A Duke Feminist Speaks Out

The lacrosse affair has featured a consistent pattern of Duke students outperforming their professors in respect for both due process and evaluating evidence free from ideological blinders. The latest example comes in a superb post from recent Duke graduate Natalia Antonova, who laments, “Fellow Duke feminists have reported verbal thrashings from the larger feminist community on the ongoing Duke Lacrosse debacle, confirming my suspicions that if you don’t toe the line, you’re hung out to dry faster than you can say ‘Pressler.’”

Antonova distrusts the accuser’s veracity not because of her race, class, or profession—but:

because of the actions of Mike Nifong, who tried this case in the media before it ever got to court, who engineered a shoddy “line-up,” and who is now backtracking, exposing himself to be the opportunist some of the most perceptive people at Duke have known him to be from the start.

Nifong’s actions are indicative of a case that is weak at best, and, at worst, completely false. He must have known that it was false the minute he laid eyes on the accuser, hence the hoopla. He needed this case to galvanize the community and win the election, and had hoped that the facts would get lost in the hysteria, as they pretty much did.

Antonova’s recognition of the connection between flawed procedure and flawed results mirrors that of USC law professor (and prominent feminist) Susan Estrich, who recently wrote that Nifong’s conduct “suggests a failure to follow standard procedure that is rather mind-boggling.” “At the very least,” she argued, “standard procedure should have been to await the results of tests, and then, given the results, the inconsistencies in the woman's statements, the fact that at least one of the boys seems to have an airtight alibi, investigate further before indicting anyone.” In one of the single best lines this case has produced, Estrich concluded her essay by noting, “There are reasons you follow procedures. In general, they are there to spare outrage.”

Perceptively, Antonova also noted this case’s potentially disastrous tactical outcomes for the feminist community. National women’s groups like NOW have embraced Nifong’s cause as their own, while cable commentators claiming to represent a feminist perspective such as Wendy Murphy or Georgia Goslee have engaged in outright falsehoods to justify their belief in the accuser. Antonova, on the other hand, contends that “blindly attacking the entire Duke community for the sake of re-asserting femininst credentials (or whatever other credentials) only makes it worse for Duke women in the long run, not to mention the negative impact this is going to have on future rape cases both at Duke and within greater Durham.” Estrich agreed: “Victims rights advocates like me will be depressed because we will worry, rightly, about all the messages being sent to legitimate victims.”

Antonova wonders, “Am I less of a feminist because I recognize the lack of credibility in this case as well as the negative impact of the coverage?” Her essay offers strong criticism, from a feminist perspective, of the social and institutional culture at Duke. But, in her opinion, this critique doesn’t require embracing a rape claim that’s almost certainly false and certainly has been handled in a procedurally irregular fashion by authorities.

Contrast Antonova’s nuanced argument that maintaining impeccable feminist credentials did not require either exploiting the crisis to advance ideological aims or blindly defending Nifong with that of the most publicized “feminist” perspective to come from the faculty, the Chronicle of Higher Education article penned by visiting professor Elizabeth Chin. (Chin published a shorter version of her article as an op-ed in the equally blindly pro-Nifong Durham Herald-Sun.)

Complaining that the administration of Duke president Richard Brodhead didn’t schedule a “town meeting, teach-ins, and coordinated efforts in residence halls to promote dialogue and reduce tensions,” Chin decided to take action in her class. Her group consisted of “well-off white women who were in the most elite sororities at Duke,” along with “three brave men (one Jewish, one Latino, and one African-American), several heterosexual women of color [Chin declined to explain how she knew they were heterosexual or why this fact is relevant], and a handful of what I affectionately thought of as my radical feminists.”

Chin’s portrayal of Duke as a whole was almost comical—filled with broad assertions about campus life backed by not a scintilla of evidence. As one current Yale Ph.D. student in molecular biology pointed out, “As a 2005 Duke graduate, I would love to see the data that suggested to Professor Chin that “many whites [at Duke] have no significant interactions with people of color or anyone ‘different’ in some way, like sexual orientation” . . . Her fantasies do not deserve to be published in The Chronicle or anywhere else.”

In class, Chin said that she committed herself “to keep the classroom a safe space for all the students, while allowing people on both sides of the issue to hear and understand each other.” That the space was a whole lot safer for one side than the other became clear when an anti-lacrosse player rally coincided with one class session. Chin stopped class and instructed the students to go outside and listen. (There’s a good strategy for an easy prep.) “After a while,” she relates, “I noticed that, one by one, the sorority girls were going back inside.” (Many of the sorority “girls” knew members of the lacrosse team.) Chin continues: “When I went after them, their pain and frustration were obvious. ‘It’s just not fair being targeted as a group,’ wailed one woman.” Wailed? Imagine the appropriate condemnation from faculty members like Chin if a male professor had used this verb to describe an upset “girl” in his class.

Chin’s response to the demonstration and its aftermath effectively assumed that the players were guilty, her view of the scandal was undeniably correct, and teaching diversity is the only conceivable approach in the classroom. Her view of an in-class “olive branch” over the lacrosse issue consisted of a “radical woman” admitting that she could have a common experience with a sorority “girl”: the “radical woman” stated that she, too, knew a man who “had raped someone.” (No rush to judgment about the lacrosse players there.)

Leaving aside the question of whether it was an appropriate use of class time to peruse a demonstration with whose message the instructor sympathized (Chin seems not to also cancelled class to observe the “innocent” demonstrations that occurred later in the term), Chin might have explored with her “radical feminists” the question that Antonova’s post raised: why so many on campus, including the demonstrators, seemed to presume guilt—even at an early stage of the investigation, when the lacrosse players had all denied criminal wrongdoing, their captains had told the authorities they would take lie detector tests, and the procedural irregularities that have come to characterize Nifong’s inquiry already were becoming apparent. This question appears not to have occurred to Chin, who describes herself as a “good liberal.” Apparently she doesn’t see promoting civil liberties as the kind of activity in which a “good liberal”—much less a “good feminist”—would engage.

If readers placed the Antonova and Chin essays side-by-side but removed the authors’ biographies, most likely would assume that Elizabeth Chin was the student and Natalia Antonova the professor, since Antonova’s essay shows far more intellectual subtlety and far less ideological dogmatism. That this inversion of the traditional student/faculty relationship has appeared time and again on the Duke campus raises serious questions about the quality of instruction at Duke—questions that will linger long after this case has ended.

A Tale of Two Men

Robert Wellington is a Duke lacrosse parent; he recently sent me the essay below, which I reproduce in its entirety:

In a world that has become complacent with respect to honesty--or more accurately stated, the lack thereof--two men have emerged as symbols of this new debased standard. One man is the president of the highly regarded Duke University, the other serves as District Attorney in Durham, North Carolina. One man prides himself on his intellectual capacity and erudite demeanor, the other on his newly won status and influence as the top law enforcement official within his community.

Both men relish in their power and positions of leadership and seemingly will do anything to maintain them, yet neither is a leader. Both men seem to be motivated by fear—the fear of being pushed from the vaunted heights of their personal fiefdoms, the fear of criticism, the fear of admitting that they have made a mistake. But most of all, they seem to fear being viewed differently than the way they see themselves when looking into a mirror. Neither has the courage to look deeply inside and see who they really are, to catch that glimmer of inspiration which might put them on the road to understanding the responsibilities as well as the hardships that come with the ordination to high office.

Both men have reacted to the Duke Lacrosse circumstances with one overriding impetus: their personal survival. Neither looked more than one move ahead when they condemned the Duke team, its coach, and its players. Both followed an agenda laid out long before, in one case by those unhappy with the status quo and in the other by the almighty god to those in public office, the politics of reelection. Neither looked at the facts as they related to the circumstances and players in the Duke Lacrosse travesty; neither cared much for seeking the truth.

One needed to quickly show his constituents that he was on top of his new position as president of Duke University, perhaps a reaction to criticism he had received while at Yale. The other needed to show his constituents that he was fair to people of all colors within his jurisdiction and quick to smite illegality in whatever form it presented itself. Ferreting out the facts and determining if a crime actually happened was secondary to showing the public how good each looked in their shining armor. As a result, one man rushed to judgment, inflicting more harm on his institution and all associated with it than if a crime had actually occurred. The other ignored proper legal protocol, committing all sorts of procedural improprieties in the hope that the end would justify the means. In the end it appears that the only crimes committed were by these two men.

I fear that both men are well aware of their misdeeds. I fear that once again the actions of both men will be driven by their internal mantra of self-preservation. I fear that each man will never be able to admit that he has made a mistake, much less correct it.

