Reviews & Reviewers

[Update, 10.35am] In this morning’s Chicago Tribune, columnist Clarence Page reviews Until Proven Innocent, noting that “a breathtaking list of procedural abuses led to [Nifong’s] disbarment, resignation and prosecution. The abuses included the withholding by his office of DNA evidence for more than nine months that proved the athletes’ innocence. I hope Nifong spent his night in the pokey thinking about the young lives he ruined. I also hope he thought about the voters he flimflammed, along with a national audience, all so that he could be re-elected in his 40 percent black district and maximize his pension.”

He continues,

That narrative comes through with painful clarity in a new book, “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case,” co-authored by Stuart Taylor, a National Journal columnist and Newsweek contributor, and K.C. Johnson, a history professor at Brooklyn College and CUNY.

Nifong’s overreaching “may be the worst prosecutorial misconduct ever exposed while it was happening,” said Taylor, in an interview. Taylor was one of the early skeptics of Nifong’s case.

Like the case, the book offers a chilling portrait of how the criminal justice system can nail and punish the innocent. Usually the innocent are poor people who lack the money, connections or other resources to mount a proper defense. In its concluding chapters, the book recounts several striking examples of poor blacks and Hispanics, in particular, who were sent to Death Row but later released as a result of misconduct by prosecutors.

But it was the racial and socioeconomic lineup in the Duke case—upscale white male students accused by a poor black female stripper—that excited passions in a different ideological direction. Left-progressive activists, pundits and intellectuals allied with the prosecutor to steamroll over any presumption of the boys’ innocence.

For some petitioners and op-ed writers, the young jocks provided too convenient a target as symbols of white male hegemony, runaway testosterone and every other agenda that could be hung on them like tree ornaments. Voices as varied as The New York Times and CNN star Nancy Grace come in for a well-deserved skewering here.

Think about it. If any institutions should be engaged in the critical reasoning that it takes to analyze situations like these, weighing claims and counterclaims, and sorting out facts from rumors, it is the media and college professors. The university, of all places, should teach not only good ideas but also the rational thinking that leads one to a lifetime of producing good ideas.

In that spirit, it is important to note the solid journalism that did occur, even if it failed remarkably to have much of an impact during the months Nifong’s freight train surged ahead. Besides Taylor, there was Ed Bradley, the CBS reporter who died before the charges were dismissed, “60 Minutes” producer Michael Radutzky, and MSNBC’s Dan Abrams. Each courageously pursued the growing holes in the case, despite unsubstantiated countercharges by die-hard critics who would rather punish the messenger than listen to the uncomfortable facts.

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed,” said Reade Seligmann, one of the three accused Duke students. He and his teammates were fortunate to have the resources to fight back. Most defendants don’t. That’s all the more reason for those of us who believe in justice to scrupulously avoid pursuing personal agendas at the expense of the truth, no matter how much it may satisfy our preconceived notions.

Page joins such other well-known "right-wing" figures (at least in the Group of 88's version of reality) as Nadine Strossen, Michael Kinsley, Evan Thomas, and John Grisham in praising the book.

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I’ve received quite a few e-mails from people who have had trouble getting the book at Barnes & Noble. If you have had difficulties, please put a comment in the thread below, with the location, and I will pass the information onto the publisher.

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One alternative to B&N is amazon.com—which, I have been assured, received an emergency re-shipment of books to fill all orders more quickly. Amazon also allows reader reviews, which I occasionally use—not so much for the individual (pseudonymous) reviews, but to get a sense of the general consensus.

Of course, any system that allows such practices can be abused. The one negative review the book has received came from a “T. Edwards.” “T.,” it turns out, has reviewed only one other book on the amazon.com system, a 2005 offering from Bernard Goldberg. The two reviews offered by “T.” border on self-plagiarism.

“T.,” 2005: “I will confess at the outset that I did not read the entire book.”

“T.,” 2007: “I confess I only flipped through this book.”

“T.,” 2005: “I didn’t come across anything very new or insightful.”

“T.,” 2007: “I didn’t see anything new or insightful in the sections I did read.”

“T.,” 2005: “The whole enterprise struck me as pretty mean-spirited cut and paste job.”

“T.,” 2007: “It has a cut and paste quality to it.”

“T.” does add a new claim for his/her 2007 review: “There is little, if any original reportage here.”

Just 65 interviews and 1050 sourcenotes.

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More serious negative comments about the book’s portrayal of the Group of 88 came in a recent Chronicle comment section, from a self-styled “Duke instructor.” The “instructor” left no name or department affiliation, although he/she did say that he/she “went to a private university with lots of rich kids” and attends/attended graduate school at Duke. That said, I’ve heard many of his/her arguments second-hand, and am willing to speculate that the instructor is, in fact, an actual instructor.

“However badly it turned out, if you read their writings, the ‘88’ were trying to be on the side of students in some way, even while a lot of people outside the University were claiming that Duke was simply a bastion of white rapist privilege.”

So that’s why Group of 88’er Grant Farred called all Duke students who dared to register to vote in Durham “secret” racists; or why fellow 88’er Houston Baker published an open letter asserting, “All of Duke athletics has now been drawn into the seamy domains of Colorado football and other college and university blind-eying of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain.”

Imagine what Group members might have said if they didn’t want to be “on the side of students.”

“When we (instructors, grad students, professors) talk to people at other institutions, they often assume not only that the stereotypes about Duke undergrads are true, but that we support them.”

This statement is almost comical. I’m sure that when Wahneema Lubiano (“Many whites . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example”) chats with colleagues at academic conferences, they “often assume” that she’s a fierce defender of the stereotype of white male privilege.

“Most of the signers of the statement signed something that was simply a support of victims of rape and violence generally.”

It’s just a coincidence, I suppose, that the only “victim” of rape and/or violence mentioned in the statement was “this young woman,” Crystal Mangum. And it’s odd that 87 highly educated individuals believed that the statement was “simply a support of victims of rape and violence generally” given that its author, Lubiano, informed them in an e-mail that it was a response to the “lacrosse incident” and not a support of victims of rape and violence generally.

“When I said that the listening statement had nothing to do with the case, I meant that Nifong did not use the statement in trying to make his case; that is, it did not facilitate the case against the three defendants.”

The defense attorneys took sharp exception to this claim. Not only did they position the Group’s statement prominently in their change-of-venue motion, but they ended their initial PowerPoint presentation to the special prosecutors not with a visual of Nifong, or of Mangum—but with a visual of the Group’s statement.

“I have learned that no student at Duke is racist or sexist, and that is a logical impossibility that a Duke student could commit a crime, and that all our professors should be fired and replaced by KC Johnson, in order to avoid the giant left-wing conspiracy that will elect Michael Moore president, outlaw Christianity, and force us all to listen to ‘This American Life.’”

In fact, the blog—which has more than 1,000 posts—has never suggested any such thing about Duke students. It has said that I have never applied for a job at Duke and have no desire to work there in the future. Nor have any of the more than 1,000 posts mentioned Michael Moore or ‘This American Life.’ I did mention Christianity in one comment section, when I stated I was agnostic.

“By the way, BUY KC JOHNSON’S BOOK! ONLY $16.17 ON AMAZON! ALL YOUR QUESTIONS WILL BE ANSWERED, AND ALL YOUR OPINIONS WILL BE PREPARED!” [original all caps]

And, if you want to know more about Congress and the Cold War, you can buy my book on that topic, only $22.22 on amazon.com. “A Duke instructor” appears unfamiliar with how the publishing industry works: in general, professors (well, most professors, anyway) write books, and publishers sell them. Publishers rarely give books away for free; readers have to purchase them, or obtain them from a library. “A.D.i.” might not like this system, but it’s hardly unique to this case.

“A Duke instructor” did make one undeniable point about the Group of 88: “I’m not saying that they did a particularly good job, or that some of them didn’t get carried away.”

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Despite the concerns of "T." and “A Duke instructor,” the manuscript was reviewed by as many people as possible--including a few unconventional auidences. The photos below show a reviewer taking the blue pencil to what became Chapter 25; and then the same reviewer, Darrion Sardo, engrossed in the final product.

