no harm was done,” and “he has said, in retrospect, he should not have talked so much,” so he is contrite. If these improper statements were critical to his winning election . . . well, that’s how the cookie crumbles.

Looking at the Gell and Honeycutt cases, the H-S reasons, “In both cases, prosecutorial misconduct robbed defendants of years of their lives. For their misdeed the prosecutors were punished by taps on the wrist—or nothing at all. Nifong certainly made mistakes, as he concedes, but no one has been wrongly convicted, and no trial has been held.”

In other words: Nifong’s misconduct was exposed at an earlier stage than in the other trials, so he, too, should receive a minimal punishment.

The H-S editorial reflects Nifong’s new talking points on the DNA: he handed over the evidence as he was supposed to do, and the only reason the defense even knew about the incomplete Meehan report (which contained no mention of the many other unidentified male DNA in the rape kit) was because Nifong supplied the evidence. As Nifong bizarrely, and inarticulately, explained in his December 28 letter to the bar, the defense “complaint can be summed up as, ‘We know they did not give it to us because they gave it to us.’”

This argument forms one of the eleven separate, and often mutually contradictory, explanations that Nifong has given for his failure to turn over the DNA evidence. It rests on a basic assumption: that even if Nifong were not compelled to turn over a complete report under the law (an incorrect assumption), he willingly turned over to the defense the underlying data regarding Meehan’s tests, and so the defense could have discovered Meehan’s withheld results by spending sufficient time studying the “clearly understood” data.

To address the merits of this claim, it’s worth going back to the September 22 hearing. Far from revealing a district attorney eager to provide the underlying DNA data to the defense, the hearing transcript suggests the reverse. Nifong’s response to the defense request for the data:

First, I have to note the irony . . . of the defense attorneys seeking information that is what we call the witch-hunt list for DNA testing, all of the ways that you can attack DNA testing to show that it’s unreliable or was done poorly in this instance. Because on every occasion where rhe results of these tests were provided to the defense attorneys, they called press conferences and told everybody who would listen that the DNA absolutely exonerated every person involved in this case.

So it’s interesting now that they are trying to get the information to dispute those results.

After suggesting an improper defense motive for requesting the data, Nifong addressed the request for the data from Meehan’s lab. He read a letter from Meehan discussing the need to “protect the privacy of these [unindicted] individuals in a very high-profile case.”

Nifong concluded by offering a third objection to the defense request: cost. “These are attorneys,” he fumed, “who are already on record as saying these tests cleared their clients. And now they want to spend an additional $4035 of the state’s money to investigate further.”

Bannon responded by noting that the 6^th amendment did not have a cost limitation; Judge Osmond Smith ordered Nifong to produce the DNA data by October 20. The D.A., for reasons that remain unclear, failed to turn over the material until the October 27 hearing.

Despite Nifong’s recent claims—echoed by the H-S—the September 22 transcript suggests that the D.A. did everything he could to avoid turning over the underlying DNA data to the defense.

The transcript of the September 22 hearing contains one other interesting item. Here’s a quote from Brad Bannon, asking for a memorialization of Nifong’s discussions with Brian Meehan:

We received a report of the SBI’s testing on April 10 in this case. And actually that same day, on April 10, Mr. Nifong and Inv. Himan and Sgt. Gottlieb all went to the DNA Security, Inc. lab in Burlington, which was the private lab they had retained to do testing in the case.

Nifong’s reply?

We discussed with [Meehan] why we wanted [YSTR testing] done in this case and he assured us he could do it . . . They [defense lawyers] apparently think that everybody I speal to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here. We told [Meehan] why we wanted the YSTR testing done. He gave us the report at a later date. We told him how we intended to use it at trial.

Bannon pressed, wanting to be sure that “Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.” Nifong: “That is correct. The facts of the case, other than the fact that we were seeking the male fraction DNA,” were not discussed.

So, on September 22, Nifong appeared not only to remember the April 10 meeting, but to recall what was and was not discussed in that meeting. What could account for his sudden memory loss between then and his December response to the bar?

Easley Rips into Nifong

Mike Easley, appearing on the Charlie Rose show, again attacked Mike Nifong, this time in more direct language. The video is currently up on the Rose website; the N&O has just released some of the transcript:

MICHAEL EASLEY: He was appointed acting DA by me. The district attorney, a very good district attorney, I appointed judge, and I wanted someone who wasn’t going to run, that was a long-term prosecutor, just to hold the office together until somebody was elected. And our staff interviewed him. He said he wasn’t going to run, and we didn’t think he would. And then he got out and started running.