One man hides behind his call for patience so that healing can take place. The other hides behind a fabricated conviction that he believes the boys are guilty no matter what the facts might show. Neither has the courage to say that he was wrong. Both want to be seen as leaders of men, yet both lack the courage to be honest. Honesty in this case begins with admitting their errors and then correcting them. Perhaps we can forgive their early missteps as being the result of limited facts. But they know what is right now: 1800 pages of prosecutorial evidence, or more correctly lack thereof, have clearly laid out the right action to take.

It is time for these men to clean up the mess they have made. It is time for them to make reparations to those they have harmed. It is best that they fix things now while the power and ability to make amends is still in their hands. The wheels of justice turn slowly but they will not be denied.

This is more than a case of three boys falsely accused by a troubled woman. This is a case of doing what is right. What is right is helping the individuals involved; helping those indicted (and all who have been falsely tarred by these fabricated allegations) to be declared innocent before the world and made whole mentally, emotionally and economically; and also helping the accuser to get proper therapeutic and medical assistance so that she can get her life back on track.

This is not a case of black vs. white or privileged vs. underprivileged. This is a case of honesty, both legally and socially. I call upon these men to do what is right and I pray that they will find the wisdom to know what that is and the courage to do it. Justice will be meted out eventually. The opportunity can be theirs or left to their inheritors. It is time for them to choose.

Wellington's son, Rob, was recently named for the second straight year to the ACC Academic Honor Roll. After the two initial indictments--when the risk of being the third player targeted by Nifong hung over all other 44 players on the team--Wellington swore out an affidavit confirming that he was with Reade Seligmann throughout the period of the alleged crime. He did so before Seligmann produced, among other items, cellphone records and an ATM videotape confirming that Seligmann is demonstrably innocent.

By risking Nifong's wrath to tell the truth, Rob Wellington is one of the few heroes of this affair.

"Really, Really Well"

Duke Athletic Director Joe Alleva, under fire because of unrelated personal matters, decided to shift the focus away from himself in an AP interview published yesterday. Heaping praise on his superiors—who have, after all, decided to ignore public pressure and keep him on the job—the athletic director gave his opinion of the lacrosse case: “I think that Duke has handled it really, really well.”

If Duke’s performance constitutes the University’s handling events “really, really well,” I wonder how Alleva would have defined a “really, really poor" response.

Perhaps such a response would have featured 89 Duke faculty members, rather than 88, signing a rush-to-judgment statement thanking the campus protesters who branded the lacrosse players as rapists. Or a “really, really poor” response might have seen zero Duke professors, rather than one (the law school’s James Coleman), publicly criticizing the myriad procedural improprieties of D.A. Mike Nifong. Maybe a “really, really poor” response would have entailed Duke president Richard Brodhead devoting two paragraphs in his April 5 statement, rather than one, to the horrors of rape—at a time when the lacrosse players unequivocally denied the allegations and the only proof that a rape occurred were the fulminations of campus protesters and Nifong’s procedurally improper public remarks. Or, perhaps, a “really, really poor” Duke response would have featured Brodhead, rather than declining comment about the matter, holding open the doors to Edens Hall as Nifong sent police to campus, where they tried to question Duke students outside the presence of their attorneys—in apparent violation of Rule 4.2, Comment 6, of the North Carolina Code of Professional Responsibility.

What Alleva celebrated as Duke’s having handled matters “really, really well” has included a consistent minimizing of the lacrosse team’s academic accomplishments—part of the University’s broader pattern to paint the worst possible public picture of the team. Take, for instance, Brodhead’s June 5 remarks about the Coleman Committee report, where he avoided any mention of the lacrosse team’s stellar academic record. Instead, Brodhead described the report in the following way:

Though it did not confirm the worst allegations against this team, the Coleman Committee documented a history of irresponsible conduct that this university cannot allow to continue.

Brodhead’s first public concession that, indeed, the Coleman Committee report contained much positive to say about the lacrosse players came 50 days later, in his response to the Friends of Duke University open letter.

Brodhead has not commented upon last week’s release of the ACC Academic Honor Roll. Nor does the Duke lacrosse site—or any Duke site, as far as I can tell—mention the ACC honors.

I wonder what accounts for this silence, since Duke led all conference schools with 362 student-athletes named to the Honor Roll. Could the inconveniently high number of lacrosse players on the honor roll explain the university’s reticence?

Twenty-seven members of this year’s men’s lacrosse team were named to the Honor Roll. This achievement, of course, took place amidst Nifong’s using the team members as pawns for his re-election campaign. More remarkably, it occurred despite a troubling pattern of unprofessional behavior toward the players from many Duke faculty members—of which the experiences of George Jennison and Honor Roll member John Walsh seem to be only the tip of the iceberg.

The lacrosse team’s 27 Honor Roll members is the highest number in the ACC, easily outdistancing the numbers earned by UNC (16), Virginia (16), and Maryland (14).

This result ran true to form: over the last five years, the lacrosse team has had 173 members make the Academic Honor Roll, more than twice as many as the next closest school. The Coleman Committee highlighted this point, but the Duke administration has never publicly referenced it. And of this year’s recipients, five made the Honor Roll in each of their four years at Duke: Dave Evans, Erik Henkelman, Glenn Nick, Bruce Thompson, and Matt Zash. No other Duke team had as many four-year winners.

The 27 lacrosse players who made the Academic Honor Roll also surpassed the total of any other men’s team at Duke except for football (34, of a roster of 80-plus). The lacrosse team had more Honor Roll members than baseball (15), basketball (5), cross country (13), golf (3), indoor track (17), soccer (15), swimming (13), tennis (8), or wrestling (17).

Perhaps Duke could couple its publication of these figures with Professor Paul Haagen explaining his theories about how athletes who play “helmet sports” are more likely to engage in violent crime. Alas, as blogger John in Carolina has revealed, Haagen, after his infamous March 25 comments to the N&O, no longer seems to be commenting on the case.

A few months ago, in an interview with National Journal’s Stuart Taylor, women’s lacrosse coach Kerstin Kimel became the first person at Duke who publicly challenged the institution’s stultifying atmosphere of groupthink. “Being at an elite university where every side of every issue is debated,” she noted, her players “were shocked, disillusioned, and disappointed that their professors and the university community were so one-sided in their condemnation of the lacrosse players.”

What kind of players has Kimel recruited? To Taylor, she described them as “smart, savvy young women.” The ACC figures confirmed her observation: the Academic Honor Roll contained 23 of their names, more than any other women’s lacrosse team in the conference. As their own professors remained silent, or rushed to judgment with public denunciations of the men’s lacrosse players, at the women’s lacrosse Final Four, Kimel’s players publicly expressed their solidarity with the three members of the men’s team targeted by Nifong.

Given the reaction of Duke faculty to date, I doubt we’ll see any expression of professorial pride regarding the academic achievements of both the men’s and the women’s lacrosse teams. I’m sure, however, if he were asked, Joe Alleva would say that they performed “really, really well.” But his standards seem to be quite a bit below those of the ACC Academic Honor Roll.

Nifong Tarnishes the NAACP

Since March 27, Durham D.A. Mike Nifong has effectively hijacked the North Carolina judicial system, creating the image nationally of a rogue state whose leaders tolerate massive prosecutorial misconduct. It’s worth remembering, however, that Nifong has had enablers—starting with, of course, his self-appointed Duke cheerleaders, the Group of 88, who sold out their own students to advance their personal, curricular, and ideological aims. With a few exceptions, the North Carolina media hasn’t distinguished itself—most have seemed content to follow the lead of the Herald-Sun’s Bob Ashley or the N&O’s Dennis Rogers, whose recent column explained why he, as a journalist, shouldn’t be expected to know anything about the case or to undertake any independent inquiry into matters. Know nothing, have no desire to learn, and then get paid for writing about your lack of knowledge: sounds like a pretty good job to have!

Nifong enablers among the political and legal leadership of the African-American community have received less attention. Yet their reaction to events has been startling, in at least three respects. First, the black political leadership has almost unanimously given a pass to Nifong’s transparently race-baiting tactics. Second, the state NAACP has adopted a series of positions on the Duke case that wholly contradict the criminal justice principles with which the organization long has been associated. Finally, the civil rights community—with the important exception of Duke Law professor James Coleman—has missed what could have been a golden opportunity to focus media attention on blatant prosecutorial misconduct and procedural irregularities, problems that disproportionately affect minorities.