More State NAACP Hypocrisy

The Liestoppers board brings protests from Al McSurely (chair of the state NAACP’s Legal Redress Committee) and Irving Joyner (NAACP “case monitor”). Their claims, according to Cash Michaels? “The Wilmington Journal contacted Rev. Barber and attorneys Joyner and McSurely, and shared the above passages with them for comment. Each made clear that they were never contacted by either Taylor or Johnson for comment in the book about issues specifically relative to them as noted.”

One reason I prefer dealing in e-mails is that doing so leaves a written record, making it easy to respond to claims such as the one above. I reproduce the e-mails that I sent to McSurely and Joyner over the course of the case.

Mr. McSurely:

Reading through the Nifong response to the Bar, I was struck by the DA’s claim that he isn’t required to turn over to the defense full tests results as long as they have access to the underlying data. The inference would seem to be that wealthy defendants, who can hire the best lawyers to figure out such data, are OK; but others are out of luck.

I realize that the state NAACP has vigorously associated itself with Nifong’s case, but do you share his belief that defendants are not entitled to full reports?

KC Johnson

This e-mail was first sent March 2, 2007, at 2.33am; it was resent on March 3, 2007 and March 6, 2007. McSurely, given an opportunity to deny my claim that "the state NAACP has vigorously associated itself with Nifong’s case," never replied.

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Mr. McSurely:

My name is KC Johnson; I am a professor of 20th century US political and constitutional history at Brooklyn College, CUNY. My academic CV is below: http://academic.brooklyn.cuny.edu/history/johnson/cv.htm

I have blogged extensively on the Duke lacrosse case, and am puzzled by two legal issues related to the case and the NAACP’s role. I was hoping you could answer my questions, if you have the time:

1.) I did a post, which I’m going to expand into an academic article, on the photo lineup procedure used in the case, and its relationship to statewide patterns. It’s my sense (this is certainly what I teach in my constitutional history class) that the NAACP has been at the forefront of opposing suggestive lineups or prosecutors who don’t follow their own procedures.

Yet in this case, I’ve seen no protest from the NAACP on the lineup tactics; Irving Joyner has even suggested that the issue is best resolved by a jury. Has the NC NAACP involved itself in any cases in the past regarding suggestive or procedurally flawed lineups, or is this an issue usually not of concern to the NC NAACP?

2.) I read a couple of months back in the Durham Herald-Sun that you considered filing, on behalf of the state NAACP, a request for a gag order, or what you called a “quiet zone/let’s let justice work” motion, since “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.”

I’ve looked over the NC ethics code, and it seems to me under the exception in 3.6 involving responding to statements by the prosecutor, the defense in this case can pretty much say whatever they want. Did the NAACP criticize Nifong’s publicity barrage in late March/early April?

Also, I’m unclear on what you meant when you spoke about depriving “the alleged victim of her legal rights to a fair trial.” I’m pretty knowledgeable of the NAACP’s long tradition of trying (and, alas, not always succeeding) to ensure the right to a fair trial for defendants (I teach the Klarman and Tushnet books regularly), but I haven’t known of the organization to be at the forefront of the victims’ rights movement. It seems to me a claim that an accuser has “legal rights to a fair trial” would represent a 180-degree shift from the NAACP’s traditional positions on criminal justice issues.

Do you see the NAACP now moving more toward defending victims’ rights and lessening its traditional concerns with the rights of the accused?

Thanks--

KC Johnson

This e-mail was sent on August 15, 2006; McSurely replied, and we quote from his reply in the book.

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Prof. Joyner:

My name is KC Johnson; I am a professor of history at Brooklyn College and have blogged extensively on the lacrosse case.

Some time ago, Cash Michaels suggested to me that I needed to look more closely at your record to get a better sense of your approach to the law. I’ve been looking through some of your old cases, and am a bit puzzled. I realize lawyers must represent their clients, but it seems that some positions you’ve taken in previous cases are inconsistent with positions on the law you’ve taken in the lacrosse case. I should say, with the exception of the Taylor case and perhaps your Shamsid-Deen appeal, I’m quite sympathetic to most of the arguments you presented in the cases I examined.

1) For instance, the argument you expressed in State v. Sanders/Randolph, regarding the constitutional violations in the state not providing a bill of particulars. As you know, in the lacrosse case, the defense was denied a motion for a bill of particulars--in a case where the timeline was vital because of unimpeachable alibi evidence. I hadn’t seen you comment in protest of that decision.

I was wondering why you felt the denial of a bill of particulars was a constitutional violation in Sanders/Randolph but not in the lacrosse case.

2) I also noted your sympathetic portrayal of Matthew Lawrence Taylor in the media, even after his conviction. Most people would consider this sort of hate crime to be a horrific act. I haven’t seen any favorable comments from you about the three defendants in the lacrosse case; and I was wondering what you saw in Taylor’s character that made you, apparently, view him more favorably than the three defendants in this case.

More generally, as I was looking over cases of yours I could find in Lexis/Nexis, you generally seemed to be quite critical and in some cases extremely critical of the police and the prosecutor’s office. That obviously hasn’t been your position in the lacrosse case. I was wondering if you could pass on to me cites of other cases where you had generally remained silent while credible allegations of prosecutorial and police misconduct had been made. I wasn’t able to find any in the record, but I presume there are several such cases.

Thanks--

KC Johnson

This e-mail was sent on January 19, 2007, at 12.47am. Joyner replied but skirted my questions.

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Prof. Joyner:

My name is KC Johnson; I’m a professor of 20th century legal and political history at Brooklyn College, CUNY: http://academic.brooklyn.cuny.edu/history/johnson/cv.htm.

I have followed the lacrosse case closely, in part as a blogger, and noticed that you had commented frequently about it. I had a couple of questions:

1.) I recently completed a study of eyewitness ID procedures from around the state. The study revealed that the procedures used in this case wildly varied from North Carolina norms, in ways ranging from the non-use of filler photos to the decision of the police officer overseeing the identification to tell the witness that the array would be confined to suspects only.

I know in New York, the state NAACP and civil rights community has been very aggressive (and effective) in demanding that authorities act in accordance with their procedures. In your dealings with the organization, does the North Carolina NAACP support the consistent following of procedures by authorities?

2.) I was struck by a comment you made to Sports Illustrated:

“Much of what the defense is putting out there now will never be presented to the jury,” adds North Carolina Central law professor Irving Joyner. “We have a rape
shield law and other evidentiary barriers. Nifong may have been engaging in some political showmanship at the beginning of the case. But that does not take away from the value of his evidence and the fact that he has probable cause to pursue the case. He still has a viable shot at victory before a jury in Durham.”

I’m obviously not familiar with NC’s legal code; I know you are. Most of the evidence I’ve seen from defense consists of such things as police or eyewitness reports, transcripts of the lineup ID session, cellphone records and a videotape of one of the accused showing he wasn’t even there at the time of the alleged attack. Is it your sense that this evidence “will never be presented to the jury”?

Also, why did you state “jury in Durham” instead of just “jury”? Is it your experience that juries around the state operate differently?

Thanks--

KC Johnson

This e-mail was sent on August 1, 2006, at 7.14pm. Joyner replied, and we quote from his reply in the book.

[I should note, for the record, that Michaels never contacted me before publishing his article to verify the recollections of McSurely and Joyner. Had he done so, I would have gladly supplied him with the e-mails I reproduced in this post.]

McSurely and Joyner might not like the conclusions that Stuart Taylor and I drew about their efforts in bolstering Mike Nifong’s prosecution. Indeed, I can see where they would be embarrassed by their performance in the lacrosse case, since their stated positions so consistently contradicted the NAACP’s traditional principles on criminal justice issues. But they certainly cannot claim with any credibility that I did not present them with an opportunity to respond to issues raised in the book about their behavior.

Nifong Video

The N&O has a 2-mintue video of Mike Nifong's march to the detention facility, with Nifong following behind marchers with their "We believe in your integrity and goodness" signs.

The procession has to be seen to be believed.

Nifong Reports to Jail

The N&O, WRAL, and the AP all have coverage of Mike Nifong's arrival in jail. In today's "Only-in-Durham" moment, former Nifong citizens' committee co-chair Victoria Peterson led a group welcoming the ex-DA to incarceration with a banner proclaiming, "We Believe in Your Integrity." [WTVD has a video of the protesters.]

The photos below show the disgraced prosecutor being processed after his conviction for lying to the court and the Peterson-led protesters; the photo above is the ex-DA's mugshot.

