Duke Confronts the First Amendment

As some DIW readers know, last summer, I received several subpoenas from Duke, demanding among other things my confidential communications with hundreds of people relating to the “lacrosse incident” or discussing in any way President Brodhead’s “job performance.” The targeted correspondents consisted of all members of the 2006 lacrosse team, including the three falsely accused players who had long ago settled with Duke; all lawyers who were involved in the civil suit; all Duke faculty members; all Duke administrators or other employees; and all Duke alumni.

The subpoena also demanded many of my (but not co-author Stuart Taylor’s) interview notes for Until Proven Innocent; all portions of the criminal-case discovery file that I (but not Stuart) used for our co-authored book; information about the blog’s legal guidelines, terms for which are set solely by Google; and details of the blog’s comments policy, which are publicly available on the DIW homepage.

The subpoena surprised me, for two reasons. First, it’s true that many institutions of higher learning don’t respect the First Amendment in their own policies, as a glance through the FIRE website shows. (Duke itself has a rating indicating ambiguous policies “that too easily encourage[] administrative abuse and arbitrary application.”) Nonetheless, major research universities rarely launch a frontal attack on First Amendment and academic freedom privileges as Duke did in this instance, lest they create a precedent that could be used against their own faculty members in the future. A major research university that deems itself “happy” with forcing researchers to turn over internal correspondence in a civil suit to which the professor isn’t a party—as Duke’s attorneys described the university’s attitude to Maine District Court judge Brock Hornby—will have trouble attracting quality scholars, at least those whose research in any way touches on controversial, contemporary matters. In short, self-interest almost always leads universities to defend, rather than undermine, First Amendment academic privileges.

Second, and perhaps revealing its true intentions in this action, Duke did not subpoena a host of similarly-situated news-gatherers. (In its legal filings, Duke theorized that my having interviewed some of the plaintiffs or their attorneys on the record suggested that I was no longer entitled to a journalistic privilege for confidential unpublished exchanges with sources.) Along with Stuart, whose personal contact with figures related to the case predated my own, this “non-subpoenaed” list included It’s Not About the Truth primary author Don Yaeger, who “interviewed more than seventy-five key figures intimately involved in the case”; former Chronicle reporter John Taddei, who conducted the first on-the-record interviews with any of the plaintiffs in the civil suit; and a variety of other reporters.

But one important factor did distinguish me from the journalists mentioned above. In a letter submitted to the court, Duke rationalized its litigation strategy on grounds that I “continue[d] to this day to blog about the events underlying this litigation.” That description did not apply to the journalists on the “non-subpoenaed” list.

----------

My initial first-hand encounter with the Duke’s Ellis & Winters attorneys came not in the lacrosse civil suits, but in the lawsuit filed by Katie Rouse. If I was surprised by the lacrosse subpoenas, I was shocked to receive a subpoena regarding Rouse: as was clear from the blog and the book, I had done no original reporting on Rouse. Setting a pattern, Stuart was not subpoenaed, without explanation, even though Duke purported to be interested in material from our co-authored book; and, to the best of my knowledge, Duke did not subpoena the media sources that my post had cited.

In the event, although I informed Duke that I had done no original reporting on Rouse and had no confidential communications relevant to the lawsuit, Duke flew two attorneys from the Triangle to Maine to depose me. (By the end of the case, and apparently eager to cut its losses before the Maine District Court, Duke would change its mind about conducting depositions without responsive documents.) In a session that lasted more than two hours, the questions ranged far beyond anything remotely related to the Rouse case, culminating in what might have been the oddest complaint I received from any source over the history of the blog: whether, in summarizing a lawsuit in a post that quoted from Duke’s own legal filings, I made “any attempt . . . [to] get Duke’s side of the story.”

When subsequently confronted with this record, Duke’s lead attorney, Tom Segars, told a Maine magistrate judge that “our intention here is not to criticize his editorial comments about Duke’s handling of the case or even really pry into those.” He never reconciled this assertion with his colleagues’ Rouse deposition questions.

Even without this troubling experience from the Rouse case, I would have resisted Duke’s efforts to obtain my confidential, unpublished communications. DIW was and remains a one-person effort; the blog survived and (to the extent it did) broke original stories solely because I developed a reputation as someone who sources could trust. My transformation into a glorified research assistant for Duke would have betrayed the trust that these sources placed in me.

Also, since 2009 I’ve blogged regularly at Minding the Campus, where I often cover controversial topics that are or might be the subject of civil litigation. If Duke succeeded in creating a precedent compelling me to turn over confidential, unpublished communications, there’s every reason to believe other universities about which I’ve written critically would have tried the same thing—resulting in my MTC sources drying up.

Fearful that Duke wanted to improperly use the deposition process as a means to intimidate a critic, and given the extraordinary breadth of the lacrosse case subpoenas—complying with them would have given the university a road-map to retaliate against every Duke employee, including faculty members, who had provided me with confidential information—I realized I needed legal assistance, which I had lacked in the Rouse matter. With help from Stuart and from John Leo, I reached out to the Reporters Committee for Freedom of the Press. They put me in touch with Bingham. My primary attorney with Bingham, Patrick Strawbridge, was sensational.

After I retained counsel, the university suddenly dropped its demands for my exchanges with Duke administrators, faculty members, and alumni, as well as its demands for material related to the publicly-available blog rules and procedures. At no point in the case, in any letter, court filing, or hearing, did any of Duke’s many attorneys ever provide a justification for subpoenaing all of my correspondence with Duke faculty members about Brodhead’s “job performance.”

(An aside: while forcing me to reveal confidential, unpublished information would have crippled my ability as a news-gatherer, both at DIW while it remains active and in my other blogging efforts, Duke had no reason to believe that anything from my files would help the university’s legal case. In the normal discovery process involving the lacrosse plaintiffs and their parents, Duke already had obtained scores of e-mails to or from me. Yet at no point, in any letter or court filing, did Duke bolster its case by presenting even one e-mail that I sent, or one e-mail a lacrosse player, parent, or attorney sent to me. That’s not surprising, since the e-mails at issue reinforced the arguments presented in the blog and book, arguments the university seemed desperately eager to discredit.)

Duke opened the legal battle with what it presented as a compromise: the university’s motion to compel said that Duke would be satisfied with my turning over all unpublished, confidential correspondence with the lacrosse players (not just the plaintiffs), their parents, their attorneys, and at least one law firm employee regarding all events between March 16, 2006 and March 28, 2006—plus several specific issues (such as the punishment of Ryan McFadyen) that extended beyond this timeframe. In exchange, Duke offered to cease demands for my case-related correspondence with Duke professors or with Stuart. This “compromise” actually expanded the scope of Duke’s original subpoena to include my exchanges with parents, and bizarrely purported to exclude exchanges with Stuart, even though the original subpoena hadn’t covered such material.

In our response, Patrick Strawbridge explained that “left unchecked, Duke’s efforts could chill further reporting on the continuing fallout from the Duke lacrosse case—a matter of obvious public importance.” He also pointed out the similarity between my case and another First Circuit case that Duke initially tried to avoid, Cusumano, in which the court blocked Microsoft’s efforts to obtain interview excerpts between two professors (one from Harvard, the other from MIT) and Netscape officials; and held that academic researchers were entitled to the same First Amendment protections as journalists.