There’s a totally different standard you set for somebody who is going to be the elected district attorney and get into politics, and then there’s somebody who you want just to run the office. Because when you get out there and start making political comments, it requires a whole lot of different talent, a whole lot of different skills that obviously he didn’t have. And he would not have been appointed had we known he was going to run . . .

MICHAEL EASLEY: And what’s unfortunate about it is, once a prosecutor says the wrong thing or says something that they shouldn’t say, then it’s on. I mean, the fight’s on. The defense attorneys don’t have a lot of choice but to defend their clients. So then the whole thing is getting tried in the press, and everybody loses on that. It looks bad for the team. It looks bad for Duke. It looks bad for the state. It looks bad for the judicial system. And that’s why you want somebody who understands the media ...

CHARLIE ROSE: Fair to say you would not have appointed him if you had it to do over?

MICHAEL EASLEY: That’s correct. I would voluntarily not appoint him, just as he voluntarily turned the case over to the attorney general.

Quirk on the Group of 88

Great column in today's Chronicle by 2005 graduate Chris Quirk on the Group of 88. He notes,

As their rhetoric becomes more evasive, it is clear that those who endorsed the "Moving Forward" piece (Feb. 23) are reluctant to move beyond their stance with sincere reflection. Some of them had self-appointed, leading roles in the unfolding plot last spring-it's a perilous road from that to then telling the narrative with any semblance of detachment, much less framing it without bias . . .

Based on their credentials and inclusion in a top-notch institution, our professors ought to be held to a very high standard-a hybrid expectations and admiration. As such, I am disappointed to see these men and women-who have shown their brilliance to so many of us in the classroom-go to such great lengths to isolate themselves, offering this patchwork recontextualization. For some, you are not in the position to teach which lessons are learned from this scenario because of, what you would have to admit, was a reckless self-injection. But, there is more to lose as there are more lessons down the road: Don't forfeit your ethos as it is your greatest tool as an educator and scholar-one which I think is a lot easier to reconstruct than your treatise on race, gender, tolerance and class as evidenced by the lacrosse incident.

Read the full text here.

The Mysterious April 10 Non-Meeting

Great article by Anne Blythe in this morning's N&O, analyzing Mike Nifong's sudden "memory loss" regarding the April 10 meeting. Gottlieb says Nifong was there. Himan says Nifong was there. Meehan says Nifong was there--and he said it in court, in front of Nifong, who didn't challenge him.

Blythe's article reveals that, in fact, Nifong says Nifong was there. In a January 16 letter to the bar, Nifong wrote, "I can only report that I have no recollection of that meeting and that I have no documentation or other evidence that I ever attended such a meeting."

But in that same letter, according to Blythe's article, Nifong commented about a May meeting with Meehan, explaining, "He also discussed with us the results of the tests he had performed since our April 10, 2006, meeting." (emphasis added)

It's no surprise that Nifong can't keep his stories straight: but to tell two different stories in the same letter?

Brodhead Conversation

With a new bowtie, I attended the latest of “A Duke Conversation” events, which last night was held in New York. The event consists of introductory remarks by President Brodhead, an address by one Duke professor, a “conversation” between Brodhead and two Duke students, and a few questions from the audience.

Last night’s faculty member was a reminder of Duke’s extraordinary strengths in the sciences. Dr. Barton Haynes is Professor of Medicine and Immunology and Director of the Duke Human Vaccine Institute; he spoke, extemporaneously, about his work with the Center for HIV/AIDS Vaccine Immunology. Haynes had no difficulty making science understandable for a general audience.

The two Duke students, Rob Harris and Claire Lauterbach, likewise were very impressive: both were remarkably good speakers who had compiled records at Duke that combined academic achievement with copious amounts of community service.

Brodhead was very effective at the gathering; he came across as intelligent, a polished speaker with a self-deprecating sense of humor. He spoke without notes, both in his introductory remarks and in his conversation with the students. In his comments about Duke, he outlined an ambitious future, celebrating an improved financial aid campaign and campus facilities, and promising that the remodeling of Central Campus would transform the University.

On more controversial matters, the president opened with a summary of the lacrosse case and briefly mentioned the Campus Culture Initiative; his comments were as notable for what he did not say as for what he did.

He conceded, ruefully, that the case had attracted extraordinary press attention—much more, he noted, than international topics such as the North Korean nuclear weapons program. Brodhead said that events last spring placed the University in an “extraordinarily difficult situation,” because it was forced to act upon “radically imperfect information.”