Washington Post Op-Ed

Stuart Taylor and I have an op-ed in today's Washington Post:

One night in jail [for Mike Nifong]: So concludes the Duke lacrosse rape case -- rape fraud, as it turned out. The legacy of this incident should include hard thinking about the deep pathologies underlying the media sensationalism and the perversion of academic ideals that this fraud inspired.

Read the entire piece here.

Dashing Due Process

It would seem indisputable that a major lesson of the lacrosse case is that due process matters. Surely, with all the talk of case-related events as a “teachable moment,” we would expect all parties at Duke to rededicate themselves to celebrating the importance of transparent procedures as the best way to achieve the truth.

This background makes all the more astonishing items in yesterday’s Chronicle from Elliot Wolf, the immediate past president of the Duke Student Government; and Wolf’s successor as DSG president, Paul Slattery. Their findings: in Wolf’s words, “Slowly but surely, [the Undergraduate Judicial Code has] transformed (at least, on paper) an objective, transparent and responsive system into one with little transparency, dubious checks and balances, no accountability to the student body and procedures bordering on incoherent—greatly extending its reach and expunging our rights in the process.”

Wolf and Slattery conducted a thorough comparison of both the 1999-2000 Duke judicial code to its present counterpart and the current Duke code to that of peer institutions. In an interview with Wolf, Dean Sue denied that any substantial changes had been made in the code. In an interview with the Chronicle, Stephen Bryan, associate dean of students and director of judicial affairs, appeared to state otherwise, but minimized the relevance of the changes. Said he, “There’s been a general movement to move away from the legalistic language because it is an impediment to the educational message. We want to develop citizens that are going to represent Duke in the future . . . In the real world, the costs are much greater.”

Can a Duke administrator credibly claim—as a general principle, even ignoring events of the last 18 months—that upholding due process conflicts with the University’s educational mission?

In the event, the evidence collected by Wolf and Slattery speaks for itself. One enormous change: in 1999, the accused student had the right to a public hearing. Now, all hearings are conducted in secret, regardless of the accused student’s wishes.

To take two more of the several examples that Wolf cites:

Probable Cause, 1999: Required to initiate a proceeding, and defined as “a reasonable likelihood for believing that the accused person committed the alleged act(s).”

Probable Cause, 2007: Not mentioned. Instead, “there must be sufficient information to believe that a policy violation may have occurred and that the alleged individual/group may be responsible” (emphasis added).

Right against Self-Incrimination, 1999: Explicitly granted, with “no inference of guilt.”

Right against Self-Incrimination, 2007: No longer enumerated, with statement that refusal to provide written response to charges violates the University’s policy against any “failure to comply with directions, requests, or orders of any university representative."

When Wolf asked Bryan for the rationale behind the changes, the dean strongly implied that the Duke judicial system rests on the presumption of guilt. Said Bryan, “We have [gone] from a system that was very legalistic and took the emphasis off of what our goals were to a system where [the administration says], ‘Listen, we’re in a community where we all make mistakes; we want to help you learn from those mistakes.’”

Does being charged suggest that a student has “made mistakes?” Bryan seems to think so.

Bryan also gave inconsistent statements about the right to silence. “A student’s cooperation in the process can only help them,” he told Wolf at one point. Yet later in the interview, he conceded that an accused student “should think through the potential ramifications of cooperating”—suggesting that a student’s cooperation could actually hurt them.

Slattery, meanwhile, compiled a chart laying out 71 elements of judicial procedure—which confirmed Wolf’s point in statistical terms. The 2007-2008 judicial code grants an accused student 15 of these rights; the code from eight years ago gave an accused student 25 rights. (Stanford was the most due process-friendly of the institutions Slattery examined, with 36 rights granted.)

Slattery perceptively noted the effects of the administration’s guilt-presuming posture: “The claim is that if you have procedural rights, the focus becomes ‘getting off’ and that stands in the way of the educational process of admitting that you’re guilty. Judicial Affairs shouldn’t have a self-contained educational mission. It should serve the overall educational mission by resolving conflicts and disincentivizing destruction or disruptive behavior.”

In its most basic form, the administration’s restrictions of rights suggest a failure to understand that procedural safeguards present the best path for determining the truth.

This is, its worth noting, the same administration that consented to the DPD’s “separate-but-equal” policy of punishing Duke students on the basis of their identity as Duke students more severely than all other Durham residents in cases involving minor crimes such as alcohol and noise violations. It’s also an administration whose president, in a July 2006 letter, affirmed that the purpose of a trial in the lacrosse case would be “for our students to be proved innocent.”

The failures of both the "separate-but-equal" policy and the presidential enunciation of a trial to prove innocence might have prompted the administration to rededicate itself to upholding Duke students’ procedural rights. Unfortunately, the Wolf/Slattery findings appear to dash such hopes.

N&O: Saacks as Interim DA

Anne Blythe breaks the news.

Given the names that had been floated, Saacks was a surprisingly good choice.

The State NAACP Suddenly Discovers Due Process

The N&O is reporting that the state NAACP and its president, William Barber, are back in the news. Reporter Titan Barksdale: “The NAACP filed a complaint today with the N.C. State Bar alleging that an assistant district attorney in Wilson mishandled the murder case of a 21-year-old Wilson man.”

Rev. Barber’s statement: “We must fight for justice across the board, irregardless [sic] of class and irregardless of race.”

That would be, it’s worth remembering, the same state NAACP that:

--Demanded a gag order against defense attorneys in the case, with the head of its Legal Redress Committee suggesting that the defense attorneys, not Mike Nifong, had committed ethical misconduct;

--Published an 82-point guilt-presuming memorandum of law riddled with factual errors and unfounded speculation;

--Remained silent as Nifong ordered the DPD to violate its own procedures and conduct a third photo lineup confined to suspects only.

“Justice across the board,” indeed.

Hat tip: C.K.

Wall Street Journal Review

From today’s Wall Street Journal, review by Abigail Thernstrom:

There was plenty of wrongdoing, of course, but it had very little to do with Duke’s lacrosse players. It was perpetrated instead by a rogue district attorney determined to win re-election in a racially divided, town-gown city; ideologically driven reporters and their pseudo-expert sources; censorious faculty members driven by the imperatives of political correctness; a craven university president; and black community leaders seemingly ready to believe any charge of black victimization.

Until Proven Innocent is a stunning book. It recounts the Duke lacrosse case in fascinating detail and offers, along the way, a damning portrait of the institutions—legal, educational and journalistic—that do so much to shape contemporary American culture. Messrs. Taylor and Johnson make it clear that the Duke affair—the rabid prosecution, the skewed commentary, the distorted media storyline—was not some odd, outlier incident but the product of an elite culture’s most treasured assumptions about American life, not least about America’s supposed racial divide . . .

In this fundamental injustice, [Nifong] was aided and abetted by others in Durham. Richard Brodhead, the president of Duke, condemned the lacrosse players as if they had already been found guilty, demanded the resignation of their coach and studiously ignored the mounting evidence that Ms. Mangum’s charge was false. He was clearly terrified of the racial and gender activists on his own faculty. Houston Baker, a noted professor of English, called the lacrosse players “white, violent, drunken men veritably given license to rape,” men who could “claim innocence . . . safe under the cover of silent whiteness.” Protesters on campus and in the city itself waved “castrate” banners, put up “wanted” posters and threatened the physical safety of the lacrosse players.

The vitriolic rhetoric of the faculty and Durham’s “progressive” community—including the local chapter of the NAACP—helped to intensify the scandal and stoke the media fires. The New York Times’ coverage was particularly egregious, as Messrs. Taylor and Johnson vividly show. It ran dozens of prominent stories and “analysis” articles trying to plumb the pathologies of the lacrosse players and of a campus culture that allowed swaggering white males to prey on poor, defenseless young black women. As one shrewd Times alumnus later wrote: “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bienpensant journalist.” Such Nifong allies—unlike the district attorney himself—paid no price for their shocking indifference to the truth.

Read the entire review here. Thernstrom’s closing sentence summarizes one of the sad realities of this case.

Questions for the Blue Committee

Tuesday’s Chronicle featured a news analysis on the Trustees’ committee conducting a three-year review of President Brodhead’s performance. Chelsea Allison reasoned that “although administrative reviews are regular University protocol, some have speculated that the tumultuous external events during President Richard Brodhead’s first three years could draw more attention to his assessment.”

