The Serial Fabricator Strikes Again

[Update, 6 May, 10.33am: As of this morning, the comments section in which Adjunct Prof. Murphy made her false statements is not visible on the P-L website.]


[Update, 5 May, 11.39pm: Rule 8.4(c) of the Massachusetts Rules of Professional Conduct deems it "professional misconduct for a lawyer to  . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." It is hard to see how Murphy's lengthy, and repeated, fabrications in her public comments about the lacrosse case do not violate this standard.]


Adjunct law professor and serial fabricator Wendy Murphy, Esq., is at it again, this time on the pages of the (Quincy, MA) Patriot-Ledger. Pressed on her pattern of fabrication in the lacrosse case, Murphy unleashed the following:

I also very much value bloggers who note the Duke case. It enables me to repeat things the public rarely gets to read about the case. Once again, I'll include a few key facts [sic] here: 

The victim [sic] was offered 2 million dollars to recant a couple of months after charges were filed, AFTER everyone involved in the case knew what she'd told police - and AFTER everyone involved in the case knew the key evidence - including: statements from eyewitnesses at the scene and results from tests conducted on a broomstick that was seized by police because men at the party reportedly threatened to rape the victim [sic] with a broomstick. Test results on the broomstick have never been released, nor have thousands of pages from the investigation including eyewitness statements. After the victim [sic] was offered 2 million dollars to recant, she hired a very powerful attorney in Florida who has never revealed what legal services he provided. If she lied, SHE should have been prosecuted - not the district attorney - but parents of the men involved said publicly they didn't want her to be punished. 

The public should be demanding full disclosure the entire file - or at least disclosure of all eyewitness statements and all reports related to forensic testing on the broomstick. 

Murphy has a remarkable ability both to outright lie and to issue highly misleading statements (for which she lacks evidence) but which also can't be disproved since it's impossible to prove a negative. That said, she manages at least four false statements in 217 words:

(1) There was no "forensic testing on the broomstick," because no evidence exists that the police ever seized a broomstick. How police could release testing that never occurred Murphy does not say. [A note: on 27 April 2006, on national TV, Murphy gave a completely different interpretation about forensic tests on this non-existent "broomstick evidence," asserting that the DNA tests showed no matches to lacrosse players "because a broom handle was used, which by the way, doesn't produce DNA when you put it inside someone."]

(2) No version of events--even any of the myriad, contradictory versions of events offered by false accuser Crystal Mangum--ever claimed that any of the falsely accused players "threatened to rape the victim [sic] with a  broomstick." Two statements (those by one of the captains and the other dancer, Kim Roberts) referenced an unindicted player boorishly urging Roberts to use the broomstick as a sex toy in the dancers' "show"; both statements said Roberts took offense; and no one (except Murphy, it seems) mentioned the broomstick as an element of any crime.

(3) Mangum was not "offered 2 million dollars to recant." The claim originated from an article from "reporter" Cash Michaels; a subsequent investigation by the DPD not only found no evidence of the claim, but had Mangum herself denying it. Michaels' source, Mangum's "cousin Jakki" (a/k/a Clyde Young), subsequently admitted that months would pass during which she did not speak to her "cousin."


(4) Mangum never "hired a very powerful attorney in Florida." The attorney to which Murphy referred, Willie Gary, briefly offered to represent Mangum pro bono, but does not appear to have ever actually met her, and in any event quickly lost interest in Durham affairs. Moreover, Gary's involvement in the case (such as it was) occurred before, not after as Murphy claims, the false report of a bribe offer--rendering illogical Murphy's mention of Gary.

Beyond the false statements, Murphy provided at least two misleading ones:

(1) North Carolina attorney general Roy Cooper elected not to prosecute Mangum not because of what the parents said or wanted, but because, as he publicly noted on 11 April 2007: (1) Mangum's mental illness was so extensive that she might have believed her myriad false tales; and (2) he feared that prosecuting Mangum could delay the healing process in Durham. In any event, the decision on whether or not to prosecute Mangum had nothing to do with Nifong being prosecuted for criminal contempt, which involved his lying to a judge in open court about whether he had turned over all the DNA evidence to the defense.

(2) It's quite true that roughly 1000 pages of the case file never were released. But as Murphy well knows, no reporter ever saw that material because Judge Osmond Smith sealed the pages, which included the records of Mangum's mental health treatment. Murphy's insinuation that this material would somehow enhance Mangum's claims--as opposed to showing clearly why Mangum lied--is beneath contempt.

Keep in mind: this is the person that the "good-journalism" organization, Poynter, not only uses as a source, but considers worthy of an invitation to guest lecture in a seminar for journalists.

I have e-mailed the Patriot-Ledger's web editor to ask about the paper's policy regarding the posting of false statements by P-L writers, and will update this post if I receive a reply.

Did Sgt. Smith Forget His Memory Pills?

The Liestoppers forum has posted the deposition transcript of Duke police first sergeant Gary Smith. Smith’s name would be known to people who followed the case very closely as the Duke employee who, in violation of FERPA, handed over the lacrosse players’ keycard information to the DPD—and then, at least according to the implied Duke version of events, initially didn’t tell anyone what he did.

Perhaps Sgt. Smith needed to take a few of Grandma’s pills before being deposed. Over the course of the session, he claimed that he could not recall:

