Karma and Grant Farred

[Three updates below, 6.41pm, 4-12; a fourth update below, 9.02am, 4-13]:

With the possible exceptions of Houston Baker and Wahneema Lubiano, Grant Farred was the most extreme member of the Group of 88. This was, it’s worth recalling, the Duke faculty member who:

• Claimed that Duke students who registered to vote in Durham exhibited a “secret racism”;
• Explained away AG Roy Cooper’s innocence declaration by wildly charging—without any offering any evidence to corroborate it—that unnamed lacrosse players had committed “perjury”;
• Implied—on the Duke campus, no less, and again without offering any evidence—that the lacrosse players (even if they hadn’t committed rape) had engaged in prostitution.

Despite this record, and almost incredibly, in 2007 Cornell hired Farred—with tenure and a promotion to full professor. No one could credibly claim that the Ivy League institution didn’t know what it was getting. As I noted at the time, “even though the most rudimentary search [by Cornell professors] would have revealed Farred’s apparent belief that he is not bound by the terms of the Faculty Handbook in how he deals with students, the Cornell professors appeared either not to care, or to approve of Farred’s actions.” Vice President for University Communications Thomas Bruce had a much different take on the hire, gushing, “We feel that his unique perspectives and talents – he is an athlete as well as a scholar – will add to the range of reasoned intellectual discourse at Cornell.”

Today’s Cornell Sun brings news that holding his own school’s students in contempt is an attitude that Farred apparently brought with him from Duke to Cornell. From the article:

Earlier this year, Prof. Grant Farred, English and Africana studies, invited two of his advisees — both female graduate students who wish to remain anonymous — to attend a Feb. 5 and 6 conference at the University of Rochester entitled “Theorizing Black Studies: Thinking Black Intellectuals.”

The two students arrived late to a conference panel, after which Farred walked over and thanked them for making it out to the conference. According to one of the two students present, Farred then lowered his voice and said, “When you both walked in, I thought, ‘Who are these black bitches?’”

The students eventually reported the incident to the director of the Africana Studies and Research program. Farred was removed as graduate deputy—again, it is remarkable that such a figure ever was placed in such a position—but otherwise the incident appears to have been hushed up.

Farred’s conduct is now the subject of protest on the Cornell campus—including in an open letter (with dozens of signatories) that reads as if it could have come from the Group of 88: “All across the country, alumni of Cornell University are discussing this matter and expressing their horror and outrage about its occurrence and the refusal of the University leadership to respond effectively.”

Farred isn’t commenting. Cornell faculty members have no one to blame but themselves for hiring him.

[Update, 6.31pm: Three additional items:

1.) Cornell’s Faculty Handbook contains the following guidelines regarding faculty treatment of students:

• “The faculty recognizes its obligation to counsel students as individuals.”
• “The major responsibility of the teachers . . . lies in the academic province: to set and maintain the highest possible educational and scholarly standards and levels of achievement, to embody these values in their teaching and counseling, and to uphold the conditions of free enquiry both for their students and for their colleagues.”
• “A major task of the university, at this point in Cornell history, is to develop procedures which will promote full and free communication between faculty, students, and administration, and will ensure to students adequate procedures for voicing their considered judgment, both on academic policies and on academic practices.”

It is unclear whether either Cornell as a whole or the Africana Studies program considers a tenured professor referring to two female students as “black bitches” consistent with these qualifications. Obviously, neither Cornell nor the Africana Studies program considered these qualifications important in the hiring of Farred, since otherwise such a hiring would have been inconceivable.

The University’s anti-discrimination policy requires the following:

“Cornell University’s commitment to diversity and inclusiveness is grounded in providing an environment that is free from all prohibited discrimination, protected status harassment, and bias activity, in particular when such actions are directed at a member or group of the Cornell community because of that individual’s or group’s actual or perceived age, color, creed, disability, ethnicity, gender, gender identity or expression, marital status, national origin, race, religion, sexual orientation, veteran status, or any combination of these or related factors.”

It is unclear whether either Cornell as a whole or the Africana Studies program considers a tenured professor referring to two female students as “black bitches” consistent with these qualifications. Obviously, neither Cornell nor the Africana Studies program considered these qualifications important in the hiring of Farred, since otherwise such a hiring would have been inconceivable.

2.) It’s worth noting that Farred also carried over from Duke to Cornell a tendency to inappropriately sexualize his institution’s students. At Duke, he at least twice denounced (without supplying any corroborating evidence) the lacrosse players’ alleged tendency toward “arrogant sexual prowess.” At Cornell, of course, he allegedly denounced two of his female students as “black bitches.”

3.) In an editorial, the Cornell Sun—which broke the Farred story—noted that “true bigots and tactless buffoons do exist in our society, and will inevitably articulate offensive thoughts.” (The paper didn’t say into which group Farred falls.) The editorial noted that Cornell administrators, including Farred’s supervisor in the Africana Studies program, responded in a “lackluster” fashion to Farred’s alleged comments, which “offended, insulted and embarrassed women and the African-American community alike.”

The editorial sadly noted that “it is embarrassing for a department that stands for equality and combats bigotry to have to deal with an issue as ugly as this one,” since “Professor Farred’s alleged comment contradicts the department’s mission of using an intimate understanding of social history to disassemble deep-seeded prejudices in our culture. Such a contradiction reflects badly on the center in a very public way.”

But perhaps the editorial board is looking too deeply at this issue, since the issue really is a simple one. If, in the future, Cornell wants to avoid professors who engage in “ugly” activities that tend towards “bigotry,” then the university would be well-served in not hiring and promoting professors who, at their previous institution, had engaged in just such acts.]

[Update Two, 9.02am, 4-13: Inside Higher Ed provides new details on the affair this morning. Farred apologized to the two women after the session, but at least one considered his apology insincere. The professor added a damning comment, telling the two students, "Stay out of any low-income neighborhoods while in Rochester."

As of this morning, Farred remains in a position of authority at Cornell, where he serves as associate chair of the English Department.

And one of the students observed, “Had this happened with a white professor, or in a different department, the response would have been unequivocal in responding to what was said.” That's no surprise to anyone who followed the lacrosse case: in the Animal Farm that is contemporary higher education, some animals are more equal than others.]

FIRE Confronts Duke's New Sexual Misconduct Policy

A powerful statement today released by FIRE, regarding Duke's guilt-presuming sexual misconduct procedure. FIRE vice president Robert Shibley put the matter bluntly:

"Duke's new sexual misconduct policy could have been written by Mike Nifong. Members of the men's basketball team could be punished for consensual sexual activity simply because they are 'perceived' as more powerful than other students after winning the national championship. Students who engage in sexual behavior after a few beers could be found guilty of sexual misconduct towards each other. This is not just illogical and impractical, but insane. Given its experience during the lacrosse team rape hoax, Duke, of all schools, should know better than to institute such unjust rules about sexual misconduct."

How will Duke respond? I'd like to think the university would show some sensitivity to due process and the need to avoid false allegations--or, even if not, would want to avoid being publicly shamed as FIRE has done. But on a campus in which the Group of 88 and its allies have, if anything, tightened their vise since the end of the lacrosse case, I can't say that I'm optimistic.

Pressler Lawsuit Settled

Duke has settled its lawsuit with former lacrosse coach Mike Pressler. Having tried (and failed) to get the case thrown out before discovery, the University had little choice--I can't imagine the discovery in this case would have been pleasant.

Here is the statement the University released to accompany the settlement: "Coach Michael Pressler is an excellent coach. He did a great job building the Duke men's lacrosse program, while maintaining a 100 percent graduation rate in his 16 years. Duke University regrets any adverse consequences that the Newsday or AP article had on Coach Pressler or his family. Duke wishes nothing but the best for Coach Pressler in his future endeavors, especially at Bryant University and as he leads Team USA in the World Lacrosse Championships."