Oral argument before Magistrate Judge John Rich occurred in early October; Duke’s Segars, who led off the hearing, offered several statements that appeared to conflict with the facts of the case. To take one particularly outrageous example: the Duke attorney asserted that I was “the only other source” other than the players themselves for near-contemporaneous statements from the lacrosse players (“If those facts and statements are unavailable from the plaintiffs, the other party can seek them from the only other source . . . We’ve done this as an option of last resort”). But—not even counting their friends or roommates, to whom the lacrosse players might have confided in spring 2006—the future plaintiffs had conducted on-the-record interviews with several other journalists, none of whom were subpoenaed. When pressed on this matter in rebuttal, Segars denied improper selectivity, noting that Duke had also subpoenaed former coach Mike Pressler(!)—who (to, no doubt, his great surprise) apparently gained retroactive status as a journalist on the basis of co-authoring his memoir.

On October 12, Judge Rich nonetheless decided in Duke’s favor. He appeared to see his role as giving Duke some, but not all, of what it wanted, blind to the fact that giving Duke anything contravened both First Amendment principles and any fair-minded interpretation of Cusumano.

So we appealed to the Maine District Court, where the case was assigned to Judge Brock Hornby. Patrick penned an excellent brief (our most comprehensive survey of the case) and a hard-hitting response to Duke’s defensive filing. The reply, which welcomed Duke’s belated recognition that Cusumano was in fact the relevant precedent for this dispute, caught several errors of fact or creative use of ellipsis on the university’s part.

Maine’s media organizations—recognizing the threat that Duke’s conception of the First Amendment posed to their reporters—also filed amicus brief arguing that that the Rich order, and the Duke standard on which it relied, “disregards the important principle that journalists must be free to work independently of the judicial process . . . and dismisses the very real chilling effect that a decision like this will have on the public’s receipt of information in important controversies.” The Reporters Committee for Freedom of the Press, the Portland Press-Herald, the Bangor Daily News, and the Maine Association of Broadcasters feared that Rich—and Duke—tried to obscure how the case represented “a question of the much greater interest in serving the public good by creating informed communities.”

At the January 23 appeals hearing, Judge Hornby appeared acutely interested in the First Amendment ramifications of Duke’s claims. Noting Duke’s desire to force a professor to turn over unpublished research material, the judge asked Segars if he actually was representing Duke as an institution. (That’s when Segars said that he’d be “happy” to see Duke professors live under the university’s proposed standard for me, a revelation that I doubt the Brodhead administration has shared with any Duke faculty members.) Judge Hornby also pressed Segars on Duke’s apparent indifference to chilling academic freedom, wondering whether Duke’s proposed standard would require any professor who planned to publish a book on a controversial topic to retain counsel for subsequent third-party involvement in civil suits. And Segars had a difficult time articulating a benign reason why Duke had subpoenaed only one author of a co-authored book, given that Duke had no idea whether Stuart or I was the primary researcher for the sections of UPI in which the university claimed interest.

It’s always dangerous—as Jeffrey Toobin discovered after the Obamacare ruling—to anticipate judicial decisions based on questions that judges ask. But at the very least Judge Hornby seemed sensitive to the First Amendment problems posed by Duke’s arguments, and skeptical about the university’s rationale for why it would need access to my confidential, unpublished communications. After the settlement of one of the two civil suits, and amidst another Strawbridge letter that undermined what was left of its claims, Duke withdrew the remaining subpoenas before Hornby had a chance to file his opinion. By this stage, avoiding an opinion that might have branded one of the nation’s leading research universities as an enemy of the First Amendment was as close to “victory” as Duke would come in this matter.

--------

Over a nine-month period, Duke filed six subpoenas, produced three briefs, wrote two letters, thrice sent teams of attorneys to Maine, and hired an additional lawyer from Portland—all in order to gain access to unpublished, confidential information of a professor at another institution.

Recall that record the next time Brodhead administration officials claim reverence for academicfreedom or the First Amendment. Indeed, Duke’s performance in this case exposes the hollowness of the university’s commitment to any conception of academic freedom.

A final note: things are always better when you have a great lawyer. I was extremely fortunate in this regard. For those interested: here’s a full archive of my attorney’s legal filings, plus Judge Rich’s decision and Duke’s defensive and sometimes misleading offerings.

News from Maine

Despite the Carrington settlement, earlier this week, Duke's attorneys informed the Maine District Court that the dismissal of Carrington did “not impact” its subpoenas against me in the parallel McFadyen (Bob Ekstrand) lawsuit.

Thanks to some effective lawyering by my attorney, Patrick Strawbridge--and still awaiting a decision from Maine District Court judge Brock Hornby, who peppered the Duke attorneys with skeptical questions during January oral argument--Duke has just indicated that it has withdrawn its subpoenas and ceased its attempts to compel me to reveal confidential, unpublished communications with sources for the book and blog. The withdrawal of the subpoenas means that Judge Hornby will not have occasion to issue a written opinion on the merits of Duke's actions. In light of Duke's withdrawal of the subpoena before Judge Hornby had an opportunity to adjudicate the matter, my attorney has filed a motion to vacate the order of the magistrate judge.

In deference to the process, I refrained from public comment about Duke's actions as the case worked its way through the Maine courts, but I will write about my experience in a forthcoming post.

Carrington Lawsuit Settled

The Carrington lawsuit, the most significant of the lawsuits against Duke, was settled today. No settlement terms were released--but given the overt hostility of the 4th Circuit to the lawsuit, and the ruling by Judge Beaty affirming that the student bulletin and faculty handbook aren't legally worth the paper they're written on, the decision can't be seen as much of a surprise.

The McFadyen lawsuit, for the three plaintiffs represented by Bob Ekstrand, remains alive. This news nonetheless means that chances of Duke being held accountable in court for its mistreatment of its students are very slim indeed.

Mangum Update

WRAL reports that false accuser and accused murderer Crystal Mangum has posted a $200,000 bond and is now out of jail, awaiting trial. The article doesn't reveal the source of the cash. Presuming Mangum hasn't suddenly inherited money, it would seem as if an unexpected financial backer has delivered for her.

Campus News

A few items from Duke and other campuses:

First, a horrifying story of anti-Asian prejudice from a Duke fraternity (followed, a few days later, by reports that at least some Duke students—there are debates about how many—were mocking a NC State basketball player over his grandmother’s death). These are not signs of a healthy campus culture.

The recent events recalled an item from UPI, revealed by Stuart’s reporting—that in the 2005-6 academic year, around 20 student groups hired strippers for campus parties. That well-meaning and basically decent students could make such poor choices provided a legitimate ground for the university to launch an impartial examination of campus culture. So, too, did the issue of whether prejudice was too rooted on the Duke campus.

But examining these issues would have required shining a harsh light on not merely Duke students but also some Duke faculty—it would be hard to argue that prejudice did not factor into the behavior of at least some of the Group of 88, such as Houston Baker, Wahneema Lubiano, and Grant Farred. So the Brodhead administration avoided these difficult issues and instead implemented the Campus Culture Initiative, allowing three of the CCI’s four subcommittees to be run by anti-lacrosse extremists. The CCI unsurprisingly produced a report so extreme (urging that Duke adjust its scheduling policies to basically force the university to withdraw from the ACC, recommending a curricular change that would have compelled the vast majority of Duke undergrads to take a course from a Group member) that even Brodhead had no choice but to shelve the panel’s findings.

Duke has suspended the anti-Asian fraternity, allegedly for reasons unrelated to the prejudicial behavior.

Second, at Penn State, the Paterno Family has released its long-awaited critique of the Freeh Report. I analyzed the document over at Minding the Campus. The report provides almost no new evidence, continues the general pro-Paterno pattern of insisting on wildly counterintuitive interpretations of circumstantial evidence, and presents several odd interpretations of due process. On the latter point, for instance, the Paterno Family attacks Freeh’s investigators for not interviewing two senior administrators (Freeh instead relied on contemporaneous e-mails from the duo) who declined to cooperate with Freeh on advice of counsel. Yet the Paterno Family’s hired attorneys and experts didn’t interview the two senior administrators, either.

