More from Bannon on DNA

Another behind-the-scenes posting at Liestoppers from Brad Bannon, on the defense and DNA:

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1. On May 12, 2006, we received a report from DNA Security that appeared to us--and to every lawyer who has seen it & every expert but Brian Meehan who has reviewed it--to be a final written report that stated the results of all of its DNA testing, which included rape kit findings.

2. We consistently sought the underlying data for the testing, starting with general requests in May and June, and then with the specific requests filed in August, culminating in the argument and order of September 22, 2006, and the provision of underlying data that occurred on October 27 and November 1, 2006.

3. We consistently sought the substance of Brian Meehan’s statements to Mike Nifong & investigators during their meetings in April and May. Mike Nifong consistently represented, in pleadings and open-court statements to various courts, that we had received all of the information from those meetings that the law required.

4. Putting aside whether anyone on the defense team was or should have been surprised to discover that Mike Nifong’s repeated representations about the DNA were false (and/or that DNA Security had violated standard lab protocols, as well as its own lab’s protocols, by failing to report all of its DNA test results), we had no evidence which would support the request for an evidentiary hearing based on that premise until December. Put another way, the only “evidence” that may have existed to support that premise before my discovery in November was a “hunch,” and hunches are not grounds for evidentiary hearings based on the very serious accusation that an officer of the Court has intentionally & repeatedly lied to defense lawyers & multiple judges.

5. We received the DNA Security underlying data on October 27, 2006, and the SBI lab underlying data on November 1, 2006. Once the data from both labs was in our office, I began reviewing it. By the end of the month, I had completed my analysis and memorialized it in a 40-page memo. While I do not remotely deserve the “hero” label that some have given me for that work (it is, after all, my job), I do know that I reviewed the materials promptly & efficiently and that my approach to the work was (and was ultimately proved to be) absolutely correct. Simply put, no one lost time or money on my DNA work because of the manner in which I chose to approach it.

6. Despite what television & movies may lead some people to believe, and despite what some people might believe about the very experienced members of the defense team in the Duke case, we do not ordinarily engage in a detailed, scorched-earth analysis of every type or classification of evidence in a criminal case. That’s not because we’re naïve or incompetent or lazy. It’s because taking the same approach to such evidence in every case would be a waste of time & resources, whether the resources are your client’s (in the case of a retained case) or the State’s (in the case of an appointed case). Any good lawyer knows that each specific case calls for a case-specific approach to the evidence, no matter what type of evidence it is (e.g., “confessions,” eyewitness identification, witness statements, forensic evidence, scientific testimony, psychiatric testimony, etc.). And, as I have posted before, as any good criminal lawyer would know, and as is often the case with DNA evidence in particular, most criminal cases involve many issues & many types of evidence that are not contested, even if the charge itself is contested. The classic example for DNA testing is an allegation of acquaintance rape. If the defendant concedes sexual contact but maintains that it was consensual, you will readily concede the validity of DNA results that identify your client’s DNA on a vaginal swab. You are not going to waste your client’s money on extensive analysis of the DNA (by yourself or by an expert), and you are not going to waste your time focusing on DNA to the exclusion of, say, developing evidence & arguments to support the consent defense.

7. But there are obviously cases in which certain types of evidence, including DNA, may be “contested” issues. The legal teams for Collin and Reade had essentially decided that they would not be contesting DNA issues in the case. And, in fact, Joe & I had not decided whether we would be contesting DNA issues in the case on behalf of Dave. As many of you have noted, DNA Security reported that it found DNA from a single male source on the vaginal swab, indicating that there was not an “absence of evidence” in the rape kit. Regarding the fingernail conclusion, it’s not exactly mysterious that some of Dave’s DNA characteristics would appear on items recovered from his bathroom trash can using the most sensitive DNA testing known to man, which can sometimes identify DNA from less than a single human cell. So while there were reasons to embrace the DNA Security report and no real reasons to fear it, Joe & I still knew that the fingernail finding would be used by Mike Nifong not only to try to convict Dave Evans, but to argue the overall credibility of Crystal Mangum’s allegation (which involved a struggle with her attackers during which she lost her fake fingernails). Because of that, and because of the differential findings by the two labs about the fingernail mixture, we had reason to explore the reported findings further, and to look beyond the final written reports, which prompted the review of the underlying data from both labs.

8. So that is where there review began, but it obviously did not end there. If I had put on blinders to everything but the fake fingernail findings, I would have never made the rape kit discovery. Also, if you read the December 13 Motion, we raised other issues about deficiencies in DNA Security’s work that I discovered when reviewing all of the data. Also, we made several other helpful discoveries that, thankfully, never had to see the light of a trial day.

9. We did send the data to an expert when we received it. The purpose of my work in November was to narrow the issues we would focus our expert on. Again, any good lawyer would do it that way, and any good expert would want it done that way (as opposed to a document dump on an expert with a general request of “Tell me about this”). Finally, any client would want it done that way, because--despite suggestions to the contrary in some posts--that approach ultimately serves the twin goals of saving time & money while making sure the lawyer knows everything he needs to know to deal with the issues if or when they arise in the courtroom. When our focus was appropriately narrowed (and the issues appropriately defined) by my work in November, we provided my memo to the expert, and we met with him in early December to talk about all issues, only one of which was the unreported male DNA in the rape kit. In fact, if we had gone to trial, we would have highlighted significant additional points related to the DNA testing in this case that would not have been as explosive as the rape kit DNA discovery (including the agreement not to put it in the report), but would have dealt with similar issues about the subjective analysis & reporting decisions made by DNA Security (especially in light of the lab’s protocols).

10. IMPORTANT FINAL POINT: suspicions & hunches & Michael Gaynor’s couple of sentences aside, there was no PROOF of DNA Security’s failure to report the exculpatory DNA findings until we analyzed the underlying data we received on October 27, 2006, and there was no proof of the intentional agreement to omit those findings from DNA Security’s final report until December 15, 2006. Regardless of the standards that exist (or do not exist) in the blogosphere or other realms of commentary for making serious accusations of wrongdoing, there are standards in courtrooms that must be met before a responsible and ethical officer of the court should do so. Responsible and ethical officers of the court who know they will be litigating many issues in front of a judge before a case is finally over do not make accusations without having bullet proof supporting evidence. In fact, such supporting evidence is often called an “offer of proof.” And standing up and saying, “We know Nifong is lying, because, well, just look at him, and think about all the bad stuff he said to the press, and we just know Crystal Mangum is a prostitute rather than a dancer or performer, and there’s no way that she only had her boyfriend’s DNA in her…” well, that’s not an offer of proof. That’s an offer of suspicion & hunch. When we reviewed the materials that were provided in late October and early November, we finally had the basis of a substantial offer of proof regarding the unreported exculpatory DNA in the rape kit (whether that finding surprised us or not). We basically presented that offer of proof in the form of our December 13 Motion, and we nailed the coffin shut at the hearing on December 15.

The Gottlieb Files

Last week brought unusual news from the Whichard Committee: not only has the second meeting of the committee not yet been scheduled, but City Manager Patrick Baker said he didn’t even know if Sgt. Mark Gottlieb would testify.

Given Gottlieb’s performance in this case, anything less than a full-scale, public questioning of the sergeant would render the committee useless.

Gottlieb, it’s worth remembering, entered this case with a disturbing record of having arrested ten times as many Duke students, all for trivial offenses, as the other three District Two supervisors combined in the months before the lacrosse party. More problematic, several students leveled credible allegations of misconduct—ranging from lying on the stand to excessive use of force to discrimination based on ethnicity.

Despite this behavior, no evidence exists that the DPD took disciplinary action against Gottlieb. Indeed, in a September 2006 interview, Capt. Ed Sarvis stated that Gottlieb was following official DPD policy—implicitly suggesting that the department wanted more officers like the rogue sergeant, at least in dealings with Duke students.

Gottlieb, as we all know, claimed to have retained no contemporaneous notes; in his Bar deposition, he stated that he had “a dry-erase board” in his office, and “was under the impression that [Ben Himan] was taking photographs of the board, and when we finished that we would clear it. That wasn’t done.”