That the seven-person committee includes a Group of 88 member (Sherman James) suggests it is unlikely to hold Brodhead accountable for his performance over the past 18 months.

Below are ten questions that the Blue Committee might want to consider. I invite DIW readers to suggest additional questions in the comment section; I’ll post the ten most interesting ones on Sunday.

1.) On April 20, 2006, President Brodhead made his first off-campus appearance after the arrests of Reade Seligmann and Collin Finnerty. He told members of the Durham Chamber of Commerce, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

In retrospect, does the president consider those remarks to be appropriate? And what did Seligmann and Finnerty—who attended a party they played no role in organizing and drank some beer—do that was “bad enough”?

2.) That same day—appearing at a Duke panel described as combating the “culture of crassness“ on campus—the president shared the platform with Dinushika Mohottige, the only person to admit to publicly distributing the vigilante posters with the lacrosse players’ photos; and Group of 88 member Mark Anthony Neal, who affirmed, “I have an alter ego—my intellectual alter ego. My intellectual alter ego is thugniggaintellectual—one word . . . I wanted to embody this figure that comes into intellectual spaces like a thug, who literally is fearful [sic] and menacing. I wanted to use this idea of this intellectual persona to do some real kind of ‘gangster’ scholarship, if you will. All right, just hard, hard-core intellectual thuggery.”

In retrospect, does the president believe that appearing with these two individuals communicated a message that he was serious about combating a “culture of crassness”?

3.) In his April 5, 2006 “letter to the Duke community,” President Brodhead affirmed, “I pledge that Duke will respond with appropriate seriousness when the truth is established.”

On April 11, 2007, the truth was made public, yet the administration’s subsequent response has been a desire to move on.

What occurred between April 2006 and April 2007 that caused the president to abandon his April 5, 2006 pledge to “respond with appropriate seriousness when the truth is established”?

4.) The Group of 88’s statement—for which, in a January 2007 statement, the overwhelming majority of signatories remaining at Duke refused to apologize—claimed the formal endorsement of five academic departments.

In fact, it appears as if none of the five departments ever had a vote on the statement, much less formally endorsed it.

Was any action taken against the person or persons responsible for falsely listing the official endorsements in this instance? And what concrete steps has the president taken to ensure that, in the future, Duke academic departments are not falsely listed as endorsing, in their official capacities, public statements?

5.) In late March 2006, a student named Chauncey Nartey sent an e-mail to the Presslers considered so threatening that Sue Pressler filed a report with the Duke Police. Shortly thereafter, Mike Pressler informed Larry Moneta about the e-mail; President Brodhead was informed about the e-mail no later than a May 2006 meeting with the lacrosse players.

Subsequently, Nartey was: (1) one of five students named to the Campus Culture Initiative; (2) one of a handful of students selected to share the platform with the president at one of the “Duke Conversation” events; and (3) one of around two dozen students who received the Griffths service award. (The latter two developments occurred after the fraternity of which Nartey was president was suspended by its national organization.)

Could the president explain the administration’s decision to shower a student like Nartey with honors and awards?

6.) No later than April 7, 2006, a coach informed President Brodhead of allegations of in-class harassment by members of the arts and sciences faculty against members of the lacrosse team.

What steps—if any—did the administration take to investigate these allegations? As part of this investigation—if any, in fact, occurred—why did no one from the Brodhead administration speak to any member of the lacrosse team about their in-class experiences?

7.) Chapter Six of the Duke Faculty Handbook opens with the following passage: “Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty.”

Does the president believe that—with their actions and/or statements in the lacrosse case while a member of the Duke faculty—Grant Farred, Karla Holloway, Ken Surin, and Peter Wood conformed to the Handbook’s provisions, particularly the requirement to treat all Duke students with “respect and consideration”?

If so, how? If not, in what ways were Farred, Holloway, Surin, and Wood disciplined?

8.) In his summer 2006 response to the Friends of Duke University open letter, the president stated that he was “eager for our students to be proved innocent” at trial.

Does the president still believe that the purpose of a trial would have been for the students to prove their innocence?

9.) Evan Thomas’ Newsweek review of Until Proven Innocent opened with the following passage:

On March 28, 2006, the four co-captains of the Duke lacrosse team accused of gang-raping an exotic dancer met with university president Richard Brodhead. One of the captains, David Evans, emotionally protested that the team was innocent and apologized for the misbegotten stripper party. “Brodhead’s eyes filled with tears,” write Stuart Taylor Jr. and KC Johnson in their new book on the case, “Until Proven Innocent” (420 pages. Thomas Dunne Books. $26.95). Brodhead “said that the captains should think of how difficult it had been for him.” The misbehavior of the players, said Duke’s president, “had put him in a terrible position.” Listening to Brodhead, Robert Ekstrand, a lawyer representing the captains and many of their teammates, “felt his blood starting to boil,” write Taylor and Johnson. “Here, he thought, is a comfortable university president wallowing in self-pity in front of four students who are in grave danger of being falsely indicted on charges of gang rape, punishable by decades in prison.”

In his report of the president’s April 2006 appearance before the Durham Chamber of Commerce, WRAL’s Dan Bowens noted, “For a few minutes, the school president, who has answered questions on a rape investigation involving members of the university’s men’s lacrosse team for the past month, needed time to vent among colleagues.”

Does the president consider himself a “victim” of the lacrosse affair; and, if so, in what way?

10.) In light of what everyone has witnessed over the past eighteen months, does the president believe that the Duke arts and sciences faculty suffers from a “groupthink” mentality that—in many departments—prevents the free and unfettered pursuit of truth?

Any reader (or at least those, as one commenter correctly points out, with a Duke connection who desires to offer suggestions to the Blue Committee, meanwhile, can do so at: pres-review@duke.edu.

Herald-Sun: Criminal Inquiry to Come?

The Herald-Sun is reporting that DA Hardin has requested that AG Roy Cooper open a criminal investigation into the conduct of Mike Nifong and perhaps others in the lacrosse case. Noelle Talley, Cooper's spokesperson, has confirmed the request, which applied to "anyone who acted "under the color of law enforcement"--possibly Nifong, police officers, Linwood Wilson, and (perhaps) Tara Levicy.

Nifong's one-day trip to jail on Friday, in short, could be a preview of things to come.

The N&O Speaks Out; Catotti & Curtis

This morning’s N&O published a powerful editorial commending Judge Smith for sentencing ex-DA Mike Nifong to jail. The editors noted,

Smith was the right judge to consider the issue decided last week. A year ago, during a hearing on the Duke lacrosse case, he asked Nifong if he had any information in DNA tests results that could be useful to the students' case. Nifong did—DNA from other men was found on material police collected from the dancer. But Nifong denied having it, and was unconvincing when he insisted that although his answers in court were incorrect, he didn't intend to lie.

As Smith eloquently explained, last week's contempt hearing was not about the merits of the case but about lawyers telling the truth in court. District attorneys, of all people, need to keep in mind that their first duty is as officers of the court, not advocates for convictions.

Meanwhile, the first round of campaign finance reports are out in the race for the Durham City Council. Incumbent Diane Catotti (pictured below, showing her support last fall for Mike Nifong) received money from one and only one arts and sciences faculty member: Kim Curtis, of political science.* [Catotti did receive funds from a law professor.]

Catotti, teaming with Victoria Peterson on the “Something Happened” ticket, did everything she could to block an independent inquiry of the Durham Police Department’s mishandling of the lacrosse case; and then demanded a hard quota on Whichard Commission appointees. Why? Because the case was not, evidently, about police and prosecutorial misconduct but instead about “race and gender issues.”

Curtis, meanwhile, is the Group of 88 member who—in writing—suggested that two lacrosse players in her spring 2006 class were guilty of (at minimum) conspiracy to obstruct justice. The grades of those two players then . . . coincidentally . . . plunged. One, Kyle Dowd, sued the university, prompting an out-of-court settlement in which Duke adjusted his grade to “Pass.”

Curtis and Catotti: a perfect partnership.

Book Q&A; Various Items

For the next few days, I invite those who have read the book to submit questions in the comment section. I’ll run a post on Monday responding to some of them.

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A link to the Good Morning America video is here. The book also has a website, which contains, among other items, the full sourcenotes for the volume.