In the event, so obsessed was the family with restoring Paterno’s tarnished reputation that they bequeathed a report that effectively left unchallenged Freeh’s central assertion that a handful of powerful administrators cooperated to bypass the legal requirement to report Sandusky to police—only that Paterno (a figure, apparently, without much power or influence on campus) played no role in these decisions.

It’s a document for true believers, and true believers only.

Finally, on my own campus, a shameful episode, in which the school’s political department formally (and highly unusually) voted to affiliate itself with a talk by two advocates of separating Israeli from the international community, including boycotting Israeli academics based on their nationality. Then, facing intense public criticism, the professors refused to provide a rationale for their vote. (This vision of academic freedom amounted to an accused criminal pleading the 5^th amendment.) When the event occurred, a handful of anti-BDS students were expelled from the proceeding, despite the college president’s invitation to critics of the talk to attend and ask questions.

The college’s apparent disinterest in the academic freedom of its students reinforced an impression that a fear of antagonizing powerful anti-Israel forces on campus guided the administration’s approach to the case.

Hat tip—R.L.

Only in Durham, Vol. 99

[Update, Tuesday, 10.57pm: The Durham News has an interview with Judge Hudson, who was on the committee that selected the photos. He told the News, “We knew that (Nifong’s and Cline’s presence) might be somewhat controversial, but, you know, it is the ultimate history of the courthouse. We can’t strike the bad, we live with it as part of our history.”

I'm a historian, so obviously do not favor whitewashing the past. But I'm unconvinced that a hall of justice is an appropriate venue for posing photos of unethical figures. If the goal was to ensure that people didn't forget the bad, photos of Roy Cooper announcing the exoneration, or Lane Williamson presiding over the Nifong ethics proceedings, would have been more appropriate.]

ABC-11 brings welcome news that Durham is scheduled to open a new county courthouse. As part of the design, the county created a mural containing photos honoring some of the key legal figures in the county's history.

The photo array includes these two items:

Only in Durham could the hall of justice feature photos of chief prosecutors removed for unethical behavior. A spokesperson suggested that "random" selections explained the design.

"It's a great day," said Judge Marcia Morey, former character witness for both Mike Nifong and Tracey Cline, "and I think it's a new day for justice in Durham."

Indeed.

Professor Hattery Analyzes the Lacrosse Case

Angela Hattery is a professor at George Mason University, where she serves as the associate director of the school’s Center for Women and Gender Studies. (This semester, she’s teaching a course in theoretical perspectives in women and gender studies.) She came to George Mason from Wake Forest, a North Carolina university around 75 miles from Duke, where she also taught gender studies classes. She said that she came to GMU because she “liked the diversity and the way the program integrates not just gender issues but race and ethnicity as well.” Her research interests? “The intersections of race, class, gender, sexuality.” 

Of course.

Professor Hattery recently decided to offer her insights on the Duke lacrosse case. She penned a post entitled, “Rape in High School and College Athletics: Why do we settle for the explanation that boys will simply be boys?”

The post touches on five cases: the Glen Ridge (NJ) rape by members of the high school football team; the Steubenville (OH) alleged rape by high school football players, in which two players have been charged and await trial in juvenile court; the Kobe Bryant rape allegations, in which charges against Bryant were dropped but a civil claim was settled; an allegation that two former Wake Forest basketball players (who were never charged) raped a fellow student; and the Duke lacrosse case.

The Kobe Bryant case occurred when Bryant was a member of the Los Angeles Lakers, a professional basketball team; Hattery does not explain its relevance to a post about “rape in high school and college athletics.”

Just how similar to the Duke case are the other three cases? The Wake Forest case (to which Hattery provided a link to an interview with the accuser) involved an allegation of acquaintance rape, in which the accuser leveled her allegations two months after the alleged incident; the basketball players claimed that the sexual intercourse was consensual but never denied all sexual contact. In the Duke case, of course, the lacrosse players consistently claimed that never was any intercourse of any type, and DNA tests corroborated their assertions.

In the Glen Ridge case, four men were convicted of sexual assault. In the Duke case, of course, the attorney general issued a report indicating that the accused students were wholly innocent.

In the Steubenville case, there appears to be very strong evidence that a crime occurred (based in part through on social-media accounts by the alleged perpetrators and their friends), and a special prosecutor was appointed because of concerns that the local law enforcement was too lenient and sympathetic towards the alleged perpetrators. In the Duke case, of course, there was no evidence a crime occurred, and the original law enforcement reaction was (unethically) too harsh and unsympathetic towards the alleged perpetrators.

Hattery attempts to slide past these pretty significant distinctions between the lacrosse case and her other examples by offering what she terms a “caveat”: that “some of the events and cases I’m going to highlight did not ultimately end up generating criminal charges and in some cases trials failed to garner a conviction. It’s not the legal outcomes that are my concern.” Yet the title of her post is “Rape in High School and College Athletics,” not “Allegations of Rape against High School or College Athletes.” Hattery does not reveal how she concluded that a “rape” had occurred in cases in which trials or legal investigations “failed to garner a conviction”—or much less, as in the Duke case, yielded a finding of actual innocence.

Professor Hattery offers two insights about the lacrosse case. First, after taking note of the outrage following “a youtube video of a young man from Steubenville talking about the [alleged] victim as being “dead as a doornail,” she muses, “I wonder what we would have seen if a cell phone user had videotaped the strippers the night of March 13, 2006 at the Duke lacrosse house. Would we have had a similar response?”

The (unstated) implication: contemporaneous cell-phone activity in the lacrosse case would have revealed untoward activity.

Hattery didn’t provide a link to her question about the Duke case—perhaps she was unaware that the contemporaneous material from “cell phone user[s]” regarding the strippers didn’t exactly support her insinuation. And while at Steubenville the cell-phone evidence to which Hattery did provide a link bolstered the accuser’s claims, at Duke, the cell-phone photos to which Hattery did not provide a link wholly undermined the accuser’s (and Mike Nifong’s) claims.

Professor Hattery, it seems, has quite an unusual linkage policy.

Hattery’s second observation about the lacrosse case asked readers to “recall that in the case of the Duke lacrosse team one of the fathers indicated that he didn’t see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs.” Once again, the suddenly link-shy Hattery failed to provide any link to these alleged remarks; her readers, evidently, were just supposed to “recall” an alleged interview from more than six years ago.

The fathers of two of the falsely accused players (Seligmann and Finnerty) have over the course of their careers worked on Wall Street; neither of them ever “indicated” anything like the Hattery paraphrase. I e-mailed Hattery to ask her for a link to her item about “one of the fathers,” and also to ask why her post hadn’t provided a link to the AG’s report that used contemporaneous cell-phone photos to exonerate, rather than inculpate, the lacrosse players.

Professor Hattery did not reply.

[Update: After the appearance of the post, Professor Hattery graciously, if somewhat confusingly, replied. She did not indicate why her post left people to "wonder" about what might have been contained in social media evidence that was, in fact, released to the media (and released very early in the case). She added that she was concerned not with the legalities of the cases that she examined, but instead "focusing on the cultural [question] that contributes to behavior that is less than ethical." Not to recapitulate the above, but the title of her post--"rape" and not "alleged rape"--passed a legal judgment, and it's hard to see the connection between four cases in which (at minimum) sexual contact occurred and a fifth case in which no sexual contact of any kind occurred.

Hattery also cited this Washington Post article as the only source for her inflammatory claim that "one of the fathers indicated that he didn't see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs."

Her blog post interpreted the article as saying two things: (1) one of the fathers quoted in the article worked on Wall Street, where he and his "colleagues [would] routinely unwind together at the end of the day at strip clubs"; and (2) the father "didn't see what the issue was," as part of a "boys will be boys" defense of his son. "This," Hattery mockingly asked, "is supposed to make me feel better?"