In July 2006, he nonetheless produced a 33-page, typewritten memorandum, which described in minute detail conversations from months before. In his deposition, he admitted that he wrote most of this memorandum in early July, just before its submission.

There are only two logical explanations for the “dry-board/straight-from-memory” notetaking style:

1.) Gottlieb is stunningly incompetent.

2.) The Gottlieb memorandum attempted to obstruct justice by manufacturing inculpatory evidence.

The second explanation seems to be the far likelier one. The “straight-from-memory” memorandum contradicted other material in the discovery file on at least eleven occasions. The memorandum contradicted the handwritten or typed notes of Officer Himan. Of Officer Soucie. Of Officer Reid. Of the UNC doctors.

Each and every one of these contradictions produced a version of events more favorable to Mike Nifong’s case.

The current DPD strategy is to “blame Nifong.” But Mike Nifong didn’t order Mark Gottlieb to produce the “straight-from-memory” memorandum. That document was all Gottlieb’s work.

To review the sergeant’s performance over some key dates of the investigation:

March 16, 2006: Gottlieb and Himan interviewed Crystal Mangum at her home; other officers showed her a photo array, using lacrosse players not named Matt, Adam, or Brett as fillers. Still another officer, R.A. Reid, photographed Mangum.

1.) Himan’s handwritten notes, produced on the spot and thus well before any indictments, had Mangum describing one attacker as a “white male, short, red cheeks fluffy hair chubby face, brn”; a second as “heavy set short haircut 260-270”; and the third as “chubby.” None of these descriptions even remotely resembled Collin Finnerty; and could have resembled Reade Seligmann only if Mangum had Seligmann weighing 50 pounds more than he did.

On the other hand, Gottlieb’s memorandum, produced well after indictments, recalled Mangum giving dead-on descriptions of the three accused players—descriptions that were very close to the three players’ profiles from the Duke lacrosse website.

2.) Himan’s notes made no mention of Mangum claiming the players robbed her—indeed, Mangum had consistently claimed in the initial days after the party that Kim Roberts had robbed her.

On the other hand, Gottlieb’s memorandum, produced well after indictments, recalled Mangum claiming that “after the men raped her, one of the men took her purse from her.”

3.) Himan’s notes portrayed Roberts as a conspirator in the rape, since Mangum “stated that Adam dragged her to the car and wiped her off with Nicki.”

On the other hand, Gottlieb’s memorandum, produced well after indictments and a time when Roberts was viewed as a fellow “victim,” made no mention of this claim. The sergeant did, however, recall Mangum denying that she had much to drink that evening, and claiming “I was screaming so loud” as she was choked during the “attack.” Himan’s contemporaneous notes had no such recollections. Gottlieb’s item, of course, was produced after Nifong had gone on national TV to demonstrate the chokehold.

4.) In the photos from this session, Officer Reid reported that Mangum had only a cut heel, a cut toe and bandages on both knees.

On the other hand, Gottlieb’s memorandum, produced well after indictments, claimed that “Reid stated she had the onset of new bruises present” on her face and neck.

March 23, 2006: The 46 white lacrosse players arrived at the Durham Police Department station for the photo and DNA session mandated by the non-testimonial order. Gottlieb told several players, by name, how different they looked from their Duke website photographs. In his deposition for the Bar, however, he claimed that he couldn’t recognize any of the players, except the captains, as of early April. And in his “straight-from-memory” memorandum, he made the almost comical assertion that he devoted himself on this day to ensuring that the players were comfortable and shielded from the media.

March 27, 2006: Gottlieb and Himan met with Nifong for the first time, to discuss the case. Though the inquiry was eleven days old, the police hadn’t checked into Mangum’s background, to see whether she had filed a rape claim previously. (They never would conduct such a check.) Nor had they taken an official statement from her. Nor had they asked her about the discrepancies between her claims and Kim Roberts’ official statement, which was given on March 22.

March 31, 2006: Gottlieb and Himan met with Nifong to set up the flawed April 4 lineup. According to Gottlieb’s memorandum, “Mr. Nifong suggested . . . we were under the impression the players at the party were members of the Duke Lacrosse Team.” Even though the police had learned on March 28 the names of the two non-lacrosse players at the party, Gottlieb didn’t inform the DA of this fact.

April 4, 2006: In violation of the DPD’s General Order 4077, Gottlieb, the officer supervising the investigation, ran the suspects-only lineup. Even though Mangum claimed that photos 4 and 5 both looked like one of her attackers, Gottlieb asked different follow-up questions regarding the two identifications. (The ID of Dave Evans received much more detailed questions.) Though he subsequently claimed that the session was intended only to have Mangum identify witnesses (or to determine if she was on ecstasy the night of the party), Gottlieb wrote that he taped the session so a “jury” could subsequently see it.

April 5, 2006: All officers involved the investigation met. According to Officer Soucie’s notes, they decided on items to be done before any arrests were made, including interviewing Devon Sherwood and interviewing Mangum’s two “drivers.” (No one in the DPD seems to have found it at all unusual than an unemployed woman without a college degree had two private drivers.) Despite the decision to do so, the police never interviewed Sherwood; their interviews with the “drivers” yielded material harmful to the case. Gottlieb’s memorandum contained no mention of this meeting, a remarkable omission given his ability to remember intricate details of an interview with Crystal Mangum that had occurred 20 days previously.

April 6, 2006: Mangum finally gave her official statement, in which she asserted (for the first time) that three other lacrosse players dragged Roberts away from the door at the start of the “attack.” Even though the official version now had Roberts as a witness to the start of the “crime,” Gottlieb made no effort to re-interview Roberts before seeking indictments.

Early April 2006: The DPD received the medical file from UNC, which recorded Mangum saying that she was “drunk” and “felt no pain” on the night of the “attack”—even though SANE nurse-in-training Tara Levicy had based much of her analysis on her belief that Mangum supposedly was in pain and was not drunk. Mangum also claimed to have been hit in the face and pushed backwards into the sink, on which she hit her head, details that didn’t appear in her March 14, March 16, or April 6 versions of events.

When asked about these discrepancies in his Bar deposition, which occurred in spring 2007, Gottlieb—astonishingly—replied, “This is not a report that I have had time to review.”

April 10, 2006: Gottlieb joined Nifong and Himan in the first meeting with Dr. Brian Meehan, in which Meehan told them that while no matches to the lacrosse players’ DNA existed, there were matches to unidentified males. With the exception of Mangum’s “boyfriend,” the DPD never learned the identity of these males.

April 17, 2006: Gottlieb testified before the grand jury that indicted Seligmann and Finnerty. In his Bar deposition, Gottlieb said that he told the grand jury that “as soon as Nurse Levicy was able to calm her down, which didn’t take long at all, she never changed her story from that point.”

In fact, as the chart below shows, Mangum told Durham law enforcement three stories in which she had different people doing different things to her; different numbers of people doing different things to her; and, actually, different things being done to her.

. . . . . . . . . . . Oral . . . . . Anal . . . . . . Vaginal . . . . . Married

Matt . . . . . . . .X . . . . . . . YZ . . . . . . . XZ . . . . . . . . X

Brett . . . . . . . . - . . . . . . .YZ . . . . . . . .YZ

Adam. . . . . . . XY . . . . . . .X . . . . . . . . .- . . . . . . . . . .Z

A green X corresponds to the story that Mangum told Tara Levicy on March 14, 2006; a blue Y corresponds to the story that Mangum told Gottlieb and Himan on March 16, 2006; a red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

In making its indictments, therefore, the grand jury relied on Gottlieb’s false assertion that—despite transforming Kim Roberts from a criminal to a fellow victim, and despite alleging that different people did different things to her, and despite sometimes claiming to be drunk and sometimes not, and despite changing her mind on whether first-name aliases were used—Mangum “never changed her story” between the time she first encountered Tara Levicy to the time that Gottlieb spoke to the grand jury.