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Reviews of the book have begun to appear.

In Newsweek, Evan Thomas offered praise in a review that asked whether the case was “Academic McCarthyism.” He stated:

In their vivid, at times chilling account, the authors are contemptuous of prosecutor Mike Nifong, whom the North Carolina legal establishment disbarred for his by now well-documented misconduct. (Nifong’s lawyer, David Freedman, says “there are a number of people who testified at the state bar proceeding that [Nifong] was a very caring career prosecutor.”[!!]) But their most biting scorn is aimed at the “academic McCarthyism” that they say has infected top-rated American universities like Duke.

A much-beloved dean at Yale before Duke hired him away in 2004, Brodhead is shy and sensitive, dryly witty and poetic, the authors write. Nifong, the Durham D.A. (who was held in criminal contempt of court last week for lying to a judge while pursuing the case and sentenced to a day in jail), is depicted as a bully and blowhard. What the two men had in common was an almost willful disregard for the facts . . . The authors make the Duke faculty look at once ridiculous and craven. For months, not one of the university’s nearly 500-member faculty of arts and sciences stood up to question the rush to judgment against the lacrosse team. So much for the ideal of the liberal-arts university where scholars debate openly and seek the truth. (“This book provides one interpretation,” says Duke spokesman John Burness.) The only group that shows any common sense in “Until Proven Innocent” is the student body. Aside from a few noisy activists who assumed the players were guilty, Duke undergrads mostly overlooked the political correctness of their professors.

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The Chronicle headlined Anne Llewellyn’s review, “Nuanced Johnson/Taylor book hits mark.” Llewellyn observed that the book “provides new details gathered from scores of interviews with the defendants, their families, friends and members of the Duke administration, including President Richard Brodhead,” producing “an account of the trial that engages like an episode of ‘Law and Order: Special Victims Unit’ while maintaining a respect for the complexity of that oft-neglected thing called reality.”

The book, she continued, “devotes many pages to fleshing out the personalities and experiences of the defendants as well as those close to them. Often used as “representatives” of some form of social ill-whether perpetrators of white privilege and oppression or later martyrs of reverse racism-it is refreshing to now see them as three-dimensional human beings.”

Llewellyn concludes:

Taylor and Johnson’s chimera of journalism, contemporary history and social commentary places the now-familiar narrative within a larger context of the authors’ understanding of a long and messy history of prosecutorial misconduct in America, an influx of radicalism within universities and a broader culture of political correctness.

Though not swayed by each and every one of the authors’ conclusions, this reviewer finished the book with more than a few things to think about and reasonable confidence that the book was offered up in good faith after a careful investigation, and was neither a work of expediency or exploitation to further any type of agenda.

In short, in a case where it seems like we have heard much too much, Until Proven Innocent is worth one more hearing.

Welcome

For those discovering the blog through the publication of Until Proven Innocent or through Good Morning America: Welcome. I first turned my attention to the Duke case after an April 2006 ad signed by 88 members of the Duke arts and sciences faculty. The ad stated unequivocally that something “happened” to Crystal Mangum; and said “thank you” to protesters who, among other things, had carried “CASTRATE” banners and blanketed the campus with “wanted” posters of the lacrosse team. The professors’ decision to sign the ad betrayed the ideals of their—and my—profession.

Since last April, the blog has had more than 1000 posts, focused on the twin themes of Mike Nifong’s massive prosecutorial misconduct and the “academic McCarthyism” evident in the reaction to the case by Duke faculty “activists.” But the blog also has analyzed the media coverage of the case, political events, and the role of the Durham police.

In the weeks since the book has gone to press, the blog has featured comprehensive coverage (from Durham) of Nifong’s ethics and criminal contempt trials, as well as profiles of the scholarship and teaching of some Group of 88 members.

Advance praise for Until Proven Innocent includes the following, from a diverse array of people and organizations:

John Grisham: “Brutally honest, unflinching, exhaustively researched, and compulsively readable, Until Proven Innocent excoriates those who led the stampede—the prosecutor, the cops, the media—but it also exposes the cowardice of Duke’s administration and faculty. Until Proven Innocent smothers any lingering doubts that in this country the presumption of innocence is dead, dead, dead.”

ACLU president Nadine Strossen: “This compelling narrative dramatizes the fearsome power of unscrupulous police and prosecutors to wreck the lives of innocent people, especially when the media and many in the community rush to presume guilt. The inspiring story of how the defense lawyers turned the tables on a dishonest DA points to the crying need for reforms to give defendants of modest means a fighting chance when law enforcement goes bad.”

Political columnist George Will: “In what surely is this year’s most revealing, scalding and disturbing book on America’s civic culture, the authors demonstrate that the Duke case was symptomatic of the dangerous decay of important institutions—legal, academic, and journalistic. . . . With this meticulous report, the guilty have at last been indicted and convicted.”

Newsweek editor Evan Thomas: “In their vivid, at times chilling account, the authors are contemptuous of prosecutor Mike Nifong, whom the North Carolina legal establishment disbarred for his by now well-documented misconduct . . . but their most biting scorn is aimed at the ‘academic McCarthyism’ that they say has infected top-rated American universities like Duke."

Former US Attorney General William P. Barr: “A gripping, meticulous, blow-by-blow account of the whole grotesque affair. It is beautifully written, dramatic, and full of insights, exposing how vulnerable the prosecutorial system is to abuse and how ready the liberal media and PC academics are to serve as leaders of the lynch mob. A must read for anyone who cares about individual rights and justice.”

NFL Players Association executive director Gene Upshaw: “This is a tale of grace and disgrace, researched in detail and clearly written. All of us face adversity in our lives, but thankfully very few face the adversity of national press coverage, being abandoned by those who should have defended us, and the possibility of a 30 year prison term for something which was a transparent lie. The Duke lacrosse hoax is fundamentally a tale of incredible courage and integrity on the part of the falsely indicted players, their families, their defense team, a few of their faculty (particularly Professor James Coleman), and the entire Duke lacrosse team, including their current and former coach. Theirs is a tale of incredible grace under searing pressure. People in positions of power and authority-such as prosecutors, police, and university leaders—carry the responsibility to find and defend the truth. Unfortunately, their tale is one of disgrace—and they are the authors of that disgrace. Stuart Taylor and KC Johnson have written a great book which chronicles a tale as old as humanity—the difficult but always worthwhile triumph of honesty and integrity over those who abuse power.”

ABC News legal correspondent Jan Crawford Greenberg: “A chilling, gripping account of how our judicial system can go terribly wrong. This is an important book that brings the Duke story to life and exposes troubling facts about our justice system and our citadels of higher learning. You may think you know the Duke story—but you don’t until you read this book.”

Time columnist Michael Kinsley: “The analysis of the notorious Duke rape case in this book is hard to accept. According to Stuart Taylor and KC Johnson, this episode was not just a terrible injustice to three young men. It exposed a fever of political correctness that is more virulent than ever on American campuses and throughout society. . . Unfortunately for doubts, the authors lay out the facts with scrupulous care. This is a thorough and absorbing history of a shameful episode.”

TalkLeft publisher Jeralyn Merritt: “Anyone interested in this travesty of a prosecution simply must read this book.”

GQ: KC Johnson embedded with the Duke lacrosse team amid the scandal that nearly tore apart the school. The result, UNTIL PROVEN INNOCENT (cowritten with Stuart Taylor Jr.) is the definitive account of the team’s head-on collision with political correctness and judicial posturing—and a disturbing, often embarrassing look at how the university sold out its own.”

Kirkus Reviews: “Hot-off-the-press reprobation of the badly flawed indictment process in this notorious incident . . . In this era of in-your-face Michael Moore–style media screeds, we all might be excused for being unresponsive to the promise of yet another exposé of yet another outrage. However, unlike our experience with Moore, who specializes in breathtaking generalities and over-spun characterizations, we are here flogged with innumerable details, each well reported and each implacably pointing to the same conclusion: The players were railroaded . . . The authors single out in particular the utter collapse of due process for accused students at a highly respected school. A cautionary tale for all readers.”

Charns Speaks Out

At John in Carolina, Durham attorney Alex Charns--among the first to home in on the extent of the DPD's misconduct--analyzed the city's legal vulnerabilities and reflected on what might have been.