Both of Hattery's interpretations of the Post article are wildly off-the-mark; the first is simply wrong. In the article (which interviewed several parents), a parent named John Walsh said about the hiring of strippers, "You see it in New York; it's the preferred type of entertainment for Wall Street." But Walsh is identified in the very same article that Hattery cited as her only source not as someone who works on Wall Street or even in the financial industry--but as a "health administrator who lives in Bethesda," Maryland.

Most disturbingly, the article contains no suggestion that Walsh ever has visited a strip club, much less that he joined his colleagues from Wall Street, Bethesda, or anyplace else in "routinely unwind[ing] together at the end of the day at strip clubs."

Regarding Hattery's claim that the article featured the parents falling back on a "boys will be boys" defense, Walsh told the Post that he was surprised how prevalent the hiring of strippers on college campuses was, and that he didn't "advocate" doing so. A second parent, Tracy Tkac, gave a comment that's about as far away from Hattery's "boys will be boys" defense as you could get: according to Tkac, "Hiring a stripper is just as inappropriate as being a stripper."

As part of a post concerned with exposing "less than ethical" behavior, then, Professor Hattery falsely stated that a lacrosse parent "routinely" visited strip clubs with his work colleagues (in a city where he didn't even work); and then used that false claim to draw a negative inference in how parents of unindicted players sought to defend their sons' reputations.]

UNC & A Credulous Press

Last year, in a post over at Minding the Campus, I examined how the University of North Carolina responded to the Obama administration’s “Dear Colleague” letter, which required all colleges receiving federal assistance to change their sexual assault procedures. The new procedures enhance the likelihood of conviction, by using a “preponderance of evidence” [50.1%] standard and by introducing double jeopardy through an accuser’s right to appeal not-guilty findings.

Even before these mandated changes, the system that previously existed at UNC already made a mockery of due process rights for the accused. Unless the accuser simultaneously filed a criminal complaint, the accused student couldn’t be represented by counsel in the hearing. (“Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”) When criminal charges were filed, a lawyer could be present but not speak to the hearing panel or cross-examine witnesses. And the hearing panel had the right to obstruct an effective defense by restricting exculpatory evidence only to material that “does not otherwise infringe the rights of other students.”

In response to the “Dear Colleague” letter, UNC further weakened the due process protections for students accused of sexual assault—and only for these students. It set up a two-tier student judicial system. Students accused of all other offenses would continue to be tried by the school’s Student Honor Court and according to a standard of beyond a reasonable doubt. But students accused of sexual assault (a far more serious allegation than most student judicial questions) would be adjudicated under a far lower threshold (preponderance of evidence). And the claims would no longer be heard by the Student Honor Court but by specially trained evaluators.

Celebrating the new system in a fawning interview with InsideHigher Ed was an assistant dean of students, Melinda Manning. Manning said the existing system (that is, the system that denied students accused of sexual assault the right to be represented by counsel in their hearing) was too accuser-friendly, since the Student Honor Court improperly required “victims [not ‘alleged victims’ or ‘accusers’] to be judged by a roomful of peers.”

Ponder that statement for a minute.

To reiterate: last April, UNC took a system that already denied basic due process to accused students—and made it more likely that accused students would be convicted, by lowering the threshold for a guilty finding in sexual assault cases and only sexual assault cases, and by ensuring that students accused of sexual assault wouldn’t be evaluated by the campus equivalent of a jury of their peers.

Manning is back in the news—as a supporter of a federal civil rights claim filed by current and former UNC students who assert they were victims of sexual assault but that the system described above so failed to protect their rights that it created a hostile campus environment under Title IX. “My original plan was just to walk away and forget about everything that’s happened,” Manning (the opponent, again, of allowing students accused of sexual assault to be judged by a jury of their peers) e-mailed the Daily Tar Heel. “But I love Carolina too much to do that. I can’t assume that someone else will fix these problems without my input.” 

Indeed.

The complaint itself isn’t public, but was seen by the Daily Tar Heel. Writes reporter Caitlin McCabe (wholly uncritically), “The complaint is rich with stories of hostility, including the administration’s failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed.” McCabe’s article also speaks of one of the complainants working on behalf of herself and “65 sexual assault survivors” at UNC. The word “alleged” does not appear in McCabe’s article: as presented by the DTH, each of these 66 accusers was, in fact, victim of a violent crime. The article contains no mention that any of these complaints actually resulted in a conviction (or even a trial).

McCabe did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

Interestingly, Star-Ledger columnist Steve Politi—who did excellent work on the lacrosse case, and who once seemed to understand the danger of college students facing sexual assault claims amidst a lack of due process (though at least Reade Seligmann, about whom Politi wrote, had the right to a lawyer, unlike accused students at UNC)—tweeted commendably about the DTH’s uncritical coverage of the complaint.

In the N&O, reporter Gloria Lloyd likewise declines to use the phrases “alleged victims” or “accusers,” and instead reports as fact that 66 rapes occurred. “The students say,” she writes, “they are sexual-assault victims and that the university mishandled their cases by not believing or supporting them or by accusing them of being at fault in their attacks.”

Lloyd does not explain how “not believing” a claim, in and of itself, could constitute mishandling of a case. Even the pro-accuser OCR has never maintained that a finding of not guilty (that is, “not believing” the accuser) indicates a problem with the process.

Lloyd did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

The title of a Huffington Postarticle by Tyler Kingkade is “University Of North Carolina Routinely Violates Sexual Assault Survivor Rights, Students Claim.” The article seems to speak as if there’s no question that each rape occurred, noting that the complaint was filed by two “survivors” and “64 other victims.” Oddly, at other points Kingkade describes accused students as “alleged rapists” who committed “alleged abuse.” How a “victim” is produced by a rape that remains only “alleged” Kingkade does not reveal.

Unlike Lloyd and McCabe, Kingkade does reference—obliquely—the UNC procedures (though he doesn’t discuss the rules against an accused student having representation in the hearing, or the low threshold for a guilty finding), merely noting that the Honor Court no longer is allowed to hear cases. He then quotes from a UNC student referencing the change (designed to make convictions more likely) as perpetuating a “culture of silence.”

Kingkade at least reached out to someone beyond the ranks of accusers and their supporters. He interviewed Student Press Law Center attorney Adam Goldstein, who astutely noted that “law enforcement and the adjudication of rape cases in general does not lend itself to amateurs.”

The most striking aspect of both the DTH and the N&O articles came in their decision not to describe, in any way, the procedures that supposedly treated these 66 rape victims unfairly. How could any DTH or N&O reader know, for instance, that a process that’s supposedly indifferent to the suffering to rape victims in actuality denies accused students the right to counsel, or allows conviction on a 50.1% threshold? The HuffPost article does, briefly, mention UNC procedures, but only to bizarrely imply that the 2012 changes perpetuate a culture of silence.

Including the necessary procedural context, of course, would have dramatically altered the uncritical acceptance about the facts of the complaint that the reporters brought to their articles. Given their uncritical acceptance, however, each buried the lede: the major issue would seem to be the discovery that the seemingly placid UNC campus is actually a center of violent crime. According to the DTH, the N&O, and Huffington Post, there were at least 66 sexual assaults at the University of North Carolina over the past six years—an average of 11 sexual assaults per year. (The articles reference 2007 as a starting date for the complaint, although they’re not entirely clear on this point.) And, again, each article uses wording that indicates these violent crimes definitely occurred—“survivors” and “victims,” not “alleged victims” and “accusers.”

