Character, Ctd.

A few more items, from both sides of the question, regarding themes from the post below.

Reade Seligmann and Collin Finnerty were both named to the 2010 Scholar All-America Team.

Finnerty’s individual awards were listed in the post below; Seligmann received the IMLCA Boston Market Humanitarian Award in 2008; in 2010, he was named first team All-Ivy, All-New England, and a USILA Scholar All-American.

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

As to the Group of 88: Emory professor Mark Bauerlein did a post at the Chronicle for Higher Education blog noting how my survey of the Group’s post-case activity—which found that many Group members had either been named to deanships or been hired away from Duke for more lucrative opportunities at other institutions—seemed to conflict with the typical victimization narrative of the academy’s far-left fringe. Indeed, that so many of the Group members have been rewarded despite (or perhaps because of?) their behavior is nothing short of astonishing.

Bauerlein noted, “Johnson doesn't mention any signer of the document who has suffered one bit from its publication. If readers of Brainstorm know of anybody who did sign it and has been called to account for it, please add a comment.”

Several commenters expressed outrage at Bauerlein’s post. Wrote Sandy Thatcher,

Mark conveniently ignores the fact that the Duke lacrosse team had a reputation for bad behavior before the incident occurred that gave rise to the “rush to judgment.” It is not as though all these Duke lacrosse players were paragons of virtue. I recall one particularly scurrilous e-mail that was uncovered during the investigation. The players who were named as defendants by the district attorney may have been innocent of the crimes alleged, but there is a history here that helps explain why so many people did assume the worst when this incident happened. The players were no moral saints.

First of all, of course, the players were innocent, not “may have been innocent.” Second, as Bauerlein appropriately comments, “do you really think that ‘a reputation for bad behavior’ is an excuse for the rush to judgment at Duke?” Apparently Ms. Thatcher does.

Several readers suggested that the Group didn’t or probably didn’t do anything much wrong. Opined one, “The ad was premature and made all sorts of bad assumptions, but the same could be said of nearly every op-ed article ever published. Did newspapers and magazines fire all their political commentators who went along with the Iraq WMD claims? (And no, this isn't a tu quoque argument – it’s an analogy. And I don’t think those commentators should have been fired for being wrong.)”

This argument is a rather peculiar one. Most newspapers—to the best of my knowledge—do not sign contracts with their op-ed writers that contain clauses like this one, from Duke’s Faculty Handbook: “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.”

But perhaps this Bauerlein reader considers dozens of professors signing a statement asserting unequivocally that something “happened” to Crystal Mangum, falsely asserting that the statement contained endorsements from five academic departments, and thanking protesters who had (among other things) urged castration of the lacrosse captains to constitute treating Duke students with “respect” as “fellow members of the university community.”

Moreover, the Group’s behavior contributed to Duke’s (wise) decision to reach a sizable out-of-court settlement with the falsely accused players. I’m no expert in the newspaper industry, but I suspect that few newspapers would willingly keep on staff an op-ed writer whose columns had exposed the paper to massive legal liability.

Then, there’s the typical taunter: “And where oh where is Mark Bauerlein today? Still stuck in the same old job at Emory, still neglecting his students while he does his daily ‘Dumpster Diving,’ digging and digging ever so deeper to find any and all trash and garbage he can get his hands on - either to discredit someone or something or to vent his own frustration at being seen as not professionally worthy of being elevated in his own career.

The last I looked, the average SAT score of incoming Emory freshmen is about the same as that of Duke freshmen (or, for that matter, as that of freshmen at Williams, where I used to teach). But in the world of this (anonymous) commenter, Bauerlein apparently spends his days consumed with jealousy about colleagues at another institution, because he just can’t take his fate in life: that is, teaching at one of the top liberal arts colleges in the country.

Such ad hominem attacks, it seems to me, are not only rarely logical, but are also revealing of the attacker’s character.

Character

Times of stress can reveal character.