He noted,

If DPD, for instance, had launched an Internal Affairs investigation of violations of its own procedures during the Apr 4 “no wrong choices” photo lineup with the accuser; and taken some steps to punish the officers involved, that would be evidence DPD and the city didn’t just stand by and do nothing when policies and procedures were violated.

The same would hold if city manager Patrick Baker had investigated, and there had been consequences for those who violated policies and procedures, as well as apologies to the students.

Instead of any of that, the city’s denied wrongdoing. By refusing to admit misconduct by some Durham officers and their supervisors, it’s put itself in just about the worst possible position it could be in today.

[The full interview is here.]

On Judge Smith

There were some obvious turning-point events in the lacrosse case:

• May 1, with the publication of Reade Seligmann’s alibi, which showed that Mike Nifong had obtained an indictment against at least one demonstrably innocent person;

• May 15, with Dave Evans’ speech on the courthouse steps, which shattered the Selena Roberts/Group of 88 caricature of the lacrosse team as thugs;

• June 14, with the publication of Jim Coleman’s letter to the N&O, demanding that Mike Nifong step aside from the case;

• Dec. 15, with the revelation of the Nifong/Meehan intentional agreement to file an incomplete report.

A less well-known turning point, however, came when Mike Nifong included Osmond Smith on his list of four possible permanent judges for the case. (Nifong’s other three selections were blatantly pro-prosecution; the idea of Smith had been floated to him by Bill Cotter, the one member of the defense team who retained something of a relationship with the ex-DA throughout the case.) Smith was also on the list supplied by defense lawyers, who considered him a fair judge. Nifong consulted his chief ADA, David Saacks, who had tried a case before Smith, and Saacks assured his boss that Smith was fair. But, of course, the last thing Mike Nifong needed was a fair judge in this case.

The initial two judges assigned to the case did everything they could to prop up the embattled DA. Judge Ron Stephens—who handled the case from the March 23 non-testimonial order through June 30—was last seen providing character testimony for the convicted Mike Nifong at the ex-DA’s criminal contempt trial. Stephens absurdly signed on to the NTO even though police didn’t have anything resembling probable cause against all 46 lacrosse players. He was openly contemptuous of Reade Seligmann’s first attorney, Kirk Osborn, in court—sending the message that he believed the accused players were guilty. One defense attorney, in fact, wondered if Stephens and Nifong had conversations about the case outside the courtroom.

Stephens’ successor, Kenneth Titus, made perfectly clear that—as a judge who had to stand for reelection in Durham—he was terrified of the NAACP. Since the civil rights organization tilted toward Nifong, Titus did as well, most notably by imposing a de facto gag order that the NAACP had championed once facts started emerging that undermined Nifong’s case.

Smith, on the other hand, made clear from the start that his interest was in justice, not in using his authority to favor one side or the other. Unlike Stephens, he kept television cameras out of the courtroom for pretrial hearings. And in his initial hearing on the case, he abandoned Stephens’ passive “hear-no-evil”/”see-no-evil” approach and personally pressed Nifong on the extent of his conversations with Brian Meehan.

Smith: So his report [Meehan’s May 12 report] encompasses it all?

Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Smith: So you represent there are no other statements from Dr. Meehan?

Nifong: No other statements. No other statements made to me.

Bannon: Just so I’m clear, 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 a, the male fraction DNA.

We now know that Nifong was lying when he made these statements.

Smith also—clearly contrary to the hopes of both Meehan and Nifong—ordered the state to turn over the underlying DNA data, a move that set in motion the dissolution of the case.

At the December 15 hearing, meanwhile, Smith made two critical decisions—neither immediately apparent—that showed his interest was in ensuring all the relevant facts came out. First, in a pre-session conference in chambers, he turned over to the defense (under seal) virtually Crystal Mangum’s entire psychological file, which totaled around 1000 pages. This information would have been critical to eviscerating Mangum had the hearing to suppress the photo ID lineup ever occurred. It’s very hard to believe that Judge Stephens—focused, it seemed, on bolstering Nifong’s case at all costs—ever would have turned over this material, despite its obvious relevance.

Second, Smith gave first Brad Bannon and then Jim Cooney plenty of time to examine Dr. Meehan in open court. It’s not hard to imagine how Judge Stephens would have handled this matter: after Meehan (falsely) responded “no” to Bannon’s first question (did the tests reveal unreported male DNA?), the judge doubtless would have shut the interrogation down.

The defense attorneys understood the significance of Smith’s role. Here’s Joe Cheshire, from Until Proven Innocent: Smith is a “great judge” who “plays it right, straight down the middle. When he got him we knew we were on a level playing field. We knew we no longer needed to worry about the possibility of home cooking” by the judge.

After the December 15 hearing, Smith could have inserted himself in such a way to frustrate the ultimate cause of justice. For instance, he could have demanded that Nifong and defense attorneys appear for an immediate hearing on possible sanctions—a move that could have led to the dismissal of the case on procedural grounds, but also would have eliminated the possibility of the AG’s declaration of actual innocence. Or he could have demanded action before the State Bar completed its actions, thereby diminishing the effect of its disbarment of Nifong. Or, once the case was dismissed and Nifong was disbarred, he could have done nothing, arguing that the matters raised by the Dec. 15 hearing were moot.

Instead, Smith bided his time and, when appropriate, scheduled the criminal contempt hearing. He presided over it with his typical fairness. He gave Nifong attorney Jim Glover all the time Glover needed for the attorney’s “bore-the-court” strategy—but he also consistently overruled Glover’s substantial objections. Smith’s carefully tailored finding of facts gave Nifong no grounds for appeal. And his decision to sentence the ex-DA to one day in jail rather than the maximum also ensured that no higher court would overturn his sentence.

Smith has come under some criticism for that decision, which strikes me as unfair:

• First, as Duke Law professor Tom Metzloff pointed out, the sentence—with any jail time—was “unprecedented . . . This just doesn't happen. This was a very important moment because it showed that the court system really cared about what happened in this case.”
• Second, criminal contempt is, by its very nature, a crime where deterrence and symbolism are more significant than the length of the sentence itself—one reason why the maximum sentence is a paltry 30 days.
• Finally, Smith’s decision not to impose a maximum sentence robbed Nifong and his enablers of the argument (which they had floated before the trial) that the judge had a closed mind and had behaved improperly by not recusing himself from the case.

Smith made one ruling with which I disagreed. Friday afternoon, assistant special prosecutor Boyd Sturgis asked Nifong why he referred to Crystal Mangum as the “victim.” Glover immediately objected; Smith sustained. Smith’s ruling was probably correct as a matter of law—but given Nifong’s repeated use of the term, and the ex-DA’s implications that a crime might have occurred, I wish the judge had allowed Nifong to answer the question.

In general, however, it’s hard to believe that this case would have ended as it did—correctly, and as a vindication for justice—without Osmond Smith as the judge. And his decision to sentence Nifong to jail—an “unprecedented” act, as Metzloff pointed out—shows that, until the end, Smith was most interested in upholding the integrity of the legal system.

Sunday Roundup

There are some figures about whose performance on the case it’s easy to pass moral judgment: Mike Nifong. Mark Gottlieb. Wahneema Lubiano.

But other actors bequeathed a more mixed legacy. Take, for instance, Ben Himan. Himan was critical in obtaining the fraudulent March 23 non-testimonial order—which started the whole case in motion. And he was willing to carry Nifong’s water as the only officer to testify before the grand jury that indicted Dave Evans.

Yet, in sharp contrast to Gottlieb, Himan did take—and turn over—handwritten notes. And, whether by accident or design, he was excluded from the two highest-profile instances of law enforcement malpractice in the case—the April 4, 2006 lineup, and Linwood Wilson’s December interview with Crystal Mangum.

Moreover, while some members of the DPD continued their corruption (Gottlieb); others maintained the “hear-no-evil/see-no-evil approach (Hodge, Chalmers); and still others retreated behind the blue wall of silence (Soucie, Clayton), Himan worked to redeem himself. From all accounts, he performed professionally during the AG’s inquiry, vindicating the office’s decision to employ him as the only Durham police officer involved in Cooper’s handling of the case. Unlike Gottlieb, he provided an honest deposition to the State Bar.