Accordingto FBI crime statistics during this period, Chapel Hill is listed as having had 9 rapes in 2008, 14 rapes in 2009, 11 rapes in 2010, and 7 rapes in 2011—for an average of 10.3 per year. (Figures for 2007 and 2012 aren’t available.) In short, comparing FBI stats to the figures presented uncritically by the DTH, the N&O, and HuffPost, every sexual assault in Chapel Hill over the past several years has occurred to a UNC student. That’s an extraordinary development, a suggestion that the campus is a virtual hotbed of violent crime in an otherwise utterly placid city.

Or, perhaps, could it be that the statistics presented uncritically by the DTH, the N&O, and HuffPost deserved a bit of journalistic skepticism—and that a system that denies basic due process to accused students can’t uncritically be described as mistreating accusers?

Hat tip: B.

Updates

A few updates in a quiet period for case-related developments:

(1) Attorneys for the three falsely accused players have indicated they plan to appeal to the Supreme Court the 4^th Circuit’s ruling dismissing—before discovery even had begun—their federal civil rights claims against Durham and Durham employees. The Supreme Court accepts less than 1 percent of cases submitted to it, most frequently when a federal law is struck down (not relevant in this instance) or when a difference occurs between circuits. That route would seem the most promising: will the attorneys be able to argue that the 4^th Circuit’s ruling—that there’s no conceivable federal civil rights claims when police, acting in concert with a prosecutor who was improperly placed in charge of the police investigation, attempt to frame innocent people for a crime that never even occurred, as long as the police are candid with the prosecutor (but not the grand jury) that there’s no evidence for the crime—conflicts with standards in other circuits?

The notice, by the way, came in response to the latest offering from Linwood Wilson, acting as usual as his own counsel, whose legal filings throughout the case have regularly provided an unintentional dose of comic relief. In what might be the single most bizarre legal document of the entire case, Wilson—acting, again, as his own attorney—provides what he terms legal definitions “for us common men” (the “definition” comes from the dictionary), cites unnamed and uncited “legal experts” who say the Supreme Court will not hear the appeal, speaks of himself in both the first person (“I”) and the third person (“Defendant Wilson”), and wildly threatens to sue the falsely accused players for defaming his character.

The oddest of the many odd lines in the filing: “Wonder what the going rate on Attorney’s [sic] fees are to go to ‘The Supreme Court’”? Bolding, lack of a subject for the sentence, and odd quotation marks in the original.

(2) The McFadyen plaintiffs (represented by Bob Ekstrand), meanwhile, petitioned the 4^th Circuit for an en banc review, requesting that the Circuit overrule part of the decision of the three-judge panel. You can read a comprehensive analysis of the petition at the Liestoppers forum.

The petition—irrespective of its legal merits—is a longshot: assuming that each of the three-judge panel votes against Ekstrand, eight of the circuit’s remaining judges would then need to vote for a re-hearing. It seems more likely that the circuit’s conservatives will be swayed by Judge Wilkinson’s reasoning (toss out the case lest it provide a precedent for other victims of police misconduct to sue local governments) while the left fringe on the court can point to Judge Gregory’s “reasoning” (toss out the case lest it lead people to believe that Mangum’s politically correct claims were, in fact, utterly fraudulent).

[Update, Wed., 6.05pm: As predicted, the petition for an en banc hearing was denied.]

(3) The latest from the annals of non-accountability: the Mellon Foundation has appointed none other than Richard Brodhead as a trustee, with his position to take effect in March 2013.

The past president of the Mellon Foundation is none other than William Bowen—co-author of the whitewash Bowen/Chambers report.

(4) In recent weeks, in large part due to hacks from activist groups, media attention has centered on Steubenville, Ohio, which was rocked by allegations of what appeared to be a desultory investigation into allegations that players from the high school football team raped a girl. Two of the players were charged and await charges in juvenile court, but none of the other partygoers—who appear to have witnessed the incident and done nothing—have been charged.

To date, the most chilling release has been a video of a Steubenville graduate who went onto Ohio State named Michael Nodianos. Deadspin describes the video in this way: “The video is over 12 minutes long. It's not very easy to watch. Nodianos tells jokes about how ‘dead’ the alleged victim is and openly and jokingly acknowledges that she has been raped.”

Among his many chilling comments was the following: “They [the Steubenville football players] raped her more than the Duke lacrosse team.”

The comment is horrifying in many ways. From the standpoint of the lacrosse case, it’s a reminder of how the case is perceived in popular culture—and of how the disparity between the massive media coverage of Mangum’s allegations and the far more limited coverage of the exoneration shaped at least some elements of the popular memory.

(5) I’ve written some on the Penn State case—which is, effectively, the anti-Duke. Unlike Duke, which has allowed the Bowen/Chambers Committee report to stand as the sole official investigation of how the administration (and much of the faculty) so botched the university’s response to the case, Penn State held responsible powerful university leaders (ex-president Graham Spanier, ex-football coach Joe Paterno), conducted a comprehensive investigation (headed by ex-FBI director Louis Freeh) of what went wrong, and enacted reforms to ensure that the failure isn’t repeated.

There has been, however, one darker difference between the two universities’ responses.  At Duk,e the true believers—the Group of 88 and allies—largely went silent once the administration adopted its “let’s-move-on” mantra. At Penn State, on the other hand, significant elements of the alumni and even faculty communities appear intent on relitigating events to render blameless at the least Paterno and at the most the whole group of disgraced administrators.

An example comes in this blog post, which compares the Duke students—falsely accused of a crime that never occurred, victims of massive prosecutorial misconduct—to Penn State senior administrators and ex-coaches who decided, for their own reasons, not to report a graduate assistant’s report that he had witnessed a boy being sexually assaulted in the football showers.

Simply an astonishing framing of events.

The 4th Circuit (Essentially) Gives Durham a Free Pass

[Update, Tuesday, 1.08pm: As requested from a couple of the commenters, there is a link to the opinion. And a reminder: this appeal terminated the process at its inception (before discovery even occurred). That is, the 4th Circuit held that the falsely accused lacrosse players had no federal civil rights claim. The message the three-judge panel sent was clear: in towns and cities in the 4th Circuit, it's possible to frame innocent people without incurring federal civil rights violations, provided that the police are candid in discussions with the prosecutor that no evidence exists against the innocent people (even if, at the same time, at least one police officer misleads the grand jury and violates departmental guidelines and confines a photo array or lineup to suspects); and that the police can claim the prosecutor made the decision to indict. Chilling.]

The 4th Circuit (as previously predicted, based on the tone and substance of the oral arguments) has issued a ruling that for all practical purposes ends the civil suits against Durham and associated parties.

A basic summary of the opinion and concurrences:

(1) The panel dismissed all federal claims. A two-judge majority, Judges Diana Motz and J. Harvie Wilkinson, appeared concerned that doing otherwise could permit frivolous cases to proceed and thus have a chilling effect on legitimate law enforcement activity.

(2) A two-judge majority allowed one state claim, of malicious prosecution against Gottlieb and Himan, to proceed. It’s not clear at this stage how this section of the lawsuit will play out.

(3) The panel sent a clear message to prosecutors or police officers who might be worried that they’re seeking indictments without good reason to do so: if you obtain a grand jury indictment (regardless of whether the officers tell the truth to the grand jury), you should be home free.

(4) All claims raised by the unindicted players were dismissed, and the merging of the three lawsuits simultaneously to the 4^th Circuit probably helped Durham.

(5) The intersection of how the opinions were written and Judge Beaty’s previous decision to stay discovery on claims relating to Tara Levicy makes it possible that the former SANE-nurse-in-training might never have to appear under oath to justify her . . . dubious . . . conduct. But it's also eminently possible (indeed, probably more likely) that discovery against Levicy could proceed, under Count 23 of the Carrington lawsuit (which had a mixture of Duke and city defendants). This will be an issue before Judge Beaty as the unindicted players’ case proceeds. The 4th Circuit's ruling certainly calls into question Beaty’s earlier decision to stay discovery regarding Levicy as the city conducted its appeals.

