Durham as Wonderland

A somewhat routine ruling, but nonetheless one that stresses how far out of step Durham is from the rest of the country.

CNN reports that "authorities are reviewing the conviction of a man imprisoned for a 1992 rape after he was cleared by DNA tests that the original lab analyst refused to conduct." The improper conviction was based on . . . the accuser's identification.

In Durham, DNA evidence is irrelevant. In the rest of the country, it frees the falsely convicted.

Michael Gustafson Speaks Out

In 1940, the American Association of University Professors published its statement on academic freedom and tenure. A ringing defense of academic freedom that was subsequently endorsed by over 200 organizations, the statement reminded professors that academic freedom “carries with it duties correlative with rights.” In the AAUP’s words:

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

Few of the Duke professors who have spoken out about the lacrosse case have fulfilled the obligations laid out by the AAUP statement. The Group of 88 appears to have given little or no thought to how their own rush to judgment would affect how the public would “judge their profession and their institution.” Faculty members such as Thomas Crowley, Peter Wood, and Orin Starn have sacrificed accuracy in pursuit of their personal or ideological prejudices. And few, if any, reasonable observers could contend that Karla Holloway, William Chafe, Houston Baker, Wahneema Lubiano, Thavolia Glymph, or Grant Farred have exercised “appropriate restraint” in what they have said or done about the case.

Academic freedom is not an end to itself: it is supposed to provide a means to the end of free exchange of thought on campus. Perhaps because the Group of 88 and their supporters so flagrantly have failed to respect the “duties correlative with rights” of academic freedom, on the Duke campus over the last several months, few arts and sciences professors have been willing to publicly challenge the vocal minority.

This situation is especially unfortunate in that those professors who have overcome the chilling effects of “groupthink” have had important things to say. The latest example—Engineering professor Michael Gustafson, who has offered a comprehensive critique both of his fellow faculty members and of the media/legal climate currently prevailing in the Triangle.

Most Duke faculty members have either given Mike Nifong a pass or acted as his de facto cheerleaders as he established a “separate-but-equal” system for Duke students and Duke students alone. But Gustafson interpreted the evidence in the only way possible: “The current DA will allow nothing - even the law - to get in the way of securing his tenure as District Attorney, and anyone who wants a public office so much they are willing to undermine the legitimacy of that office to get it, doesn’t deserve it and cannot be allowed to hold it.”

On Election Day, the “minister of justice” jokingly said that he might have “prejudged” a young man wearing a lacrosse T-shirt, to whom he refused to speak. This comment all but passed without notice among Duke’s faculty. (Imagine the appropriate outrage if a district attorney had uttered a similar comment about an African-American student wearing, say, a T-shirt celebrating the African National Congress.) Gustafson, however, was appropriately outraged. After summarizing Nifong’s procedural misdeeds, the professor expressed amazement that “he has the arrogance to make a JOKE about that - about prejudgment? The chasm into which Mr. Nifong’s professionalism continues to sink apparently knows no bounds.”

Gustafson similarly has taken on the poor media coverage and the inappropriate actions of the Duke administration, but he has reserved his most penetrating insights for his colleagues in the faculty. He acknowledges that underlying issues of race, class, and gender exist on the Duke campus (as they do everywhere in the country), but has chastised Group of 88 members’ refusal to devote “critical thought about what is happening to the three men under indictment.”

“One thing the ‘Social Disaster’ poster did early on in the case,” Gustafson astutely noted, “is couple, to some, the ideas of the students’ guilt and the still-pressing problems we have on campus regarding class and gender and color and everything else. Unfortunately, by co-opting the energy of the moment in March, those faculty members and others may have pinned their hopes for a real discussion of important issues, knowingly or unknowingly, on a case that to me is not holding up well at all under the scrutiny that such a case rightly deserves.” And as the case collapses, the Group of 88 and their allies have refused to concede the error, because to do so will require asking some hard questions about their own behavior and beliefs.

Gustafson agrees that Duke has experienced “a social disaster,” but not the one that the Group of 88 has imagined. This disaster

involves three men who have been used by the media and others as a personification of Houston Baker’s “white, male, athlete, privilege” rather than being three men. It involves three men whose civil rights have somehow become far less important because of their color, and gender, and perceived place in society. It involves three men whose due process is apparently not the stuff of “critical thought” but rather secondary to a study of “broad social implications” . . . I must say one of the broadest social implications of this case has been the academy’s abandonment of the defense of civil liberties for these three men based on their social markers . . . We simply cannot allow our students’ civil liberties to be trampled so that we can extract the energy of the events of March 13^th to effect change on this campus. To do so would be a violation of the very trust that we have been given to educate the men and women who come to this place seeking to become critical thinkers.