The lacrosse affair wasn’t the high point of Jesse Jackson’s public career; early on, the Durham Herald-Sun reported that the two-time presidential candidate promised that the Rainbow/PUSH Coalition would pay the accuser’s college tuition even if it turned out she had lied. And then there’s a peculiar local timeline of events:

• March 27: Nifong gave the first of 50-70 interviews on the case, featuring comments that repeatedly violated Rule 3.6 of the NC state bar’s ethics code.
• March 28: Mark Simeon, a local African-American attorney, longtime foe to Nifong’s patron, former DA Jim Hardin, and counsel to the second dancer, Kim Roberts, publicly endorsed Nifong.
• March 31: Nifong ordered the photo lineup ID that violated Durham city procedures and statewide norms in almost every way possible.
• March 31: Durham mayor Bill Bell sent a campaign contribution to Nifong (see p. 5 of this recently released campaign finance report). To my knowledge, Bell never mentioned this contribution in the many interviews he did at the height of media scrutiny of the case.

Bell and Simeon, of course, could have innocent explanations for their decisions to back Nifong. (I e-mailed Bell to ask about the issue; he didn’t reply.) But only the willfully naïve wouldn’t wonder about the timing of both decisions.

The reaction of figures like Bell and Simeon is all the harder to comprehend as evidence has emerged that Nifong deliberately inflamed racial tensions, in an apparent effort to increase support from the African-American community. Two examples particularly stand out:

• In interviews that occurred as late as March 31, Nifong denied knowing the identity of first 911 caller on the evening of the lacrosse party. But actually, in a March 22 statement to police, Kim Roberts said that she made the original call, after a post-departure verbal squabble in which she and a couple of the players traded racially degrading insults. It’s hard to escape the conclusion that Nifong hoped to inflame sentiments in the African-American community by creating the impression that team members had spent 45 minutes or so hurling racial epithets at African-American passers-by, to the extent of frightening one of them into making a 911 call. The blog Liestoppers recently termed Nifong’s handling of the 911 call the case’s “hoax within a hoax.”

• Several weeks ago, Wilmington Journal reporter Cash Michaels revealed that the accuser’s cousin and spokesperson claimed that Duke alumni had offered $2 million for the accuser to drop the case. If true, this action suggested clear-cut criminal conduct. The allegation excited Nifong and the Durham police; a Durham police investigator downloaded a report on the claim, typed “$$$,” and entitled the memo, “THIS IS PRETTY INTRESTING [sic]!!!!” Yet the accuser denied making the claim when police officers got in touch with her on June 30. The public only learned the truth, however, because Michaels (to his credit) continued investigating, received a copy of the police memo from defense sources, and broke the story last week. It’s hard to escape the conclusion that in keeping secret the results of his investigation of the alleged bribe offer, Nifong hoped that those in the African-American community who initially had believed the cousin’s claim would continue, erroneously, to do so.

Twice, then, Nifong has abused his position for purposes strongly suggesting a desire to exploit racial tensions for his own ends. A person who engages in this sort of behavior deserves the condemnation of the African-American community, not its support.

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Even more troubling is the response of organizations traditionally considered strong defenders of civil liberties in the criminal justice system—the ACLU and the NAACP. I have thrice emailed both the North Carolina ACLU and the Duke campus ACLU, asking if they have an opinion on Nifong’s procedurally dubious photo ID lineup. Both the state and campus branches refused to comment. This position starkly contrasts with their ACLU counterparts in Maryland, whose website cites “eyewitness ID reform” as one of the organization’s 2005-2006 legislative priorities, since “mistaken eyewitness identifications are the overwhelming reason for wrongful convictions.”

The NAACP has gone beyond silence. In three ways, it has taken acts involving the lacrosse case that have contradicted its longstanding core principles on criminal justice matters, risking permanent damage to the organization’s moral standing.

Change of venue. The NAACP Legal Defense Fund’s homepage celebrates its triumph in the case of Wilbert Rideau, whose eventual release from prison came as a result of a trial made possible by an NAACP-supported change of venue. Citing extensive pre-trial publicity in overwhelmingly white Lake Charles, Louisiana, the LDF successfully appealed for a change of venue; eventually, the case was heard by jurors from the racially mixed, university city of Monroe. Theodore Shaw, LDF Director-Counsel and President, remarked that the move was about “fairness,” because “even the guilty are entitled to a trial untainted by racial discrimination and misconduct.”

In the Duke case, Professor Irving Joyner, designated by the state NAACP to monitor Nifong’s handling of affairs, told Sports Illustrated in early June that the district attorney “still has a viable shot at victory before a jury in Durham.” I e-mailed Joyner to ask why he specified a “Durham” jury as giving Nifong a chance of victory; he replied, candidly, “A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina.” Joyner added, “This case originated in Durham and should be tried here.” Carried to its logical conclusion, Joyner’s statement would imply that cases always need to be tried where they “originated”—since surely if any case needs a change of venue, it’s this one. Quite beyond Nifong’s myriad public statements, the case itself was the central issue in not only the spring primary but the fall election for district attorney.

So, on the one hand, the LDF has celebrated the concept of change of venue when necessary for “fairness.” But in the Duke case, the local NAACP monitor took a blanket position against the concept of change of venues?

Gag order. The NAACP has a long tradition of defending freedom of speech, dating back to such civil rights era cases as NAACP v. Alabama and New York Times v. Sullivan. And during the Clinton years, the organization took a high-profile stance against the politically popular but civil liberties-unfriendly Feinstein/Kyl “victims’ rights” constitutional amendment. In an April 2000 letter sent to the Senate majority and minority leaders, the NAACP leadership noted, “People of color have also historically been wrongly accused in this nation of crimes varying from the very minor to the most heinous. It is for this reason that the NAACP has also been a strong and steadfast supporter of the Constitution, the Bill of Rights, and the concept of due process in the American judicial system. It is our deeply held belief in the need to protect the innocent and allow every American the right to a fair trial that leads us to oppose . . . the proposed constitutional amendment to protect the rights of victims of crimes,” since “we have grave concerns that the negative effects this amendment would have on the rights of the accused seeking a fair and impartial trial would outweigh the benefits it bestows upon victims.” [The letter was reproduced in page S2985 of the 2000 Congressional Record.]

The organization’s record in the Duke case could not have differed more from these principles. In late May, Al McSurely, chair of the NAACP’s Legal Redress Committee, publicly stated the NAACP favored a gag order, which he euphemistically termed a “quiet zone/let’s let justice work” motion. His justification, according to the Durham Herald-Sun, was that “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.” [emphasis added] McSurely e-mailed me to say that, in fact, a "quiet zone" request was filed, under the auspices of the Durham Conference on Moral Challenges, a group organized by the
NAACP, but consisting of over 150 Durham Community leaders, did make such a request.

Leaving aside the question of why the NAACP didn’t demand a “quiet zone” when Nifong dominated the airwaves, the Constitution does not confer upon an accuser “legal rights to a fair trial”: the accuser has the power of the state on his or her side. Nor can an accuser’s legal rights somehow trump the very real constitutional protections possessed by defendants. The Durham Conference's argument thus went beyond what even the most extreme victims’ rights advocates have endorsed, much less the more moderate victims’ rights proposal featured in the Feinstein/Kyl amendment--which the NAACP so fiercely (and appropriately) opposed.

So, on the one hand, the NAACP has long defended free speech and courageously highlighted how the “victims’ rights” movement can threaten due process. But in the Duke case, the local NAACP has asserted that the “legal rights to a fair trail” of the “alleged victim” can trump the rights of the accused, and also justify preventing the accused from exercising their First Amendment rights to freedom of speech?

Due Process and Suggestive Lineups. Working alongside the Innocence Project, the NAACP has been at the forefront of demanding greater procedural protections in eyewitness identifications. In late July, LDF Director-Counsel and President Shaw wrote, “We at the Legal Defense Fund have become increasingly concerned about recent criminal cases where the conviction was based on unreliable evidence.” He pointed to the case of Ruben Cantu, who, Shaw lamented, “was convicted solely on the basis of a questionable eyewitness identification given under pressure from police.” The LDF similarly fought against the use of procedurally irregular “unreliable eyewitness ID” in the case of Carlos DeLuna, who was convicted despite “(1) the absence of evidence linking him to the crime scene (despite a fierce struggle between the victim and assailant, there was no blood on DeLuna, his clothes or the money in his pocket; his fingerprints were not on the 8-inch buck knife the assailant left at the scene and didn’t match the few prints that were lifted at the scene), and (2) discrepancies in the eyewitnesses’ statements.” (Does that sound like any case in Durham lately?) Nor is this concern a new one: the LDF represented the defendant in the 1974 North Carolina v. Henderson, where the use of a procedurally flawed suggestive ID was a key element in the appeal.