Newsdayhas profiled Collin Finnerty upon his graduation from Loyola. The entire article is here (alas, behind Newsday’s paywall), and is very much worth reading, since it discusses the particular difficulty that Finnerty faced (because of his recognizability) in the case. Two quotes of particular note:

Loyola president Rev. Brian Linnane, commenting on Finnerty’s receipt of the John R. Moller award for achievement in academics, athletics and character: “It is a huge honor. It is a very significant award, and it reflects the way he fit into the team. It’s unimaginable to be accused the way he was, and the way he moved beyond that with great grace and became a leader, it says a lot about him and his family.”

Chaminade High School president Rev. James Williams: “The biggest temptation has been to become angry, which would have been justified . . . Instead he was moved, his family was moved, toward reconciliation. Despite the pain [the accuser] and others were causing, while they were still upset with her they knew she came from a difficult and troubled background and they had compassion for her . . . And the anger never won.”

Contrast those evaluations with the performance, since the case to which they attached their professional reputations imploded, of the Group of 88.

Who showed character in this affair: the falsely accused college student, or dozens of professors at one of the country’s leading universities?

Regarding Dr. Kimmel

[Update below, 6.18pm, 5-20.]

Michael Kimmel, a professor of sociology at Stony Brook, has a research profile (“Gender, Sexuality, Masculinity, Political and Social Movements”) that would put him at home with the race/class/gender-obsessed Group of 88. Kimmel’s personal website describes him as “among the leading researchers and writers on men and masculinity in the world today”; his most recent book is Guyland: The Perilous World Where Boys Become Men.

Kimmel is no stranger to the Duke campus. In 2009, he gave a campus lecture on “Adventures in Guyland.” The lecture’s two co-sponsors were the Women’s Center, formerly headed by Prof. Robyn (“Campus Enforcer”) Wiegman and the Kenan Institute of Ethics, formerly headed by Prof. Kathy (“speciesism”) Rudy. Keep those connections in mind.

Yesterday, Kimmel penned an article for the Huffington Post offering the now-familiar meme that the killing of former UVA lacrosse player Yaerdley Love by former men’s lacrosse player George Huguely illustrates “lacrosse and the entitled elite male athlete.” Kimmel argued that “such guys [as Huguely] are the epitome of what I describe in my book Guyland as the ‘culture of entitlement.’ They think they can do anything they want and get away with it, and usually they’re right.”

Kimmel claimed that Huguely benefited from “a culture of protection” typical of lacrosse—“a bubble of class privilege, athletic status and a fraternal wagon-circling when things go wrong. If things go terribly wrong, the culture of protection -- including parents, coaches and alumni boosters -- hire high-priced lawyers who manage to get records expunged and witnesses to forget what they saw. Lacrosse’s bubble of protection is a bit different from that of football: It's a country-club entitlement, based more on class than athletic revenue.”

It’s difficult to generalize about an entire sport based on one incident, so Prof. Kimmel provided some additional examples to strengthen his thesis:

It was a bunch of lacrosse players from Glen Ridge (N.J.) High School who gang-raped a 14-year-old moderately retarded girl in 1989, and it was members of the Duke lacrosse team who were accused of raping a stripper hired for a team party. (Yes, yes, I know: The woman who accused them turned out to be a lying schemer; the guys were exonerated. But it's interesting that their friends and classmates found the story utterly plausible, as they told countless reporters. And the team did, after all, hire strippers for their team party in violation of all team and university rules.)

The paragraph above contains three unambiguous statements of fact:

(1) That the Duke lacrosse captains violated “all team and university rules” when they hired strippers;

(2) That “friends and classmates” [emphasis added] of the Duke lacrosse players told “countless” reporters that they considered at least one version of false accuser Crystal Mangum’s tale “utterly plausible”;

(3) That high school lacrosse players raped a mentally challenged 14-year-old girl in New Jersey.

None of these statements has any basis in reality.

(1) The hiring of strippers for a spring break party was a tasteless and stupid decision. But, like the roughly 20 Duke student groups or teams that apparently hired strippers in the 2005-6 academic year, the lacrosse captains violated no existing Duke rules in their decision.