1. ·         Whether he had ever worked with Mark Gottlieb before the lacrosse case;
2. ·         From whom he “heard rumors” that Gottlieb was biased against Duke students;
3. ·         The contents of former Duke PD office Christopher Day’s report, from which Smith claimed to have initially learned about the lacrosse case;
4. ·         Whether Officer Day considered Crystal Mangum’s allegations credible;
5. ·         Whether Officer Day changed his initial accurate report (as he did, seemingly under pressure from higher-ups at Duke);
6. ·         Whether the case was initially a subject of conversation in the Duke PD;
7. ·         Whether there was, in fact, any conversation about the case in the Duke PD in the early days;
8. ·         Whether he had ever supplied e-mails to the DPD;
9. ·         Whether or not he supplied prior reports about the lacrosse players to the DPD;
10. ·         Whether Gottlieb requested from him the names and contact information of the lacrosse players, or whether he supplied this information on his own initiative;
11. ·         What role DPD captain Phyllis Cooper had in his being appointed the “sort of” (his words) lead investigator on the case (on that matter, he deemed his memory “wishy-washy”);
12. ·         How many investigators were employed in the Duke PD at the time of the lacrosse case;
13. ·         Whether he had any conversations with Capt. Cooper about the case;
14. ·         Whether or not Duke had previously declined to exercise jurisdiction over alleged crimes in rental properties the university owned;
15. ·         How he described, to his Duke superiors, the information he supplied to Sgt. Gottlieb;
16. ·         What type of assistance he gave to Gottlieb later in March, which Gottlieb had commented on in his typed “notes” (on this point, Sgt. Smith claimed that too much time had passed for him to remember what he did with Gottlieb on what was doubtless the biggest criminal case of his career);
17. ·         Whether DPD officers entered into the “private residence” of Duke students in Sgt. Gottlieb’s nighttime excursion into the Duke dorms, when Gottlieb was trolling for information outside the presence of the students’ counsel;
18. ·         Whether he gave to the DPD two additional reports about the lacrosse players, as the Gottlieb notes claimed;
19. ·         Whether he ever had a conversation with Gottlieb about what Crystal Mangum told the DPD;
20. ·         Whether or not he had ever supplied the DPD with students’ FERPA-protected keycard information on any case other than the lacrosse case;
21. ·         What basis he used to select the students whose FERPA-protected keycard information he voluntarily turned over to the DPD;
22. ·         Whether he turned over Devon Sherwood’s FERPA-protected keycard information to the DPD;
23. ·         Whether he counted how many names were on the lacrosse roster;
24. ·         The nature of his conversations with his DukePD superiors over whether FERPA applied to the keycard information;
25. ·         When he spoke to his DukePD superiors about whether keycard information was FERPA-protected (he said it was simply too long ago for him to remember this critical conversation);
26. ·         Whether he referenced the lacrosse case in his conversation with DukePD superiors about whether keycard information was FERPA-protected;
27. ·         Whether in a late-March conversation with his DukePD superiors he admitted that he had turned over the keycard information;
28. ·         Whether he asked his DukePD associate, Sgt. Stotsenberg, not to reveal to anyone else that Smith had turned over the keycard information (Smith had already confessed his violation to Stotsenberg, who initially was the only DukePD officer to know of the keycard turn-over);
29. ·         Whether he had ever discussed with Stotsenberg the possibility of a deposition in the lacrosse case civil suits;
30. ·         Whether any such conversations referenced the keycard information.

Sgt. Smith also claimed not to have known at the time of the allegations that:

1. The three captains voluntarily gave police statements;
2.  The three captains offered to take polygraph tests;
3. Duke owned the house that the three captains rented;
4. What Gottlieb was thinking when Sgt. Smith informed Gottlieb that the keycard information was likely FERPA-protected;
5. In 2007, his superiors were discussing whether he should be disciplined for turning over the FERPA-protected keycard information.

When he occasionally shook free of his memory-induced haze, Smith did make a few damaging admissions.

1. He admitted that he wouldn’t give the DPD social security numbers of Duke students, because that’s “private” information. (Why the FERPA-protected keycard info didn’t also apply under this standard Smith did not say.)
2.  In a question about his assisting Gottlieb during his nighttime excursion into the lacrosse players’ dorms, he suggested that he saw no problem, as a DPD officer, in helping the DPD ferret out Duke students for questioning even though he knew these students were represented by counsel. Then, however, under effective questioning, Smith admitted it would not have been “proper” for Gottlieb to have entered the students’ dorm rooms as part of his interrogation project.
3. Smith admitted that the Duke PD didn’t follow its own procedure regarding the Gottlieb nighttime excursion; those procedures require that “all requests for interviews of students by the Durham police will be coordinated with [DukePD] Director Dean.” He offered no explanation as to why procedures weren’t followed.
4.  He admitted that he had volunteered to supply Gottlieb with the FERPA-protected keycard information.
5. He admitted that he made a conscious decision not to tell his DukePD superiors that he had turned over the FERPA-protected keycard information—because, he admitted, he was afraid he might get in trouble.
6. In his e-mail to Gottlieb suggesting that he get a subpoena for the improperly turned-over keycard record, he admitted that he blind-cc’d Duke PD director Dean, which he didn’t regularly do—suggesting that the DukePD leadership was involved in the after-the-fact scheme to concoct a legal rationale to turn over the keycard information. (He said he didn’t remember who told him to blind-cc Dean.)
7. As to whether he had an obligation to inform the Duke students whose rights he had violated about what he did, “It never occurred to me.”
8. He had—and as of December 2011, still has—“no opinion” about the “integrity” of the Nifong-Gottlieb investigation. Wow.
9. The “courts” found that the falsely accused players “weren’t guilty, and that is sufficient for me.” In fact, of course, the Attorney General exonerated the players, and deemed them innocent, not simply not guilty.

Nothing in the Smith deposition should give any confidence in the integrity of the DukePD.

Updates

One of the most important themes of the lacrosse case was the almost complete lack of accountability among anyone not named Mike Nifong. Professors who flagrantly violated the terms of the faculty handbook or student bulletin (much less basic ethics)? Not punished, and in some cases even promoted or offered better jobs. Reporters who appeared to see their job as carrying Mike Nifong’s water (so as to better advance a politically correct agenda) rather than pursuing the truth? Not punished, and in some cases even offered new and more prestigious jobs. “Experts” whose performance revealed their utter lack of expertise, at least if we define expertise as based on facts? Not declared figures without credibility, and instead many continued to be consulted on the very same topics about which they illustrated their ignorance.

The effects of this non-accountability: those who engaged in misconduct (or worse) in the lacrosse case are free to offer repeat performances. Take, for instance, so-called sex crimes expert Wendy Murphy. Fresh from being deemed not merely an expert but an appropriate instructor for a Poynter seminar—even after a Poynter representative was informed of Murphy’s fabrications—Murphy was interviewed by AP education writer Justin Pope, who labeled her a “victims’ advocate who has filed numerous Title IX complaints on behalf of victims.”

The article focused on how universities should respond to allegations of campus sexual assault. Without even mentioning Murphy’s comments about the lacrosse case (the highest profile claim of campus sexual assault in the past decade)—much less her history of fabrications when discussing the issue—Pope quoted Murphy as if her views merited credibility. “Colleges must protect victims, [Murphy] says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they'd enjoy in a criminal trial. ‘You can't run a school that way,’Murphy said. ‘If every once in a while a school has to be sued at the cost of being fair to all students, so be it.’”

Set aside the astonishing nature of Murphy’s statement in a society that values (or at least professes to value) due process. Can anyone imagine an AP reporter turning again for expertise to a scientist, or a businessman, or an attorney exposed as a fraud in a high-profile case? And even if in the highly unlikely event that the AP did so, is it imaginable that the reporter would have not mentioned the grave doubt about the credibility of his “expert”?

By the way, AP isn’t the only national news bureau that could be faulted on the no-accountability standard. Late last year, Reuters hired away Duff Wilson from the New York Times to join the organization’s investigative team. Let’s hope Wilson’s bosses steer him clear of criminal justice issues—at least when any amount of skepticism of the prosecutor is warranted. Let’s also hope that Reuters employs better fact-checkers than does the Times.