"Discordant Voices" at Duke

[Update, 3/30: FIRE reports that Duke has reversed its ban on the pro-life group using the women's center--through, in an ironic touch, a letter from director Ada Gregory.]

At this point in time, it’s hard to imagine anything surprising coming from the Brodhead administration—which, after all, has responded to the lacrosse case by promoting numerous members of the Group of 88.

But it’s still possible for a Duke decision to raise eyebrows.

Duke’s Women’s Center claims that that it “welcomes discordant viewpoints from varied experiences.” Yet, as we saw in the campus reaction to the lacrosse case, some “discordant viewpoints” are more equal than others at Duke.

In a line that could almost qualify as a parody of political correctness, the Center asserts that it works “to build a community that acknowledges and supports resistance to racism, classism, sexism, ablism and heterosexism.” The Center also tells Duke women that they can find their “feminist voice” through participating in its programs. In a couple of weeks, the Center will welcome an address from Jessica Valenti, a former volunteer for Planned Parenthood and NARAL Pro-choice America, on the “enthusiastic consent” standard.

Pro-life Duke women, it seems, are not as valued by the Center. Today’s Daily Caller features a column from Duke student Michelle Barreto, president of Duke Students for Life, who had requested to use a space inside the Women’s Center for what was described as a “Discussion with a Duke Mother,” as part of the campus-wide “Week for Life” event.

A Duke student who’s also a mother—this would seem to represent the type of “discordant viewpoints” the Center celebrates. Instead, according to Barreto, Women’s Center staffer Martin Liccardo vetoed the event, because of its association with a pro-life viewpoint, adding, “We had a very strong reaction from students in general who use our space who said this was something that was upsetting and not OK . . . So based on that, we said we are going to respond to this and stop the program.” I e-mailed Liccardo to ask if he had a response to the Daily Caller column; he did not reply.

FIRE has come to the aid of Barreto: FIRE Vice President Robert Shibley accurately noted that “Duke appears to have an unwritten but officially enforced stance regarding abortion that has resulted in pro-life groups being shut out of the Women's Center.” Since Duke isn’t a public university, it isn’t bound by the First Amendment. But—as we all learned in the lacrosse case—the university purports to value open discussion on campus. As Adam Kissel, Director of FIRE’s Individual Rights Defense Program, commented, “If Duke wants to be officially a pro-choice university where only women with ‘correct’ views get full access to campus resources, it should stop misrepresenting itself.”

This seems like a pretty clear-cut case of upholding student speech. Will the Brodhead administration do the right thing?

[Disclosure: By the way, I should probably point out that I am pro-choice on abortion rights.]

Meehan Wrongful Termination Suit Dismissed

In the United States, anyone can file a lawsuit. But some are more brazen than others.

In the ranks of people who violated procedures in the lacrosse case, only Mike Nifong exceeded DNA Security lab director Brian Meehan. Working in concert with Nifong, Meehan produced a “report” that didn’t list all the results from his lab’s tests—in violation of state law and lab accreditation standards. That the withheld material just happened to be exculpatory was, apparently, just a coincidence.

Then Meehan tried to bluff his way through the Dec. 15, 2006 court hearing, at first denying that he hadn’t reported all of the tests results, only to admit—under a brutal cross-examination from Brad Bannon—over and over and over again that he had done so. He even admitted that his company didn’t follow its own policies. A few minutes later, Meehan told Jim Cooney that he and Nifong had, in fact, entered into an agreement not to produce the information. A few months later, Meehan gave such a meandering performance in the Nifong ethics hearing that Lane Williamson dubbed him “Mr. Obfuscation.”

Meehan’s conduct exposed his employers to massive legal liability; it’s unknown how much DNA Security has had to pay thus far to defend against lawsuits resulting from Meehan’s performance and inquiries from agencies threatening to revoke DSI’s accreditation. So it should hardly have come as any surprise that DSI fired Meehan—to have kept him on staff not only would have effectively endorsed his handling of the lacrosse case, but would have ensured that no law enforcement agency could ever risk hiring the company again.

Incredibly, Meehan sued DSI for . . . wrongful termination. He brazenly suggested that the company’s reasons for dismissing him were “untrue and immaterial.” (How Meehan could have concluded that his violating state law and national accreditation standards was “immaterial” to evaluating his job performance was unclear.) Instead, the former lab director suggested, he had lost his job because DSI wanted to avoid paying him cost-of-living increases(!).

Meehan wildly added, as the Burlington Times-News drily noted, that DSI’s decision to fire him caused a “loss of professional reputation, mental anguish and emotional distress, loss of quality and enjoyment of life and other damages.” What “professional reputation” Meehan had left after his performance in the lacrosse case the former lab director didn’t say.

This argument was so weak that Senior Resident Superior Court Judge J.B. Allen Jr. of Alamance County granted DSI’s request for a summary judgment and dismissed Meehan’s lawsuit before it ever made it to a trial.

The decision was an obvious one: if Brian Meehan couldn’t be fired for “just cause,” it would be difficult to imagine a scenario in which such a rationale would be permitted.

Williamson Appointed to Judgeship

Governor Beverly Perdue has appointed to a vacant Superior Court judgeship Lane Williamson, who presided over the hearing that resulted in Mike Nifong's conviction on multiple ethics charges and subsequent disbarment.

Based on Williamson's performance in the Nifong case, at least, it would be difficult to imagine a more appropriate choice, in terms of both intellect and judicial temperament. North Carolina is lucky to have him on the bench.

The Roethlisberger Case

One item from the case is especially notable. As far as I can tell, and despite the heavy media interest, the district attorney, Fred Bright, has made only one public comment. Here it is: "The investigation is ongoing. It would be premature to make any announcement at this time. When the facts are in and a decision is made, we will let you know."

Contrast the tone and contents of that remark to Mike Nifong's pre-primary publicity crusade in 2006. Three days after taking over supervision of the police investigation, and minutes after receiving his first detailed briefing on the facts of the case from the police officers now working under his direction, Nifong was off and running.

He gave interview after interview to local, state, and national media--expressing his certainty that a crime had occurred (as he privately admitted, "We're fucked"), and making racially inflammatory remarks as he began his surge from third place to first among black primary voters. He discussed how he had read the report of SANE-nurse-in-training Tara Levicy--the report that mentioned false accuser Crystal Mangum had claimed her "attackers" hadn't used condoms. He even gave a demonstration--on live TV, no less--of how the false accuser had been "choked" in the commission of the "crime."

During that time, few prominent commentators or members of the media expressed any skepticism about the propriety of Nifong's remarks--TalkLeft's Jeralyn Merritt stands as a significant exception. That said, it's hard to think of a DA in a comparable case (much less a DA six weeks from a primary election that seemed certain to result not only in his defeat but in the new DA firing him) behaving anything like Nifong did.

Bright's comment provides a reminder of how "Minister of Justice" Nifong should have conducted himself in spring 2006.

Updates

A few updates.

Crystal Mangum’s bail, for charges of attempted murder, arson, and child endangerment, was reduced to $250,000. As one of the most astute observers of the case commented to me privately, a notable aspect of this affair is that, by filing severe charges against her, the Durham Police Department is no longer willing to afford Mangum the special treatment she so consistently received in the lacrosse case.

Mangum’s patron and “co-author,” Vincent Clark, appears to have noticed this as well: he sniffed to WRAL that “we hope that the courts will adjudicate this case with fairness and without bias.” (In the mind of Clark, it looks as if Nifong's decision to violate rules on behalf of Mangum constitutes the system acting fairly.) Clark also wildly suggested that Mangum had suffered from unidentified “past injustices.”