Himan’s testimony before the Disciplinary Hearing Committee provided one of the high points of Nifong’s ethics trial:

And in Nifong’s just-concluded contempt trial, Himan again provided critical testimony. Although he admitted that he didn’t particularly understand the specifics of the DNA discussions with Dr. Brian Meehan, he did recall one highly significant item: Meehan told Nifong and him that the DNA tests hadn’t just revealed existence of unidentified males, but they had revealed four unidentified males. Nifong conceded the point.

Himan’s testimony proved that Nifong lied to the court when he said that he and Meehan had no conversations beyond what the May 12 report contained. Meehan clearly would have needed to have explained precisely how he determined that DNA from four—as opposed, say, to three or five—males was found in the rape kit.

We hear a lot about the need for “healing.” Surely one step in that process would be for DPD leaders to publicly assert that Himan’s professional behavior since January 2007 represents the values the department would prefer its officers have.

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The New York Times produced its finest article on the case in its coverage of the Nifong guilty verdict. The reason wasn’t hard to determine: the Times didn’t send Duff Wilson to the trial, and instead relied upon Aaron Beard’s wire-services story.

Beard’s nicely done opening scene-setter:

From the day he took over the Duke lacrosse rape case, Durham County District Attorney Mike Nifong charged forward with a strident determination that the guilty would end up in jail. Ultimately, the since-disgraced former prosecutor only succeeded at putting himself behind bars.

Beard accurately recognized Osmond Smith’s motivations, noting that the judge “opted for a largely symbolic punishment—the public humiliation of sending a prosecutor to jail—that he said would help protect the integrity of the justice system.”

Beard also got some excellent quotes:

• Jim Cooney: “None of us take any joy in what happened today or what is going to happen to Mr. Nifong in a week. But it was the inevitable outcome of a lot of actions.”

• Joe Cheshire: “Do I feel sorry for him? I feel sorry for his family. I think what he did was willful and intentional and damaged seriously this state and the lives of these boys and their families. I don’t feel sorry for Mike Nifong. Sorry if that sounds cruel, but I don’t.”

• Kevin Finnerty: “It’s not a happy day for us, but we’re thrilled the system works, that justice has happened, and we’re moving on.”

The article was the latest in a long line of fine pieces by Beard.

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Yesterday, my colleague, Stuart Taylor, did an interview with NPR’s Scott Simon about Until Proven Innocent. The audio of the interview is on-line. NPR also published an excerpt from the chapter analyzing the Duke faculty’s initial response to the case, entitled “Academic McCarthyism.”

In this week’s Newsweek, Evan Thomas reviews the book, and obtains comments from Nifong attorney David Freedman and Duke spokesperson John Burness.

• Freedman, responding to our portrayal of Nifong: “There are a number of people who testified at the state bar proceeding that [Nifong] was a very caring career prosecutor.”

• Burness, responding to our portrayal of the faculty’s rush to judgment and Richard Brodhead’s timidity: “This book provides one interpretation.”

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Victoria Peterson was noticeable by her absence at the Nifong trial. But a DIW reader encountered her last week in the Durham Kinko’s. The City Council candidate had some interesting ideas to offer:

• The disbarment of Nifong was terrible. If anyone should be prosecuted, it’s current DA Jim Hardin for the Michael Peterson case. V. Peterson continues to believe that M. Peterson (no relation) is innocent.

• The “victim,” according to Peterson, is very credible. Why? Crystal Mangum served in the military. Anyhow, a trial needed to occur, so people could hear the other side. (Apparently, Mike Nifong’s 50-70 interviews weren’t enough.) What evidence would be presented at trial? According to Peterson, the rape kit—the work of SANE nurse-in-training Tara Levicy—was all that was needed. (Peterson didn’t say how Mangum would explain away her final story of the attack occurring as she was suspended in mid-air.)

• Peterson also denied all suggestions that Mangum was a prostitute. Why? “They didn’t have sex with her that night. Even the boys admit they didn’t have sex with her.” (How, then, a rape occurred Peterson didn’t reveal.)

• Who was the real “victim” of this affair? Mike Nifong, of course. Peterson compared him to James Cheney, Andrew Goodman, and Michael Schwerner, the civil rights activists who were killed in 1964, in Philadelphia, Mississippi. (Peterson, however, had the trio going north, apparently to Philadelphia, Pennsylvania, to be killed.)

• Who was the real villain of the affair? Roy Cooper—who Peterson contended was bought off by money from “New York, Boston, and New Jersey.” The fact that he got this money when he “isn’t running for office” shows that it was a payoff. (Cooper, in fact, is a candidate for re-election as attorney general in 2008.)

No word yet on whether Nifong will return the favor and serve as Peterson’s citizens’ committee co-chair in her City Council bid.

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The folks at the Liestoppers discussion board noted that Nancy Grace was MIA on the Nifong criminal contempt trial, as the guilt-presuming former prosecutor gave way to a "guest host." Grace was, of course, all over the story, making false claims and guilt-presuming insinuations, in spring 2006.

But, as Jon Stewart observed in a great skit a few months ago, Grace has a habit of absenting herself on days when the story didn't go her way.

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A reminder of the continued difference between the editorial leadership at the N&O and the Herald-Sun: the reaction to news that Durham's insurance company is pressuring the city to shut down the Whichard Committee inquiry, and keep all aspects of the DPD's misconduct in the dark.

The N&O's response was right on target:

Durham police played a role in the misguided prosecution, whether by going along with Nifong's efforts, by not protesting strongly enough that the evidence did not justify charges, or by both . . .

City administrators have put that investigation in neutral gear for the next several days because the insurance company that would face a big payout if the students sue and the city loses is having the jitters. The company says that Durham can't take any actions that might hurt the city's cause if it later has to defend itself. If the Whichard commission bores down to the truth, and if the department is shown to be at fault, that perhaps could undermine the city's position in court.

That might cause some tears to be shed for the insurers -- but actually, we thought that taking the financial risk is what the insurance business is all about. Besides, no one was crying as Durham paid its $220,000 annual premium for just this possibility. The company, by the way, is a subsidiary of American International Group, Inc., better known as AIG. It recently reported second quarter 2007 net income of $4.28 billion. If the Duke students sue and win, AIG's exposure would be $5 million, minus Durham's $500,000 deductible -- not an insignificant sum, but one the company should be able to handle. Durham has since changed its insurance carrier . . .

Regardless of what the students or AIG do, Durham's leaders should instruct the Whichard commission to proceed. Accountability needs to be determined for the way police headquarters handled the case. For instance, it's still unclear whether Nifong or police brass were in charge of detectives assigned to the investigation. Critical questions remain about how photo lineups were conducted. Are lineup policies the right ones, and if so, can Durham citizens be sure they are followed -- even when the pressure is turned up? Frankly, it also would be good to know how much oversight was provided by City Manager Baker, and later, how hard he pushed for the truth when writing his unsatisfactory report in May.

The lacrosse case was a shock to Durham's justice system, but it raised questions about justice across North Carolina. The entire state therefore has a stake in the commission's work. If an insurer can shut down Durham's inquiry, what good will it do to appoint any government fact-finding commission when a law enforcement agency's conduct is at issue? Reaching the truth as to how this case went so badly awry has to trump an insurance company's bottom line.

How did Bob Ashley and the Herald-Sun editorial page respond? Outrage at an outside entity dictating policy decisions to Durham officials? A call for the Police Department to stand tall and rectify its past mistakes? A commitment to finally getting to the truth?

There's no choice now but to shut [the commission] down.

Bob ("Eyes Wide Shut") Ashley strikes again.

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In today's Chicago Sun-Times, sports columnist Rick Telander had a blunt take on last week's events in Durham:

Michael Nifong, the disgraced, disbarred and grasping former Durham, N.C., district attorney, finally will serve time in jail -- one day -- for his role in the bogus Duke lacrosse rape case.

While supposedly pursuing justice, truth and American ideals, Nifong stirred the local flames of sexism and racism to near-riot levels by withholding evidence and making unfounded claims of sexual brutality against three Duke lacrosse players.

Maybe a lot of people in Durham and at Duke and, yes, across the nation, were far too eager to believe in Nifong's rhetoric, but the D.A. himself is the scum circle at the top of the dirty pond.

Consider Nifong's waffling, language -- statements to the court Friday: ''I now understand that some things that I thought were in the [DNA] report were, in fact, not in the report. So the statements were not factually true to the extent that I said all the information had been provided. ... It was never my intention to mislead this or any other court. I certainly apologize to the court at this time for anything I might have said that was not correct.''