Another article for the non-accountability file: this piece from the Times, penned by a former national correspondent for the newspaper. How many readers of the article, I wonder, had any idea that one of the (two!) Group of 88 members quoted, Eduardo Bonilla-Silva, had views such as these? While it’s not the job of the media to report every view a source might have expressed, when interviewing an extremist on the topic of his or her “expertise,” surely some requirement for context exists. Or, to phrase it differently, if most Times readers knew that Bonilla-Silva had termed our country “gringoland” and the “United States of Amerikkka,” and had conceded that even some of his own students considered his course material to be “anti-white,” would they have paid any attention to his comments in the article?

(Providing such context, it seems to me, should also occur on the rarer occasions when media members interview extremists of the right. Perhaps the best example is Tony Perkins, the head of an SPLC-designated hate group who regularly appears on all three major cable networks without his hosts referencing his extreme statements.)

Finally, a lawsuit update: the cases continue to inch their way through the judicial system. There’s no word on the fate of Duke’s appeal of the Beaty motion-to-dismiss ruling, which Judge Beaty has allowed to indefinitely delay discovery. Duke, meanwhile, is battling attorneys for the unindicted players, in the hopes of blocking any discovery from Duke’s p.r. firms. Given that a central element of the unindicted players’ case is that Duke violated their rights to protect the university’s reputation, this information would seem relevant.

In the Ekstrand case, Duke has demanded a protective order regarding discovery material—the university clearly doesn’t want any more embarrassing Brodhead e-mails to be attached to Ekstrand motions.

And regarding the FERPA matter (the university’s inexplicable decision to turn over FERPA-protected keycard information to the authorities, and then to wait for weeks before informing the students or their parents about what the university has done): ignorance is bliss appears to be the Duke litigation strategy. During the discovery process, Dean Sue Wasiolek spent more than six hours discussing the issue, yet—based on the filings—appeared to claim that she knew little of what occurred. Duke’s comment: Wasiolek is the university’s expert on the matter.

It’s good to know an apparent violation of the federal law to protect student rights generated such concern among Duke’s upper administration.

Even for Durham...

Every so often, we see an event that raises eyebrows even by the upside-down standards of Durham legal culture. Take, for instance, the three legal motions filed late last week on behalf of false accuser and accused murderer Crystal Mangum. The motions weren’t filed by Mangum’s court-appointed attorney—who told the H-S that he knew nothing about them. Instead, they were ostensibly written on the accused murderer’s behalf by none other than “lay advocate” Sydney Harr, who has spent the past few years in a quixotic crusade to restore Mike Nifong’s law license. Even more strangely, Mangum’s court-appointed lawyer said that Mangum hadn’t authorized the motions’ filings—but each motion has a signature that appears to match Mangum’s.

In his motions, Harr, speaking of himself in the third person, admits that “he has not received formal legal training.” (But, perhaps, he once stayed at a Holiday Inn Express.) The three motions combine character assassination, bizarre interpretations of the law, and revisionist history of the lacrosse case to call for dismissal of the murder charges against Mangum; the recusal of Judge Smith from Mangum’s case; and a change of venue in the event the first two requests aren’t granted.

The motion to dismiss the murder charges is almost comically bad. Harr contends that Mangum shouldn’t face charges for murdering her late boyfriend, Reginald Daye, either because Daye’s doctors initially gave him a “prognosis for a full recovery” and thus are guilty of “medical malpractice” or because Daye’s family took him off life support after doctors said he had no chance of survival and thus engaged in a “hospital homicide.” (Harr, who identifies himself as a retired physician, also offers his medical opinion on Daye’s cause of death, even though he never treated Daye; indeed, he claims that Daye “might have even regained consciousness” had he remained on life support.) In perhaps the motions’ most bizarre line, Harr faults Duke Medical Center doctors for removing Daye from life support “without the consent or input from Defendant [Mangum].”

Why an accused murderer would have the right to make medical decisions for the person she allegedly murdered Harr does not reveal.

Applied nationally, the motion’s argument would free hundreds of convicted killers—anyone whose victim’s life wasn’t artificially sustained by life support. Harr doesn’t cite even one case to bolster his novel legal theory, but he does accuse the media of having “concealed” the fact that Daye had been on life support. Why the media would have engaged in this conspiracy of silence Harr does not explain.

Harr’s motions also devote considerable space to a claim of conspiracy on behalf of the Durham Police Department and the Durham DA’s office to invent and prosecute unsustainable charges against Mangum, because the “Defendant was the accuser in the Duke Lacrosse case.” Harr provides no explanation as to why the office of would-be lacrosse case second chair Tracey Cline or the Durham Police, which in 2006 spent months violating procedure after procedure in an attempt to prop up Mangum’s false charges, would have an incentive to invent criminal charges against Mangum. And, needless to say, he presents no evidence to sustain his . . . counterintuitive . . . theory.

His introduction of the lacrosse case does, however, provide Harr with an opportunity to relitigate the events of 2006. His motions, filled with gratuitous character assaults on the former Duke students, ooze with hatred for the falsely accused players (raising questions of whether the documents were prepared with some pro bono assistance from a certain disgraced ex-DA). Every so often, out of the blue, Harr throws in an attack on (of all people) Rae Evans.

Harr laments that Duke (who he himself has sued!) has faced “greed-driven lawsuits” because of what the motion alleges were $20 million settlements to the falsely accused players. (He provides no evidence for this figure, which he appears to have conjured from thin air.) And Harr, without citing any authority or case law, criticizes AG Roy Cooper for declaring the lacrosse players innocent, a move he attributes to the pernicious influence of Brad Bannon(!!). Cooper's actions, Harr suggests, were improper, since a declaration of innocence is “something that only a jury or a judge in lieu of a jury can do.” Of course, a jury delivers a verdict of “guilty” or “not guilty”; juries do not declare innocence. And what any of this revisionist history has to do with the motions’ ostensible topics Harr leaves for the reader to guess.

Perhaps temporarily forgetting the identity of his client, Harr veers from character assassination against the falsely accused lacrosse players to a claim that Nifong was wrongfully convicted of criminal contempt. Why? Because “as long as NIFONG believed what he was telling the court was true, even though it might not have been totally factually correct.”

This postmodern view of the truth might carry some way with the Group of 88 (did Harr seek to consult “law professor” Karla Holloway in his effort?) but has little bearing in the actual world of the law. As occurs throughout his motions, Harr cites no case law to sustain his novel legal theory. But he does employ it to suggest that Smith must recuse himself from Mangum’s trial.

The motions do reveal two new items: (1) that Nifong was “advised to drop prosecution of the Duke lacrosse defendants.” Harr doesn’t reveal who advised Nifong to take this course; and (2) that after her 2010 conviction for arson-related charges, Mangum was expelled from her graduate studies at North Carolina Central. Falsely accusing people of rape, apparently, doesn’t affect a student’s status at NCCU; conviction on misdemeanor arson charges does.

It’s hard to imagine that these motions will do Mangum any good. If, in fact, the false accuser didn’t authorize their filing, they could allow Harr to spend some time in jail for contempt. And WRAL reports that the State Bar is looking into Harr’s behavior.