In Newsweek on-line, Susannah Meadows, who covered the case extensively, correctly observes, “I am sorry to say that I wasn't at all surprised by the most recent events.” Mangum, of course, has a long history of mental illness. And, as Meadows observes, “There were so many different versions of events that her statements took on an air of absurdity. She came off as more pathetic than conniving” (quite unlike, for instance, Nifong).

Meadows also contends that “though the case ended, the sadness that the scandal incidentally exposed remains unresolved. Remember that racial slur? When the two black strippers left the lacrosse party in a huff, a white freshman on the lacrosse team yelled out to them, ‘Thank your grandpa for my nice cotton shirt!; Case or no case, the epithet still hangs in the air.”

Indeed it does. So, too, does the Group of 88’s statement. But unlike the student who uttered the racial epithet, the Group of 88 has, if anything, only tightened its vise over Duke’s humanities and (some) social sciences departments in the wake of the affair.

Two instances of false or dismissed rape allegations. The New York Post brings the story of a woman sent to prison for lying about a rape—a lie that led to an innocent man being sentenced to 20 years in jail. It’s inconceivable to me that Mangum could have been convicted of such an offense—she could have claimed mental illness, or she could have suggested that, as the DPD and the county’s “minister of justice” believed her, the story she told was credible. But the sentence is a reminder of just how unusual it is for false accusers—in a crime where the word of a false accuser can be enough to merit a decades-long sentence—to be prosecuted for their lies.

On another front, the Sacred Heart lacrosse case, which prompted several publications to write, as fact, that the “victim” was a “girl”? It turns out that, legally, there was no “victim” at all. All charges have been dropped.

Finally, I’ve little doubt that only the truest of true believers, scattered hacks who want to rehabilitate Mike Nifong, and those with high tolerance for what Dave Evans once termed “fantastic lies” monitor the “justice4nifong” site. I count myself in the latter category.

That said, the site remains the closest thing we have to the unvarnished thinking of Nifong. The committee members that nominally supervise the site consist of Nifong’s closest followers, and have admitted that they’re in contact with Nifong himself.

With that in mind, it’s been interesting to see a sudden, even abrupt, change in the “Nifong party line” over the last couple of weeks. The previous party line amounted to: Mike Nifong’s an ethical guy, a rape probably occurred, the lacrosse players are awful racists, and the State Bar mistreated him. These beliefs still animate the site. But nonetheless, sometime between a post on February 7, 2010 and February 16, 2010, the party line shifted.

The site escalated its personal attacks on the State Bar prosecutors. It magnified its claim that Nifong didn’t benefit from the case politically. More intriguingly, it suddenly started homing in on Rae Evans, to an extent far greater than previously. And, again, to a much greater extent than before, it suddenly started highlighting an alleged plot between CBS News(!) and the special prosecutors/AG’s office.

I’m not aware of anything that occurred in the case between February 7, 2010 and February 16, 2010 to cause Nifong and his acolytes to suddenly focus on demonizing Rae Evans and CBS News, or to suddenly challenge, in minute detail, the DHC’s conclusion that political concerns motivated Nifong.

The new party line, alas, is no more convincing than the old party line was, and would persuade only those in Nifong’s closest circle and the hacks who accept Nifong’s rationalizations as credible.

Mangum Arrested (Updated)

The N&O, WRAL, and ABC-11 have reported that false accuser Crystal Mangum was arrested early this morning. She has been charged with a series of crimes, including attempted first-degree murder, five counts of arson, and three counts of child endangerment. (The Herald-Sun, on the other hand, suggests she was not charged with attempted murder.) In an interview with ABC News, Mike Nifong "initially said he doubted press reports about Mangum's arrest, saying he found news reports 'to be of questionable value.'"

This case will work its way through the system, and it is premature to suggest guilt or innocence at this stage. Perhaps Mangum’s new boyfriend (whom she allegedly assaulted and attempted to kill) and one of her children (who apparently called 911) were lying about what occurred; perhaps the police report was flawed. And as the police investigation is continuing, perhaps new information will come to light about the incident.

That said, a few items about the arrest that have some relevance to the lacrosse case:

1) At this point, only a handful of people—chiefly the cranks at the “justice4nifong” website and the hacks who take seriously the site’s rantings—cling to the fiction that Mike Nifong was basically an ethical guy, a prosecutor who pursued the lacrosse case in good faith and had probable cause to do so. For this handful of true-believers and their followers, whitewashing Mangum’s character is critical—the image of her is generally of an “honors student” and “working mom” who had no incentive to lie. Such an approach, of course, requires ignoring Mangum’s 2002 arrest, her habit of leveling major, unsubstantiated accusations against people even before the case, and the fact that she showed up to her meeting with the special prosecutors under the influence of various prescription drugs. Despite that background, it’s going to be hard for even the truest of true believers to continue to hail Mangum’s good character if anything like the incident as reported is true.

2) Given that Mangum was charged with three counts of child endangerment, this incident should prompt some questions for North Carolina’s Department of Child Protective Services. Before the lacrosse case broke, it’s easy to understand how someone like Mangum (who at that point had two children) could have slipped through the cracks. But the case brought to light some disturbing patterns of conduct—Mangum’s 2002 arrest; her seemingly very serious mental health problems; her showing up for her special prosecutor’s interview under the influence of various drugs; and perhaps most troublingly her spring 2006 behavior before the lacrosse party, as attested by her closest associates (Yolanda Haynes, Jarriel Johnson, “Fats” Thomas),which included her using her “drivers” to look after her children and her frequently being away from home for the entire evening servicing her clients.

Did CPS look into the condition of Mangum’s children before she was formally charged with child endangerment? If so, what was the result of their investigation?

3) As of this writing (12.24pm), the New York Times (which saw fit to run dozens of articles and columns on the lacrosse case) hasn’t mentioned the arrest. The arrest puts the Times in a bind: even after the Attorney General declared her a false accuser, the Times refused to identify Mangum, apparently on the grounds that publicly identifying someone who made a false accusation of rape would deter real victims from coming forward. No Times reporter has ever used Mangum’s name in the newspaper. (One subsequent article from the AP that appeared in a Times brief did do so.) So will the Times cover the arrest, or continue to shield Mangum’s identity from its readers?

[At 5.15pm, the Times provided its answer: it picked up the AP wire story [AP has used Mangum's name since the innocence declaration] rather than have one its own reporters cover the story.]

4) Wendy Murphy might finally get her wish. In a wild column, the extremist commentator suggested that the unreleased section of the discovery file might show how the “seasoned prosecutor” Nifong had a case all along. Of course, the only unreleased section of the file was the roughly 1000 pages of Mangum’s mental health records, which Nifong possessed throughout the case and which Judge Smith gave to the defense, under seal, late in the case. (Murphy’s suggestion that this material would show Nifong’s good faith or that perhaps he had a case is, of course, preposterous—this material almost certainly would show that Mangum was an even more unreliable accuser than the public came to realize.)

If Mangum’s current case manages to make it to trial, an obvious line of defense would be mental impairment—which means that Mangum’s mental health history could come into evidence.

Case Updates

A few updates in the civil suit.

First, and most significant, an out-of-court settlement was reached in the Pottawatamie case, a civil suit that resulted from massive prosecutorial misconduct, and about which I had blogged previously. As Radley Balko has argued, the Pottawattamie side of the case contended “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The two falsely imprisoned men received $12 million; the Iowa county didn’t admit wrongdoing, but the willingness to settle represented a reasonable reading of the Supreme Court tea leaves. Only Justices Alito and Roberts seemed openly sympathetic to the county’s side.

While the parties to the case could figure out which way the Court was likely to decide, Nifong attorney Jim Craven apparently thought that Pottawatamie would be his client’s ticket to freedom. Back to the drawing board.

The settlement is obviously a victory for the wrongly accused men, but probably a setback for justice, since the Supreme Court seemed inclined to place some minimal checks on prosecutorial misconduct. That said, as Volokh Conspiracy’s John Elwood pointed out, “While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue. The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant."