I e-mailed Prof. Kimmel to ask for a citation to even one “team and university rule” (much less “all” rules) the lacrosse players allegedly violated. He replied, “I remembered reading that the then-president said something of that kind when it happened.” He provided no citation for the article in which he encountered this statement. No record of such an assertion by President Richard Brodhead exists.

(2) It’s quite true that a small minority of Duke students—and a more significant contingent of faculty (about 88 of them, to be precise)—not only found Mangum’s tall tales “utterly plausible” but made public, guilt-presuming statements on the case. Indeed, I’m not at all surprised that upon his invited visits to Duke, Prof. Kimmel discovered that figures such as Profs. Weigman and Rudy presumed guilt. But faulting the lacrosse players for dozens of the Duke professors setting aside the academy’s traditional fealty to due process in a rush to judgment would be a little like officials in the Celtics-Magic series calling a foul on Paul Pierce for getting his head in the way of Dwight Howard’s elbow.

In any event, and more significant: just who were the friends of the lacrosse players who told countless reporters that they found at least one version of Mangum’s fabrications (presumably not the one in which she claimed to have been raped while suspended in mid-air) utterly plausible? I asked Prof. Kimmel to provide me with some citations to corroborate his claim.

He declined to do so, and merely said, “I suspect that I relied on those reports from faculty [emphasis added] and the students I read about in the same media outlets as any other New Yorker, plus a couple of lecture trips to Duke in the past three or four years, during which time I spoke to quite a few students and faculty [emphasis added] who said they weren’t at all surprised.”

Nothing in the above reply, of course, relates to Prof. Kimmel’s remark about “friends” of the lacrosse players doing anything, much less telling “countless” reporters that they had found Mangum’s story “utterly plausible.” His presenting as fact that the players’ friends found Mangum’s story “utterly plausible” is highly misleading at best and unprofessionally inaccurate at worst.

(3) As part of his effort to discuss the particularly unappealing characteristics of lacrosse players, even in comparison to football players, Prof. Kimmel also mentioned a 1989 gang-rape by lacrosse players—of a mentally-challenged 14 year-old-girl—in Glen Ridge, New Jersey.

Some might argue that this example was a bit of a stretch—two crimes, committed 20 years apart, hardly confirm the allegedly pernicious culture of a sport.

In any event, and much more significant: the Glen Ridge rape wasn’t committed by lacrosse players. It was committed by football players. (The victim was 17, not 14.) And in 1989, at the time of the rape, Glen Ridge High School didn’t even have a lacrosse program.

In a follow-up e-mail, I asked Prof. Kimmel if there was another 1989 Glen Ridge gang rape, this one committed by lacrosse players, to which he referred. He did not reply.

Doubtless Prof. Kimmel did not write an essay for a high-profile publication intentionally littered with factually inaccurate or wildly misleading statements—statements he based on recollections of unspecified articles that a “New Yorker” might have read four years ago. Indeed, I have little doubt that Prof. Kimmel actually believed that what he wrote was true. In the groupthink atmosphere that dominates so many humanities and social science departments, “facts” that conform to the prevailing narrative, such as those Prof. Kimmel presented in the quoted paragraph, get “remembered” in ideologically convenient ways, to such an extent that a prominent professor could pen an article for one of the highest-trafficked news sites on the internet and not even bother to check his assertions.

For those in the reality-based community, however, such cavalier disregard of facts is nothing short of extraordinary, and is fatal to the credibility of the author.

[Update: Prof. Kimmel e-mails to say that the factual errors have been removed from his item as it was cross-posted, and that these errors will also be removed from the HuffPost item. (As of this writing, the HuffPost item has not been changed.) No notation exists in the cross-posted item that an edit to remove factual inaccuracies has occurred.]

No Shame

Though publicly rebuked by his own ideological comrades, Group of 88 extremist Grant Farred doesn’t appear to have lost any of his pedagogical influence. The homepage of Cornell’s English Department includes an announcement of a new concentration—“cultural studies”—which supposedly allows students to “study different media and forms of culture in terms of historical, social, and political contexts.”

According to the link the department provides, the two departmental specialists in this new concentration are none other than Dr. Farred, along with colleague Jane Juffer.