He described the crisis in the following way: a party occurred, followed, shortly thereafter, by an accusation. The media seized upon the claim, along with a district attorney who gave at least 40 interviews expressing with certainty that a rape occurred. Brodhead noted that Nifong’s boasts do not correspond with the evidence as it now seems to exist.

Notably absent from this recapitulation: any mention of the statements and conduct of the Duke faculty. No mention of Houston Baker’s open letter. No mention of William Chafe’s saying that the whites who lynched Emmett Till provided the appropriate historical context through which to interpret the lacrosse players’ behavior. No mention of the Group of 88, or Karla Holloway’s remarks, or Peter Wood’s apparent reign of slander.

Obviously, all of these statements look terrible in retrospect. But it seems they have to be acknowledged as part of the story, just as Nifong’s misleading statements must be so acknowledged.

Brodhead went out of his way to say positive things and only positive things about the lacrosse players. He noted their impressive rate of community service. He expressed his joy at the team returning to competition. He called new coach John Danowski a mensch. The tone of his comments was remarkably different than, say, his June 5 statement about the team, which seemed to go out of its way to put the team in the worst possible light.

Brodhead’s portrayal of the Campus Culture Initiative also raised eyebrows among those who had been following the debate. He told the audience that the CCI’s central elements were proposals dealing with housing, dining, and improving social space, especially for activities that didn’t involve alcohol. No mention of the CCI’s athletics proposals for a de facto withdrawal of Duke from the ACC. No mention of the Group of 88 Enrollment Initiative, the CCI recommendation that all Duke students be forced to take a class dealing with US “diversity,” courses disproportionately taught by Group members.

These remarks essentially continued his less-than-enthusiastic response to the CCI's most extreme proposals.

Finally, in his conversation with the students, Brodhead said that he would be “depressed” to work at a University where the administrators set student values; such work, he declared, should be performed by the students, with administrators setting the basic parameters, as if through a pitch pipe. It will be interesting to see if he meant what he said: certainly this vision clashes with the attempted values indoctrination of the CCI.

The Q+A session dealt with general matters; if I could have asked a question, two sprang to mind.

1) If—understandably—the University had to act upon “radically imperfect information,” why did Brodhead decline at least two offers from defense sources to give the University access to the entire discovery file? This decision remains one of the real mysteries, to me, of the case: it’s hard to fathom an argument why the University would not have wanted to obtain as much information as possible, if only to better inform its decisionmaking process.

2) Do some Duke faculty members—those whose views on race, class, and gender reflect the faculty status quo at Duke and most other campuses—not have to adhere to the Faculty Handbook, which requires Duke professors to treat with respect all Duke students, not just those whose race, class, or gender faculty ideologues find agreeable? It appears, based on the last 10 months, the answer to this question is that the Group of 88 and its allies do not have to adhere to the Faculty Handbook, but I remain puzzled as to why.

All in all, a most enjoyable evening (Haynes’ speech was fascinating), one that reinforced the sense that Brodhead’s reaction to the CCI’s most extreme proposals isn’t positive but continued his pattern or refusing to acknowledge in any way the misconduct by some members of the arts and sciences faculty.

The H-S Keeps to the Party Line

In one of the least surprising events of recent weeks, today's Herald-Sun features a glowing editorial on the Campus Culture Initiative:

It bravely addresses the disparity between Duke's lofty ideals and the day-to-day reality . . . It's an excellent place for a discussion to begin . . . We hope the ensuing discussion on these recommendations will be as bold as the report itself.

Does the CCI have any critics? Not according to the H-S. In an 18-paragraph editorial, it mentions none. Not the skewed membership, or the peculiarities of the Group of 88 Enrollment Initiative, or the decision to ignore the negative aspects of campus culture (such as the faculty's rush to judgment) to which CCI members contributed.

This decision, of course, is unsurprising. Like the potbangers and the Group of 88 (except for Arlie Petters), the H-S editorial page acts as if it is intellectually frozen in time on or about April 6, unable or unwilling to process anything that occurred after that date. The rest of the world, however, has moved on.

The Nifong Response

Broadly speaking, the Bar had made three charges against Mike Nifong:

(1) His inflammatory public comments violated Rule 3.8(f) of the bar’s Code of Professional Responsibility, which states that prosecutors must, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

(2) Some of these comments—particularly his speculation that condoms might have been used—constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

(3) The conspiracy into which he entered with Dr. Brian Meehan to withhold exculpatory DNA evidence violated provisions of both the state bar’s ethics code and at least three North Carolina laws.