In the Duke case, the NAACP has been, to put it mildly, blasé about this issue—despite the fact that the Nifong lineup violated Durham procedures in at least four ways and reflected principles totally at odds with those of police departments and prosecutors elsewhere in North Carolina. Professor Joyner, the organization’s designated monitor for the case, recently commented, “Based on case law from the U.S. Supreme Court and our North Carolina appellate courts, it is very easy for an identification procedure to pass constitutional muster and the written procedure which was adopted at some point by the Durham Police Department is not constitutionally required. Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities.” He specifically declined to condemn Nifong’s lineup. McSurely did the same, saying he didn't want to add to the public commentary on the case, and, in any case, "Mr. Nifong is an experienced prosecutor, and he can defend his
decisions before the Court."

So, on the one hand, the NAACP has long fought against procedurally suspect eyewitness IDs, lest they produce a “conviction . . . based on unreliable evidence.” But in the Duke case, the local NAACP has contended that despite Nifong having violated virtually every element of the Durham procedures and contradicted all relevant statewide trends, the jury should decide such procedural questions?

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Imagine the alternative: the NAACP aggressively using the media profile on the Duke case to highlight its traditional principles of procedural fairness, emphasis on due process rights of the accused, and concerns about prosecutorial misconduct. It could have pointed out that the actions of rogue prosecutors like Nifong, although targeting white lacrosse players in this case, disproportionately affect minorities.

Nationally, this viewpoint has been offered by Talk Left, the website of criminal defense attorney Jeralyn Merritt and a forum cited by Harvard professor Charles Ogletree’s Criminal Justice Institute. Within North Carolina, however, only one prominent figure in the African-American community has embraced this course.

In June, Duke Professor of Law James Coleman, former (Democratic) chief counsel to the House Ethics Committee, told the N&O that “up to now, virtually everything that Nifong has done has undermined public confidence in the case.” Coleman, a former member of North Carolina’s Actual Innocence Commission, singled out Nifong’s photo ID procedures for particular condemnation. After reviewing the photo ID transcript, Coleman noted, “The officer was telling the witness that all are suspects, and say[ing], in effect, ‘Pick three.’ It’s so wrong; it had to be done for a reason other than identification.” He had no doubt “that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so.”

To the recipient of the 1987 NAACP Legal Defense and Education Fund Pro Bono Award for contribution to enforcement of civil rights laws, this procedural record could lead to one, and only one, set of conclusions. For the case: “Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case. Someone with professional detachment and unquestioned integrity must review the case and determine whether the evidence against the three students warrants further prosecution. That would serve the best interest of the alleged victim, the three defendants and public.” For the district attorney’s character: “You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, ‘You’ve got to convict somebody?’ To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice.”

Coleman’s remarks on the case reflect the NAACP’s longstanding position that procedure should be colorblind. As matters currently stand, this valued legacy is another victim of Mike Nifong’s misconduct.

Mobbing Duke Students

Tweaking a motto of extreme anti-lacrosse protesters from last spring (“Men’s Lacrosse? Not fine by me”), the administration of Duke president Richard Brodhead announced its revised student conduct policy through a full-page ad in the Duke Chronicle. The slogan? Behavior prohibited by the new code—“Not fine by Duke.”

In several pathbreaking volumes, Canadian sociologist Kenneth Westhues has analyzed the concept of “mobbing” in the academy. Westhues borrowed from the work of psychologist Heinz Leymann and ethnologist Konrad Lerenzo; the latter’s work described how chickens “ganged up” among a weaker member of the brood, eventually killing it through shunning, depriving it food and water, or pecking it to death. Westhues documented the frequency of mobbing in higher education, almost as if it is the academy’s assassination technique of choice. As one scholar noted,

Mobbing is normally carried out politely and non-violently. The participants are so convinced of the rightness of their exclusionary campaign that they usually leave ample written records, proudly signing their names to extreme deprecations and defamations, without noticing how thin or non-existent is the supporting evidence. The object of the process is the same as among chickens; crushing the target’s identity and eliminating him or her totally from respectable company.

The targets of mobbing usually are individuals—faculty members who for some reason have crossed an invisible line and need to be shunned and expunged from the academic brood. The continued response of the Duke administration and faculty to the lacrosse crisis, whose latest manifestation comes in the new student conduct code, suggests a mobbing process targeting a group of students, something perhaps unique in the history of the academy.

Given the variety of criticisms directed against the lacrosse team, the code itself is necessarily an ideological mish-mash. Reflecting the Group of 88’s public assertions (“something happened” to the accuser; “thank you” to protesters who believed an accusation implied the players’ guilt), the code’s sections on sexual harassment draw upon extreme versions of feminist theory. As more facts emerged in the lacrosse case, some Group of 88 members continued condemning the players, though now for excessive alcohol use—creating the irony of a far-left faculty bloc espousing arguments most often associated with right-wing moralizing institutions. Nonetheless, stern anti-alcohol provisions appear in the code. From a non-ideological standpoint, the code features the timeworn complaint of professors that their students aren’t intellectually serious enough.

A unifying theme does, however, exist: its extraordinary vagueness will allow the administration in to apply the code arbitrarily. And as the code has been marketed with a slightly modified anti-lacrosse team slogan, little doubt exists of which Duke students can expect the most arbitrary treatment.

The code’s alcohol section, almost laughably vague, informs students that they could be expelled from school for alcohol-induced “unsafe/irresponsible behavior” or for “violation of community expectations.” What, exactly, are “community expectations”? Those of Mark (“thugniggaintellectual—one word”) Neal? Those of Brodhead?

As for “unsafe or irresponsible behavior,” this prohibition “is defined as actions that are harmful or potentially harmful to one’s self or others involving the use of alcohol.” Such a definition, of course, could apply to almost anything. To clarify, the code points to “consuming an excessive quantity in a short amount of time.” What is an “excessive quantity”? A “short amount of time”? The code offers no guidance.

The code also tightens restrictions on groups, who “will be held accountable if the group failed to take appropriate precautions” in holding an alcohol-related party. “Appropriate precautions must include . . . adequate and accessible non-alcoholic beverages and food.” Three cans of Pepsi per every can of beer? Four hot dogs and two bags of chips per every bottle of beer? The code provides no answer: enforcers can define its provisions any way they want.

Then there’s the “Emma Willard rule”: “Except at events in a licensed facility providing a cash bar, no spirituous liquor or fortified wines may be served to undergraduates.” The prohibition is absolute: an earlier section makes clear that the code’s terms apply on or off campus, to all Duke students at all times. The code contains a number of “real-life” examples (which come across as if they’re written for 12-year-olds); sources inform me that the following illustration could very well have been dropped for lack of space in the bulletin:

Dick and Jane, who met on their first day at Duke, have been in an ongoing relationship for three years. Typical overachieving Duke students, they spent two years after high school working for anti-poverty NGOs. To celebrate their third anniversary, 23-year-old Jane prepares a special meal, and Dick, who’s the same age, brings a bottle of vodka, which he has legally purchased. As they conclude their meal, Dick pours vodka into Jane’s glass, when Professor Peter Wood bursts into Jane’s off-campus apartment, searching for lacrosse players he claims had walked out of his class. This is a violation of the Alcohol Policy. Dick was serving vodka to Jane, an undergraduate, ignoring the code’s clear statement that “no spirituous liquor or fortified wines may be served to undergraduates.” The fact that Professor Wood might have trespassed or given false testimony against the lacrosse players does NOT mean that Dick won’t be expelled for violating the Emma Willard rule.

The code’s final bow to the far right’s behavioral standards comes in what could be called the “Ralph Reed rule”: Duke policy prohibits all forms of gambling, “with the exception of the state lottery. A person/organization is guilty of gambling if he/she/it operates, plays, or bets at any game of chance at which any money, property, or other thing of value is bet.” This rule will, perhaps, be enforced by Professor Orin Starn, who can roam the campus each March searching for Duke students participating in NCAA bracket pools. Offenders who are athletes will automatically be expelled, thereby hastening Starn’s dream of transforming Duke into an athletic equivalent of Haverford.

In his April Chronicle of Higher Education column, History professor William Chafe called for procedures aimed at “celebrating the ‘playfulness’ and pleasure that infuse the process of debating intellectual and spiritual issues over extended lunches after class,” and “using some of our ‘party time’ to discuss the origins of the universe or existential ethics, even as we socialize at mixers.”