Who knows: perhaps the case in which the Court checks prosecutors will be the Duke civil suit. As egregious as the conduct of the Pottawattamie prosecutors was, even they didn’t personally direct the entire police investigation, as the disgraced ex-DA Nifong did.

Second, the Durham attorneys are justifying their fees by drawing “the Court’s attention” to two 4^th Circuit cases in which suits against cities or city employees were dismissed. The attorneys’ filing didn’t bother to explain the relevance of either case to the Durham lawsuit, probably because the facts of both cases radically differ from that of the Duke case.

In Monroe v. City of Charlottesville, the city of Charlottesville requested (not required) DNA samples from young, black men in the area after a woman claimed she was raped by a young, black man. One of the subjects of the procedure, Larry Monroe (who voluntarily gave his DNA), sued. The district court dismissed the suit in large part because Monroe failed to state an actionable claim, and also because “Monroe had little interest in or knowledge and understanding of the case, and appeared to be merely lending his name to the suit.” Certainly even the Durham attorneys aren’t suggesting that the Duke plaintiffs have failed to state specific civil rights claims—or that Reade Seligmann, Collin Finnerty, and Dave Evans have “little interest in or knowledge and understanding of the case.”

In one respect, Monroe does have some relationship to the Duke case—but it helps the plaintiffs, not the city of Durham. Although most of his case was dismissed, including his claim that he was targeted because of his race, Monroe was “allowed to proceed on his individual claims of (1) an equal protection violation based on the City’s alleged failure to institute similar investigation methods when the assailant is described as white.”

It’s not too difficult to see the potential relevance of this finding to the Duke case. As of March 2006, Nifong’s only (slim) hope at a primary victory (and thereby keeping his job) was to maximize his performance among the black vote. Against a black candidate and a white challenger (Freda Black) who actually had ties to the local African-American community, this seemed like an impossible order—until the Duke case came along. Strong evidence exists that his (unethical) handling of the case—motivated, as the DHC inquiry found, by his political concerns—raised his support in the black community and paved the way to his narrow primary win, in both the primary and the general election.

Imagine if the races in the Duke case were reversed: would Nifong, the DA desperate for the black vote, have engaged in race-baiting public comments, withheld exculpatory DNA evidence, and ordered a rigged lineup to falsely bring charges against black defendants? It is inconceivable that he would have done so.

The facts of the second case cited by the Durham attorneys, Francis v. Giacomelli, are even further afield from the Duke case. Francis arose when the former Baltimore police commissioner, Kevin Clark, sued the city of Baltimore and former Baltimore mayor Martin O’Malley after O’Malley fired the commissioner. Both the district court and the 4^th Circuit (correctly) held that O’Malley was entitled to qualified immunity.

Since the Durham attorneys don’t explain why they cited Francis, it’s difficult to guess why they thought the case was relevant, but presumably they believed that a finding of qualified immunity for O’Malley would somehow bolster their claim that various Durham police officials and ex-City Manager Patrick Baker deserve qualified immunity. Best of luck to them on that argument.

A reminder that I blog fairly regularly at Minding the Campus; and also at Cliopatria. Will be back at DIW when developments in the civil case warrant.

Updates

Posting will be light until there are new developments in the civil case; or if there is significant movement on one or two other case-related fronts.

In the meantime, even as the Group of 88 clings to its favored position at Duke, it's worth remembering the legacy of the case for society as a whole. From two recent items:

Radley Balko, in an interview with the Economist: "One real disservice the Duke lacrosse case did for the criminal-justice system is it put in the public consciousness the idea that bad actors like Mike Nifong are regularly disciplined for misconduct. In truth, that case was really exceptional."

Note that for all but the handful of true believers in the deeper recesses of Durham, Mike Nifong is now the national symbol of prosecutorial misconduct.

(By the way, I'd disagree, at least in part, with Balko's point: the high-profile nature of Nifong's humiliation provides at least some deterrence to future prosecutors intent on cheating and breaking rules--lest their last name, too, become a verb meaning "to use the law to destroy innocent people.")

2.) Gary VanSickle, in golf.com: "Even legitimate news organizations have joined in past rushes to judgment that went very wrong, notably the Olympic bombing in Atlanta and the Duke lacrosse rape story."

Note that for all but the handful of true believers in the deeper recesses of Durham and in certain quarters of the Duke faculty, the media's coverage of the lacrosse case is a handy reference points for the shamefulness of rushing to judgment.

While this blog will go dark till future developments, I continue to blog at Minding the Campus and at Cliopatria.

The "Victim" Was a "Girl"

Apart from the obvious—that in both the specifics of the alleged crime and the (to date, non-existent) conduct of the prosecutor the Sacred Heart controversy has no similarities to the Duke lacrosse case—I have no comment on the specifics of the allegations at Sacred Heart. But it is striking to read some of the early press coverage. (Emphasis added throughout.)

Dashiell Bennett, Deadspin:

The victim told police they got naked and assaulted her.

It’s interesting to discover that Bennett—a mere hours after the allegations first went public—had concluded that a crime had occurred, making the (unnamed) accuser “the victim.”

Daniel Tepfer, Connecticut Post:

According to police, the 18-year-old female victim, from New Jersey, was having consensual sex with Sanders in a room at SHU's Roncali dormitory across Park Avenue from the Fairfield campus when Sanders suddenly held the girl down on the bed and called two other males to join him.

Tepfer softens his discovery that a crime occurred behind the “according to police”—but since his “the 18-year-old female victim” isn’t in quotes, the summary appears to be his own. Like Bennett, he has concluded that a crime occurred, since otherwise, how could the (unnamed) accuser be a victim?

Jessica Wakeman, The Frisky.com:

Sanders allegedly held the victim down while Travers and Triner sexually assaulted her; when she screamed and struggled, Travers and Triner fled the room.

It’s unsurprising, of course, that a feminist blog would automatically conclude that the mere filing of a rape allegation means that a crime occurred, thereby making the accuser “the victim.” But what does it say about the standards of Deadspin and the CT Post that they adopted the same guilt-presuming standard?

On another front, Andrew Strickler, Newsday:

He said all three men involved had been drinking, as had the girl.

The (unnamed) “girl” and two of the (named) “men” in the case are the same age. It’s unclear if Newsday policy suggests differing ages of adulthood for males and females.

Trepfer, again:

While Sanders held the girl down, police said the two other males took off their clothes and sexually assaulted her.

The CT Post doesn’t identify the 18-year-old male suspects as “boys.”

Every article I read about the allegations names the three suspects; none names the accuser. Apart from that point, some early coverage--notably that of Stephanie Rietz of the AP--was scrupulously neutral, and a model for others to follow.

From the Court

Last week featured the latest Craven filing from the Mike Nifong camp. Nifong attorney Jim Craven filed a four-page brief (which included a grand total of 14 lines in his own words) regarding the Pottawatomie case, which I have previously discussed.

Craven’s conclusion? "We suggest that if the Supreme Court rules in favor of the Iowa prosecutors/petitioners on the immunity case, such a ruling would likely apply to the defendant Michael B. Nifong in this case.” Craven’s argument in support of that conclusion? Nothing. Craven devoted not even one of his fourteen lines to offering an argument on behalf of his assertion. He also cited some amicus briefs that actually distinguished the sort of behavior exhibited by Nifong in the lacrosse case from that of the Iowa prosecutors.

To tease out Craven’s (unoffered) argument: if the Supreme Court sides with the Iowa prosecutors, then all prosecutors who decide to personally supervise the police investigation, from a point well before any decision to charge is ultimately made, should be shielded from civil suits regarding any of their misconduct—even as the police officers who they corruptly directed will not be shielded from civil suits.