(6) The falsely indicted players were hurt by the ideological concerns of two of the judges—from the right, Judge Wilkinson’s general distrust of the excessive aggressiveness of trial lawyers; from the left, the breathtaking hypocrisy of Judge Roger Gregory, who gave the impression at oral argument (an impression confirmed in his partial concurrence and partial dissent) that he could have been a card-carrying member of the Group of 88.

Judge Motz’s Decision

Speaking for the panel, Judge Motz did five things:

(1) In the most significant aspect of her ruling, Judge Motz dismissed the § 1983 malicious prosecution claim against Officers Gottlieb and Himan filed by the falsely indicted players. Why? Because Nifong, not the officers, made the decision to indict, and because the officers gave all the information about the case to Nifong.

Given the context of the case, this was a deeply troubling finding, in two respects. First, as of several days into the police investigation, DPD supervisors had placed Nifong in charge of the police investigation. The message the Motz panel sent to 4^th Circuit jurisdictions, then, is that allowing a prosecutor to run a fraudulent police investigation—and then having the city’s officers stand aside as he resumes his prosecutorial role and seeks a fraudulent indictment—is a sure-fire way to avoid a federal civil rights claim. Second, we know that the grand jury that indicted the three lacrosse players (who heard from only these two witnesses) was misled—first, thanks to excellent reporting from ABC’s Law & Justice Unit; and second, thanks to an unwitting revelation from Sgt. Gottlieb in his deposition for Nifong’s ethicstrial. Apparently, then, even helping to bring about a grand jury indictment under false pretenses is enough to gain immunity from federal claims.

(2) Having found that no federal claims against city employees exist, Motz dismissed all claims against supervisory officials and against the City of Durham (except on limited grounds that seem unlikely to survive summary judgment).

(3) Motz dismissed all claims against Durham and Durham employees filed by the unindicted players. Yet her ruling didn’t discuss Judge Beaty’s somewhat unusual decision to stay discovery for former SANE-nurse-in-training Tara Levicy, on grounds that Levicy’s actions were bound up with those of the DPD, and allowing discovery to proceed against her and against Duke Hospital would be inefficient. Now that the claims against the DPD conspirators have been dismissed, will Judge Beaty allow the discovery against Levicy to proceed? Or will he find a way to excuse Levicy from being held accountable for her actions?

(4) Motz, joined only by Wilkinson, allowed state-law claims by the falsely indicted players for malicious prosecution against Gottlieb and Himan. Based on the filing, she held, and “taken together, the officers’ multiple alleged acts certainly present plausible claims of malice.”

(5) All claims against Mike Nifong remain open. But, of course, Nifong has declared bankruptcy.

Judge Wilkinson’s Concurrence

For a jurist who enjoys a sterling reputation and has even been mentioned as a Supreme Court nominee, Wilkinson’s concurrence was disappointing and at times illogical.

Wilkinson seemed less upset at what Nifong and the DPD did to three innocent people than about the temerity of plaintiffs’ attorneys aggressively representing their clients. He issued a lengthy defense of Cpl. David Addison (as he had done in the oral arguments, as well). Wilkinson characterized Addison as merely one of the many public “spokespersons (who are often given limited information by their superiors on a need-to-know basis)” who the plaintiffs’ attorneys wanted to expose “to the threat of monetary damages for expressing a departmental position in the most general of terms.” Imagine, he ruminated, what might happen to the spokesperson for a town’s local school board if Cpl. Addison were held accountable for his actions.

Here’s a sampling of the (fact-free, misleading, and inflammatory) Addison statements that so roused Judge Wilkinson’s need to defend the spokesperson: “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” Or, “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” Or: “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” Or, “We do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

In a case in which innocent college students were falsely charged and saw their reputations trashed by most of the media, by political leaders in the city in which they attended school, by dozens of their own professors, and—yes—by an off-the-reservation Police Department spokesperson, Judge Wilkinson somehow sees Cpl. Addison as a victim in the affair?

The judge also denounced “the glacial pace at which this litigation has proceeded (we are now nearly six years removed from the dismissal of the last charges against the three Duke lacrosse players).” Yet these delays were caused almost exclusively by the City—by dragging out mediation efforts, then by fighting the opening of discovery, then by demanding months to file Iqbal appeals, then by dragging out the case even further by appealing Judge Beaty’s ruling to the 4^th Circuit. The idea that the plaintiffs’ position could be criticized because of their opponents’ seemingly deliberate pattern of delay is shocking.

Finally, after including an unsubstantiated assault on the falsely accused players' character, Wilkinson reached an almost insulting conclusion: “We run the risk here of replicating in civil litigation the very maladies that plaintiffs complain infected the criminal process to which they were subjected. That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”

To summarize the facts of the case again: a district attorney used the powers of the state—and the cooperation of the local police leadership and at least one police investigator (Gottlieb)—to bring charges for a crime that never occurred against three people against whom no evidence existed. But for a providential, 9-8 decision of the State Bar, the case would have gone to trial, at which it was at least possible these factually innocent people would have been convicted of a crime that never took place. Those were the “maladies” of the “criminal process to which they were subjected.” Judge Wilkinson is comparing that record to the plaintiffs’ attorneys’ filing claims against a DPD spokesperson whose inflammatory remarks fanned the witch-hunt atmosphere and the DPD supervisors who stood aside as Nifong improperly took charge of a police investigation?

He should be ashamed.

Judge Gregory’s Partial Concurrence & Partial Dissent

In contrast to the concurrence from Wilkinson—who at least went through the pretense of having an open mind at oral arguments, and who at least recognized that Nifong and the DPD accused innocent people—little could have been expected from Judge Gregory, based on his performance in oral argument.

Nonetheless—and this can’t be reiterated forcefully enough—Gregory is a judge who has a reputation for standing up for the rights of victims of governmental misconduct. What, I wonder, could have caused this graduate of Virginia State University and protégé of former governor Doug Wilder to pen an opinion that seems to wholly contradict his general approach to criminal justice issues?

According to Gregory, the court shouldn’t have even allowed the state-law claim against Himan and Gottlieb to proceed. In his concurrence, Gregory—again, a judge who normally is deeply suspicious of police misconduct—chose to function as a de facto defense attorney for Himan and Gottlieb, suggesting that in meeting with Dr. Meehan about a misleading DNA report, or putting together a photo array that wildly violated DPD procedures, or (in Gottlieb’s case) giving misleading testimony before the grand jury, they were merely “doing their job and investigating a case assigned to them, in collaboration with the prosecutor.” He did allow that the photo array was “not perfect,” but didn’t see anything particularly problematic with it as a tool “to identify a suspect to further investigate Mangum’s claims, which they did not know were false.”

At times, Gregory went even further than Nifong did in justifying the investigation. For instance, he cited the McFadyen e-mail as a possible justification for the criminal investigation—raising the question, of course, of why McFadyen wasn’t indicted if Gottlieb and Himan could have viewed this e-mail as somehow establishing criminal intent.

And how did Gregory describe the case overall? “In retrospect,” he suggested, “it may be clear to some that Mangum’s accusations were baseless.” He clearly is not among the group to which this obviously “clear” case is, in fact, clear.

Imagine if someone of Judge Gregory’s indifference to fair play and even-handed justice had ever been assigned to the case as trial judge.

Ken Burns' "History" Lesson

[Update, 12 Dec., 2.55pm: Yet more legal commentary from filmmaker Burns, this time on video from an appearance at the 92nd Street Y. The relevant remarks begin at 6:56 on the video.
These comments reveal (in the most charitable possible interpretation of filmmaker Burns) a figure spouting off on a case about which he knows nothing.