In honor of Chafe, the code features the “Amtrak Acela noise rule.” Whenever I travel to Washington, I always sit in the Acela’s quiet car, which prohibits all cell phones and conversations conducted above the noise level of a library. On East and West Campuses, according to the new code, “Quiet hours are in effect at all times” except 5:00 pm-7:00 pm Monday-Thursday; 5:00 pm-2:00 am Friday; 1:00 pm-2:00 am Saturday; and 1:00 pm-6:00 pm Sunday, when “reasonable levels of noise will by permitted.”

Continuing its recurring pattern, the code supplies no definition of what constitutes “reasonable levels of noise”—the permitted level for the 20.8 percent of the week when “quiet hours” are not in effect. As for the rest of the time: the “Acela rule” will no doubt make Duke the nation’s capital of text-messaging and e-mail, which appear to be the only forms of communication other than whispering still allowed in 133 of the week’s 168 hours.

The code’s sections on harassment, meanwhile, are at best meaningless and at worst ominously one-sided. “Harassment of any individual for any reason is not acceptable at Duke University,” the code piously declares. Surely if any group violated this provision, last spring’s pot-bangers and poster-distributors did. Yet as that the new code has mimicked their motto, these protesters would seem to have little worry from it.

“Harassment,” however, “must be distinguished from behavior that, even though unpleasant or disconcerting, is appropriate to the carrying out of certain instructional, advisory, or supervisory responsibilities.” This caveat no doubt explains the administration’s blasé response to one of lacrosse player John Walsh’s spring-term professors.

After Walsh asked for some flexibility in assignments to accommodate a meeting his attorney, the professor replied, “Yeah, well if you guys really were innocent, I would feel sorry for you.” The response of John Burness, senior vice president for public affairs and government relations? “We did hear rumors early on, reports early on, that some faculty members were permitting a potentially hostile situation within a classroom environment.” He gave no indication that these “rumors” were investigated.

Imagine a counterfactual situation in which “rumors” existed that “some faculty members were permitting a potentially hostile situation within a classroom environment” toward gays and lesbians; or towards ethnic, religious, or racial minorities. The Group of 88 would be whipping out their pens to sign a new statement in no time at all. It appears, alas, that enforcement of Duke’s “harassment” policy depends on the targets of the alleged “harassment.”

While the alcohol and gambling sections of the code represent the type of rules common at colleges like Liberty, the code’s sexual harassment provisions feature the thinking prevalent among the most extreme left-wing members of the Group of 88. As a result, the code’s description of sexual harassment offenses all but invites vague and arbitrary enforcement.

The section begins with a peculiar statement: “The tenets of the university’s Community Standard (honesty, trustworthiness, fairness, and—especially—respect for others) are essential components of healthy interpersonal relationships.” Why does Duke consider “respect for others” more important than “honesty” or “trustworthiness” in interpersonal relationships? The code declines to say, but this decision provides a clue into the thinking that governs the section’s terms
“Duke University,” the section continues, “is committed to providing an environment free of personal affronts against individuals.” What exactly constitutes a “personal affront”? Yet another vague term is left undefined. More generally, how (or even should) colleges prevent “personal affronts”? The rhetoric of the contemporary academic left is filled with passages claiming that heightening students’ discomfort should serve as a primary educational goal. So it appears as if some types of “personal affronts” are acceptable, while others are not. How are students to know the difference? Perhaps they could ask a member of the Group of 88.

According to the code’s terms, the sexual harassment policy is based on several “fundamental principles,” including the assertion that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” Perceived power differentials yielding an unintentional atmosphere of coercion? It would seem that absolute innocence doesn’t qualify as a defense against this provision—the “guilt” of the “perpetrator” would depend entirely on how the “victim” perceived his “unintentional” acts. Since this clause addresses “perceived power differentials,” it would seem as if only white males could be found guilty under its terms.

“Sexual misconduct,” continues the code’s litany of arbitrary provisions, “also includes sexual exploitation, defined as taking non-consensual, unjust sexual advantage of another for one’s benefit or the benefit of another party.” So: two women are talking on Central Campus. (They’re whispering, so as not to violate the “Acela Noise rule.”) One looks up and sees an attractive male student across the way. Both comment appreciatively; one even chuckles to herself, with a low whistle. Interpreting the code literally, this act would constitute “sexual exploitation” at Duke. The action certainly was “non-consensual,” and the two women—especially the one who chuckled to herself—could be deemed as taking “sexual advantage of another for [her own] benefit.” The only possible defense for the women? Claiming that they took “just sexual advantage” of another. Does a difference exist between “just sexual advantage” and the “unjust” variety? The code doesn’t say, but the use of the “unjust” modifier suggests a distinction does exist.

Bringing together the far-right and far-left provisions of the code, the sexual harassment section notes that prohibited “acts may or may not be accompanied by the use of coercion, intimidation, or through advantage gained by the use of alcohol or other drugs.” Well, they “may or may not” be accompanied by a UFO sighting, too. But even stranger is the implication that alcohol constitutes a “drug”—i.e., “the use of alcohol or other drugs.” But the code’s alcohol section makes no attempt to define alcohol as a “drug.” So: does Duke now consider alcohol a “drug”? If so, on what legal basis has it reached that judgment?

In the end, it seems as if the entire response of what Chemistry professor Stephen Baldwin termed the campus “righteous” revolves around an attempt to exploit the crisis to transform Duke's curriculum. “Educational and preventative measures,” affirms the code, “are necessary components of the university’s commitment to reduce sexual misconduct in its community.” The specific nature of these measures, of course, remains undescribed, yet it’s not hard to imagine what the code’s authors have in mind. The Group of 88 has been issuing similar demands since the spring; Neal, for instance, pushed for using the lacrosse affair to adopt radical curricular changes “that will allow our students to engage one another in a progressive manner.” Coming from someone who describes himself as an “intellectual thug,” this goal is hardly reassuring.

Duke students—or, at least, those Duke students viewed with disfavor by the administration and faculty—will begin this fall term in a highly vulnerable position. They will confront a disciplinary code of stunning vagueness, one whose enforcement will depend solely on the arbitrariness of student life officials. The code’s sole ideological consistency is a hodge-podge of all the criticisms directed against the lacrosse team. By this stage, we’ve come to expect nothing less from Brodhead and his administration.

Quid Pro Quo?

It's been pretty clear since shortly after the primary that his handling of the lacrosse case ensured D.A. Mike Nifong's renomination: he dramatically increased his support from African-Americans at the expense, perhaps, of losing conservative whites who, as registered Republicans, couldn't vote in the primary anyway.

Today brings even more interesting news. In the primary, the third candidate, African-American lawyer Keith Bishop, received the endorsement of the influential Durham Committee on the Affairs of Black People, which represents the city's black political establishment. Yet on March 31, the public face of that establishment, Durham mayor William Bell, sent a campaign contribution to Nifong (see p. 5 of this recently released campaign finance report). To my knowledge, Bell never mentioned this contribution in the many interviews he did in the height of media scrutiny of the case.

The money flowed only four days after Nifong gave his first in dozens of interviews denouncing the players--interviews that were certainly misleading and almost certainly violated the NC ethics code.

First Mark Simeon, Kim Roberts' attorney, and now Mayor Bell--endorsing Nifong immediately after he began his p.r. crusade. The apparent lesson? District attorneys who flout ethical requirements benefit from the act.

Update, Monday, 9.28pm: I (unintentionally) used an outdated name for the organization that endorsed Keith Bishop in the primary, the Durham Committee on the Affairs of Black People. My thanks to Cash Michaels for correcting the error, and I apologize for not double-checking in the original post.

Vaden Meanders On

N&O public editor takes half a page in today's paper to tell what we already knew: reporter Joseph Neff made a mistake "of carelessness, not of malice" in incorreectly dating the Soucie memo. But his column includes the following:

THE BIG QUESTION FOR ME, in the aftermath of this case, is the effect on The N&O's credibility and its effectiveness in continuing to report on the lacrosse case. Will readers be less confident of future reporting?

Not from the immediate reaction I received. Most of the two dozen or so e-mails and blog comments excused this error and praised Neff's work, which was The N&O's closest examination to date of the DA's handling of the lacrosse case. Many of the comments, it should be said, were from people who have been highly critical of Nifong's performance and The N&O's reporting of the case. Several noted that the Soucie-Nifong exchange, regardless of the date, still raised questions about the prosecution's case.

But there were some who questioned the handling of the error and the correction. Eric David, a law student at UNC, said: "To say that an error renders the 'implication' of the first five paragraphs of a story obsolete, but 'does not affect the accuracy of the remainder of the story' is just not acceptable. The story ... was the implication. If the implication underlying the story is false, the whole story is false."