The Court’s oral argument offered little to bolster Nifong’s Craven view. Only two justices, John Roberts and Samuel Alito, seemed indifferent to designing a solution that might hold the Iowa prosecutors accountable for their actions; the duo has a well-deserved reputation for taking the government’s side regarding virtually all criminal justice issues, so their pro-prosecutors position in the oral argument came as little surprise. As usual, Clarence Thomas didn’t ask any questions in the session; the other six justices appeared to have an open mind about the case.

Attorney Stephen Sanders , representing the two ethically challenged Iowa prosecutors, went out of his way to frame his claim in such a way that it would not apply to the behavior Mike Nifong exhibited in the lacrosse case. “If a prosecutor’s absolute immunity in judicial proceedings means anything,” declared Sanders, “it means that a prosecutor may not be sued because a trial has ended in a conviction. Yet that is exactly what happened in this case.” Of course, in the lacrosse case, Nifong never took his manufactured evidence to trial, so never had the opportunity to establish the immunity that Sanders feels his clients deserve.

The attorney couldn’t have been clearer on this point: “There is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation [emphasis added] while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute [immunity].” Nifong’s key misconduct—his improper public statements, his withholding of exculpatory evidence, his ordering the police to run a lineup that blatantly violated their own procedures, his decision to go ahead with the case though lacking in probable cause—all occurred “during the investigation,” or when Nifong, the elected DA, improperly assumed personal control of the police investigation.

When asked by Justice Ruth Ginsburg whether he was envisioning a process in which police officers who manufactured evidence would receive only qualified immunity while a prosecutor who engaged in comparable conduct but didn’t try the case would receive absolute immunity, Sanders demurred. The prosecutor’s role would be same as police officer who was subject to civil suit, he reasoned,"if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution”—as occurred with Nifong in the lacrosse case.

Ginsburg summarized the Iowa prosecutor’s position: “You can have a prosecutor, who wasn’t involved in the trial, [who] would have liability.” Sanders agreed.

So Craven, it appears, is counting on the Supreme Court not only deciding in favor of the Iowa prosecutors but issuing a ruling going beyond what the attorney for the prosecutors desired. That’s possible, but unlikely.

One point in the oral argument showed just how extraordinary Nifong’s usurpation of the police role in was. Justice Stephen Breyer seemed unsympathetic to the prosecutors, but he worried about the effects of a decision allowing civil suits to go forward, lest such a ruling make prosecutors gun-shy about moving in to check out-of-control police officers. “All things being equal,” Breyer maintained, “I think it’s probably a good thing to get prosecutors involved in the questioning process” early. “That has kind of a check on police.” Breyer continued: “The concern I’d have is that the—this will discourage the prosecutors from becoming involved in the witness—witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.”

Breyer, obviously, has never met Mike Nifong.

"Alleged"

The media generally does not withhold information as a matter of official policy. But, to my knowledge, every major newspaper in the country has an official policy of not reporting the names of accusers in rape or sexual assault cases. (I’m not aware of any paper that has a policy of refusing to report the name of suspects in sexual assault cases.) Though this practice stems from good intentions (a belief that the reporting of accusers’ names will make some real victims unlikely to report the crime), the net effect subtly shades reporting in favor of the suspect’s guilt.

With that extraordinary backdrop in mind—that every newspaper already has a policy of framing coverage of sexual assault cases in such a way that suggests readers should accept the validity of the accuser’s story—comes a recent Chronicle letter from a UNC biostatistics professor named Eric Bair. Bair criticized the Chronicle for using the word “alleged” to describe events in an article detailing the filing of rape charges against a Duke police officer. “Can’t we just say,” the UNC professor mused, “‘she was raped’”?

Bair’s letter explained his reasoning. He conceded that the suspect, Officer Webster Simmons, “is innocent until proven guilty,” and that it was acceptable for the Chronicle to write that the accuser had identified Webster as her alleged attacker. And he further admitted—albeit obliquely—that the Duke campus had first-hand experience with a woman who said “she was raped” having spectacularly lied about the claim.

Nonetheless, Bair described the version of events presented by Simmons’ accuser as “the victim”—not even “alleged” victim—as entitled to belief by the media. (Why newspapers should accept as true what an accuser says about an alleged crime but not trust her identification of the alleged criminal Bair didn’t say.) The Chronicle’s using terms such as “the alleged attack,” “the alleged assault,” “the alleged rape” and “the alleged victim” could be seen as “creating an environment where all women who report a rape are presumed to be liars until they can prove otherwise.” Indeed, continued Bair, “a cynic might suggest that the editors of the Chronicle believe that the reports of rape victims are inherently unreliable.” (A non-cynic might suggest that, in the aftermath of Crystal Mangum’s fantastic lies, the Chronicle has, appropriately, decided to be neutral in reporting the specifics of allegations of rape.)

The policy, Bair concluded, could be seen as “casting doubt on the credibility of rape victims generally or discouraging other women from reporting incidents of rape.” In other words: to not discourage true rape victims from coming forward, newspapers must not only not report their names but must accept everything they say (apart, apparently, from the identity of their alleged assailant) as true.

In response to several pointed comments in the Chronicle discussion thread, Bair held his ground, suggesting that because the Chronicle doesn’t regularly use the word “alleged” to describe other crimes, it shouldn’t do so in describing sexual assault. I e-mailed Bair to ask him if his proposed standard didn’t excuse the (widely condemned) early, credible coverage of the Nifong/Mangum lies. He graciously responded, suggesting that based on his knowledge of the lacrosse case, “there was virtually no physical evidence to corroborate the woman’s [Mangum’s] claims of rape and that the entire thing was the result of a district attorney who was afraid of losing reelection of he didn’t prosecute the case.”

The issue, he continued, is a “difficult” one—balancing the public’s right to know about violent crimes versus protecting the rights of the accused. However, whatever standard a particular newspaper (or the media generally) chooses to adopt, I think it should be applied consistently . . . If the Chronicle were describing every single crime report as an ‘alleged’ incident, I wouldn’t have a major issue with the reporting. However, the fact that they only seem to be doing this in a particular report about rape suggests that the author in question or the editorial board of the Chronicle believe that reports of rape are intrinsically less credible than reports of other crimes. Given that many women are already afraid to report rape cases for fear that they will not be believed, I find that to be very troubling.”

But, of course, the burden of proof about whether a crime occurred in sexual assault differs from that of most other crimes. Take, for instance, murder: police investigate the crime only when they discover a body (or, in highly unusual cases, when they conclude that a missing person was in fact killed). Or robbery: police make a charge only after their investigation discovers that something was, in fact, robbed. Or kidnapping: police make an arrest only after their investigation produces evidence that someone was kidnapped.

With regard to sexual assault, on the other hand, North Carolina law (and that of most other states) requires no corroborating evidence: a person can be convicted of rape solely on the basis of the accuser’s testimony and in-court identification (even if the accused is, say, on a videotape more than a mile away at the time of the alleged “crime”).

Because a lower burden of proof is necessary to bring charges in a sexual assault case, the range of possible defenses is much wider. A suspect accused of murder can’t credibly claim that the victim wasn’t actually murdered. Except in highly unusual cases, a suspect in an armed robbery can’t credibly claim that the victim or institution wasn’t robbed. But in a rape case, a central line of defense can be—and often is—that no crime occurred in the first place. Bair’s standard suggests that newspapers should unequivocally declare that such a line of defense is false, by accepting as true the accuser’s claim of being attacked.

The issue is, as Bair suggests, a “difficult” one. But it is made more difficult by the media’s more general policy in rape cases of not reporting all the facts by withholding information about the accuser’s identity. Given that most sexual assault reporting already tilts toward the accuser, it’s hard to fault the Chronicle for not electing to accept, from the beginning, everything the accuser says (apart from the ID) as absolutely true.

hat tip: Anon.