First: “We” didn't “fire” Mike Nifong. Nifong was disbarred by the North Carolina State Bar, after a public ethics proceeding that resulted in detailed findings of fact regarding Nifong's ethical misdeeds. If filmmaker Burns has a complaint with the performance of Lane Williamson's panel, he has yet to specify it. It does not appear that, in general, filmmaker Burns believes that unethical prosecutors should go unpunished; why, then, is he apparently so troubled by Nifong's fate?

Second, Burns appears to lament that “we sort of went crazy at how bad we'd been in accusing them.” Again, Burns' use of the royal “we” is puzzling. (To the best of my knowledge, he has never apologized to the lacrosse players.) Many people—the Group of 88, for starters, or entertainers such as Wendy Murphy or Nancy Grace—proudly, even defiantly, refused to apologize for how they mistreated the lacrosse players. Other institutions that rushed to judgment—the New York Times, the Herald-Sun—issued mealy-mouthed apologies trying to shift the blame to other parties, hardly examples of going “crazy” at how “bad” they had been. Still other members of the rush-to-judgment crowd—the likes of Selena Roberts or John Feinstein—tried to avoid apologizing altogether by . . . misremembering . . . what they had said or written in the spring of 2006. Still other commentators—such as the various sportswriters linked here—coupled acknowledgement of the dismissal of charges with continued character assaults against the falsely accused students. The City of Durham, obviously, has never apologized to the falsely accused players. It's true that a handful of people who rushed to judgment—Ruth Sheehan, Jemele Hill—issued what clearly were genuine apologies. But these statements stood out because they were so atypical of the general reaction.

Third, this appearance marks at least the third occasion in which filmmaker Burns described the process of being arrested for a crime that never occurred, suspended from school for two semesters, and seeing a Newsweek cover containing the students' mugshots under the title of “Sex, Lies, and Duke” as being an “inconvenience.” On this occasion, he slightly lengthened the time of the “inconvenience,” from a few weeks to two months.

Finally, note that in the span of 20 seconds, Burns found the time--twice, no less--to identify the falsely accused students' race.]

[Update, 11 Dec., 4.22pm: It turns out that his Phoenix interview wasn’t the first occasion in which Burns had referenced the lacrosse case through the “inconveniencing” lens. Here he was in a November interview with the Collider. Mused the filmmaker,

Do you remember in 2006 the white Duke lacrosse players that somebody had falsely charged?  Remember that?  Do you know what happened?  The prosecutor was fired.  The prosecutor was disbarred.  The prosecutor went to jail for inconveniencing for a few weeks these white kids from Duke.  I rest my case.

It’s not clear to me what “case” Burns was attempting to make. Mike Nifong went to jail (for a day) not for “inconveniencing” anyone. He went to jail, for criminal contempt, because he lied to a judge about material evidence. Does filmmaker Burns believe that prosecutors lying in open court counts merely as an “inconvenience” to a falsely accused suspect, as opposed to an assault on the ideals of justice?

Nor is it clear how filmmaker Burns concluded that Nifong persecuted the lacrosse players “for a few weeks.” Each of the three was indicted. For Reade Seligmann and Collin Finnerty, the period of indictment lasted just under a year; for Dave Evans, just under 11 months. In what universe does 11-12 months constitute “a few weeks?”

At least, I suppose, Burns should be praised for referring to college students as “kids” rather than “boys.”]

Filmmaker Ken Burns is almost a caricature of the politically correct intellectual, but his comments in a recent interview with the Boston Phoenix nonetheless were jarring.

Burns was speaking of his new film project, a study of the Central Park Five, a group of minority teenagers accused of raping a Central Park jogger in one of the highest-profile cases of the era. Several of the suspects confessed to the crime, and each was convicted and sent to prison. (Those who confessed subsequently retracted their confessions.) In 2002, a prisoner named Matias Reyes confessed to raping the jogger; when his DNA matched that from the rape kit, the Manhattan district attorney, Robert Morgenthau, voided the Central Park Five’s convictions.

In the Phoenix interview, Burns was asked about the similarities between Central Park and the case of the West Memphis Three. Instead, wholly unprompted, Burns provided this nugget of contextual insight: “You can also compare the Central Park Five to the Duke University lacrosse players, three rich white boys who were mildly inconvenienced by rape charges that proved to be false. In no time the prosecutor of that case was fired, disbarred, and put in jail, and the three ended up getting a huge settlement.”

Since Burns chose to make the comparison—as he expressed hope that the . . . honesty . . . of his work would prompt the NYPD to admit error in the Central Park jogger case and (“from your lips to God’s ear”) win him an Oscar—his remarks deserve consideration.

“The Duke University lacrosse players, three rich white boys”: Imagine the outrage from people like filmmaker Burns if a prominent filmmaker had publicly referred to three African-American college students as “boys.”

“ . . . were mildly inconvenienced by rape charges that proved to be false.” Presumably, filmmaker Burns has never been arrested for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, was filmmaker Burns ever suspended two semesters from college for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, did filmmaker Burns see his mugshot plastered on the cover of a national newsmagazine—or heard himself compared to Hitler, or his parents to child molesters—for a crime he didn’t commit (much less a crime that didn’t occur). Yet to filmmaker Burns, these experiences (and more) constituted a mild inconvenience. I wonder what filmmaker Burns would consider a major inconvenience, much less something more significant than an inconvenience.

“In no time the prosecutor of that case . . .” Actually, Mike Nifong was re-nominated and re-elected, in large part because of his handling of the fabricated claims. He didn’t suffer professional difficulties for nearly a year after his misconduct. To filmmaker Burns, perhaps, nine months constitutes “no time.” But I would think that someone who makes his living in part through use of words would be more accurate in his description.

“ . . . the prosecutor of that case was fired, disbarred, and put in jail.” It’s not clear exactly what filmmaker Burns’ complaint on this front is. Does he believe that Nifong should not have been fired or disbarred for his myriad, and massive, ethical violations? Does he believe that if a prosecutor lies outright to judges on materially important matters, the prosecutor shouldn’t be held in contempt of court? Or is he suggesting that the prosecutors in Morgenthau’s office committed prosecutorial misconduct and should have been fired and disbarred? If so, what evidence does he have to substantiate such an inflammatory claim?

“ . . . the three ended up getting a huge settlement.” Currently, the falsely-accused players are awaiting a ruling from the 4^th Circuit; they have received no settlement from Durham or Nifong at all. They have, obviously, received a settlement from Duke, for an undisclosed amount. Does filmmaker Burns have information that the amount was “huge”? If so, from whom did he obtain this information: has Duke violated the settlement’s confidentiality clause?

Apart from the obvious difference—in the Central Park case, a crime occurred; in the Duke lacrosse case, the only crime was the filing of a false police report—there was one intriguing point of comparison between the two cases. In the Central Park case, as events were unfolding, the African-American press, most prominently the Amsterdam News, did not shield the identity of the woman who was raped, Trisha Meili. The News argued—not unreasonably—that since the suspect’s identities were revealed, giving the accuser anonymity tilted the scales against the accused.

In the lacrosse case, of course, the News joined other publications of the black press (and all major newspapers and TV stations) in shielding Crystal Mangum’s identity until the attorney general branded her charges false. (Even then, the Herald-Sun and the New York Times resisted naming Mangum for several months.)

Burns doesn’t appear eager to explore this obvious hypocrisy in his film, however: shining a harsh light on publications like the Amsterdam News wouldn’t fit his agenda.

Murphy, Paul, and Due Process

Two names from the past in the news.