So, the vast majority of e-mails and blog postings on this issue placed Neff's error in proper context, or pointed out that the incorrect dating actually made the case against Nifong more problemmatic. And Yet Vaden quotes at length from the one e-mail that takes an opposite view--an e-mail, no less, that incorrectly describes the story's argument. Curious editorial decision.

Update: JinC has an excellent summary of the problems with Vaden's piece.

The N&O's Rogers: "I'm Not Smart Enough"

For his final 18 months as White House press secretary, Scott McClellan was regularly peppered by the media for comment about allegations that Karl Rove leaked material relating to the identity of CIA agent Valerie Plame. McClellan’s regular response: he couldn’t comment while an investigation was proceeding, and the truth would come out at trial. This non-response response persuaded few in the White House press corps, which understood that McClellan’s procedural gambit was nothing more than an excuse to avoid discussing Rove’s conduct.

In this morning’s N&O, columnist Dennis Rogers sides with McClellan, and effectively says that the nation’s top journalists didn’t know what they were doing when they pressed McClellan for an opinion regarding the Plame inquiry. He says that the press and especially the bloggers (he joins Mike Nifong in denouncing the pernicious effects of the blogs) must remain “very, very quiet,” thereby “trusting American justice.” We must wait for the truth, muses Rogers, and express no opinions: "that's why we wisely let juries determine the painful truth in this country." It seems as if Rogers hasn’t read Susan Estrich’s latest column—which accurately points out that a trial will only inflame racial sentiments in the community, while likely leaving disappointed those eager for the “truth.”

Moreover, Rogers seems to misunderstand the purpose of juries, which is to render a verdict—guilty or not guilty. It is not a jury’s job to "determine the painful truth." “Innocent” is not among a jury’s choices. Unlike, say, the 9/11 Commission, a jury doesn’t release a report explaining its decision and attempting to show the public the “truth.” Indeed, there sometimes is no relationship between the “truth” and a jury’s verdict. A not-guilty verdict could be based on a jury's belief that the defendants probably committed the crime, but the prosecution didn't meet its very high standards. A guilty verdict (as the N&O’s pathbreaking coverage of the Alan Gell case revealed) can sometimes result from excessive emotionalism or prosecutorial misconduct. In both cases, the "truth" would have differed from the jury's verdict.

Rogers also seems unaware of a cardinal principle of American constitutional law since Mapp v. Ohio. Juries do not hear evidence obtained through police or prosecutorial misconduct; and prosecutorial misconduct of a sufficient degree (as in, say, when a prosecutor orders a police department to violate its own procedures in obtaining evidence) means that a case doesn't go to a jury. For Rogers, however, remaining “very, very quiet” in the face of such misconduct means “trusting American justice.” If only Alan Gell's prosecutors could have arranged for Rogers to coordinate the N&O's coverage of the case, Gell might still be on death row.

A few people in the contemporary climate have, indeed, claimed that the public and the press should remain silent as prosecutors have carte blanche to do as they please, regardless of the law or procedures. These people have, from time to time, included McClellan’s former superiors, and it seems as if, once again, Rogers prefers to follow the McClellan line. Easier, I suppose, than doing some original thinking.

If we have any institution in this country that has a task of ferreting out "the painful truth in this country," it is the media. In his column, Rogers explains why he’s unable to fulfill this task: “Turns out I am a moron for not seeing what is clearly going on in Durham.” In light of this admission, perhaps the N&O should raise its hiring standards.

Intellectual Thuggery

On April 20, one day after the procedurally dubious arrests of two Duke students, President Richard Brodhead participated in the institution’s first public event discussing the ramifications of the lacrosse scandal. This “Conversation on Campus Culture" was designed, according to the Duke Chronicle, to “discuss issues of sexism, racism and student social life.” In addition to Brodhead, the nine-member panel included several students, the dean of students, the university chaplain, and one faculty member: Mark Anthony Neal. A professor of African and African-American Studies, Neal was one of the 88 Duke faculty members who had signed a public statement saying “thank you” to campus protesters who had shouted to lacrosse players, “Time to confess”; banged pots and pans outside the residences of team members and Duke provost Peter Lange; and distributed a “wanted” poster containing photos of more than 40 team members.

Two weeks earlier, Brodhead had issued a public statement seeming to acknowledge that a rape had occurred; at the campus culture initiative, he announced, "This is a moment to look at things and ask if those things are what we want for ourselves." (Due process and the presumption of innocence do not appear to be among the “things” the president mentioned.) Chaplain Sam Wells amplified on themes from his April 2 sermon, reproduced in full in the April 9 Herald-Sun, in which he denounced "the subculture of reckless 'entitlement', sexual acquisitiveness and aggressive arrogance” and spoke of exposing “the reality that sexual practices are an area where some male students are accustomed to manipulating, exploiting and terrorizing women all the time—and that this has been accepted by many as a given." In an e-mail to me, the chaplain denied that these statements referred to members of the lacrosse team, and said that he was simply issuing a general critique of sexual misconduct. But it seems hard to believe that many people on campus or Herald-Sun readers would have appreciated such nuance.

As the dean of students, meanwhile, expressed fear that Duke students had created a "culture of crassness,” Neal pressed for curricular changes “that will allow our students to engage one another in a progressive manner.” By this point, he already had emerged as a point person in heightening campus protests. The professor sought to help “various communities mobilize[] to lay claim to [the allegation’s] significance”—groups such as “activists rightfully protesting yet another incident of alleged sexual violence related to a college campus” and “members of various black communities who wanted to highlight the racist implications of the alleged assault.” Though absolutely no evidence exists that the team captain who organized the party requested black dancers (and, indeed, the second dancer specifically denied such a request was made), Neal opined, “Regardless of what happened inside of 610 N. Buchanan Blvd, the young men were hoping to consume something that they felt that a black woman uniquely possessed. If these young men did in fact rape, sodomize, rob, and beat this young women [sic], it wasn’t simply because she was a women [sic], but because she was a black woman.”

This past spring, Neal also spoke with Duke’s alumni magazine, which just published the interview. Attempting, in part, to defend the accuser’s chosen profession, Neal reasoned:

When we think about women who work in strip clubs, the key component there is that word "work." In some ways this is legitimate labor, and we need to be clear about that. And women make these decisions based on what kind of legitimate labor is in their best interest. While it's important that black women's sexuality not be exploited, at the same time, I don't want to get into the business of policing black women's sexuality, which is just as dangerous.

Neal was even more revealing in discussing his own intellectual approach:

I have an alter ego—my intellectual alter ego. My intellectual alter ego is thugniggaintellectual—one word . . . I wanted to embody this figure that comes into intellectual spaces like a thug, who literally is fearful and menacing. I wanted to use this idea of this intellectual persona to do some real kind of "gangster" scholarship, if you will. All right, just hard, hard-core intellectual thuggery.

“Intellectual thuggery” seems a highly appropriate description for the actions of the Group of 88, faculty members who sold out their own students to an unethical prosecutor to forward their own persona, curricular, or ideological agendas. That Duke Magazine elected to disseminate this information to all the University’s alumni—at the same time, in an earlier article, the magazine could not bring itself to mention any of the lacrosse players’ positive accomplishments revealed in the Coleman Committee report—gives a sense of the Brodhead administration’s current mindset.

At first blush, however, it appeared that the administration simultaneously rebuked the “intellectual thuggery” the campus experienced last spring. The just-revised version of the student behavior code contains the following provision: “Disruptive picketing, protesting, or demonstrating on Duke University property or at any place in use for an authorized university purpose is prohibited.”

While Duke is committed “to protect the right of voluntary assembly, to make its facilities available for peaceful assembly, to welcome guest speakers, to protect the exercise of these rights from disruption or interference,” it also respects the right of each member of the academic community to be free from coercion and harassment.” Indeed, the code maintains, “the substitution of noise for speech and force for reason is a rejection and not an application of academic freedom.”

Surely, it would seem, people who bang pots and pans outside students’ residences would exemplify “the substitution of noise for speech and force for reason.” And an institution where faculty members who practice “intellectual thuggery” publicly thank protesters who distribute “wanted” pictures of students around campus is not one that “respects the right of each member of the academic community to be free from coercion and harassment.”

Lest the anti-lacrosse protesters misinterpret things, however, Duke’s student life apparatus took out a full-page ad in the most recent Duke Chronicle. The new policy has its own tag-line: Bad Behavior—“Not Fine by Duke.” If this language structure seems vaguely familiar, it should: last spring, the anti-lacrosse protesters so cherished by the Group of 88 sported T-shirts reading: “Men’s Lacrosse? Not Fine by Me.” The Brodhead administration’s message: the revised behavior code represents an extension of the springtime protesters’ agenda.