News & Notes

Few journalists performed as poorly in the lacrosse case as Samiha Khanna. Virtually every statement in her N&O interview with false accuser Crystal Mangum turned out to be wrong. Khanna seemed not to have even bothered to do a basic reporting task—checking her interviewee’s name in the N&O database—which would have uncovered not only Mangum’s criminal conviction but would have proved that Mangum had lied to Khanna in claiming that she was a newcomer to the world of exotic dancing.

Perhaps most problematically, Khanna conceded that she was approaching the case through a far-left ideological prism: "I think Tim Tyson taught readers Sunday about a history not many were aware had occurred. Durham is a place of many new residents, people who may not have the institutional knowledge of the university's history in the community. We are trying to explore these notions as we follow up on the story in the coming weeks. In response to your specific question about Mr. Tyson’s piece—I haven’t seen an equivalent piece in other publications. Many people have spoken out about a history of sex crimes on college campuses, but not issues of race and gender on the Duke campus specifically. These are keys to thorough follow-up stories that we are working to document." [emphases added] Liestoppers correctly termed Khanna’s reporting on the case “irresponsible and willfully misleading.”

Khanna was downsized from the N&O in 2008 and spent nearly a year outside the journalism industry (as a “public relations specialist”). That’s no surprise: with the financial difficulties that journalism is currently experiencing, good reporters are having trouble getting jobs—to say nothing of figures such as Khanna.

Incredibly, however, she’s back working as a reporter—though at an entity where the sort of ideological bias she demonstrated in the lacrosse case is a job requirement. Khanna is now a beat reporter for The Independent, which formed a critical element of the Nifong base of “true believers.” Khanna’s brand of “journalism” is exactly what people expect from the Indy.

-----------------

Jesse Jackson managed to insert himself back into case-related news last week. In an interview with the Greensboro newspaper, Jackson gave his take on the case:

“The good news is those boys’ parents paid to get the proper legal representation and get them vindicated. So often, young black youth and youth who are poor, don’t have legal protection. That’s why you have 2.3 million Americans in prison.”

That’s a very different interpretation than Jackson originally offered. First, of course, Jackson stated that his organization’s donors would pay Mangum’s college tuition, even if (as ultimately occurred) it was proved that Mangum had lied. Second, he published a column riddled with false assertions: that “this was the first time [Crystal Mangum] had been hired to dance for a party”; that “the one African American on the team wasn’t there”; that “we know that the two women were abused”; that “the Duke players are maintaining a code of silence”; that “it shouldn’t take the brutalizing of a mother of two” to “lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many.”

And a year after writing those words, the Rev. Jackson maintained, “I didn’t make a mistake.”

Of course he didn’t. And now he’s on the scene to preach “the good news.”

--------------------

A couple of follow-up items from the comment thread regarding other experiences with the Duke fundraising arm:

I’ve had a similar experience to that of “ES Class of 1990.” For 3 years now I’ve responded to solicitations from Duke by saying that the funds I would otherwise give are “on hold” until the civil suits are resolved, because I believe the university should not be spending donor money on legal fees supporting the defense of various administrators who were not acting in the best interest of the institution and who made serious (and entirely avoidable) mistakes in judgment. This year, the student who placed the call had “talking points” about how the annual fund could not be spent on legal fees. (As if the annual fund couldn’t be spent on other things that could then free up funds from other accounts to pay legal fees!) In any event, Duke annual giving is prepared to encounter resistance from alumni who are questioning whether the institution is deserving of their largess given the current state of leadership.

Another:

The telephone exchanges I’ve had with Duke students dialing for dollars, once or twice annually, have been nearly identical to the one reported by ES Class of 1990.

Generally, the talking points for cheerful, optimistic, true blue Dukies seem to be along the line: The lacrosse affair was a long time ago, it was an unfortunate isolated incident not indicative of what’s great about our wonderful university, President Brodhead made an eloquent apology (have you seen the video?), and all that’s behind us now.

I usually ask about the status of the ongoing lawsuits, and why have several members of the Group of 88 professors been rewarded with positions of leadership and increased responsibility.

That’s where the conversations abruptly end.

In the Can

I recently received an email from DIW reader and commenter ES Class of 1990. He reports:

I got a fundraising call from a Duke Freshman this evening. This is a tried and true Duke event, in which living groups raise money for Duke and get a slice for their group or cause...I have done it myself. It is called “Dialing for Dollars.”

When I informed the polite young lady that I would not contribute to the university in any financial way until there had been an accounting of the behavior of the Gang of 88, she pointed out to me that Brodhead had in fact apologized and that the video was on YouTube. I countered that they still had not addressed the fact that several students had their rights to privacy violated and that faculty had in fact violated their own code of conduct...both events that would preclude any giving on my part until they had been sorted out in a public forum. I wished her good luck and ended the call.

It hit me later...they had a planned, “in the can” counter to the Gang of 88 argument! ”Look here, the President DID apologize, and here is the URL.” They clearly had been briefed and coached to deflect this argument to giving, knowing that it would be a sticking point with alums.

Is that amazing or what?

Indeed the news is amazing, for at least three reasons beyond the obvious: the fact Duke has an “in the can” response suggests this issue regularly comes up in fundraising pleas.

1.)These remarks represent the first acknowledgement by anyone affiliated with Duke that Brodhead’s September 2007 statement referred to the Group of 88. In his remarks, the President didn’t specifically reference the Group, but merely apologized for ill-judged and divisive comments by unnamed Duke professors.

2.) While it’s nice to know that Duke finally recognizes the Group’s statement as “ill-judged and divisive,” the acknowledgement raises the question of why Brodhead’s apology never accompanied any policy changes to deal with the problem that the Group’s statement illustrated.

In that respect, the “apology” is a little like an apology from a neighbor whose little boy regularly tosses a baseball through your window—but who does nothing to ensure that the little boy sees that he did something wrong; or to ensure that the following day, the little boy doesn’t again toss the same ball, in the same direction, and through the same window. At some point, the “apology” rings a little hollow.

3.) ES’s point about Duke not living up to its own standards is well-taken—even more so in light of a front-page story from yesterday’s Times. The article profiled a deeply troubling move by the Cook County (Ill.) State’s Attorney to subpoena records, including grades, from the student journalists in the Medill Innocence Project, a program at Northwestern’s journalism school. The interim director of the Illinois Press Association observed, “Taken to its logical conclusion, what they’re trying to do is dismantle the project."

Faced with a dubious demand from a local prosecutor that would seem to violate the federally protected rights of its students, how is Northwestern responding? The dean of the Medill School blasted the subpoena as “astonishing” and has committed the institution to vigorously contesting the prosecution’s demands in court. Such a response, of course, would be fully expected, both by parents and by the Congress that passed FERPA.

Contrast the Northwestern approach to defending students’ federally protected rights to that of Duke. When the Durham Police, working alongside the disgraced ex-DA Mike Nifong, demanded that Duke turn over FERPA-protected information regarding the lacrosse players, Duke did so willingly. Then, stunningly, the University didn’t come clean about what it had done—even after a subsequent court hearing on the request resulted in even the prosecution-friendly Judge Titus ruling that Nifong’s demand fell afoul of federal law.

Brodhead, it should be noted, never apologized for the FERPA fiasco.

Pottawatamie County & Nifong

In 1978, in Iowa’s Pottawattamie County, a retired police officer working as a security guard was murdered. Police and prosecutorial attention rapidly focused on Curtis McGhee and Terry Harrington. The two suspects were tried, convicted, and imprisoned for more than two decades.

But, it turns out, massive misconduct occurred in the case. The prosecutors never informed defense lawyers that police had another suspect in the killing. Nor did they reveal that they seem to have coached a key witness in the case to give fabricated evidence against McGhee and Harrington. When this information surfaced, in 2002, the Iowa Supreme Court vacated one conviction, and the other defendant accepted a plea bargain allowing him to go free immediately. Both McGhee and Harrington then filed suit against the police department and against the two prosecutors, Joseph Hrvol and David Richter, who had manufactured the evidence against them.