Farred’s . . . peculiar research interests already have been noted. Juffer, a former director of Penn State’s Latino/a Studies Initiative, is author of At Home with Pornography: Women, Sex, and Everyday Life. The book offers the only-in-academia thesis of viewing “women’s erotica within the context of governmental regulation that attempts to counterpose a ‘dangerous’ pornography with the sanctity of the home. Juffer explorers [sic] how women’s consumption of erotica and porn for their own pleasure can be empowering, while still acting to reinforce conservative ideals.” NYU Press assures readers that completing Juffer’s work will “transform our understanding of women's everyday sexuality.”

What sorts of topics will this new concentration enable students to explore? Prof. Debra Fried gave two examples to the Cornell student newspaper: “anything from comparing Ithaca’s coffee shops to how a ‘news anchor’s hairdo and clothing can contribute subtly to how the news is “spun” on a TV news report.’”

And beyond the offerings of Farred and Juffer, the new concentration will offer such courses as “Food, Gender, Culture,” which explores “the way food practices help shape our sense of [of course . . .] gender, race, sexual orientation, and national identity.”

In a comment that must have been made tongue-in-cheek, Cornell Daily Sun reporter Joseph Nickzy affirmed that “English majors are excited by the prospect of a new field of study, particularly one so relevant.”

Cornell’s annual tuition—not counting room and board—is $39,450. For the opportunity to partake of such “relevant” course offerings from such student-friendly professors as Grant Farred, surely any parent would be eager to fork over $160,000 plus room and board for a four-year period.

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

Farred, it’s worth noting, isn’t the only disgraced figure associated with the lacrosse case recently in the news. John McCann, a due process-unfriendly columnist from the Herald-Sun, last week suddenly decided the time had come to stand up for criminal defendants. His preferred choice? False accuser Crystal Mangum.

In the column, Mangum co-author Vincent Clark wildly charged, according to McCann’s summary, that Mangum’s bond (from criminal charges earlier this year) “is too high,” because of “the woman’s role in the lacrosse case.” Neither McCann nor Clark provided any evidence to corroborate the claim, nor did either man offer a theory (plausible or otherwise) as to why the Durham criminal justice system would operate from such a motive.

Magnum, according to Clark, is an innocent victim in the affair: “It could have been anybody's daughter . . . It could have been my daughter.” Clark didn’t say if his daughter had ever set clothes on fire inside an apartment while screaming at her boyfriend, with her children in the next room.

(The line recalled Duke extremist Timothy Tyson’s justification for being part of the potbangers’ protest weekend: Mangum was “somebody’s daughter and somebody’s sister and somebody’s mother and somebody’s sweetheart.”)

Clark additionally complained about difficulties in his fundraising campaign for Mangum’s bond. Laments McCann: “Problem is, folks are scared to contribute to Mangum's cause out of fear of being linked to her and attracting unwanted attention.” Indeed. The danger of publicity is undoubtedly the only reason why “folks” are not lining up to contribute to a bail fund for a repeat criminal who lied about a high-profile local case.

Perhaps Clark should turn to Farred for donations? After all, the ex-Duke professor did everything he could to prop up Mangum’s case, and the median salary for his current rank is $154,300.

Christine Brennan Offers Insights on the Lacrosse Case

Keep in mind, as outlined in the post below, the enormous differences between the facts of the Duke lacrosse case and what has emerged about the murder charges against former UVA lacrosse player George Huguely, and then ponder the following from USA Today columnist Christine Brennan:

Perhaps it's just a coincidence, but there's no escaping the fact that the sport they played is lacrosse, in the news again for all the wrong reasons, again. The Duke story is four years old now, and while the fabricated rape charges have long since been dismissed, sordid details about the evening remain on the record: the drinking, the strippers, the racial epithets.