April 21, 2006: Gottlieb joined Nifong and Himan in their second meeting with Dr. Meehan, who told them that the DNA of Dave Evans—and two percent of the male population of the United States—couldn’t be excluded as among the mixture on Mangum’s false fingernails, which were found in Evans’ trashcan. In his Bar deposition, however, Gottlieb recalled Meehan stating that the odds of the fingernail DNA not being Dave Evans’ were “one in 900-some trillion.” He gave no evidence of having read the Meehan May 12 report, which would have cleared up his misconception.

April 27, 2006, 3.38pm and 3.54pm: According to Gottlieb’s sworn statement to the Bar, this 17-minute period represented the only time in the entire investigation in which he kept contemporaneous, handwritten notes. The item recorded: an unsuccessful search for labs that might test Mangum’s hair.

That’s the Gottlieb record in the case:

• Misrepresenting facts to the grand jury;
• Producing a “straight-from-memory” memorandum that appeared designed not to record the truth about the investigation but to fill holes in the prosecution’s case;
• Failing to investigate obvious items that might contradict one or all of Mangum’s stories;
• Violating standard police procedure in not keeping contemporaneous notes.

Sgt. Gottlieb remains on the beat in Durham. No record exists of any disciplinary action having been taken against him.

Group Profile: miriam cooke

[The latest installation of a Monday series profiling Group of 88 members, which has included posts on Eduardo Bonilla-Silva, Wahneema Lubiano, Pete Sigal, Grant Farred, Sally Deutsch, Joseph Harris, Paula McClain, Jocelyn Olcott, Irene Silverblatt, Maurice Wallace, and Kathy Rudy. The posts examine the scholarship and teaching of Group members, delving into the mindset of professors who last spring abandoned both the tenets of Duke’s Faculty Handbook and the academy’s traditional fidelity to due process. An item to keep in mind: in higher education, professors control the hiring process. The people profiled in this series will craft future job descriptions for Duke professors; and then, for positions assigned to their departments, select new hires.]

Group of 88 member miriam cooke (she capitalizes neither her first nor her last name) is a professor of Arabic in the African & Asian Languages & Literature Department, in which she has served two terms as chairperson. She received her Ph.D. from Oxford in 1980.

cooke’s research focuses on gender in the Middle East. She has published widely, with books that include War’s Other Voices: Women Writers on the Lebanese Civil War; Women and the War Story; and Women Claim Islam: Creating Islamic Feminism through Literature.

Several themes permeate cooke’s scholarship:

1.) The legacy of sexism, not her subjects’ insignificance, explains the lack of attention devoted to the female activists who have interested cooke.

Her 1988 book on women writers in the Lebanese civil war theorized,

As the war dragged on, the middle and upper class Beiruti women found themselves increasingly alone, and they began to write about their experiences as women, and to recognize through articulation their previous oppression and marginalization. As negative awareness of otherness crystallized, the selfness of the “center” came into question. Intensified, this questioning became the first step in the deconstruction of a dominant discourse. The Beirut Decentrists came to realize that discourse, the conduit of power, could also become the locus of its ultimate threat.

In writing about these marginal but ideologically appealing figures, cooke claimed that she challenged “the notion that only men write about war. [This revelation doubtless would surprise Barbara Tuchman.] Although of differing political and religious beliefs, it is these Decentrists—women bound by common exclusion from both the literary canon and social discourse—whose vision will rebuild shattered Lebanon.”

As anyone who has followed contemporary events in Lebanon would understand, the women of cooke’s study appear to have exercised little, if any, influence in “rebuild[ing] shattered Lebanon.” Perhaps the world would be a better place if cooke’s Decentrists had influence over Lebanon’s civic culture. But basing arguments on what an author wished had happened does not constitute good scholarship.

2.) Islam is a female-friendly religion; to the extent that Muslim males have engaged in sexist behavior, Europe, the United States, or Israel are to blame.

cooke has stated that she wants to highlight “what some Muslim women have named Islamic feminism. Over the world there are Muslim women who are going back to the Koran, to Islamic law, to the Sunna of the Prophet, and saying, ‘We have a religion whose texts can be read in a very woman-friendly way. The problem is, that for centuries men’s interpretations focused on pushing women out of public space. Today Muslim women are themselves interpreting these Islamic texts. They claim the right to do so because every Muslim has the right to interpret the foundational texts since there is no priesthood in Islam, there are no intermediaries between God and the individual.’”

cooke has gone to great lengths to rationalize behavior in some Middle Eastern societies that most people would consider anti-feminist. She told City Journal’s Kay Hymowitz that “polygamy can be liberating and empowering. Our norm is the Western, heterosexual, single couple. If we can imagine different forms that would allow us to be something other than a heterosexual couple, we might imagine polygamy working.”

As Hymowitz further noted,

Some women, [cooke] continued, are relieved when their husbands take a new wife: they won’t have to service him so often. Or they might find they now have the freedom to take a lover. But, I ask, wouldn’t that be dangerous in places where adulteresses can be stoned to death? At any rate, how common is that? “I don’t know,” cooke answers, “I’m interested in discourse.” The irony couldn’t be darker: the very people protesting the imperialist exploitation of the “Other” endorse that Other’s repressive customs as a means of promoting their own uniquely Western agenda—subverting the heterosexual patriarchy.

Even cooke doesn’t claim, however, that Middle Eastern societies always have good records in their treatment of women. But this development, she contended, is the fault of the West. “The colonial experience,” wrote the Group of 88 member, “complicated relations between men and women, so that it is only in the desert beyond the reach of the colonial arm that fear does not predominate and Islam can operate as it was originally intended for the benefit of women.”

In a winter 2003 interview, cooke asserted, “When men are traumatized [by colonial rule], they tend to traumatize their own women . . . Now there,” she added, “is a return of colonialism that we saw in the nineteenth century in the context of globalization. What is driving Islamist men is globalization.” How her thesis would describe the experience of India—the “jewel of the crown” in the imperialist era but a major beneficiary of globalization—cooke didn’t reveal.

cooke’s tendency to exclusively blame the West (and Israel) for the problems of the Middle East accounted for her unusual interpretation of the 9/11 terrorist attacks—which she traced back “to the establishment of Israel in 1948.” Indeed, her celebration of the “agency” of Muslim women has come close to rationalizing the acts of Palestinian women who engaged in suicide-murder attacks against Israel. After one such murder, she remarked, “For those of us who really are concerned with women’s role in the Arab public square, in the way in which women have been trying to empower themselves vis-à-vis the U.S., vis-à-vis old colonial powers, vis-à-vis their own men, the situation has become so desperate that now women’s participation in war is a mark of absolute hopelessness.”

Turning her attention to the United States, cooke argued with the 9-11 attacks, “American citizens felt for the first time how the apparently innocent business of moneymaking in New York City and of policymaking in Washington DC are seen as criminal elsewhere. The daily deals struck in the financial and military-political capitals of the U.S. have direct and mostly negative consequences for most of the rest of the world. These consequences are invisible to Joe-6-pack, they are searingly obvious elsewhere.”

Imagine cooke’s (appropriate) outrage if one of her scholarly critics had used a phrase like “Jane-3-pradas” as part of a claim that educated women are clueless.

3.) Disagreeing with cooke threatens the principles of the academy.

A few years ago, a significant debate occurred over reauthorizing Title VI, a government program that funds area studies (Middle East, Africa, Latin America, East Asia). The Middle East Studies Association (MESA) has a well-deserved reputation for ideological one-sidedness; many in Congress argued that the government needed improved oversight to ensure that federal dollars went to increase knowledge about other regions, rather than simply funding the latest academic fads. In cooke’s mind, this proposal was not only unacceptable but a grave threat to academic freedom: Middle East Studies professors—apparently alone among recipients of government funds—should be free from oversight on how they spend the public’s money. As she wrote,

What is at stake here is academic freedom and the contradictory claim that it must be protected by surveillance, control and ignorance. When the nation is in extreme distress, educational institutions must devote themselves to the national project. There is an historical precedent for this rhetorical linking of academic freedom and its suspension as though they were the same thing. In her brilliant account of the roles of various institutions and individuals in shaping the Nazi conscience, [fellow Group of 88 member] Claudia Koonz has revealed how dangerous was the tailoring of education for specifically national purposes.