The prosecutors sought to have the lawsuit dismissed, claiming that they possessed absolute immunity for their acts. But lower courts ruled against them, and their case now goes before the Supreme Court.

The case has attracted a number of amicus briefs. Among the most persuasive: that from the libertarian Cato Institute, the ACLU, and the National Association of Criminal Defense Attorneys. Filing amicus briefs on behalf of the ethically challenged prosecutors were the Justice Department and the National District Attorneys Association. Both briefs contend that abandoning absolute civil immunity for prosecutorial behavior would make prosecutors so afraid of being sued that they won’t be able to do their jobs.

The Justice Department argues, “If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.” Or, in the words of the NDAA brief, “The inevitable consequence of broader civil liability will be the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” The greater good dictates absolute civil immunity for prosecutors.

In her brief, Solicitor General Elena Kagan also argues for reversal of the lower-court rulings on the grounds that the Supreme Court “has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler [which provides absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process”] into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor's investigation and preparation of the case instead of his activity at trial.”

The DOJ/DNAA argument is quite breathtaking. As Radley Balko has argued, the Pottawattamie side of the case contends “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The Justice department and the NDAA make a second argument: namely, that other options—such as disbarment or even, in extreme instances, criminal prosecution—exist to sanction ethically challenged prosecutors. Among the examples favorably cited in the NDAA brief: the removal of Mike Nifong as Durham County District Attorney.

At first blush, and even though his termination from the legal profession was celebrated in one of these filings, the DOJ and NDAA briefs might seem like good news for Nifong, as he desperately seeks to avoid civil liability for his misconduct. In fact, however, both briefs—especially that of the Justice Department—confirm that Nifong’s behavior in the lacrosse case fell outside the bounds of any conceivable definition of appropriate prosecutorial conduct. And if even these extremely aggressive defenses of prosecutorial immunity don’t cover Nifong’s behavior, the disgraced ex-DA would seem to be in trouble.

“Prosecutors,” according to the Justice Department, “may not be held liable for fabricating evidence they introduce at trial, even though police officers who fabricate evidence may be held liable under Section 1983.” In fact, “even an unconscionable act of fabrication does not transform a prosecutor's acts at trial into a source of civil liability.”

But Nifong, of course, was supervising the police investigation before any finding of probable cause (the grand jury indictment based on admittedly false testimony from ex-Sgt. Mark Gottlieb) had occurred. In a highly unusual move, he assumed personal command of the police investigation ten days after Crystal Mangum made her initial false charges. No representative of the Durham Police Department or city government has ever provided an explanation as to why the police, in violation of custom and procedures, ceded control of their investigation to the prosecutor on March 24, 2006.

The Justice Department, in a passage that could have been tailored to describe Nifong’s behavior, conceded that “prosecutors may remain liable for any number of investigation-stage activities, as to which they enjoy only qualified immunity—for example, conducting searches and seizures that violate the Fourth Amendment.” In Nifong’s case, such behavior would be his conspiring with lab director Brian Meehan to produce an incomplete and misleading report; or ordering the police to run a third lineup, which violated their procedures and was confined to the suspects in the case.

That said, according to the Justice Department, “liability for procurement is not predicated on the simple act of fabricating the evidence; if there were no subsequent use of the evidence, there would be no liability.” But Nifong did use the fabricated evidence: the fabricated item (the lineup) provided the only specific material used against the three people that Nifong targeted.

One final item from the Justice Department brief that’s damning to Nifong. The brief maintains, “‘On facts like those alleged here, a person who bears the title prosecutor, but who ‘perform[ed] [only] the investigative functions normally performed by a detective or police officer,’ Buckley, 509 U.S. at 273, would be liable. The exemption from liability in this case, although absolute, applies only to a discrete set of individuals for a discrete set of activities.”

The passage unveils a bizarre DOJ claim that prosecutors must have absolute immunity as soon as they introduce their manufactured or improperly obtained evidence at trial. If, however, someone else handles the case, the initial prosecutor would be civilly liable. As no trial ever occurred in the lacrosse case, Nifong would seem to be additionally vulnerable.

In short, for Nifong, even superficially good news turns out to be bad.

Academic Free Speech

An excellent essay by Peter Berkowitz on the topic. Here's his perceptive summary of the Duke case:

In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members' prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.

More from the Group

While Wahneema Lubiano—she who wrote, without any citation, that “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”—is busy tending to all Duke undergraduates through her position as a departmental director of undergraduate education, three other Group members made news last week.

Duke’s Ariel Dorfman is a professor who:

• publicly asserted that something “happened” to Crystal Mangum, based solely on the version of events presented by the disgraced Mike Nifong
• publicly thanked protesters who had presumed the guilt of students at his own institution;
• committed himself to “turning up the volume” regardless of “what the police say or the court decides”;
• and, after the version of events about which he had expressed such public certainty turned out to be false, signed onto another statement in which he adamantly refused to apologize for his rush to judgment.

To give Dorfman the benefit of the doubt, perhaps it might be said that the Duke professor is a fanatical “anti-rape” activist, someone who believes that whenever a woman claims rape, the accusation must be treated as true; and that those targeted by such accusations must be punished to the fullest extent of the law, regardless of the evidence.

Such views, of course, would contradict the academy’s traditional support for due process—but, as we all learned in the lacrosse case, such views are in short supply among many Duke humanities and social sciences departments.

Even assuming the above, however, what explanation exists for the below screenshot, from the “Free Roman Polanski” petition?

So, to sum up: Dorfman believes that Polanski—a man who pled guilty to sexual misconduct with a minor, in an event in which his victim (and, given the guilty plea, she can be called a “victim”) claimed that Polanski had drugged her and then pursued her throughout the house; and a man who then fled the country before his sentencing hearing—should be freed; and he also believes that it was appropriate to thank guilt-presuming protesters in a case involving his own students, a case in which the claims against his students turned out to be false.

The guilty should go free and the innocent should be punished. That sounds a lot like the judicial philosophy of the Pinochet regime in Chile, against which Prof. Dorfman once wrote so eloquently.

Then there is the case of Group member Michael Hardt, whose latest publication was subjected to a blistering review from City Journal editor Brian Anderson.

Here’s the description Anderson provided of Hardt’s co-author, Antonio Negri: “Three decades ago, the Italian government believed that he was the secret intellectual leader of the leftist terrorists called the Red Brigades and that he was the architect of the group’s 1978 kidnapping and murder of Christian Democratic Party leader Aldo Moro. Unable to build a sufficient case to try Mr. Negri for murder—he has always denied the allegation—Italian authorities convicted him of ‘armed insurrection against the state.’ Facing 30 years in the slammer, Mr. Negri scooted to France, where he remained, a philosopher in exile, until 1997, when he returned to Italy to serve the remainder of a reduced sentence. He is a left-wing guru whose field work has occurred far from the faculty lounge.”

As for the book itself, here’s some more from Anderson:

For the revolution to succeed, three supposedly corrupt forms of the common must be destroyed. Some of the harshest language in “Commonwealth” targets the family: Mom, dad and the kids might not know it, but they are part of a “pathetic” institution, a “machine” that “grinds down and crushes the common” with “the blindest egoism.” Messrs. Hardt and Negri cry: “Down with the family!” The two other killers of the world’s spirit: the corporation and the nation. When the multitude seizes “control of the means of production and reproduction,” we’re promised, the evil trio will wind up on Marx’s ash heap of history.