It’s quite true, as Brennan points out, that “drinking” remains on the record. According to various surveys, the majority of college students drink alcohol. Is Brennan seriously maintaining that such behavior is “sordid”? It’s also quite true, as Brennan points out, that the decision to hire “strippers” for a spring break party remains on the record—although I’m sure a lot of college students wouldn’t want to be judged on the basis of the most tasteless thing they did during spring break. As for “racial epithets”? One player’s racial epithet in response to Kim Roberts’ racial taunt is “on the record.”

But perhaps Brennan has access to additional “on the record” sources, as part of her effort to link the “record” of the Duke lacrosse players to that of an accused murderer? After all, in spring 2006, Brennan opined confidently about the case.

In late March 2006, almost directly mirroring the thesis of the infamous Selena Roberts column that appeared in the same period, Brennan sarcastically noted that the lacrosse players were “giving us all a whole new definition of the word teamwork” by refusing to cooperate with the police investigation. Of course, the captains had voluntarily cooperated to an extraordinary degree, and the supervisor of the police investigation—Mike Nifong—was refusing to hear from the players’ attorneys, who wanted to share with him the exculpatory evidence in their possession. The on-line version of Brennan’s column contains no correction of her factually incorrect information.

Having based her column on a false premise, Brennan continued:

Perhaps if no one is found guilty of any criminal activity in this unseemly affair, the collective silence [sic] of the Blue Devils someday will be seen as admirable. For now, though, the sports world's vaunted concept of team is reaching a frightening extreme . . . Is this really how a team is supposed to behave?

Looking at writings such as the above might prompt another question: “Is this really how a prominent columnist is supposed to behave?”

As evidence of the players’ possible innocence mounted, Brennan shifted gears—in a transformation on the case similar to that exhibited by members of the Group of 88, such as William Chafe. In a mid-May 2006 column, she without explanation dropped all references to the significance of the players’ alleged refusal to cooperate with the inquiry—her initial take on the case—and instead went into a character attack, writing of “the Duke men's lacrosse mess, a raunchy Animal House tale even if the rape charges against the three players prove to be untrue.” For good measure, she added a class angle, deeming the matter “an illuminating window into the world of 21st-century college athletics, a world of privilege, of drinking and of naiveté when it comes to the reach and power of the Internet.”

After Nifong’s criminal case collapsed, Brennan repositioned herself as a media critic of the affair, suggesting to CNN that the early coverage was “an awful performance, an embarrassing time, I think, for journalism . . . I think some people lost their minds in this story.”

She didn’t bring up her own “embarrassing” columns. And now, with her decision to link the behavior of an accused murderer with that of the Duke lacrosse players, she seems to have returned to her May 2006 mindset, but without bothering to mention her previous mockery of the falsely accused players’ due process rights or her initial column’s peddling of a false narrative.

To borrow a phrase, perhaps it’s just a coincidence that Brennan didn’t reference her earlier writings about the lacrosse case in her most recent USA Today commentary.

More Strained Comparisons

Let’s review some facts.

(A) Accused murderer George Huguely had a documented record of violence, seen most clearly when a police officer had to taser him when he resisted arrest. Allegations have emerged of a pattern of violence, allegedly involving not only the woman he’s accused of murdering but even another member of the UVA men’s lacrosse team. In his own words to police, Huguely admitted repeatedly slamming his former girlfriend’s head into a wall. Huguely’s attorney has claimed the event was an “accident” but hasn’t denied his client’s culpability; the strongest character witness in public on Huguely’s behalf has been his former nanny. And, to my knowledge, no one has accused either the Charlottesville police or DA’s office of behaving in anything other than a professional manner.

(B) In the Duke case, no crime occurred (except possibly a conspiracy to obstruct justice by the police and prosecutor). There never was any evidence that a crime occurred (except with the above caveat). The lacrosse players and their attorneys repeatedly denied committing any crime, and produced massive evidence of their innocence. The prosecutor’s behavior provided the highest-profile instance of prosecutorial misconduct in modern American history. Hundreds of their current friends and acquaintances—including the women’s lacrosse coach and many women’s lacrosse players—publicly testified to the good character of the three falsely accused Duke students. And the men’s lacrosse captains hosted a tasteless spring break party—hardly an abnormal event for college students, despite insinuations from the neo-Puritans of the media and academic left.