To compare legislative oversight of a government-funded program in which universities voluntarily participate to the Nazis’ education program is a breathtaking assertion.

cooke likewise has lashed out against Campus Watch, an organization concerned about the anti-Israel bias that too often permeates Middle East Studies classes. The group has a website that does nothing more than publicize the writings and remarks of Middle East Studies professors. To cooke, however, “Campus Watch is the Trojan horse whose warriors are already changing the rules of the game not only in Middle East Studies but also in the US University as a whole. They threaten to undermine the very foundations of American education.”

Apparently Justice Brandeis’ dictum—“sunlight is the best disinfectant”—has no place in miriam cooke’s academy.

In a comment thread a few days ago, several Group sympathizers implied that only specialists in the relevant field could even describe the academic work of Group members. cooke has taken this approach one step further, implying that only specialists in the relevant field who agree with the Group’s approach can review Group members’ work. In 1990, the International Journal of Middle East Studies reviewed cooke’s study of Lebanese women writers as well as her translation of stories by Egyptian writer Yahya Haqqi. Magda Nowaihi observed that cooke had made “numerous mistakes in translation, as well as deletions that detract from the meaning of the original text.” The reviewer offered two full paragraphs of examples of cooke’s incorrect translations. She added that while cooke’s deletions were deliberate, they too frequently distorted the meaning of Haqqi’s text.

Sabah Ghandour, meanwhile, noted that the Group of 88 member’s study of Lebanese women writers “definitely expands our information about literature written by and for women,” but lamented that “cooke seems to be ideologically motivated when analyzing the work of some important literary figures.”

Ghandour laid out how cooke treated males and females differently throughout the book. Males were “writers,” women were “authors”; men’s writings were “nationalistic,” while women’s were “patriotic”; and cooke equated the “perspective of the narrator/character with that of the author when discussing literature by male writers . . . while she distinguishes quite clearly between author in narrator in women’s writings.” In the end, it appeared that cooke was so intent on using gender as a “rigid theoretical framework” that she threatened to drown “out other crucial variables in the literature written on the Lebanese civil war.”

The reviews strongly displeased cooke. She claimed that Nowaihi viewed translation as a “pedestrian operation” that required word-for-word recapitulation. (Nowaihi had said nothing of the sort.) The reviewer, claimed cooke, failed to understand that, as Derrida, one of her intellectual mentors, contended, “translation is Umdichtung (poetic transposition).” Meanwhile, after noting that “it would be otiose to repeat the argument of War’s Other Voices,” cooke nonetheless did so, rather than responding to the specific criticisms that Ghandour made. Both reviewers, cooke claimed, were motivated by “outrage” at her “philological choices and theoretical decisions,” with the reviewers attempting to silence her voice in academic debate.

cooke’s response was so over-the-top that the journal took the unusual step of giving both Ghandour and Haiwairi an opportunity to reply. Ghandour lamented that since cooke apparently could not accept “a reading of the text that differs from [her] own,” she instead resorted to personal attacks. Nowaihi likewise regretted cooke’s eagerness to claim that ideological bias explained the reviewer’s motive, noting “the vast majority of my differences with her go well beyond differing theoretical approaches.” Nowaihi added that good-faith disagreement among academic specialists did not constitute a “refusal to acknowledge” cooke’s views.

Responding to criticism by instead lashing out at the critics, suggesting an attempt to silence dissenting voices in the academy . . . Where have we recently seen that strategy by cooke and her colleagues in the Group of 88?

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cooke already had a reputation as a professorial protester before she joined the Group of 88. She’s one of the two dozen professors who form DukeDivest, an organization demanding that Duke divest from all companies with military ties to Israel, citing allegations of human rights abuses. (The divestors did not call for Duke to divest from companies with military ties to any other nation, including those with acknowledged human rights abuses in the Arab world; Israel, in their mind, deserved unique treatment.) She also was one of the more than three dozen Duke professors who signed onto a 2003 Chronicle ad denouncing George Bush’s foreign policy—an ad that violated Duke rules, since it was paid for by department funds.

It’s not hard to imagine someone with such a profile signing onto the Group of 88 statement. cooke, indeed, appears to affiliate with just about every politically correct initiative that comes along. In late March, even before AG Roy Cooper had declared the three players innocent, she had moved on to her latest cause, joining with members of a group called “Fight Imperialism Stand Together,” holding a sign reading, “No More Persecution.” Their agenda? Rallying on behalf of Sami al-Arian, a former University of South Florida professor who pled guilty to conspiring to aid Palestinian Islamic Jihad, a terrorist organization. A few weeks later, the group called for a march on Durham to protest Cooper’s exoneration of the three players.

In spring 2007, cooke taught “Arabic Culture & 9/11”; this fall, she’s offering “Topics in Arabic.”

[Update, 6.30pm: Debrah uncovered this video of cooke with her husband, Duke professor Bruce Lawrence.]

The Nifong Effect

The effects of Mike Nifong’s activities have spread well beyond the North Carolina borders. In Maryland, the Baltimore Sun recently profiled Ocean City’s chief prosecutor, Joel Todd. Todd is set to prosecute the locally high-profile case of Christy L. Freeman, who allegedly murdered her four children.

The Nifong effect? Sun reporters Andrew A. Green and Chris Guy explain,

Talbot County prosecutor Scott G. Patterson, the newly chosen president of the Maryland State’s Attorneys’ Association, said high-profile cases such as Freeman’s can be a real test for prosecutors.

“You don’t want to be a Nifong, out trying a case in the media, but at the same time, the media have a right to ask questions,” Patterson said, referring to Michael B. Nifong, the former prosecutor in Durham, N.C., who was widely criticized for pursuing rape charges against three Duke University lacrosse players who were later cleared. “Those kinds of cases become extremely time-consuming. Everything gets ratcheted up.”

Meanwhile, just to the north in Pennsylvania, this month’s attorneys’ E-newsletter of the State Disciplinary Board featured the Nifong case as a way to remind lawyers of the importance of ethics.

The newsletter noted how some have feared that Nifong’s behavior might make prosecutors fearful to bring marginal cases. That, it noted, would be the wrong lesson, since “this was a flagrant pattern of misconduct, far outside the scope of normal prosecutorial conduct and far more serious than just bringing a bad case. Lawyers in general, and prosecutors in particular, will probably not face serious discipline merely for bringing or proceeding with a marginal case. Lawyers who lie to investigators, however, almost certainly will.”

The newsletter further noted that in Pennsylvania, as in North Carolina and in most states, it’s the prosecutor’s job to achieve justice, not “win” at trial.

And, of course, the Nifong effect remains powerful in North Carolina. In yesterday’s N&O, reporter Titan Barksdale observed, “Mike Nifong may have never made his way to the legislature this year. But the former Durham County district attorney's presence was felt there nonetheless,” as the state legislature considered criminal justice issues.

Nifong was critical to passage of bills mandating a statewide baseline for eyewitness ID procedures and also to allow the governor to remove disbarred district attorneys or judges from office. And the legacy of the intentional agreement to withhold evidence between the ex-DA and Dr. Brian Meehan was critical in blocking prosecutors’ efforts to noticeably scale back the state’s open discovery law.

Senate majority leader Tony Rand was blunt: "Of course Nifong was on their minds in the consideration of those bills. It was sort of a specter that was hovering over the whole thing. You couldn't help but think about it.”

To the extent that Nifong’s behavior has highlighted the importance of legal ethics around the country, the outcome is a good one.

Hat tip: T.B.

Jesse Jackson, Then and Now

Mid-April 2006:

“Something happened on the night of March 13^th—something so compelling that Durham District Attorney Michael Nifong was prompted to say, 'This case is not going away’ . . . We know that the two women were abused . . . The Duke scandal should lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many. But it shouldn’t take the brutalizing of a mother of two to raise these issues.”