"Like The Duke Lacrosse Scandal But Worse"

[Update: Friday, 6.11pm: Coincidentally, the H-S reports on a Duke Law School forum about the Martin shooting. The analysis all seems on-point, especially on the peculiar nature of the Florida "stand-your-ground" law, though I'm far more skeptical about the likelihood of any federal prosecution than is Prof. Beale. That said: it's striking to note the contrast between the scheduling of this panel and the lack of such a Law School event while the lacrosse case was occurring. (There was an excellent law school panel several months after the exoneration.)]

Last week, Andrew Sullivan’s highly-trafficked Daily Beast blog ran a post with the above title; it consisted mostly of a letter from a Sullivan reader analyzing the George Zimmerman case.

The item captured my attention for three reasons: (1) It represented a break from the increasingly unhinged anti-Israel fanaticism that has come to characterize the Sullivan blog; (2) It clashed with Sullivan’s utter indifference to the abuses of Mike Nifong, the Duke faculty/administration, or the New York Times as the lacrosse case was occurring; (3) The argument made little sense.

Alas, the Zimmerman/lacrosse comparisons have become increasingly commonplace—in a particularly high-profile example, the linkage occurred this morning in a Shelby Steele op-ed in the Wall Street Journal. And unlike Sullivan, virtually all of these comparisons have come from the right side of the political spectrum. See, for instance, Rush Limbaugh terming the Zimmerman affair “the next Duke lacrosse case,” or a former Justice Department attorney describing the Zimmerman case as “Duke lacrosse, squared,” or Business Insider’s Michael Brendan Daugherty implying that the media’s mishandling of the lacrosse case explains why we should be skeptical of its Zimmerman coverage. (While avoiding any negative critique of Zimmerman’s character, Daugherty helpfully added that the falsely accused players were “pigs.”) A google search of “George Zimmerman” “Duke lacrosse” yields 17,000 hits. Among the few to reject the comparison—in an analysis with which I agree—was Steven L. Taylor at Outside the Beltway. But most of the other hits appear to attempt to link the two cases.

It’s worth making an obvious point: in the lacrosse case, nothing happened. In the Florida case, Zimmerman shot to death an unarmed teenager. Beyond that basic and overwhelming difference, the Zimmerman/lacrosse comparison is strained, almost apples-to-oranges, at best; and at worst a deliberate attempt to exploit (and tarnish) the students’ innocence as a shield to advance an unrelated ideological agenda.

Broadly speaking, the lacrosse case featured three differing loci of misconduct. First and most important, of course, was Mike Nifong, and those who worked at his behest (the Durham Police Department, DNA Security). Without Nifong’s serial violations of procedural norms, the case never would have developed; without his race-baiting demagoguery and improper public remarks, the case would have received less media attention. Nifong was also critical in exposing the hypocrisy of many who presumed guilt (the Group of 88, the Times, the state NAACP), since these were groups and people who never would have bent over backwards to defend prosecutorial misconduct in almost any other circumstance.

There’s no equivalent of Mike Nifong, or anyone resembling him, in any of the various prosecutor’s offices who have evaluated Zimmerman—calling into question the merits of any comparison between the two cases.

Second, the lacrosse case featured a litany of dubious behavior by members of the Duke faculty and administration—conduct that betrayed the academy’s traditional ideals of dispassionate evaluation of evidence in pursuit of the truth. The Group of 88 statement represented the low point of faculty misconduct, which also included in-class harassment, grade retaliation, indefensible statements from the university president (“whatever they did was bad enough”), and ignoring the plain language of the faculty handbook and student bulletin.

There’s no academic equivalent of the Group of 88, or Richard Brodhead, in the Zimmerman affair—calling into question the merits of any comparison between the two cases.

Third, the lacrosse case featured a torrent of questionable behavior from the media, ranging from the fact-challenged material in the New York Times and Herald-Sun to the guilt-presuming screeds of Nancy Grace, Wendy Murphy, and Selena Roberts. A central characteristic of the media mishandling of the case was the guilt-presuming crowd’s imperviousness to the unimpeachable evidence that undermined their assumptions. And so revelations of the negative DNA tests, or the Seligmann ATM video, or the Nifong-ordered lineup transcript, or the full statements of Kim Roberts and Mangum’s “driver” (which contradicted Nifong’s version of events) had virtually no impact on how the Times or the H-S or Grace or Murphy or Roberts approached the case. Elements of the media, along with many of those who purport to cover or analyze the news (Grace/Murphy/Roberts), were revealed to be not truth-seekers but closed-minded ideologues.

The Zimmerman case certainly has featured a rush to judgment from elements in the media, ranging from Al Sharpton to Michelle Malkin. And it’s also featured breaches of media ethics, ranging from NBC’s misleading editing of a 911 tape to make Zimmerman look like a racist to Business Insider’s using a misidentified photo from a neo-Nazi website to make Trayvon Martin look like a thug.

But there’s no comparison between the media response to the lacrosse and Zimmerman cases regarding evaluation of unimpeachable evidence. The three such examples in the Zimmerman case are the Zimmerman 911 tape, the video of Zimmerman at the police station, and (to a lesser extent) the audio analysis of a scream at the end of another 911 tape. Each of these pieces of evidence has been somewhat murky, although in general not helpful to Zimmerman. (The 911 tape features a huffing and puffing, armed Zimmerman improperly pursuing Martin on foot; the video shows Zimmerman with a gash on the back of his head, as his attorney had previously suggested, but no sign of the broken nose that his attorney also claimed he had suffered; the audio scream analysis hurts Zimmerman but suffers from not having any Martin audio for purposes of comparison.) In sharp contrast to what occurred in the lacrosse case, where the unimpeachable evidence always was clear and always tilted in one direction (the case was a fraud), there’s nothing from any of these pieces of evidence that would undermine or even seriously challenge a “rush-to-judgment” thesis against Zimmerman.

And so, whatever media misconduct has occurred in the Zimmerman case (and what has occurred has come from all over the ideological spectrum), it’s of a quite different type than what happened in the lacrosse case—calling into question the merits of any comparison between the two cases.

Indeed, if a reader were desperate to find some kind of comparison between the lacrosse and Zimmerman cases, the clearest one would seem to involve not Zimmerman but Martin. As Nifong’s case imploded, his defenders in the left-wing blogosphere retreated to character assassinations against the lacrosse players (the “they’re-not-saints” line of attack). At the time, my retort was that to my knowledge I had never taught any saints in my time as a college professor; and in any event the students’ alleged lack of saintly qualifications was irrelevant to the central questions of the case—explaining the misconduct of Nifong, the faculty, the media, and their associates.