In this respect, the provision might best be characterized the “Judge Stephen A. Titus Rule on Disruptive Picketing.” Titus, of course, is the Durham judge who recently issued a gag order after D.A. Mike Nifong had completed his publicity barrage—but as defense attorneys were still picking apart the district attorney’s myriad misleading and inaccurate public statements. The Group of 88 and their pot-banging allies have already had their say on campus. So it seems as if the Titus Rule represents a preemptive strike against returning students who, this fall, might be inclined to ask with excessive passion why the administration and much of the Duke faculty have stood silently by as local authorities have created a dual-procedure system in which they treat Duke students with a different, and less protective, set of procedures.

In the meantime, it’s worth pondering what it says about Brodhead and his administration that the president denounced Duke’s alleged “culture of crassness” while he spoke supportively alongside a professor who describes himself as “thugniggaintellectual” and says he embodies “this figure that comes into intellectual spaces like a thug, who literally is fearful and menacing.”

What Did Nifong Know, and When Did he Know It?

Timelines are unusually significant in the Duke lacrosse case. Sunday’s N&O article by Joseph Neff, and subsequent correction of the date of a key memo whose existence Neff first revealed, provides more timeline clues. For the first time, it seems more than plausible to suggest that D.A. Mike Nifong’s misbehavior extended beyond procedural misconduct.

Thanks to the N&O, a new timeline of the case’s investigation exists. Dates of items first publicly revealed from the Neff exposé are bolded.

March 16: Operating under the assumption that, as the accuser had claimed, her attackers were named Matt, Adam, and Brett, the Durham police constructed a photo lineup array. The lineup loosely conformed to Durham’s guidelines (which are among the state’s weakest): the accuser was told that her attackers might or might not be in the array, and she was shown five “filler” photos for every suspect. These “filler” photos, however, were of other lacrosse players, not people uninvolved with the case, as the guidelines suggest. (The photos came from the Duke lacrosse website.) Since the team had two students named Matt, the accuser looked at four arrays of six photos each. She identified no one as her attacker.

March 21: When the accuser returned to the police station to pick up some of her other items, she was shown two more six-player arrays. The accuser identified no one. That outcome should have come as little surprise to the police. In extraordinarily vague terms, she had described one of her attackers as “chubby” and said a second weighed about 270 pounds. Duke’s lacrosse team, an elite Division I athletic squad, had no “chubby” players, nor did any of its players weigh anything close to 270 pounds.

March 23: Nifong’s office obtained a court order for all 46 white players on the team to submit DNA samples. The motion neglected to inform the court that the accuser had failed in photo lineups to identify as her attackers at least 36 players on the team, including at least two (Reade Seligmann and Dave Evans) she ultimately would select. With the wording of the order, authorities abandoned their March 16 belief that Adam, Matt, Matt, and Brett were their targets; now all 46 white players were suspects. At the time, Nifong promised, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

March 27-28: In his first public comments on the matter, Nifong repeatedly expressed confidence—in interviews with MSNBC and with North Carolina stations WRAL and NBC-17—that the DNA evidence produced by the court order would solve the case.

March 29: In an interview with the N&O that was published March 30, Nifong suddenly and dramatically reversed course on the significance of DNA to the case. He now suggested that the attackers could have used condoms—even though the accuser had denied her alleged attackers used condoms, which the district attorney would have known had he read his own file before speaking out publicly. "How does DNA exonerate you?,” mused Nifong. “It's either a match or there's not a match. If the only thing that we ever have in this case is DNA, then we wouldn't have a case." He no longer mentioned a relationship between the return of the DNA results and closing out the case, and offered no public explanation for his new viewpoint.

March 31, 12.23pm: In a meeting with the two chief police investigators on the case, Nifong ordered a second photo lineup. Only this time, he told the officers, they were to ignore Durham’s procedures and these Nifong-mandated procedural irregularities “strongly suggest[ed] that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.”

April 4, 11.29am: The accuser’s procedurally flawed photo ID session began. Eventually, the accuser identified four players, of whom Nifong charged three. (He couldn’t charge all four, since none of the accuser’s myriad stories had cited an attack by four players, though she had claimed at one point that five had attacked her.) Nifong has never publicly explained how he chose the three that he did; the accuser said she was 100% certain that Seligmann looked like a person who attacked her, while she commented, after seeing a photo of Evans, to be 90% certain that the photo resembled someone with a mustache who attacked her. Evans has no mustache.

April 4, 3.59pm: Police Investigator Michelle Soucie memorialized a conversation in which she gave Nifong price quotes for DNA tests at a private lab. In his pre-primary publicity barrage, Nifong had never suggested that he would request a second round of tests: he had stated, repeatedly, that he would indict based on the results from the state lab. Indeed, the fact that the prestigious SBI lab handled his request on an expedited fashion suggested that its word would be definitive. Nifong’s only motive for seeking a second round of tests, of course, was bad news from the SBI. In short, sometime before 3.59pm on April 4, the district attorney knew that the first DNA tests would all come back negative. Alas, the N&O, since it dated the memorandum incorrectly in an error unrelated to the content of the story as a whole, has removed this document from its website.

April 10: Nifong supplied the DNA test results to defense attorneys, who publicly announced that all 46 were negative.

This timeline reveals an investigation whose basic evidentiary goal veered dramatically whenever findings contradicted the district attorney’s public theories and political needs. The theories drove the search for evidence; the finding of evidence had no impact on the theories. As a result, the inquiry divided into three, distinct, segments.

First, from March 14 through March 21, the police employed standard tactics, showing the accuser a photo lineup that, more or less (less, in this case), conformed to the spirit of city guidelines. The accuser identified no one; her descriptions of at least two of her alleged assailants did not resemble anyone on the team.

The second stage began sometime between March 21 and March 23, when Nifong seized control of the case. The district attorney argued now that DNA, not results from a photo lineup, would provide the key evidence, and obtained an extraordinarily broad court order to get the evidence he wanted.

Then, no later than the morning of March 31, Nifong completely reversed himself: a photo lineup, not DNA, would supply the key evidence—even though, just 10 days earlier, he had gone to the court on the grounds that DNA, not photos, would make his case. In the new reality, moreover, authorities would simply pretend that the first photo lineup had never occurred. To ensure that someone would be picked that he could indict before the May primary, the district attorney ordered the police to conduct a lineup that violated Durham’s procedures by consisting solely of suspects, and by telling the accuser of this fact.

The transition from phase one of the investigation to phase two—i.e., from reliance on photo IDs to the mass gathering of DNA evidence—was irregular: the courts generally frown on demanding DNA solely on the basis of group membership. As Durham attorney Alex Charns noted at the time, “I can't imagine a scenario where this would be reasonable to do this so early in the investigation. It seems unusual, it seems over-broad, and it seems frightening that they're invading the privacy of so many people." To interpret Nifong’s actions in the most favorable light to the district attorney, perhaps he wished to give every conceivable benefit of the doubt to the accuser.

There can be, however, no benign explanation for the transition from stage two (DNA as the inculpating evidence) to stage three (back to photos, but with a lineup that violated all procedures). The question, therefore, becomes when, and especially why, Nifong made this decision. The Soucie memo confirms that the district attorney had word of the negative DNA results at least six days before they were publicly revealed. How much earlier had he gained access to this information? Did he know of the likely negative outcome on March 29, when he inexplicably started to downplay the significance of DNA in his public statements?

Regarding the negative DNA tests, the question is: what did Nifong know, and when did he know it?

Specifically, why, on March 31, did he order the Durham police to orchestrate a second lineup that violated their own procedures in virtually every way, even though they had already conducted a lineup whose results he ignored? Did he do so in response to a heads-up that the DNA tests he had promised would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack” instead produced no matches? If so, he dangerously abused his authority, in a manner well beyond his (by now routine) violations of the state ethics code.

It’s unlikely that the Herald-Sun, whose ardently pro-Nifong editorial stance has recently seeped into its news coverage, will explore these matters; and, from the look of things, the Herald-Sun is the only media outlet to which Nifong speaks.

Perhaps, in any case, the questions of what Nifong knew and when he knew it are more appropriate for federal authorities to ask. It’s high time they did so.

Hat tip: Greg Kidder.

The Soucie Memo

At a time when most reporters in the state have either moved on to other matters or—as in the case of the Durham Herald-Sun—seemed to uncritically evaluate the motives and statements of D.A. Mike Nifong, one North Carolina journalist has consistently been ahead of the pack: the N&O’s Joseph Neff.