Suggesting that comparing (A) with (B) is “strained” is generous. And yet the comparisons continue apace.

This morning, a featured story on the AOL homepage recommends that the University of Virginia “shut down” its men’s lacrosse season. That strikes me as a case of punishing a group for the sins of one member, an unusual approach in a society that correctly frowns upon the principle of collective punishment.

Author Kevin Blackistone speaks warmly of Duke’s dismissal of coach Mike Pressler (a decision that led to a lawsuit that Duke settled out of court). He adds that “UVA officials would be smart to review the Report of the Lacrosse Ad Hoc Review Committee at Duke that investigated the Duke lacrosse team’s scandal four years ago,” which he claims shows that the Duke lacrosse players were “miscreants.”

Actually, the Coleman Committee report showed that some of the lacrosse players drank too much—on a campus where the same could be said of a significant minority of the student body, and, perhaps more troublingly, on a campus where the city had adopted a “separate-but-equal” justice policy of prosecuting Duke students and only Duke students for crimes for which other Durham residents received a pass.

That report, of course, also revealed that the Duke men’s lacrosse players were on the whole very strong students (stronger, it’s worth noting, than UVA lacrosse players); that they had strong records of community service; that they had exemplary records of dealing with Duke staff members; and that they had no documented record of unacceptable behavior on grounds of race or gender.

Those are the findings that Blackistone believes would justify terminating UVA’s program? His column represents little more than an attempt to use the UVA killing to smear the character of 2006 Duke men’s lacrosse team.

Then there’s Ruth Marcus, a rare voice of sanity at the Washington Post during the criminal case. She recently penned a column wondering, “[Is it] something about lacrosse?” She then asserted that “It's impossible to read the Huguely story without thinking back to the Duke lacrosse case,” since—despite the weakness of the allegations—"These don't sound like young men you'd want your daughter to date."

Refer, above, to cases (A) and (B), and wonder, “Is it something about left-of-center opinion columnists?”

Or take this piece in the Baltimore Sun from Peter Prowitt, who is cryptically described as “with the Vienna Liaison Office of the Organization for Security and Co-Operation in Europe Parliamentary Assembly.” Prowitt linked Huguely’s arrest with the Duke lacrosse case as illustrating a “culture of sexual misconduct and off-the-field troubles in men's lacrosse.” Well, no “sexual misconduct” occurred in the Duke lacrosse case. And the “off-the-field troubles” resulted from the wildly unethical behavior of a local prosecutor.

Prowitt adds that even though they were “cleared of the allegations”—a parsimonious description—it’s “clear” that Reade Seligmann and Collin Finnerty “exercised poor judgment in this incident.” How, precisely, it is “clear”? By attending a party they played no role in organizing and probably drinking some beer? That’s behavior that Prowitt can link to the conduct of an accused murderer?

Or, even, take this article in yesterday’s Daily News from Kevin Armstrong and Michael O’Keeffe. In an otherwise very well-reported article, the reporters offer the following peculiar lede: “University of Virginia lacrosse players adhered to the code of silence that permeates locker rooms and dorm rooms Thursday, refusing to comment [on the record] on former teammate George Huguely, who was been charged in the slaying of his former girlfriend Yeardley Love, or on reports that he had a history of aggressive behavior.”

The allegation brought to mind the pernicious claims of figures such as Mike Nifong and Selena Roberts in the Duke case, that the players had constructed a “wall of silence” to frustrate the case. Yet readers of the Armstrong/O’Keeffe article would discover that the UVA players had been fully cooperative with the police investigation, and had been willing to speak with reporters on a not-for-attribution basis.

Refusing to give on-the-record quotes to members of the media when reporters demand those quotes constitutes a “code of silence”? By that standard, all of Washington, DC functions under such a code.

And, just to provide a reminder of the . . . lax . . . standards that too often permeate the mainstream media, take a look at who the Today show invited on as an “expert” on this morning’s broadcast.

Visit msnbc.com for breaking news, world news, and news about the economy

Does accountability even exist in the media world? Having adjunct law professor Murphy on to discuss a sex crimes case is a little like—as we also recently saw—having former FEMA director Michael Brown on to discuss disaster response policy.