In recent days, as Zimmerman’s legal peril has appeared to increase, his defenders (mostly, it seems, in the conservative blogosphere) have turned their sights on Martin and his character. (The outright “not-a-saint” line has even appeared from time to time.) Readers have had an opportunity to see Martin’s twitter feed, his e-mail account, and unflattering photos of him. This material might be interesting to those engaged in sociological studies of urban, 17-year-old African-Americans, but it’s of little relevance to the issue that will decide this case: whether Florida’s “stand-your-ground” law applies to a figure, like Zimmerman, who improperly initiated a pursuit that set into motion events for which he would later claim self-defense. The Florida law might well be elastic enough to protect Zimmerman—but if it does, whether Martin is a sinner or a saint will have no bearing on the outcome.

Of what overall relevance is the commentary of Limbaugh, or Steele, or Daugherty, or the figures like them? That in recent weeks we’ve seen hundreds of posts, columns, and radio bites—and mostly from people ostensibly sympathetic to the falsely accused students—linking Collin Finnerty, Dave Evans, and Reade Seligmann to a Florida man who killed an unarmed teenager. The prevalence of this comparison—a comparison, again, to a man who killed someone—provides yet another reminder of how significantly the misconduct of Nifong and the DPD harmed the falsely accused students’ reputations.

"Politic$ of Grievance" Pricetag: $13K

This decision should come as no surprise, but nonetheless is appalling. The Chronicle: "Rather than engaging in an inclusive dialogue and drawing input from across campus on a sensitive issue, the administration seemingly capitulated to a set of demands without really explaining why."

At Duke, on "diversity" issues, no explanation is necessary.

Durham "Progressives" Again Stand Up for Prosecutorial Misconduct

In most of the country, “progressive” activists are known for their defenses of civil liberties and their (sometimes reflexive and overheated) criticism of alleged police and/or prosecutorial misconduct. This record often has led to “progressives” being attacked as soft on crime. But there is, also, an intellectual consistency in their positions on such matters that deserves acknowledgement.

In Durham, of course, everything is upside down, and in recent years, the “progressive” establishment—represented by the People’s Alliance—has emerged as a consistent, vociferous apologist for police and prosecutorial misconduct. The PA enthusiastically supported Mike Nifong’s election in 2006. The group’s closest ally on the City Council, Diane Catotti, did everything she could to squelch and then neuter the investigation into police misconduct in the lacrosse case. And the PA was in Tracey Cline’s corner in 2008.

So few should be surprised that in the Democratic primary for superior court judge, the PA has spurned Orlando Hudson in favor of ex-DA Cline’s chief deputy, Jim Dornfried.

The PA made its choice even though in their respective questionnaires, Hudson took a consistently more liberal position than did Dornfried. In responding to a question about a pending state constitutional amendment to make same-sex marriages, civil unions, and domestic partnerships of any type illegal, Hudson stated that the federal constitution should grant gay and lesbian couples a right to marry; Dornfried didn't mention the federal constitutional issue. In responding to a question about North Carolina's Racial Justice Act, Hudson strongly defended the law, citing North Carolina's Jim Crow heritage; Dornfried deferred comment on the matter. In a question about their respective backgrounds, Hudson spoke of his earlier work as an assistant public defender; Dornfried had been in private practice before joining the DA's office. Hudson also detailed his willingness to volunteer his legal skills to local law schools; Dornfried mentioned no such volunteer work.

But the PA ignored Hudson's seemingly “progressive” credentials, instead explaining its endorsement by hailing Dornfried’s work as Cline’s deputy. In his questionnaire to the PA, Dornfried cited the testimony of Durham’s resident ethics apologist, Judge Marcia Morey, to argue that Cline’s deeds did not harm the administration of justice--and thereby to implicitly challenge the decision to remove her from office.

(Dornfried, I should note, was answering a question that was framed in such a way to suggest the PA's fury at the decision to remove Cline: “District attorneys are elected by the people. How egregious must a district attorney’s conduct be before a trial judge may interfere with the people’s right to choose or replace their representative in criminal proceedings?”)

The cases in which Hudson and Cline tangled, as the PA understood, involved matters in which Judge Hudson had claimed that the DA's office violated the constitutional rights of accused criminals--usually a point of view that self-styled “progressives” embrace but in Durham is anathema to the “activist” left.

By the way, Dornfried is white, Hudson is African-American. And in his PA questionnaire, Dornfried identified our current President as “Barak [sic] Obama,” a misspelling that often appears on far-right websites. It appears we’ve finally found the issue—defending prosecutorial misconduct—upon which Durham’s “progressives” are willing to abandon their obsession with “diversity.”

Brodhead's Extraordinary Address

[Update, Friday, 12.45pm: On his own blog, Peter Arcidiacono has responded to Brodhead; I urge people to read the post in full.

Arcidiacono observes that the kind of research Brodhead specifically criticized--"analyzing average differences in choices across demographic groups--race included"--is "standard practice not just in economics but in all quantitative social sciences," and therefore "to suggest that this is insulting disparages the quantitative social sciences as a whole."

Brodhead obviously knows this: indeed, this type of social science research, in a less detailed form than what exists in the academy today, provided the underpinning for many of the civil rights decisions in the 1950s, 1960s, and 1970s. The only possible inference, therefore, to take from Brodhead's criticism is that at least on issues of race, this research strategy is acceptable only when it yields results that conform to the beliefs of the campus majority.

Arcidiacono adds some personal context which makes Brodhead's behavior even more troubling: "This squashing of divergent ideas also shows up in the administration's lack of defense of the study beyond issues of academic freedom and, more importantly, in the administration's lack of a substantive conversation with either myself or my co-authors. Personally, the latter is what I have found most disturbing about the whole controversy. As I have repeatedly made clear, I am happy to talk with anyone who has concerns about my work. I was disappointed when the Black Student Alliance (BSA) chose to go directly to the press rather than engage in a discussion with me--the called-for forum has not happened. But these are undergraduates. This is the president of the university. To publicly disparage my work without engaging in a conversation with me is not something I would have expected from Brodhead. To top it off, the speech alludes to administrators working on the issues raised in the paper with the BSA and yet there still have been no substantive discussions of the issues with the authors. Thank you God for tenure."]

As a university in the South—and as a university also associated in the past with the upper class—Duke contributed to the Jim Crow system that governed the region (de jure and for some time thereafter de facto) for much of the 20th century. Duke’s greatest president, Terry Sanford, courageously and forcefully confronted the legacy of this past.

Sanford resigned the Duke presidency in 1985 to launch a successful bid for the U.S. Senate. In the last quarter century, Duke—like virtually every elite university in the nation—has aggressively utilized racial preferences in admissions, while just as aggressively seeking certain types of “diversity” in faculty hires. Racial tensions doubtless remain at Duke and at all elite universities; entirely eliminating racism (or sexism or homophobia or ethnic/religious biases) is impossible. But there are few if any employers or institutions anywhere in U.S. society more “anti-racist,” to use the politically correct term, than Duke and the nation’s other elite universities.