Mid-July 2007:

Jackson was critical of Commissioner Bud Selig for distancing himself from [Barry] Bonds, saying, “The judge and jury will determine the outcome of the controversy. The commissioner of baseball, by inference, is suggesting he’s guilty, which I will not be a part of. That leaves Barry out in the cold without the infrastructure of baseball. That’s a very low blow.”

Hat tip: T.M.

Jim Cooney on the Dec. 15 Hearing

A fascinating post from Jim Cooney at the Liestoppers forum, discussing the defense attorneys' mindset in the weeks running up to the Dec. 15 hearing:

There appears to be an almost obsessive focus on a single tree now, as opposed to what the forest looked like in December.

From Reade Seligmann's perspective, in December this case was about an alibi which proved he could not have committed this (or any crime) against Precious. The elements to this were his timeline as established by photographs, ATM data, Elmostafa's cab ride with Rob Wellington, his dorm card reader and Jason Bissey's observations. While the timeline as a whole was as close to airtight as you can get (Alan Gell to one side who was actually in jail at the time of the crime), the individual elements each comprised a separate moving piece. In particular, the photographs of the party presented a very difficult chain of custody issue because the photographs needed to be introduced as substantive evidence in order to make the MetaData admissible - - the actual chain of custody left a lot to be desired and required a significant amount of work to establish not only the authenticity of the pictures but that the metadata had not been disturbed.

Against this backdrop, the DNA report from DNASI showed that there was no DNA from Reade, but that there was DNA from Precious' boyfriend. This showed (1) there was DNA to be found, (2) that it was not Reade and (3) how sensitive the test was since, if you believe Precious, she had not had sex for a week. Under these circumstances, as I am proving that Reade could not have committed the crime because of his alibi, DNA is only one piece of a number of other pieces. In the physical evidence, the lack of DNA simply matched up with the lack of fingerprints, hairs, fibers or any other trace evidence connecting Reade to the bathroom or to Precious. I had lined up two experts in crime scene analysis and trace evidence to testify that it would have been impossible for this rape to have occurred this way without leaving any trace evidence whatsoever.

Moreover, my clients (as well as Brad/Joe's and Wade's) were suffering greatly and we as a team had placed a priority on gaining a dismissal of these charges. Since there is no such thing as a pretrial motion to dismiss under NC criminal law, we focused on the suppression motion as essentially a motion to dismiss - - since this was the only evidence. We reasoned that if we could get the Powerpoint ID thrown out, and then bar Precious from a hysterical in-court ID, the case was over.

Against this backdrop, searching through the DNA data in order to see if Meehan and Nifong were lying was not a priority as of December - - the DNA we had did nothing but help us and we frankly had bigger issues to focus on.

My point on how close we were deals with the reason we were even looking at the DNA in November and December. The only marginally inculpatory finding in the report was the fingernail mixture - - though I still do not believe that finding DNA on something that was in Dave Evans' own wastebasket is inculpatory. This is what led us to assign the DNA to Brad, while I dealt with Reade's alibi and the Motion to Suppress (and Change of Venue). Wade and Doug had their hands full with establishing Collin's alibi and dealing with Levicy and the other physicians at Duke (as a way of trying to blunt where we believed Nifong would go - - that she was "acting" like a rape victim). In addition, I had the tasks of consulting with Dr. Burgess on rape trauma syndrome and dealing with the forensic psychiatrist we retained - - part of my job was to analyze the mental health records and then have them reviewed by Dr. Burgess and our forensic psychiatrist.

In terms of priorities, until Brad stumbled across these additional DNA findings, our central priority was the Motion to Suppress hearing at which we anticipated essentially putting on most of our defense and all of our forensic psychiatric testimony and testimony from Dr. Burgess. As with all things in this case, we needed to do this to let the public know exactly how disturbed this woman was as a way of undermining both her identification and, ultimately, her claims.

The DNA was simply not an issue for Reade or Collin and was only a marginal issue as of December for Dave (though it seemed to be an important issue for Nifong so Brad and Joe rightly prioritized their review).

In retrospect, the DNA transformed this case - - none of us knew this in early November when we formulated our plan and began to implement it. Had it not been for the fingernails, we would simply not have reviewed the DNA material until much closer to trial.

Bottom line is that the big picture in November and December was that we were taking the position that the report's finding of no DNA was exculpatory and was simply one more piece of a number of pieces establishing alibis and the lack of any crime. At that time and with that perspective, there was simply no reason for us to pour through the data on the assumption that Meehan and Nifong were hiding something and misleading us about it.

When Brad discovered what had happened, the significance was threefold. First, it obviously showed that other DNA could be harvested, which strengthened our position that this crime could not happen without leaving DNA. Second, it showed the world what we knew about Precious the "part-time" dancer (and showed her to be lying in her statement to police, which we already knew). Finally, and most importantly to the ending of the case, it showed that Nifong knew he had no case and had resorted to lying and cheating to try to avoid the truth. This last point is what blew up the case - - that Nifong was exposed.

While many now say that they knew this all along (and some of them might be telling the truth), the fact is that the DNA was all exculpatory from the beginning and we had no reason to think that there was even more that we were not being told. As to those attorneys who may now be claiming that they were advising anyone on the defense team that there was more to the DNA than we were seeing, that is just simply not true - - and appears to be part of an orchestrated campaign on behalf of at least one person to try to claim credit for this result and discovery when he is entitled to none.

Would we have found it anyway? Who knows. If we win on February 5 - - and I believe that we would have - - the answer is no. If we go to trial, we probably would have found it as we were cleaning up the details of the case, but in being totally truthful with myself, it might have been very late in the game (ie, within a few days of Meehan's testimony).

The December 15th hearing was the most remarkable day in court that I have experienced in 25 years of law practice - - and that includes the day that a jury declared Alan Gell innocent and a lot of criminal defendants who were given life at death penalty trials. It was an extraordinary day and watching it unfold was surreal. Brad was magnificent and deserves all of the credit that he received - - it took cojones the size of watermelons to take on a DNA expert cold in front of the world's media and Brad did not flinch.

Week in Review

A prominent name from the lacrosse case has joined Michael Vick’s defense team. Butch Williams was the subject of a nicely done profile this week by the N&O’s Anne Blythe.

Citing the lessons of the lacrosse case, Williams cautioned against a rush to judgment—while also predicting that the Vick case could be a bigger legal challenge than was tackling Nifong.

Williams was one of the quiet heroes of the case. Setting aside enormous pressure—both from his fellow Durham African-Americans and from taking on the city’s legal power base—Williams did everything he could to prevent a miscarriage of justice.

Blythe’s piece provides new details on Williams’ efforts to persuade the local black elite to keep an open mind on the case—even though his client was not one of the people falsely charged. Mayor Bill Bell said that Williams had an effect: “Butch was one of many people who talked to me. He obviously has credibility, and I respect him.” As Bill Cotter noted, "In the very beginning, he told people they better be quite careful, that this might not be what it seemed. I know it caused some problems for him. Some people did not want to hear that."

Bill Cotter summed up the situation*: “Butch’s efforts on the Duke lacrosse case were extraordinary. He’s got a great reputation. He’s credible. He’s very knowledgeable. He has a lot of inside information, and he’s going to tell you what he knows . . If Mike Nifong had listened to him, he still would be the district attorney.”

Vick’s case won’t be an easy one, but in Williams he has a first-rate member of his team.

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Writing in the L.A. Times, Gregory Rodriguez used the Ward Churchill case to ask some difficult questions about the nature of the contemporary academy. As Rodriguez noted,

You don’t have to be a crusading right-winger to recognize that University of Colorado professor Ward Churchill, who compared the victims of the 9/11 World Trade Center attack to Nazis, is an extremist, an ideologue whose scholarship is less than objective.

The University of Colorado fired Churchill last week—though for massive academic misconduct (a committee concluded that he plagiarized and improperly used sources) rather than his comments.

Rodriguez—correctly, in my opinion—argued that the University should have focused less of its attention on Churchill and more on “how someone as intellectually irresponsible as Churchill got to be head of a department at their esteemed institution in the first place.”