How about saying, ''I'm a lying sack of [expletive]. Goodbye.''

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To give some sense of the seriousness of Nifong's conviction--regardless of the symbolic jail sentence--Newsday, Long Island's leading newspaper, ran the disgraced ex-DA as its cover photo in Saturday's edition.

The paper also had quotes from members of the Seligmann and Finnerty families.

• Kevin Finnerty: "It does give us closure. I think the three boys have their reputations back."

• Deb Hussey, Kathy Seligmann's sister: the Seligmann family "is looking forward. They are not looking back."

It's worth noting the irony that, on Friday, as Mike Nifong began his new life as a convicted criminal, Reade Seligmann and Collin Finnerty also began their new lives. Both moved into their dorms at Brown and Loyola, respectively.

Book-Related Events

Sept. 3, 9.05-9.30pm: I will be on CQHR (World Tonight)

Sept. 4, 8.45am: Stuart Taylor and I will be on ABC Good Morning America, preceded by 8 AM GMA radio interview.

Sept 4, 11.15am: Stuart Taylor will be on the Laura Ingraham Show

Sept. 4, 12.45pm: Stuart Taylor will be on Court TV (Jami Floyd, “Best Defense”).

Sept. 4, 6.45pm: Stuart Taylor will be on MSNBC’s Tucker Carlson Show.

Sept. 7, 9.30am: I will be on WCCO (Minnesota).

Sept. 7, 10.10am: I will be on KMED (Oregon).

Sept 7, 1:30pm: Dino Costa, Radio Colo. Network, Denver, interviews Stuart Taylor.

Sept. 8: I will be on WNBC-NY Weekend Today, 9.30am.

Sept. 11, 8:30 AM: Stuart Taylor will be on Morning Show with Ray Dunaway and Diane Smith, CBS Radio's Affiliate WTIC News/Talk 1080, Hartford, Connecticut.

Sept 11, noon: Book forum at Cato Institute with Stuart Taylor, Victoria Toensing, former prosecutor.

Sept 11, 7pm: I will be speaking at Duke’s Page auditorium about the case.

Sept 28, 10.50am: I will be part of a panel at Duke Law School’s Court of Public Opinion” conference.

Sept. 29, 7.00pm: I will be speaking (with a book signing) at The Regulator Bookstore (Durham).

Oct 2, 5.30pm: I will speak at the Harvard Club of Boston. Open to the public.

Oct 4 (time not available yet): I will be part of a panel at the Society of Professional Journalists Conference in Washington, DC.

Disgrace and Redemption

Over the last two days, Mike Nifong disgraced not only himself but the Durham attorneys who, supposedly, represent the “people.”

Nifong’s disgrace was obvious.

Four times on the stand he referred to Crystal Mangum as the “victim.” He made it clear that—unequivocal apologies notwithstanding—he still believes her story/stories, despite overwhelming evidence to the contrary.

How, his attorney asked, could he explain the lack of DNA evidence from the SBI? “It was evident to me that this had been a non-ejaculatory event.” There would have been DNA, he suggested later, “had there been ejaculation and had there not been something to prevent the ejaculate from getting on Ms. Mangum.” His implication? An attack actually occurred, with condoms or objects? (I guess he didn’t believe Mangum on these points.)

With benefit of hindsight, would he concede that Dr. Meehan’s finding of DNA from multiple unidentified males on Mangum’s rape kit be considered exculpatory? Astonishingly, Nifong continued to say no—and repeated his denial over and over again during cross-examination.

The same person who absurdly rationalized a case where the “victim” described at least one and (depending on the version) multiple ejaculations as “a non-ejaculatory event” dismissed the rape kit DNA. The N&O’s Joe Neff and Anne Blythe tartly summarized:

Nifong also offered a unique theory about whose DNA it could have been.

"It could have come from anybody," Nifong said. "She had a son, a very young son."

Beyond a person unethical to the core, the proceedings revealed a former prosecutor who was almost unbelievably lazy. He justified his open-file discovery policy on the grounds that it was more efficient in obtaining guilty pleas, and spared him the trouble of reading reports. Indeed, based on the insinuations in his testimony, he regularly brought indictments without reading the basic documents or reports upon which those indictments were based. And when did he read the documents? Perhaps never, if the defendant entered a plea. Otherwise, on the eve of trial.

How convenient, then: under the theory of justice Nifong outlined yesterday, a prosecutor could lie to the court at will. Since prosecutors don’t have to read any of the documents in their files, they can simply guess on what those documents contain. Since they don’t know what is in the documents, they can’t knowingly lie. As he told the court yesterday, he considers his 9-22 statement that he and Dr. Meehan never discussed the facts of the case beyond what was contained in Meehan’s report to be “basically true.” Why? Because “I’m not even sure that I even thought of the unidentified DNA as a ‘fact of this case.’”

In this case, of course, this behavior manifested itself as part of an effort to send three demonstrably innocent people to jail for 30 years—for a crime that never occurred. The Durham prosecutorial establishment, however, appeared not to care.

Judge Ron Stephens has a reputation as a tough-on-criminals judge. It appears, however, that he holds his friends to a different standard. This sitting judge—the same man who signed the fraudulent NTO that launched this case into the media stratosphere—appeared as a character witness for the convicted Nifong. He suggested that professional jealousy explained the dislike for Nifong: lots of defense lawyers, Stephens asserted, didn’t want to go up against Nifong because he would win close cases. Nifong, he added, was the “appropriate choice” to be DA as of spring 2005.

Stephens also hailed Nifong as a mentor to the next generation of Durham ADA’s. Perhaps he had in mind Judge Marcia Morey, who testified on Nifong’s behalf and then returned to the courtroom to offer solace to Nifong’s family as the verdict was rendered. In her willingness to defend Nifong, Morey disgraced her own office. Neff and Blythe summarized:

An unusual moment came before Nifong's testimony, when a judge testified that she expected lawyers to be more honest during trial than during pretrial hearings.

A prosecutor asked the judge, Marcia Morey, whether a lawyer would be following his duty to be candid if he assured a judge that a report was complete when the lawyer knew it to be incomplete.

It depended on whether the case had reached trial, Morey said.

"I do think it makes a difference," Morey said. "Are you are at a trial stage, are you at a pretrial conference."

Sitting alongside Morey was current ADA Jan Paul. Paul vigorously nodded as Nifong attorney Jim Glover insisted in his closing argument that not only did Nifong not lie, but he couldn’t really see any errors his client had made. Paul then visibly wept as the guilty verdict was rendered. Remember, this is someone whose job it is to uphold justice for the people.

The appearances of Paul, Morey, and Stephens brought to mind the equally troubling testimony of Innocence Commission executive director Kendra Montgomery-Blinn, another former Durham ADA and someone who saw no problem with Mike Nifong’s conduct.

How confident could any defendant be appearing before Judge Stephens? Or Judge Morey? Or going up against ADA Paul? The trio’s endorsement of Nifong suggested a conception of justice so warped as to defy description.

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In this atmosphere of disgrace not merely for Nifong but for the contingent of the Durham legal establishment that’s supposed to represent the people, two attorneys from outside Durham redeemed the national image of North Carolina justice. Special prosecutor Charles Davis admitted that he didn’t really want to take this case, but considered it his duty, as an officer of the court, to do so.

He delivered elegant, dignified, and powerful closing arguments in both the trial and the sentencing phases of the proceedings.

As Stephens, Paul, and Morey defended a figure who wanted to use the power of his office to abuse the law and send innocent people to jail, Davis understood that Nifong needed to be punished: “When you start saying things to the court that aren’t true, you are taking a jackhammer and trying to tear at the very foundation, the rock on which our court system is built.” If you can’t rely on officers of court, he continued, and DA’s and ADA’s aren’t honest and truthful, then “our court system is gone.”

Davis is from Wake County. Another figure from outside Durham—Judge W. Osmond Smith—reminded the state and the country that while Mike Nifong may represent Durham’s current and former prosecutors, his legal enablers extend no further. Smith presided over the affair with a quiet dignity, and ended the trial with an emotional tribute to the sanctity of the law.

It is a lesson that too few Durham prosecutors, current and former, appear to have learned.