Moreover, during the administration of President Richard Brodhead (2005-), the university’s most significant racially-oriented episode involved not racism toward African-American students or professors but a racially-charged crusade directed by members of the school’s African-American Studies Department against a group of falsely accused white Duke students. Apart from a single statement from Provost Peter Lange rebuking an outright racist screed from then-Duke professor Houston Baker—and a vague, tardy, and ultimately toothless apology from Brodhead—there’s no evidence that anyone from Duke’s administration ever addressed this faculty behavior, or ever rebuked those Duke professors whose private biases led them to ignore their obligations to their own institution’s students.

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In his March 22 address to the faculty, Brodhead chose to speak about “the issue of race and inclusion in Duke's history, our recent progress, and the nature of the work that lies ahead.”

Those expecting that the choice of this theme meant that Brodhead would critically self-examine his and his administration’s failure to address the shortcomings exposed by the lacrosse case would be sorely disappointed. The race-baiting of spring 2006 wasn’t mentioned, perhaps because doing so would have forced Brodhead to ask uncomfortable questions about how so many Duke faculty members had addressed “the issue of race and inclusion in Duke’s [recent] history.” It would, for instance, have been very difficult for the president to have reconciled his Faculty Address boast that “this university has had a commitment to making Duke a place of access, opportunity and mutual respect for all” [emphasis added] with the conduct of the Group of 88 (or sympathetic faculty such as Orin Starn, Peter Wood, and Tim Tyson) during the lacrosse case.

Nor did the president display any willingness to consider whether the use of racial preferences in admissions or the obsessive emphasis on certain types of “diversity” in faculty hiring remain tactically wise or morally acceptable in the 21st century world. Once again, the posing of uncomfortable questions was not on Brodhead’s agenda, especially if asking such questions might trigger a faculty revolt.

Instead, the president offered a reflexive defense of “diversity” policies as they have been practiced at Duke (and other elite universities) over the past generation. No surprises there. But the stated motivation for his remarks did raise eyebrows. He selected his topic, he claimed, because of three recent events, the first of which was the “controversy over a piece of unpublished faculty research that appeared to disparage the choice of majors by African-American undergraduates.”

Brodhead thus joined Provost Lange and a host of other senior administrators in publicly criticizing (and in the president’s case, willfully misinterpreting) a piece of research from Duke two professors, Peter Arcidiacono and Kenneth Spenner; and Esteban Aucejo, a Duke graduate student. That paper, as I noted before, used Duke’s own data to show how African-American students (whose admissions test scores were far lower than those of whites or Asian-Americans who enrolled at the university) disproportionately migrated, after arriving at Duke, from majors (the hard sciences, engineering) widely considered as more challenging. As with virtually all other critics of the Arcidiacono, et al., paper, Brodhead did not challenge any of the paper’s data.

Brodhead’s discussion of the paper was nothing short of stunning. After an almost apologetic defense of the principle of academic freedom as applied to faculty research, the president all but seethed with rage when discussing the paper: “I can see why students took offense at what was reported of a professor's work. Generalizations about academic choices by racial category can renew the primal insult of the world we are trying to leave behind—the implication that persons can be known through a group identity that associates them with inferior powers. A further insult was that the paper had been included in an amicus brief submitted by opponents of affirmative action urging the Supreme Court to hear the case I mentioned earlier regarding admissions policies at the University of Texas.”

The last sentence is, perhaps, the most extraordinary of Brodhead’s entire address, and, indeed, one of the most extraordinary statements I have ever seen a university president make. The president of a major research university, in a formal address to his university’s faculty, expressed regret—deeming it an “insult”—that research from his own university’s faculty (research whose accuracy he did not challenge) was included in an amicus brief for a critical case before the Supreme Court.

So much for the idea that a central purpose of a research university is the dissemination of knowledge in pursuit of the truth. The president’s message could not have been clearer: those who dare to pursue research that challenges the (campus) majority’s agenda on race can expect a public shaming—regardless of whether the data those researchers uncover is accurate or fairly presented.

Brodhead concluded his address on a more personal level. “The single front,” said he, “where I myself feel the greatest frustration regards senior leadership positions at Duke.” He noted that among his eight senior administration appointments, he had named two African-Americans, one Asian-American, and one woman. But, he lamented, “the number of women on my team . . . is fewer than I would wish.” And he offered his awareness that “including African Americans in the top academic leadership of this university is a piece of unfinished business.”

If Brodhead’s personal pain about the insufficient “diversity” in the upper ranks of Duke’s administration is as genuine as his Faculty Address rhetoric suggests, an immediate step to address the issue is available to him: He could, today, submit his resignation as Duke president. That move would give Duke’s trustees the opportunity to bring more “diversity” to the school by replacing him with a female or minority leader for the university.

But I strongly suspect that Brodhead’s personal commitment to “diversity” doesn’t quite extend that far. Publicly sliming two members of his faculty is, it seems, so much more satisfying.

Seligmann Talk

For DIW readers in Atlanta, Reade Seligmann will be giving a talk tomorrow about the case. Details here.

Cline Continues Anti-Hudson Crusade

As seen in the document below, Tracey Cline is continuing her crusade against Judge Orlando Hudson.

In this instance, the former DA has requested mediation to address her demands for full access to "the email of [Hudson's] assistant, Peggy Bullock and himself." [comma splice in original] A Cline FOIA request for some Hudson e-mails had been granted, but (as would seem appropriate) Hudson did not turn over e-mails relating to specifics of pending criminal cases. This, at least, is the version Cline presents of her previous FOIA requests; as her removal proceedings demonstrated, she has only the loosest of attachments with the truth.

In a request that consisted of three paragraphs written by her, the former district attorney managed to include four grammatical errors (such as, "Last week I e-mail Judge Hudson...").

It's hard for me to imagine that a private citizen, as Cline now is, could obtain full access to the e-mail files of a sitting judge (and his assistant).

News & Notes

Some recent items that crossed my desk:

Last Sunday’s N&O featured a penetrating piece by Andy Curliss—featuring new reporting about a case about which, it seemed, we knew most everything—analyzing the rise and fall of ex-DA Tracey Cline.

Among other nuggets, Curliss recounts a conversation between Bill Thomas and Cline, just after it was discovered that a central element of Cline’s allegations against Judge Hudson (that he decided a case before hearing all the evidence) was, in fact, based on a faulty timeclock at the Durham court.

"Tracey, no," Thomas recalled telling her. "This needs to stop. What you need to do is withdraw your motion entirely, and apologize to the judge and end this."

Cline told him she wouldn't.

"I'm totally convinced I'm doing the right thing," she said, according to Thomas.

Thomas: "You are destroying your career. Please stop."

Cline, of course, did not stop.

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Curliss also had an excellent article summarizing what exists in the public record regarding the former DA’s involvement in the lacrosse case—discussing which she (at best) stretched the truth and (at worst) outright fabricated during her initial 2008 campaign. Cline’s . . . inattention . . . to the truth was not enough to deter The Independent, which hailed her as “a great attorney who has already shown that she can manage a large caseload,” a woman who “could be an excellent role model for the young African Americans caught in the system.” (For good measure, the paper also falsely asserted that Cline had put “to rest questions that she was involved in Nifong's lacrosse prosecution.”) In the same editorial, the paper’s editors reminded readers that they had endorsed Nifong in 2006.