The idea of precise ideological balance in the academy is a bad one, and implementing it would decimate academic freedom. That doesn’t mean, as Rodriguez pointed out, that the public should turn a blind eye to “academia’s nurturance of loons like the hate-filled Churchill. No, they are not many, but they shout louder than their numbers would suggest. And though their influence is minor in American higher education overall, they can be very influential in particular fields, such as comparative literature and gender and ethnic studies. That’s because the problem on campuses isn’t rigorous Marxist materialists, as conservative stereotypes would have you believe, but craven emotional warriors in the arena of identity politics.”

The basic lesson? “Just because an academic field is relatively harmless and even irrelevant (in the eyes of many fellow academics) doesn’t mean that shoddy professors who can’t sort fact from ideology should be tolerated, particularly at taxpayer expense. The Churchill case might be closed, but university officials nationwide have an obligation to bring scrutiny and the ideal of objectivity to these below-par departments—perhaps by dismantling and absorbing them into more rigorous disciplines and insisting, not on any one set of views or conclusions, but on the high standards of scholarship that we expect from the best of academia.”

Of course, few—if any—of those who have followed the lacrosse case would be surprised at the antics of “craven emotional warriors in the arena of identity politics.” We know them as the bulk of the Group of 88.

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CUNY law professor Victor Goode contends that the real question of the case is: “Could it be, though, that Nifong's real offense is not misconduct, but rather treating three middle class white defendants as if they were poor and Black?”

Well, in a word, no. If the defendants “were poor and Black,” Nifong would have had no reason to target them politically. Given the yawning gaps in Crystal Mangum’s stories, it’s highly unlikely “poor and Black” suspects ever would have been charged. And it’s unlikely that a case with “poor and Black” suspects would have yielded itself to lines like Goode’s faux lament about “the tawdry events of last year's party, with all its racial and misogynous overtones.”

Yet, according to Goode, “Watching these events unfold, it was hard not to think about the thousands of young Black and Latino men who wind up in the same predicament as these Duke students.”

Thousands?

Let’s remember, again, the misconduct that Nifong committed, based on the results of his ethics trial:

1. Nifong, facing a contentious primary election, was trailing badly in the polls. After exclaiming “you know, we’re fucked” when the officers in charge told him of weaknesses in the case, he nonetheless gave between 50 and 70 interviews to the local, state, and national media, in which he expressed absolute certitude that a racially motivated gang rape occurred.
2. After the two main officers involved conceded the investigation had reached a “stalemate,” Nifong ordered them to run a third photo lineup, only this time bypassinfg procedures and confining the lineup to suspects.
3. Nifong sought the first two indictments without even reading the transcript of that lineup, and overriding police objections that they weren’t sure one of the accused (Reade Seligmann) was even at the party.
4. After obtaining the first two indictments, Nifong refused even to meet with lawyers for Seligmann or Dave Evans, even though the attorneys said they possessed evidence to prove their clients’ innocence.
5. After learning from a DNA lab director that the DNA of multiple unidentified males was found upon Crystal Mangum, Nifong turned over to the defense a report that didn’t contain this information, and then falsely claimed to two judges that he had turned over all exculpatory evidence.

Who, precisely, are the “thousands” of other defendants whose prosecutors engaged in the behavior outlined above?

According to Goode, “We need not look far for cases where prosecutorial misconduct was far more egregious, but in which poor Black defendants had neither judges nor bar committees acting to guarantee a fair trial.” Goode cited the case of Lesly Jean, who was imprisoned for nearly 20 years after the prosecution withheld exculpatory evidence and relied on a faulty ID.

What happened to Jean, of course, was horrific. But Goode’s claim that the “prosecutorial misconduct was far more egregious” than in the Nifong case is rather hard to see. Both cases featured the withholding of exculpatory evidence. But, unlike the lacrosse case, the Jean case didn’t involve a prosecutor explicitly instructing the police to violate their own lineup procedures; nor a prosecutor making false and ethically improper public statements before any indictment was made.

Why, according to Goode, did people worry about the lacrosse case? “The very idea of white skin privilege would cease to have meaning if white and Black, rich and poor could actually expect the same treatment by our criminal justice system . . . Not surprisingly, some of the demonstrations on the Duke campus tried to link the prosecution of the Lacrosse players with ‘excesses’ of affirmative action. Others accused Nifong of simply trying to please the Black community of Durham because he needed their vote.”

On the latter point, overwhelming evidence exists that Nifong did exactly that. On Goode’s former claim, where were the “demonstrations on the Duke campus” that linked Nifong’s actions “with ‘excesses’ of affirmative action.” Goode doesn’t say.

In short, those concerned with prosecutorial misconduct against the poor and minorities undermine their case with arguments such as Goode’s, which deliberately minimize Nifong’s misconduct or invent non-existent anti-affirmative action demonstrations.

(It’s unclear, by the way, why Goode capitalizes Black but not white.)

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Under the headline of “When prosecutors are corrupt, our democracy pays a stiff price,” the (Tennessee) Mountain Press had an excellent review of the Nifong fiasco.

Unlike Goode’s racialized interpretation of events, the MP editors understood why “the saga of Mike Nifong has been so disturbing”: “Abuse of power is the one thing that can cause a democracy to fail.”

Fortunately, the truth came out:

Now Nifong’s sordid, vicious campaign against innocent young men has been revealed in its totality. He has been disbarred. He faces jail time. He has apologized to the three students. His career in law is over. He may never be able to look at himself and his children with anything but shame and embarrassment.

The whole affair, the editors correctly noted, is a reminder that “prosecutors and judges have enormous power in our judicial system,” and that legal integrity is paramount—whether in Durham or in Washington, DC.

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Duke donation figures for the 2006-2007 fiscal year are now available: the total rose 11 percent to more than $380 million. Around half of that increase came from a boosted donation from the Duke Endowment.

Most of the donations were targeted to improve need-blind admissions. That said, University presidents are, in the end, evaluated on their fundraising ability, and it certainly can’t be said at this point that Duke alumni were unaware of the administration’s general approach to the lacrosse case or its disinclination to challenge the Group of 88.

In that respect, the Brodhead administration appears to have interpreted alumni sentiment accurately.

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Update, 9.55am: Former St. John’s University Law School dean Joseph Bellacosa (who’s also a former judge on the New York State Court of Appeals) published a searing op-ed today about the Group of 88.

“Accountability,” he noted, “finally came to Durham County District Attorney Michael Nifong last month,” and now “the time is at hand to demand some accountability for Nifong’s academic enablers.”

As Bellacosa noted,

Eighty-eight members of the Duke faculty publicly promulgated a dreadful letter, enflaming a premature and prejudicial atmosphere against their own students. Yet, their conduct is largely shielded from accountability. Equally troublesome, their ironically and suddenly protective university masters executed a confidential settlement to further immunize the Duke cabal from civil liability exposure.

The 88 are thus granted a kind of institutional immunity, a corruption of process all by itself because it sidesteps a day of public reckoning.

As Bellacosa understands, “Their roles as teachers should have included special protection of their pupils from mob hysteria and media hype, not collaboration in the spectacle. These 88 and the rest of the Duke ‘family’ stood in loco parentis - in the place of the parents who entrusted their youngsters to Duke’s professionals, with substantial tuition payments. The parents’ trust was painfully misplaced, and their children suffered irreparable reputation injury and a fundamental breach of duty.”

The former St. John’s Law dean urges Duke students to vote with their feet, shunning “these professors and their courses - a good, old-fashioned revived remedy of accountability. Shunning is, under these circumstances, a proportionate penalty for the sin of heedlessly injuring young people placed in one’s care and charge. These 88 would thus be professionally disenfranchised, and as they look out at empty rooms and seats, that lesson would be felt and take hold.

In the end, according to Bellacosa, the Group “flunked with a capital ‘F’ the course in Principles of Justice 101, whose first lesson is the presumption of innocence and protection of innocents. Everyone should be held ultimately accountable for their actions, even the hostile unintended consequences thereof, lest, in the future, hubristic ideologues, invested with power and fiduciary responsibilities, think that they, too, can act irresponsibly, with impunity and immunity.”