The H-S reports that the State Bar disciplined former Nifong ADA Jan Paul, who left the DA’s office last year. (A one-year suspension of her license to practice law was stayed.) Paul was disciplined for abusing her authority as she prosecuted a case of alleged sexual abuse of a child. When the child’s mother said she didn’t believe the charges, and planned to visit the child that afternoon, Paul—according to the Bar’s order—“instructed a police investigator to take out warrants against [the mother] for aiding and abetting first-degree sex offense of a child, accessory after the fact of first-degree sex offense with a child, and aiding and abetting indecent liberties with a child.” The problem? She had no reason to believe the claims were true.

The mother was nonetheless arrested—but an alert judge freed her on a Friday afternoon, and then dismissed all charges on the following Monday.

In an interview with the H-S, Paul described her decision to seek the arrest of someone without probable cause as a “mistake of law.” 

Former ADA Paul, alas, is no stranger to poor judgment. In 2007, she attended Mike Nifong’s criminal contempt trial, nodding vigorously nodded as Nifong’s attorney hailed his client’s truthfulness, and then weeping after her ex-boss was found guilty.

-----------

I have a post at Minding the Campus detailing the latest activities of Wendy Murphy, who’s demanding an investigation of the University of Virginia after a UVA disciplinary tribunal (almost amazingly) found an accused student not guilty of sexual assault. Explaining her rationale to a local website, Murphy said that colleges are compelled to convict when “[the accuser’s] accusations are deemed credible, and [the accused student’s] denials are not described with the same glowing terminology, she wins.” This is quite an extraordinary standard.

As for the procedure that Murphy deems too easy on the accused student? Here’s a summary:

First, UVA hires investigators (as is perfectly appropriate) to look into all claims of sexual assault. Yet while university procedures identify these figures as “neutral fact-finders,” the investigators actually play a role that virtually anyone outside the university would recognize as non-neutral. Investigators combine the role of the police (interviewing all witnesses, “visit and take photographs” as necessary, work with the local police) and the grand jury (“determine whether or not there is good cause to investigate a hearing”). For good measure, the investigators produce the equivalent of a grand jury presentment (“a detailed written analysis of the events in question”). The accused student can speak to the investigators but has no right to examine evidence or to cross-examine witnesses at this stage. Would faculty members at the UVA Law School consider the police and grand juries to be “neutral fact-finders” in the criminal justice process?

Second, these supposedly “neutral fact-finders” have a right to hold the “accused student’s transcript” before the hearing even adjudicates the case. Yet the policy confers no such right regarding the accuser’s transcript if the investigators conclude that the accuser probably lied.

Third, the accused student has a right to an advisor for the procedure—but this advisor is selected not by the student but by the chairman of the judicial tribunal that will adjudicate his fate. He can also have a secondary advisor, but this secondary advisor “may not be an attorney.” University guidelines offer no explanation as to why UVA considers attorneys to be so dangerous.

Fourth, the accused student must present a list of witnesses before a pre-hearing meeting. Yet the university, functioning in the role of prosecutor, has the right to add witnesses at the hearing itself—after seeing the accused student’s list.

Fifth, the accused student, through his non-attorney advisors, doesn’t even have the right to cross-examine all witnesses—because, the university helpfully explains, “the hearing will not follow a courtroom model, and formal rules of evidence will not be observed.” If witnesses don’t appear, the board can accept their statements as given to the “neutral” investigators—at a stage of the process in which an accused student had no right to cross-examine even in the limited form allowed by the tribunal.

Sixth, the power of the accused student’s non-attorney advisor is limited in another critical way—because the chair of the hearing, not the accused student, has sole power to “determine the order” at which witnesses appear.

Seventh, in the hearing itself, the accused student’s non-attorney advisor can submit cross-examination questions for all witnesses—but cannot ask questions herself, even of supposedly neutral witnesses. There is no guarantee that cross-examination questions the accused student deems critical to his defense will, in fact, be asked by the tribunal.

Finally, and in line with the OCR mandate, the accused student is judged according to a 50.00001 percent preponderance of evidence standard, and if the accused student prevails, the accuser can nonetheless appeal.

It’s nothing short of astonishing that, given her record of fabrications on such a high-profile case as Duke, Murphy is still taken seriously by either the legal community or the media.

Penn State, Duke

Former Penn State president Graham Spanier was indicted last week; I wrote about the move at Minding the Campus.

The move came as little surprise, given the evidence against Spanier uncovered by the Freeh Report. Indeed,  perhaps the most noticeable aspect of the grand jury presentment against Spanier was how closely the document tracked--in terms of evidence and basic argument--the Freeh Report.

As I have noted previously, a variety of campus figures--including, perhaps most troublingly, a group of former leaders of the Penn State faculty senate--criticized as flawed the Freeh Report, even as they steered clear of identifying exactly what the report had gotten wrong. To date, it appears that few (if any) have criticized the line of argument offered by the AG--even as they have also declined to retract their previous criticism of the Freeh Report.

It goes without saying that Duke has never provided an explanation as to why the university elected not to engage in the type of critical self-reflection that a Freeh-style investigation entailed, and instead stood behind the fatally flawed Bowen-Chambers committee report as the sole official investigation of how and why the administration mishandled its response to the lacrosse case.

On another front, and for those interested: Duke's crusade has attracted the attention of the Maine media.

Updates

[Update, Thursday, 4.27pm: In the latest only-in-Durham moment, false accuser Crystal Mangum, in what is described as a jailhouse interview with the H-S, has now denied that she authored the document (which was filed through the PACER system) described below. This denial came after Durham's attorneys filed a motion to--appropriately--urge the court to ignore the request to intervene.]

A few updates:

False accuser Crystal Mangum, currently awaiting trial on murder charges, has petitioned the court to intervene in the civil suit filed by the falsely accused lacrosse players. (That lawsuit is on hold, pending a decision by the 4th Circuit.) In the petition, a clearly imbalanced Mangum claims to have been a victim of "government controlled sex slavery," and adds that she is currently being "framed for murder by the illuminati and the New World Order."

This, again, is the woman of whose credibility the Group of 88 was so certain that these Duke faculty members asserted, as fact and using Duke funds, that something "happened" to Mangum at the lacrosse party. No apology from the Group for their actions, of course, will ever be forthcoming; it's worth remembering that even the two Group members who privately apologized, Susan Thorne and Alberto Moreiras, subsequently reversed course by signing a public statement saying they'd never apologize.

Another item from Mangum's ranting intervention request will raise eyebrows: she claims that Mike Nifong paid her $50,000 (before, it seems, she even attended the party) to invent the allegations, so as to help him win re-election. Needless to say, she provides no evidence to corroborate this absurd assertion. But Mangum's decision to turn on Nifong might pose problems for her de facto legal team, the committee seeking to restore Nifong's law license.

In an item that might bring chuckles among longtime readers of DIW, a first in the case: several days ago, the H-S quoted my opinion in an article, if in the process reporter Ray Gronberg inaccurately claimed that I "said" rather than "wrote" the item in question. (A note: DIW doesn't do podcasts). Surely the fact that my analysis of the 4th Circuit's likely outcome coincided with the status quo preferences of Editor Bob Ashley played no role in the paper's sudden decision to include a comment from me. (The H-S continued its longtime practice of refusing to identify the name of the blog.)

Needless to say, the article didn't reference any of the criticisms that I made of the Herald-Sun's almost comically-biased coverage of the case.

Finally, as some DIW readers know, Duke successfully petitioned a Maine magistrate judge to compel me to reveal to Duke confidential, non-published communications relating to the book and the blog. I have refrained from commenting on the University's crusade, and will continue that approach, but for those interested, the decision has been appealed to the Maine District Court.