At no point since 2008, even as Cline’s career imploded, did the editorial board see fit to reconsider its judgment, at least in public.

It’s not clear when the next election for Durham DA will be (the timing depends on Cline’s appeals). But whenever it is, one thing is clear: Durham voters should vote for whoever is not endorsed by The Independent.

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The N&O also had a somewhat odd story about a play written by Paul Downs Colaizzo, who reveals, “The Duke case was the phenomenally scary and dramatically universal inspiration for my play.” (In the interview, the author does not refer to false accuser Crystal Mangum by name, instead describing her as the “alleged victim,” an early sign of the sort of message his play seems to send.) In the Colaizzo play, the false accuser is white, some sexual contact between the false accuser and the accused occurs, and no reviews that I have seen mention either a demagogic district attorney exploiting the case for re-election or the accused student’s faculty doing to same to advance their on-campus goals—differences that raise questions about what sort of similarities could possibly exist between the lacrosse case and the play. For reasons that are not clear, N&O correspondent Rebecca Ritzel did not appear to question Colaizzo on any of these items.

But here’s Colaizzo explaining the connection between the play and the case to the N&O: "These cases happen where the victims are telling the truth, and athletes get out of control on college campuses. The idea of power goes to their head, and women become objects instead of people. Things may have turned out one way (in Durham), but the ambiguity is where the universality of the Duke case lives."

In other words: the Duke case wholly contradicted his preconceived notions, but Colaizzo appears to have seen no reason to reconsider those preconceived notions. Was Wahneema Lubiano a consultant to the play?

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Finally, one important, if underappreciated, theme of the lacrosse case was the importance of judicial independence. As in many states, in North Carolina, judges are elected. And the two judges in the case who had to face Durham voters—Ron Stephens and Kenneth Titus—made rulings that (purely coincidentally, they doubtless would say) looked the other way about Mike Nifong’s abuses. Stephens infamously even testified on Nifong’s behalf as a character witness in the criminal contempt trial, though he didn’t join his colleague Marcia Morey on the witness stand in the ethics hearing. Only when the case moved to a judge—Osmond Smith—who didn’t have to fear the electorate that nominated and elected Mike Nifong (and would subsequently elect his chief assistant) did we see fair rulings from the bench.

The job of judges should be to uphold the law, and the state and federal constitutions, even when doing so (as occurred with Judge Smith’s actions) runs against majority opinion. But too many judges, like Stephens and Titus in the early stages of the lacrosse case, take a different approach to their duties.

The importance of judicial independence amidst a hostile electorate was reaffirmed this week by the Kennedy Library, which announced that former Iowa state supreme court judges Marsha Ternus, David Baker, and Michael Streit will receive the 2012 Profile in Courage awards, "presented annually to public servants who have made courageous decisions of conscience without regard for the personal or professional consequences."

In 2009, the judges joined a unanimous opinion of the Iowa Supreme Court legalizing same-sex marriage--a clear call under the constitution of the state (which has unusually detailed guarantees of individual rights), but a deeply unpopular decision among some segments of the electorate. In response, a local politician named Bob Vander Plaats (last seen facing accusations that he was soliciting money to facilitate his endorsement in the Iowa GOP presidential caucus) organized a campaign to oust the trio from the court; and for the first time in Iowa history, Supreme Court judges were not retained by a popular vote.

The Library indicated that the judges were chosen for the prestigious award "in recognition of the political courage and judicial independence each demonstrated in setting aside popular opinion to uphold the basic freedoms and security guaranteed to all citizens under the Iowa constitution."

Alas, whether it's in Durham or in Des Moines, it's hard to win an election campaigning on the platform of judicial independence for the purpose of upholding basic rights.

Nifong, Cline, and Durham's Legal Culture

Durham County is the sixth most populous county in the nation’s tenth most populous state. That a county of this size and significance—we’re not talking about Divide County, North Dakota here—has seen its chief prosecutor removed from office for ethical improprieties twice in the past half-decade is appalling. In an ideal world, this development would trigger a grassroots movement demanding a more ethical county prosecutor’s office. But, of course, we don’t live in an ideal world, and there’s little reason to anticipate such a development in Durham.

There were clear differences between the paths taken by Mike Nifong and Tracey Cline to their forced removal from office. Nifong was fundamentally corrupt, unethical to the core. An effective, if sometimes overly blatant, racial demagogue, he was motivated not by ideology but by pure personal advancement. If he had served as Durham DA in the 1950s, it’s easy to imagine him trying to frame innocent black students to appeal to racist sentiments among his white-majority electorate.

As to the performance of his duties: Nifong’s handling of the Mangum allegations could be used as a test for a legal ethics class, since he seemed intent on violating as many distinct ethical procedures as he possibly could in a single case. In this respect, his previous experience was particularly dangerous: he knew the rules well enough to know exactly what procedures needed to be overridden, and he had enough support on the bench (chiefly from Judge Ronald Stephens) to almost get away with it. A caricature of a small-town bully (a trait he ably demonstrated during his tenure at traffic court), he expected that he could live by his own rules, and defied anyone to try and stop him.

The great unknown of Nifong’s career is whether this type of misconduct led to him helping to convict any innocent people during his tenure as an ADA. His supporters never seemed interested in exploring this question.

Ideas did seem to matter to Cline. She made feints to anti-racism (with her seemingly baseless allegation of racism against an earlier employer—good enough to gain Victoria Peterson’s loyalty) and feminism (as ADA, she developed the deeply dangerous policy of allowing sex crimes cases to go to trial, regardless of the evidence, as long as the prosecutor believed the accuser). But as DA, Cline’s seemed mostly animated by an extreme version of victims’ rights, to the extent that she saw her office not as the “minister of justice” but as a victims’ advocate.

In Saturday’s N&O, Barry Saunders wrote that he had been a victim of a crime more than a decade ago, “when Cline as assistant DA, represented ‘me, the people’ after some night-skulking skunk broke into my house while my then 10-year-old son and I were in bed. Cline personified professionalism and commitment—even though she did get angry at me for showing sympathy toward the defendant from the witness stand and possibly causing the jury to go easy on him.”

But Cline was not supposed to have “represented” Saunders, or any victim of crime—as a district attorney, she was supposed to have represented the people. Did her inability to recognize this distinction account for her overly emotional (delusional?) response to Judge Hudson, with her claims that his decisions were “raping” the victims of crime? She certainly wasn’t helped by her obvious intellectual limitations. For a DA of a county Durham’s size to file motion after motion riddled with spelling and grammatical errors was simply embarrassing.