Nifong’s defenses—offered both in a just-released letter by the defendant himself, dated December 28, and in a memorandum of law submitted yesterday by his two attorneys—are, to put it mildly, unconvincing. Moreover, it appears as if in the response, Nifong inadvertendly disclosed that he violated another provision of the bar's ethics code.

1.) Inflammatory Public Statements

This allegation primarily involves Nifong’s pre-primary publicity barrage, but also addresses some comments he made after securing indictments, such as his rambling e-mail to Susannah Meadows of Newsweek.

Nifong offers five lines of defense:

(a) All of his public statements were based on information he was fed by police or medical personnel;
(b) Rule 3.8(f) applies only after indictments have been secured, and can be trumped by other concerns;
(c) Rule 3.6, comment 7 supersedes Rule 3.8(f) when prosecutors so choose;
(d) He was naïve.
(e) The Bar should take his word when he says he didn’t intend to heighten “public condemnation of the accused.”

Nifong goes out of his way to implicate the police. Many of his inflammatory public statements, Nifong contends, were “consistent with matters of public record as outlined in the affidavit attached to the Application for Nontestimonial Identification Order.” So if he misled the public, it was because the police (or SANE nurse-in-training Tara Levicy) fed him misleading information.

Nifong argues that most of his statements “were made at a time when no individual suspects had been identified,” and therefore the requirements of 3.8(f) didn’t apply. Even if they did apply, he suggests, his statements had other motives: “to reassure the community that the case was being actively investigated by the Durham Police Department in an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.”

These claims are absurd. Suspects had been identified—46 of them, through a nontestimonial order initiated by Nifong’s own office. As Duke Law professor Thomas Metzloff correctly noted, “There was an accused, and the accused was the Duke lacrosse team-a defined group of people, identifiable and defined by Nifong in having them all give DNA samples. There clearly was an accused in the sphere of the rule.” Moreover, Durham has a mayor, and a city manager, and a police chief, and a Police Department spokesperson, any or all of whom could have “reassured the community” or launched “an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.” Nifong never explains why he had to fulfill this role (other than the obvious need of heightening his public name recognition before the primary).

As for statements made after he obtained indictments, Nifong claims that he was “entitled” to speak out “pursuant to comment [7] to Rule 3.6 of the Rules of Professional Conduct,” which states that “extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client . . . Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.”

This claim is, frankly, bizarre. Who was Nifong’s “client”? The accuser? The city of Durham? His political needs? His pension fund? Cy Gurney, his wife?

If the Bar won’t accept his legal reasoning, Nifong asserts naïveté: “Defendant further admits that at the time he made said statements that he did not fully understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case.”

That claim is absurd: the man who made famous the chokehold on MSNBC lacks the credibility to assert that “he did not fully understand the extent of the national media interest in this particular investigation.”

Then, finally, Nifong falls back on a laughable defense: he didn’t mean to do it. Nifong denies that any of his statements were “intended to heighten the public condemnation of an accused or that his actions were intended to heighten the public condemnation of an accused.” Nowhere in more than 40 pages does he provide any evidence to support his assertion.

This claim is absurd: the man who called the players “hooligans” and compared their “crime” to a cross-burning and a murder lacks the credibility to assert that he did not intend “to heighten the public condemnation of an accused.”

2.) “Dishonesty, Fraud, Deceit, or Misrepresentation”

This allegation chiefly involves Nifong’s repeated public suggestions that condom use might explain the lack of DNA evidence—even though the accuser not only never claimed her “attackers” used condoms, but specifically stated that they did not use condoms.

Nifong’s response was ingenious: “Defendant admits that the initial medical report indicates that the victim advised that a condom had not been used. However, based upon defendant’s experience, he has learned that a complaining witness rarely ever knows whether a condom was used in a sexual assault and as such, he denies any allegations . . . that his comments were misleading.”

I asked Kathleen Eckelt about the validity of Nifong’s assertion. She replied, “As far as the Duke case goes, I thought the accuser said from the beginning that no condom was used. As far as I can recall, I don’t think I’ve ever had a patient insist that no condom was used, then turn around and say that it was.”

3.) The DNA Conspiracy

The allegation here is that Nifong conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence.

Before analyzing Nifong’s latest line of defense, it’s worth reviewing his previous explanations for his actions.