*--corrected from original

Channeling Roman Hruska

In 1970, Richard Nixon nominated an undistinguished Florida judge named G. Harrold Carswell to the Supreme Court. The appointment was part of Nixon’s “Southern Strategy”: Carswell billed himself as a “strict constructionist,” code at the time for opposing civil rights and supporting tough-on-crime rulings.

The nomination quickly encountered trouble, in part because of Carswell’s earlier unabashed defenses of segregationism. But it also became increasingly clear that Carswell just wasn’t that smart.

In a bid to salvage the nomination, Nebraska senator Roman Hruska, the ranking Republican on the Senate Judiciary Committee, informed the press, “There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Frankfurters and Cardozos and stuff like that there.”

The damning praise from the judge’s most prominent supporter effectively killed the nomination.

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As with defending a figure like Carswell, defending the Group of 88 is no easy task. In the last few days, a few have given it a try. It appears, however, as if they’ve been channeling the spirit of Roman Hruska.

In a recent DIW comment thread, an anonymous commenter—who was clearly familiar with and sympathetic to Group members’ scholarship and the pedagogical approaches of at least a few Group members—criticized the “Group profile” series.

To date, the series has profiled 11 members of the Group. That total is unrepresentative of the professors’ accomplishments, since Group members with few or no publications can’t be profiled.

The commenter, however, criticized the series for focusing on “marginal academics rather than folks who have had long careers with stellar pedigrees.”

The eleven profiled members, it’s worth noting, include:

• The chairperson of Duke’s Academic Council;
• The dean of social sciences for Trinity College;
• A research professor who was listed as one of the University’s top recruits in 2005;
• The director of the University Writing Program.

And coming Monday is a profile of a tenured full professor and two-term department chairperson.

If “marginal academics rather than folks who have had long careers with stellar pedigrees” occupy such positions at Duke, the University has some serious problems.

Moreover, of the 11 faculty members thus far profiled, all but one (Jocelyn Olcott) have tenure. In effect, then, this anonymous commenter is defending the Group of 88 by suggesting that Duke has tenured at least ten professors who are “marginal academics” who lack “long careers with stellar pedigrees.”

Roman Hruska might be persuaded, but that doesn’t strike me as the most effective defense of the Group.

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While the anonymous commenter relied on the Roman Hruska approach to defend the Group, a longtime Group enabler has employed the irrelevance defense.

Writing at Devil’s Den, Michael Corey reasoned that the Group of 88 “did not have any impact whatsoever on the pseudo-biography that the media disseminated in besmirching the lacrosse team, and specifically the Triumvirate of the indicted.”

This, in and of itself, is a remarkable line of argument: 88 arts and sciences faculty members, at one of the nation’s most prestigious universities, take out a full-page ad (“in the most easily seen venue on campus”) suggesting that their own school’s students have contributed to a “social disaster.” Despite the high media interest in all Duke-related matters at the time, and despite the virtually unprecedented nature of such an act in the history of American higher education, the professors’ effort . . . had no effect.

Defense attorneys, of course, disagreed, and the Group’s statement received a prominent place in the change of venue motion. For what is, to my knowledge, the first time in American history, the statements and actions of students’ own professors were cited as one of the main reasons they could not receive a fair trial in the college town.

Corey’s counter: “As to the defense’s disagreement with me, I believe the defense attorneys are flatly very wrong.”

So, the choice is between accepting the interpretation of Jim Cooney, Joe Cheshire, and Brad Bannon or siding with the author of article #6 on the “March Madness” list of the ten worst articles on the case.

Roman Hruska might struggle to make this selection, but for most it’s not a difficult choice.

Corey also challenged the “Group profile” series on grounds of bias, noting (of me) that “every utterance he makes is rooted in his own opinion, which is GREAT for his purposes, and great for his audience, but must be considered with an opposing interpretation (of which, of course, there is none in the blogosphere).”

These claims, too, are peculiar. I fully concede that all of my posts are rooted in my opinion: that’s the nature of any blog in which the author has identified himself or herself publicly. But the blogosphere, if nothing else, is home to a diversity of opinion on almost every issue. Nothing prevents Group members or their defenders from starting their own blog celebrating the Group’s achievements or pointing out errors of fact or interpretation in portrayals of the Group. (Available URLs include we-don’t-follow-the-faculty-handbook.blogspot.com.)

Corey subsequently clarified himself, noting that pro-Group websites “are hardly on par with Johnson’s in terms of impact and notoriety . . . There is no equivalent to K.C. Johnson’s blog from an opposing point of view regarding the professors, and that’s a fact.”

So: the quality of DIW should be diminished to allow pro-Group blogs to better compete in the marketplace of ideas? Roman Hruska might be persuaded, but that doesn’t strike me as the most effective defense of the Group.

In his previous article, Corey had denounced the “seething” and “shrieking” blog attacks against the Group of 88, who he portrayed as victims of the blogs in the same way that the three indicted players were victims of Mike Nifong. It now appears that he didn’t read too closely the blog posts criticizing the Group, perhaps explaining why his article cited not even one blog post that he considered “seething” or “shrieking.”

A Devil’s Den commenter asked Corey about his opinion of Houston Baker’s March 29, 2006 letter, probably the second-most notorious lacrosse-related document (after the Group’s statement) produced by the Duke faculty. Corey’s response? “I haven’t read Houston Baker’s letter.” What about the Kim Curtis grade retaliation against Kyle Dowd? “I’m unfamiliar with the details of the case.” How about Peter Wood’s apparent slandering of Reade Seligmann? “Again, I’m not familiar with specific remarks Professor Wood might have made against Reade.”

Oh.

Roman Hruska might be persuaded by the willful ignorance approach, but that doesn’t strike me as the most effective defense of the Group. Or, on second thought, perhaps it is the most effective defense of the Group.

As with the anonymous Group defender, Corey’s comments effectively proved the critics’ case. Take, for instance, his assertion that Maurice Wallace “is one of the great young English professors in the country.” Indeed, as the profile of Wallace pointed out, the Group of 88’er received a major award from the MLA.

As the post also noted, Wallace’s writing style features excruciatingly long and virtually incomprehensible sentences that wouldn’t pass muster in most introductory composition classes, much less from a tenured faculty member at an elite institution. How many people outside the academy would be comfortable with such a figure being “one of the great young English professors in the country”? [emphasis added]

Most Group members said they wanted “dialogue” but thereafter refused to speak, despite the protections of tenure and academic freedom. Corey and the anonymous commenter deserve credit for at least trying to provide a public defense of the Group. But, as Roman Hruska discovered during the Carswell fight, defending the indefensible can sometimes lead the defender to make intellectually torturous arguments.

Mindboggling

A commenter noticed the Journal of Blacks in Higher Education "Chronology of Major Landmarks in the Progress of African Americans in Higher Education." Some excerpts:

1823: Alexander Lucius Twilight becomes the first known African American to graduate from a college in the United States. He received a bachelor’s degree from Middlebury College in Vermont . . .

1847: David J. Peck is the first black to earn a degree from a medical college in the United States. Peck received his M.D. from Rush Medical College in Chicago and practiced in Philadelphia and later in Nicaragua . . .

1862: Mary Jane Patterson, a teacher, graduates with a bachelor’s degree from Oberlin College. She is considered the first African-American woman to earn a bachelor’s degree . . .

1876: Edward Bouchet becomes the first black to earn a Ph.D. at an American university. He receives his doctorate in physics from Yale . . .

1877: Inman Page, a former slave, is elected student body president at Brown University. He is believed to be the first black to be elected student body president at any of the nation’s highest-ranked and predominantly white universities . . .

1912: Carter G. Woodson becomes the second black in the U.S. to earn a doctorate in history. His Ph.D. is from Harvard. He goes on to found the Journal of Negro History in 1916 and inaugurates Negro History Week in 1926 . . .

1921: Jasper Alston Atkins becomes the first black editor on the Yale Law Review . . .

1932: The Journal of Negro Education begins publication at Howard University . . .