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Nifong and Cline did share one important characteristic: a willingness to lie, including in court. Nifong prevaricated so often in the lacrosse case that by the time things came crashing down upon him (in the week of the Dec. 15, 2006 hearing), he couldn’t keep his story straight about why he didn’t turn over all the DNA evidence. In the end, his lying to Judge Smith earned him a night in jail for criminal contempt, while Cline’s penchant for tall tales in the courtroom earned her a public rebuke from Judge Hardin.

Cline, moreover, almost certainly obtained her position through prevarication. Amidst the 2008 primary campaign, as the N&O delicately put it, “Cline maintain[ed] that she had no involvement in the lacrosse case, although defense lawyers for the exonerated players and testimony from State Bar disciplinary proceedings against Nifong challenge that.”

We likely will never know the full extent of Cline’s involvement in the lacrosse case—she won’t even grant the N&O permission to release a tape of the off-the-record 2007 discussion she had on the case. Nifong, meanwhile, has every incentive to maintain the fiction, lest Cline appear as a witness against him in the civil suits. That Cline’s story strains credulity puts it mildly: to believe her requires accepting that after recommending the constitutionally-suspect NTO against all white lacrosse players, solely on the basis of their group identity, she had no subsequent involvement in the case—even though she was the office expert in sexual assault cases, and even though she worked alongside Nifong throughout the period (when the case was the talk of Durham), and even though she would have served as second chair during the trial.

Instead, Cline’s only public commentary on the case was not a statement but a gesture—her decision to invite the disbarred Nifong, as her personal guest, to her inauguration.

That move sent quite a message about Cline’s commitment to integrity, but it was sadly consistent with the values of the office she was about to take over. A few months ago, a DIW commenter who said he had tried a few cases against Cline offered the following persuasive insight: “The culture of the Durham DA's office, as shown time and time again, is to win cases at all costs. Nifong and Cline built their careers in that office, and they both treat criminal cases as personal wars.”

This dismissive attitude toward legal ethics—and, indeed, to the truth—best manifested itself in the extraordinarily dubious judgment of Judge (and former Durham ADA) Marcia Morey. This sitting judge testified (not once, not twice, but three times) on behalf of the ethical standards of Nifong and Cline.

In New York, both the Times and the tabloids would have crucified a sitting judge who repeatedly placed the prestige of her office behind unethical prosecutors. In Durham, Morey’s conduct passed without editorial notice, and while such an approach could be expected from the hopelessly biased Independent, what can excuse the silence of the N&O editorial board and that of the post-Ashley H-S? Morey, it seems, represents The Durham Way, a fact so obvious that it appears it doesn’t even deserve a mention.

In a February interview with the Independent, Morey lamented, “Durham needs and deserves a better reputation." "I'm tired,” continued the Nifong/Cline ethics witness, “of going to meetings in other cities where people are saying, ‘There's always something going on in Durham.’”

With a sitting judge repeatedly testifying on behalf of unethical prosecutors, how could anyone in other cities think there's something wrong with what's going on in Durham?

Analyzing Judge Hobgood's Order

The removal from office of former Durham district attorney Tracey Cline occurred in a tightly-reasoned 14-page (single-spaced) order by Judge Robert Hobgood. The judge took seriously the Cline lawyers’ First Amendment claims—but ultimately rejected them, and in a way that seems almost certain to withstand Cline’s promised appeal.

Hobgood’s findings of fact consisted primarily of two types of material: (a) a recitation of the facts of the Cline-Hudson dispute accepting as true Cline’s version of events (and her recollections of various conversations with Judge Orlando Hudson); and (b) a list of Cline’s 21 most outrageous statements, culled from her various court filings against Hudson.

The 21 statements, Hobgood noted, “are not supported by the facts and have brought the office of the Durham County District Attorney into disrepute.” And Cline’s written assertion that Judge Hudson was “corrupt” was “not only false,” but was “inexcusable” and indicative of “actual malice” in the performance of her duties.

In his conclusions of law, however, Hobgood divided these 21 statements into two types. Sixteen of the twenty-one, he wrote, “may well fall under the umbrella of protected speech under the First Amendment.” [emphasis added] In a damning conclusion for the fate of Cline’s law license, Hobgood added that these 16 statements “unquestionably” violated the State Bar’s Rules of Professional Conduct, and were also “abusive and repetitive.”

But, nonetheless, as in his factual findings regarding closed-door details of exchanges between Cline and Hudson, Judge Hobgood was willing to give Cline (or in this case, her attorneys) the benefit of the doubt. He therefore did not dismiss out of hand the Cline team’s arguments that her “caustic” statements should be viewed through the prism of her First Amendment rights.

That left five Cline statements: that Hudson had committed “misconduct . . . involving moral turpitude, dishonesty, and corruption”; that Hudson was guilty of “kidnapping the rights of victims and their families”; that Hudson had committed “intentional malicious conduct”; that “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct”; and that Hudson needed to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”

Hobgood found, not unreasonably, that these statements constituted a “false, malicious, direct attack” on Hudson, to which Hudson (because of the Code of Judicial Conduct) could not respond. The statements, moreover, were “not supported by any facts in the records or which can be reasonably inferred from the record.” Hobgood noted that the Supreme Court decisions cited by Cline’s attorneys regarding the First Amendment protections for public officials explicitly carved out an exception: that, as Garrison v. Louisiana held, the “knowingly false statement made with reckless disregard of the truth, do[es] not enjoy constitutional protection.” Cline’s First Amendment argument had come up short, and as a result she is out of a job.

Two additional, though implicit, items from Judge Hobgood’s order. First, he appears to have given no serious weight to the argument of Nifong apologist Marcia Morey, who maintained that Cline’s behavior was a mere “distraction to the administration of justice.” Given that Judge Morey had previously claimed that she considered Nifong truthful, she has no credibility on matters of ethics, and Hobgood’s decision not to honor her opinion was appropriate.

Second, Hobgood did include one paragraph that appeared to respond to testimony offered by Durham attorney Bill Cotter (who I know and like) on behalf of Cline. Cotter presented perhaps the most effective defense of Cline offered at the hearing. He didn’t try to defend the truth of Cline’s stories (as Cline’s attorneys did), or even the bizarre nature of her behavior. Instead, he suggested that the Cline-Hudson dispute should be characterized as a personal squabble, rather than something that rises to the level of professional misconduct.

But, as paragraph 42 of the Hobgood order noted, Cline did not confine her squabble to Hudson.

In short, a district attorney, acting in her official capacity through an affidavit filed under her signature, accused a member of the public with having been held in contempt of court—though this accusation was a lie. There was no possible First Amendment protection for this assertion. Nor could it be excused as part of a personal squabble between Cline and Judge Hudson. Instead, the false statement appeared to be part of a pattern of Cline lashing out—the facts be damned—against anyone who she perceived as frustrating her agenda.

In the end, then, neither the First Amendment nor an appeal to personal disputes of courtroom politics could save Cline.