The authors warn the rulers of the capitalist world that if they want to survive a little longer, they need to enact reforms, including global citizenship, a right to income for everyone and participatory democracy. But Messrs. Hardt and Negri don’t think that their warning will be heeded. Revolution will erupt—and soon. It could be violent, a prospect that does not seem to trouble them: “What is the best weapon against the ruling powers—guns, peaceful street demonstrations, exodus, media campaigns, labor strikes, transgressing gender norms, silence, irony, or many others—depends on the situation.” Pirates, the rioting Muslim banlieusards of Paris and the Black Panthers all are praised in Commonwealth as heroes of disruption.

Anderson’s devastating summary: “Messrs. Hardt and Negri make little effort to build arguments in support of their wild assertions and predictions. They write as if ignorant of the 20th century and of much else, including economics and social science.”

Finally: the case of Cathy Davidson. All who followed the lacrosse case closely know that . . . memory problems . . . bedeviled Prof. Davidson in 2006 and 2007. After all, this is the same professor who preposterously claimed that in the week between March 29, 2006 and April 5, 2006, Duke students "felt demeaned by racist and sexist remarks swirling around in the media and on the campus quad in the aftermath of what happened on March 13 in the lacrosse house. The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women."

In fact, during that week, Mike Nifong dominated the airwaves, virtually no one was defending the lacrosse players (much less doing so through "pernicious stereotypes about African-Americans," activists flooded the Duke campus with "wanted" posters of the lacrosse players, and Richard Brodhead made time to meet with African-American students who demanded recognition of the lacrosse players as guilty of a "hate crime" even as he refused to meet with the lacrosse players' parents or lawyers.

Now, Emory professor Mark Bauerlein has revealed that Prof. Davidson's . . . memory problems . . . predated her experience in the lacrosse case. Bauerlein notes that, in Davidson's 2004 apologia for the overwhelming political imbalance among the Duke faculty, "Either as a department member or a member of the APT [appointments, promotions, and tenure] committee, I've not encountered any Duke faculty member being harassed or discriminated against because he or she is conservative."

Yet Bauerlein has uncovered a letter from Davidson that contradicts her firm 2004 assertion. In an extraordinarily high-profile event from the pre-Keohane/Chafe Duke, then-English professor Stanley Fish (chairman of the department of which Davidson was a member) demanded that Duke not appoint any member of the National Association of Scholars to an APT or distinguished professor position. As Bauerlein noted, "Obviously, Fish's request marked a patent act of discrimination on ideological grounds."

Anyone who heard her 2004 statement might have assumed that Davidson was unaware of Fish's request. Yet Bauerlein has uncovered a letter from Davidson in the Fish Papers, in which she praised Fish's performance as chair. She also noted, "Although I do not agree with the tactics that he (reportedly) suggested with respect to the NAS debate, I also do not at all see him speaking for me in this matter and find it curious that, in the name of free speech, his voicing of his views is being condemned." (In other words: Fish wanted to exclude professors from appointments committees because of their political or pedagogical beliefs--and yet he was the victim in the affair.)

In any event, it appears that sometime between the early 1990s and her 2004 remarks, Prof. Davidson . . . forgot . . . about Prof. Fish's efforts to harass or discriminate against Duke faculty members "because he or she is conservative."

Given her recurring . . . memory problems . . . perhaps it is better that Prof. Davidson no longer does her own grading, and has ceded that basic professional responsibility to the students in her class.

Professors Dorfman, Hardt, and Davidson, it’s worth reiterating, are among the Group of 88's most prestigious scholars.

A Treat for Duke Students

At most large universities, the position of undergraduate deputy serves as the department's ambassador to the undergraduate student population. He or she is the professor to whom students will come with questions about the department's courses, or rules and regulations, or faculty members.

An ability to deal with all students, regardless of race, ethnicity, gender, or belief systems, would seem to be a minimum requirement for the position. For instance, a professor who believed that “many blacks . . . 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,” would be a problematic choice for deputy.

The current director of undergraduate studies of the Duke African-American Studies Department is none other than . . . Wahneema Lubiano, she of the opinion that “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.”

Well, of course, students treated unfairly could always appeal to the department's fair-minded chair--J. Lorand Matory, the sponsor of the anti-Summers resolution at Harvard.

Updates, Including Bob Steel's Latest

If I were looking for the identity of someone least likely to be named trustee for a major hospital, former Duke BOT chairman Bob Steel would be high on the list. Leaving aside Steel's ill-fated performance at Wachovia, Duke under Steel's leadership paid out millions of dollars in settlements and legal fees from lawsuits stimulated, in large part, by the dubious conduct at Duke University Hospital.

And yet, as Dr. Roy Poses reports at the fine blog Health Care Renewal, the Hospital for Special Surgery has just appointed none other than . . . Bob Steel . . . as its newest trustee.

Poses concludes, correctly if sadly, "Mr Steel's unlikely career trajectory shows how once someone becomes a member of the superclass, the new power elite that spans business, government, and academics, that person is likely to continue to wield power no matter how poor his or her track-record, to the detriment of nearly everyone else."

------------

Over the past few years, we all have learned just how intensely some in the higher education community believe—indeed, given their ideology, have to believe—that sexual assault is widespread on today’s college campuses.

Sometimes, these figures follow the approach of the “clarifying” faculty in the lacrosse case, simply issuing public statements declaring that sexual assault is “prevalent” on the Duke campus even though the university’s own figures indicated that 0.1 percent of Duke females had been victims of sexual assault. (And, of course, the “clarifying” faculty did everything they could to downplay the rape of someone like former Duke student Katie Rouse, since that attack didn’t fit into their worldview.)

At other times, these figures follow the approach of the Duke women’s center, and champion new judicial procedures that will tilt the judicial playing field blatantly in the accuser’s favor, apparently from a belief that as women don’t lie about being raped, those women who claim to have been raped should be ensured of a conviction.

And then there’s the case of Jennifer Beeman, the former director of the Campus Violence Prevention Program at University of California-Davis. The number of rapes that have occurred at Davis didn’t fit Beeman’s ideological preconceptions. So in 2005, 2006, and 2007, she simply inflated the figures. And the Sacramento Bee discovered that Beeman was doing it for some time—and used her made-up figures as the basis for which to apply for federal grants.

Incredibly, when Beeman’s 2005-7 inflated figures were first brought to the University’s attention, Davis’ response was to suggest that her made-up figures were proof of her having created a “nationally recognized … model program for its outreach efforts and services for survivors.”

Only in academia.

--------------

The Durham Police Department is again under fire, and, as in the lacrosse case, again seems to believe that its own rules and regulations do not apply to its officers.

The North Carolina SBI is investigating a scandal regarding the Police Department billing the city for excessive overtime.

Will the usual suspects blame the inquiry on wealthy outsiders?

----------------

I supported AG Roy Cooper’s decision not to prosecute false accuser Crystal Mangum, largely because there’s no way he could have gotten a conviction. Magnum could have claimed that she was psychologically unable to tell the truth (and had 1000 pages of files to back her up); or she could have claimed that as the city’s police force and county’s “minister of justice” believed her, that should qualify as reasonable doubt to beat charges of her filing a false police report.

It’s much harder, on the other hand, to support the decision of Nassau County DA Kathleen Rice not to prosecute the Hofstra case false accuser, Danmell Ndonye.

In this respect, I agree completely with Newsday’s editorial board, which noted, “Rice justifies her decision not to prosecute because it would have a ‘chilling effect,’ making actual victims fearful to come forward. That concern is misplaced. Historically, police and prosecutors have been hostile to women who made rape charges, but the consensus now in law enforcement is that these cases should be fully and aggressively prosecuted. For legitimate claims to be taken seriously, however, society must also know that phony ones will be punished. That’s what will make the voice of every true victim even stronger. Instead, Rice’s resolution risks creating the perception that there isn't much downside to making up a story that could have sent someone to jail for 25 years.”

Hat tips: M.S., D.P.