1938: Missouri ex rel. Gaines v. Canada is decided by the U.S. Supreme Court. The ruling required the state to either allow Lloyd Lionel Gaines to attend the University of Missouri School of Law or create another school that would provide the same education for him. In response, the university builds a black law school. Three months after the ruling, Lloyd Gaines left his apartment to buy some postage stamps. He was never seen again . . .

1944: The United Negro College Fund is established to raise money for private historically black colleges. Frederick Douglass Patterson is the founder . . .

1948: The U.S. Supreme Court rules in Sipuel v. University of Oklahoma that Ada Sipuel be admitted to the law school at the University of Oklahoma. The ruling states that blacks have the right to a legal education of the same quality as whites . . .

1949: Wesley A. Brown becomes the first black to graduate from the U.S. Naval Academy in Annapolis. Brown survived ridicule during his college years and served in the Navy’s civil engineering corps for 20 years . . .

1950: The Supreme Court rules in McLaurin v. Oklahoma State Regents for Higher Education that black students admitted to the previously all-white graduate institution must not be segregated within the institution and must receive equal treatment in all aspects of the education process . . .

1954: In Brown v. Board of Education of Topeka, Kansas, the U.S. Supreme Court rules that racial segregation in schools is unconstitutional . . .

2006: Black literary scholar Houston A. Baker Jr. is highly critical of the Duke University administration for its handling of allegations about a sexual assault on a young black woman by members of the Duke lacrosse team. Weeks later, Baker announces he is leaving Duke for Vanderbilt University.

Keep in mind: Baker's guilt-presuming letter not only ten times, in a derogatory fashion, mentioned the students' race, but it also called for expelling 46 students without due process (based on allegations that turned out to be false). There's no indication of whether the JBHE editors took into account Baker's also referring to students at his former University as "farm animals."

That performance is considered a "major landmark" of African-Americans in higher education, to be included in the same summary as Brown, McLaurin, or the heroic achievements of the first black students to receive college degrees, Ph.D.'s, or edit Ivy League law reviews?

The Lacrosse Case According to the JBHE

The Journal of Blacks in Higher Education was founded ten years ago because of distress that “on issues of race, the political pendulum has swung to the right. Whites, and in many cases blacks, are turning away from government solutions to the advancement of African Americans in our colleges and universities.” The journal’s editors celebrated the “forces of political correctness and multiculturalism” for pressuring colleges and universities to pursue “racial diversity.”

The JBHE certainly provided a “diverse” interpretation of the lacrosse case. Too often, however, its comments reflected the intolerant agenda that characterized the Group of 88’s response to events in Durham. This is, after all, the same journal that, in 1999, gushed about how Duke “scored a major coup in luring Houston A. Baker, Jr. away from the University of Pennsylvania,” predicting that the Group of 88 stalwart would form “a new anchor for the Duke English Department.”

The journal’s initial foray into lacrosse matters came on May 4, 2006, in an item entitled, “We Wonder: How Many White Girls Work Their Way Through College as Exotic Dancers?”

The editors proclaimed,

While it remains unclear what really happened at the party hosted by the captains of the lacrosse team at Duke University, the racial and socioeconomic divisions between the two groups could not be more stark. Most of the white lacrosse players at highly prestigious Duke University come from privileged backgrounds. Finding the money to pay for their education is not an issue. The first two men indicted in the case come from families that live in million-dollar homes. Both men attended elite private preparatory schools.

The two black women involved were from historically black North Carolina Central University. They worked as exotic dancers while in school so they could pay their way in college while supporting their young children.

Do our readers know how many white women resort to working as strippers so that they can pay for college?

To my knowledge, this item was the only piece produced in the case terming Kim Roberts a student at NCCU. (In fact, Roberts had attended UNC several years ago, though she never received her degree.) Describing Crystal Mangum as “involved” at NCCU probably was accurate—though Mangum’s status as a full-time student at the historically black institution seemed much in doubt.

JBHE editors also asserted, without qualification, that for “most” of the lacrosse players, “finding the money to pay for their education is not an issue.” The article did not reveal how they gained access to the Duke financial aid records upon which such a claim would be based.

Two weeks later, the JBHE returned to the lacrosse case, after two committees had issued lacrosse-related reports. The first—the Coleman Committee—noted that members of the team drank much too much but had no record of racist or sexist behavior, were good students, treated staff with respect, and had good records of community service. The second—the Bowen/Chambers Committee—produced a document that my colleague Stuart Taylor correctly described as an attempt to “slime the lacrosse players in a report . . . that is a parody of race-obsessed political correctness.”

JBHE readers never learned about the Coleman Committee report, which the journal did not mention. The conclusions of Bowen and Chambers, on the other hand, generated gushing praise. Mike Nifong’s (ultimately fraudulent) allegations, the editors wrote, “present a classic example of the importance of having people at all levels of the administration who are sensitive to racial issues.” Bowen and Chambers, the editors theorized, provided a path for Duke to reorganize itself into a paragon of diversity.

The journal noted Nifong’s triumphs in the primary and general election, both times describing black voters as “key” to the Nifong victories. But the JBHE also—inaccurately—implied that Nifong enjoyed robust support from the Duke student body. In commentary just after the November election, the editors claimed that “the precinct in which many Duke students and faculty reside cast a majority of its votes for Nifong.”

In fact, Nifong was swamped in the precinct in which most Duke students voted. The Recall Nifong-Vote Cheek line took 67.6 percent of the precinct tally, with Nifong receiving only 27.2 percent. (The rest went to the ostensibly anti-Nifong write-in candidate, “Spoiler Steve” Monks.)

The JBHE editors also didn’t reveal how they ascertained in which precinct “many” Duke faculty lived: indeed, as Duke has more than 2,600 professors, it seems highly unlikely that there is a single precinct or even city in which a majority of Duke profs live. As with the journal’s earlier claims about the scholarship status of the lacrosse players, the JBHE seemed to be relying on hearsay evidence and assumptions based on caricature.

In covering the 2007 admissions process, the JBHE mentioned two items not widely disseminated. First, it disclosed that the Duke admissions office sent to prospective minority students “a new publication outlining the close relationship Duke has with the city of Durham.” (Did this document summarize the “separate-but-equal” justice system for Duke students?) Second, the JBHE—using figures it said that Duke provided—stated that “just over 27 percent of all black students who applied to Duke this year were accepted for admission.” This figure was around 40 percent higher than the overall (19.7 percent) acceptance rate.

The Group of 88, according to a January 2007 JBHE item, was a faculty organization focused on the “serious issues of racism, gender, and sexuality that need to be addressed on campus.” (So much for statement author Wahneema Lubiano, just a few days before the ad appeared, describing the document as about the “lacrosse incident.”) And “as a result of her leadership in this group,” JBHE readers learned that Karla Holloway “has received a large number of racist e-mail messages.” The editors did not define what constituted “a large number,” nor did they explain how they ascertained that e-mails sent to Holloway resulted from her “leadership” in the Group.

But the most extraordinary JBHE item appeared the day after Attorney General Roy Cooper publicly declared that the three students were “innocent” victims of a “rogue prosecutor.” How did the JBHE cover the development?

Racism on the Duke Lacrosse Team

All charges have now been dropped in the case of a young black woman from North Carolina Central University who accused three white members of the Duke lacrosse team of rape in March 2006.

But no one disputes that the woman was heckled and called a “nigger” when she tried to leave the party. One white partygoer was heard to say, “Hey nigger bitch, thank your grandpa for my nice cotton shirt.”

No mention of the declaration of innocence. No discussion of AG Roy Cooper’s unequivcocal denuncuiaton of Nifong, or his revelation of the extent of Mangum’s mental illness. Falsely claiming that “no one disputes” that Mangum was “heckled”—when, in fact, almost everyone disputed such a claim. (No one disputed that Roberts was heckled; Mangum, at the time, was passed out.) Attributing to a lacrosse player a much more inflammatory statement than the one actually uttered—and ignoring Roberts’ acknowledgment that she initiated the racially charged exchange.

Given the high profile of the case, how could a journal that describes itself as focused on events in higher education—which is supposed to seek the truth—ignore Cooper’s declaration of innocence and so blatantly misrepresent the events of the party?