Neff’s latest story provides a devastating account of Nifong’s procedural misconduct and lack of evidence in the lacrosse case, uncovering critical and heretofore unrevealed information about the medical reports, the accuser’s initial descriptions of her alleged assailants, the odd timing of the accuser’s ultimate statement to police, and Nifong’s hands-on involvement with the police investigation. Neff made a rare error, however, in the story, inaccurately describing a memorandum by Durham PD Investigator Michelle Soucie as having been penned on April 17, when actually the memo was written on April 4. The N&O promptly issued a correction.

The error, however, meant only that Neff’s story was excessively kind to Nifong, and affected none of the story’s conclusions. The material in the excerpted portions of the Soucie memo, in combination with other facts and documents already publicly available, reinforces the pattern of this case: the more material released, the more indefensible Nifong’s behavior appears.

The previously unreleased Soucie memorandum brought four items to light. In its correction statement, the N&O writes that the corrected date for the memorandum (from April 17 to April 4) “changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.” The words of the correction were poorly chosen. For, in fact, as Neff’s original article claimed, “the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.”

Before April 4, Nifong gave dozens of interviews to the state and national media commenting with certainty on the “events” of the “rape.” Here are three typical examples of his remarks:

March 29, MSNBC: “The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.”

March 29, WRAL: “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

March 30, CBS News: "The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases. And the investigation at that time was certainly consistent with a sexual assault having taken place.”

Yet, days after Nifong made these and other similar statements, Soucie recorded the following, according to the memo the N&O uncovered: "Mike Nifong stated that: Also need documentation on escort service and how they do business. Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident—with witnesses." Neff’s original conclusion is correct: Nifong “had said repeatedly on national television that he was certain the dancer had been raped. Yet the prosecutor was still trying to rule out other explanations for the vaginal swelling a hospital noted in its examination of the accuser. The words and actions of police and prosecutors had outpaced the facts in the file, and not for the first time.”

This memo, in short, is the clearest example of date of misconduct by Nifong in his public remarks. Not only was he violating the state bar’s prohibition against statements “that have a substantial likelihood of heightening public condemnation of the accused,” he was, to put it bluntly, dissembling. Shortly after he dismissed “the alternate explanation” for the accuser’s alleged injuries (which, as things turned out, were far less severe than the D.A. claimed) to MSNBC, Nifong admitted to Soucie that he wasn’t sure if an “alternate explanation” did exist—namely, that “what [the alleged] victim did on the day before arriving at 610 N. Buchanan” could explain her trauma. Neff’s words—“the words and actions of police and prosecutors had outpaced the facts in the file”—are charitable in describing the misconduct here.

The N&O obviously had to issue a correction regarding the date of the Soucie memorandum, pointing out that it was written before Nifong sought indictments. But, contrary to the insinuation of the correction text, the memo’s earlier date actually raises more questions about Nifong’s conduct, rather than weakening any of the article’s conclusions. Three matters are immediately apparent.

First, the order contained in the Soucie memo had one immediate effect: the obtaining of the statement of Jarriel Johnson, the figure generally described as the accuser’s “driver.” Johnson provided his statement to police two days after Nifong instructed Soucie “to nail down what victim did on the day before arriving at 610 N. Buchanan.” Unfortunately for the district attorney, however, Johnson’s affidavit (reproduced at page 27 of this motion) provided no help in showing “that [the accuser] did not receive trauma prior to the incident.”

Johnson revealed that the accuser had engaged in a variety of private “events” in the hours before the lacrosse party, including at least one that involved use of a vibrator. As Liestoppers blog explained yesterday, “While Nifong instructed DPD to find witnesses to show that the accuser's nether region was unswollen, instead they found him Jarriel Johnson whose description of accuser's activities seemed to do the exact opposite. Nifong asked for proof that the swelling couldn't have been caused by the accuser's escort service activities, and instead found proof that it could very well have.” Yet he sought indictments anyway. The correct dating of the Soucie memo thus shows Nifong’s closed-mindedness to any evidence contradicting his theories as early as April 6. So much for his duty, under the state bar’s ethics code, to serve as “a minister of justice.”

Second, the initial part of the memo is highly unusual: it details Soucie’s efforts, acting on Nifong’s orders, to schedule DNA tests at a private laboratory. But Nifong had already sent the DNA samples to the state lab, and was, in theory, awaiting results on April 4. On March 28, he announced, “There won't be any arrests before next week. I have decided not to make arrests until DNA evidence is back.” Two days later, however, he downplayed the effects of DNA in comments to the N&O, and now we know that on April 4 (six days before defense attorneys received results showing that there was no DNA match between the lacrosse players and material from the accuser’s rape kit), Nifong was telling the Durham police to schedule more testing.

Why does this date matter? On April 4, Nifong arranged a photo lineup for the accuser. In yet another scoop from the story, Neff reveals that the accuser already had gone through a photo ID session, at which she failed to identify any player as her attacker. (Hints of this lineup array existed in an earlier defense motion, but since then, the matter had received almost no public discussion until Neff’s exposé.) Given that Soucie was searching for an alternative private testing lab as of April 4, it seems more likely than not that the impetus for this second photo lineup came from Nifong’s discovery of the negative DNA tests.

This photo ID session violated Durham procedures and North Carolina norms in four major ways. A fifth violation can now be added to the list: no North Carolina lineup procedures that I examined contained even a mention of doing a second ID with photos of the exact same group of suspects if the accuser couldn't come up with a match the first time.

The April 4 session resulted in the accuser identifying Reade Seligmann with 100% certainty as “looks like one of the guys who assaulted me sort.” On this basis, and this basis alone, Nifong sought Seligmann’s indictment—even though Seligmann didn’t resemble any of the accuser’s original descriptions of her attackers. (He is 6’1”, 215 lbs.; as Neff’s story reveals, the accuser described one of her attackers as “chubby”; a second as weighing 260-270 pounds; and a third as “short.”) Despite this anomaly, which suggested that a procedurally flawed photo ID had yielded a flawed result, and although 13 days passed between the photo ID and the indictment, neither Nifong nor anyone from the Durham Police Department ever spoke with Seligmann or his attorney. (To this day, no one from the Durham Police Department has spoken with Seligmann.) And on the day of the indictment, in violation of yet another provision of the state bar’s ethics code, Nifong refused to meet with Seligmann’s attorney, who offered to present exculpatory evidence.

The inference from the Soucie memo: as soon as Nifong learned that the DNA tests, which he previously had promised would identify the guilty, instead came back negative for all, he orchestrated the procedurally improper photo ID session. When the accuser identified someone who hadn’t even been considered a serious suspect until that point, Nifong, despite his obligation to act as “minister of justice,” went out of his way not to seek any additional information about Seligmann before the next session of the grand jury—which he had already announced would be the final possible meeting before the D.A. primary at which he would seek indictments.

Finally, the Soucie memo provides additional evidence of one of the odder aspects of this case: Nifong’s service as de facto police commissioner. The district attorney was telling the police to conduct more DNA tests. The district attorney was ordering the police how and in what manner to conduct their investigation. Where was the police chief? The deputy police chief? Why was Nifong doing their jobs?

Nifong’s defenders have frequently pointed to his long record in the district attorney’s office to justify his handling of this case. But he never served as a police officer (he did spend three years as a social worker after college), and he therefore had never, before this extremely high-profile case, run a police investigation. As the Soucie memo shows, Nifong wasn’t cut out for such activity. His orders to the police department included getting “documentation on escort service and how they do business.” I suspect few police lieutenants would have needed to investigate how escort services “do business.”

Contrary to the ABA’s suggested guidelines (Standard 3-2.10), North Carolina lacks a mechanism to constrain runaway prosecutors, and, as the Soucie memo shows, Nifong has positioned himself as a quasi-police commissioner in Durham. The governor and attorney general have shown no willingness to step in. In the 1950s and early 1960s, the federal government involved itself with the FBI and the Justice Department when renegade Southern prosecutors overrode procedures to fulfill their political or personal crusades.

Echoing a point that MSNBC’s Tucker Carlson has been making for some time, a DBR editorial recently stated, “There have been calls for special prosecutors in this case before, but the idea has been they would replace Nifong. At this point, given what is now known, perhaps Nifong is the one who needs to be prosecuted.” What threshold of misconduct must become documented before the FBI involves itself? Given the performance of the Raleigh/Durham media to date, Neff seems to be the most likely reporter to reveal additional misconduct—and, given what he showed in Sunday’s article, additional misconduct almost certainly exists.