(1) He absolutely did not know about Meehan’s exculpatory test results: “The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week.” (December 15, morning, in court)

(2) He absolutely did know about the results, but deliberately agreed to withhold the information for privacy reasons: “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.” (December 15, afternoon press conference)

(3) He might or might not have known about the results, but was overworked: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (December 23, New York Times)

(4) He might or might not have known about the results, but, distracted by political concerns, did not provide them: “Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers [two!], I was not always able to give the case my full attention.” (December 28, Nifong letter to bar)

(5) He might or might not have known about the results, but, because of the incompetence of his underlings, did not provide them: “Due to the volume of material to be copied for each defendant . . . several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were . . . [not] familiar enough with the facts of the case to have known whether anything was missing.” (December 28, Nifong letter to bar)

(6) Since these incidents occurred in Judge Smith’s courtroom, and Smith neither sanctioned him nor filed an ethics complaint against him, his actions must have been acceptable. (December 28, Nifong letter to bar)

(7) He’s being held to a different standard than others: “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.” (December 28, Nifong letter to bar)

(8) People are out to get him: “A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)” (December 28, Nifong letter to bar)

So, which of these eight (8) previous defenses—some of which were mutually contradictory—would Nifong offer in his filing yesterday? None.

Instead, Nifong offered three new lines of defense:
(a) He didn’t have to turn over any material until a trial date was set;
(b) The one-sided nature of the report is irrelevant, since Nifong knew he would have to turn over the underlying data, which is easily understood;
(c) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process.

The first claim is amusing: it essentially says that Nifong believes he is free to misrepresent items to the court and to withhold evidence at will before a trial date is set.

Imagine how that philosophy would apply to poorer defendants, especially in a place like Durham where the prosecutors have enormous power in setting trial dates. It is a philosophy that effectively guts both the ethics code and the Open Discovery law.

The charge that he was attempting to conceal information through entering into an agreement with Meehan is non-credible, Nifong maintains, because “the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants.”

This assertion is almost comical. As an experiment, it would be interesting to force Nifong to go through 1800 pages of highly technical forensics data and see whether he could “clearly provide” the relevant findings.

Finally, at least four times, Nifong asserts that North Carolina’s Open Discovery law, the law governing NTO’s, and the Constitution all do not require the state to turn over “complete report.”

Consider the ramifications of that statement. Nifong maintains that as long as the state turns over underlying data, it can produce a report that is wholly one-sided. If defendants can afford top-rate attorneys to interpret the data, that’s fine. If they can’t, they’re out of luck. This, it’s worth reiterating, is the man the state NAACP has propped up for 10 months.

Intermingled in these responses is the damning paragraph 212, which states

At the time that defendant met with Dr. Meehan, he was focused on the question of whether evidence had been discovered that corroborated the victim’s photographic identification of the two indicted Duke lacrosse players as her assailants and whether there was any evidence to corroborate her near certain photographic identification of a third Duke lacrosse player as a third assailant. As such, as of the time of the meeting with Dr. Meehan as alleged in paragraph 212, his attention was not focused on whether trace DNA from individuals not members the Duke lacrosse team which was found on certain items tested would be material evidence which would affect the outcome of any subsequent trial. Defendant therefore denies that he made any conscious decision, at the times referenced in paragraph 212 of the Amended Complaint, as to whether trace DNA of individuals not members of the Duke lacrosse team was potentially exculpatory, as a trial date had not yet been scheduled in this matter and he was still investigating the facts of his underlying case and had not focused on whether this information was exculpatory.

This statement is an admission that Nifong violated Rule 3.8, whose comment 1 affirms that “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.”

In paragraph 212, Nifong admitted that he was not looking at all the evidence, including evidence of innocence; instead, he was looking solely for evidence to convict. Finally, a few extraneous items from the filing:

(1) Nifong accuses Sgt. Gottlieb and Capt. Lamb of being misinformed when, on March 24, they memorialized that he was now in charge of the investigation.

(2) Nifong denies seeing Dr. Meehan on April 10, to be informed that no DNA matches existed to Reade Seligmann or Collin Finnerty. Instead, he says this meeting didn’t occur until April 21. This claim contradicts recollections of Meehan, Gottlieb, and Himan; and Nifong didn’t challenge it in court during Meehan’s December 15 testimony.

(3) Nifong concedes that ADA David Saacks filed a motion stating that the DNA tests would exonerate the innocent, but “denies any inference that he was bound by representations made by subordinates in his office prior to his having knowledge of the case.” This is an extraordinary claim: carried to its logical conclusion, it would suggest that prosecutors’ offices all over the country could routinely make representations to the court and then, if the results didn’t come back in the preferred manner, have the DA take over the case personally and say he’s no longer bound by earlier filings.

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.