Today Slanders the Lacrosse Players

[Update, 2.41pm, below:}

On this morning's broadcast of Today, host Meredith Viera interviewed "criminal profiler" Pat Brown, on the topic of whether the Virginia killing could have been prevented.

Out of the blue--in a discussion, again, of an accused murderer--"criminal profiler" Brown offered the following insight: "Look at the Duke situation. All these boys did all these things, but were they thrown off the team? No."

Viera offered no correction, but merely thanked Brown for her insights. The item comes at 8.49 of the clip below:

Visit msnbc.com for breaking news, world news, and news about the economy

On another front, I have an op-ed this morning in Inside Higher Ed on the flawed comparisons between the Duke and UVA cases.

[Via Mediate, the phony comparisons continue--this time from CNN's Don Lemon, who referenced the Duke "sex scandal." As Steve Krakauer notes, "Is a sex scandal a sex scandal if it’s proven there was no sex scandal at all?"]

Linkage

[Update, 4.13pm, below]:

[Update, II, 4.27pm, below]:

[Update III, 11.31pm: The Washington Post, admirably, has now modified its language, noting that the falsely accused lacrosse players were "exonerated," that the case itself was "controversial," and omitting the incorrect inference that the falsely accused of racist behavior.]

[Update IV, 12.22pm, 5/4: An important point from the comment thread: "Stories about this case are constantly linking it with the Duke case; and these comparisons are evidence of how those false accusations continue to damage the reputations of the Duke lacrosse team members."]

[Update V, 5.39pm, 5/4: A most unfortunate item from Emily Friedman of ABC: "The prep school is no stranger to controversy. Several of the Duke lacrosse players who were implicated in the 2006 rape scandal were also alumni." No mention that the charges were false. How can a "rape scandal" exist in a case in which no rape occurred?]

Original Post:

A horrifying story from Charlottesville, where a member of the UVA men's lacrosse team has been charged with murdering a member of the women's lacrosse team.

The Washington Post has linked the matter back to the lacrosse case. Here's how the Post describes the case: " . . . shortly after allegations of sexual assault and racist behavior were made against members of Duke University's men's lacrosse team . . . All charges against Duke's team members were dropped." [emphases added]

The charges were "dropped"? Actually, of course, the players were declared innocent--a rather significant difference. And the wording of the Post's passage conveys the impression that "allegations" of "racist behavior" were directed against the three falsely accused players.

[Update: The Post formulation has appeared--essentially verbatim--in the New York Daily News. In what appears to be a case of journalistic plagiarism, the News' Teri Thompson writes, "Huguely attended the Landon School in Bethesda, where he also played lacrosse. He was interviewed by the Washington Post in 2006, shortly after allegations of sexual assault and racist behavior were made against members of Duke University's men's lacrosse team. Five of Duke's players that year had graduated from Landon. All charges against Duke's team members were dropped."

Here, again, is the item from the Post: "Huguely attended the Landon School in Bethesda, where he also played lacrosse. He was interviewed by the Post in 2006, shortly after allegations of sexual assault and racist behavior were made against members of Duke University's men's lacrosse team. Five of Duke's players that year had graduated from Landon. All charges against Duke's team members were dropped."

The two passages are identical, with the sole exception that Thompson inserted a "Washington" ahead of the "Post."]

[Update, II: ESPN has the charges being "dismissed"--no mention of innocence, but at least a slightly more accurate formulation than the Post. The ESPN article also wildly claims that the accused Virginia player attended the same high school as did Reade Seligmann and Collin Finnerty (who, it's worth noting, didn't even attend the same high school themselves, and neither attended Huguely's high school): "By coincidence, Huguely attended the same prep school as the Duke lacrosse players who were accused of sexually assaulting a woman at a team party. The charges later were dismissed."

ESPN has now modified its article; below is the screenshot.

]

Today's New York Post

Has an excellent article on Collin Finnerty, now in his final season at Loyola. Read it here.

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.