For the past six months, Duke’s faculty has claimed to be conducting a comprehensive examination of “campus culture” while avoiding the most breathtaking cultural flaw the lacrosse case has revealed: the willingness of a vocal minority of the faculty to effectively endorse a prosecutor’s corrupt campaign against their own university’s students because of those students’ race, class, gender, and athletic status.

There seems to be little hope that the Campus Culture Initiative will address the questions that Gustafson has posed. But I hope his writings force other, more reasoned, members of the Duke faculty to consider what the reaction to the lacrosse case says about the institution at which they teach.

Questions and Answers, III

It’s been more than three weeks since the last Q+A post, and it seemed an appropriate time for another. Since August 28, the blog has received over 255,000 unique visitors, with just more than 460,000 page views. It now has received visitors from 94 countries, with new additions including the Dominican Republic, Guatemala, Luxembourg, Moldova, Bulgaria, Azerbaijan, Kuwait, Ethiopia, Kenya, Senegal, and Djibouti.

Q: KC, I am wondering what your professional opinion is. I believe I read somewhere that there is factual evidence that not all lacrosse players were at the party. If that scenario is true, would it be possible for the lacrosse players who were in the lineup photos and not at the party be considered fillers?

A: There were, to my knowledge, three lacrosse players who could prove they weren’t at the party. For three principal reasons, they would not be considered fillers:

• On March 31, when Nifong ordered the police to confine the lineup to lacrosse players, he had no firm information on which players were and were not at the party; he publicly stated, in fact, that all 46 were suspects. (In his capacity as lead investigator, Nifong ordered two non-lacrosse players he knew attended the party to be excluded from the lineup, presumably because in his capacity as police department spokesperson, he had failed to mention them in his public remarks about the case.) Durham General Order 4077 required police to have supplied five fillers for each suspect—or, 230 fillers, in 46 separate arrays. If lead investigator Nifong had wanted a narrower photo array, he should have asked the police to actually do some investigating before moving on to a “multiple choice” lineup.

• Filler photos are supposed to consist of people wholly uninvolved in the investigation that bear some physical resemblance to the suspects—i.e., other white college athletes, perhaps lacrosse players at UNC or Virginia; or wrestlers at Columbia; or even baseball players at Duke. This requirement explains why even the first photo lineup (March 16/21) was procedurally suspect: it should have consisted of the six suspects at the time (lacrosse players named Adam, Brett, or Matt, plus Dave Evans and Dan Flannery) plus thirty non-Duke lacrosse players. Ironically, this procedural error is a boon for the defense, since it opened the door to the accuser saying, two days after the event, that she was only 70% certain that she even saw Reade Seligmann at the party, only to be 100% certain 19 days later that he looked like a person who allegedly assaulted her. As an expert in lineup ID processes, Iowa State University professor Gary Wells, noted, “Memory doesn’t get better with time. That’s one of the things we know. How does she get more positive with time?”

• If the accuser had chosen, say, Brad Ross—the only player she twice stated she was 100% sure of seeing at the party, who in fact wasn’t even in Durham that night—there’s no reason to believe Nifong wouldn’t have sought and maintained an indictment against Ross despite this evidence. After all, he didn’t consider Seligmann on videotape someplace else at the time of the alleged attack to be grounds for dismissing the allegations against Seligmann.

One final point on this issue: the policy mandates a specific number of fillers—five per suspect. So even interpreting this issue in a light wholly favorable to Nifong and listing as fillers the three players who could prove they didn’t attend the party at any point when the accuser was present, the ratio would not be the required 5:1 but instead .07:1.

---------

Q: If Nifong has such a strong case, why doesn’t he turn it over to a special prosecutor? That way, he and the community get their trial, and the lax supporters get their wish to see the “evidence” independently reviewed.

A: An excellent question. We know, of course, why the “minister of justice” has refused this option: a special prosecutor would obtain access to his entire case file, and would be ethically bound to file a complaint against Nifong to the state bar if the file—as is very likely—revealed procedural violations. Moreover, a special prosecutor would have the right to recommend criminal charges against Nifong or Sgt. Mark Gottlieb.

Nifong enablers, on the other hand, have never provided a convincing answer to this question. Over the last several months, Nifong has shown himself to be a figure of dubious competence. That 51% of Durham voters cast ballots to recall him earlier this month suggests a majority of the potential jury pool they doesn’t believe a word he says about the case.

Those who fashion themselves as advocates for the accuser, therefore, should be eager for a special prosecutor to be appointed, allowing someone more competent and less personally polarizing to handle the case.

That, to my knowledge, none have advocated this proposal suggests that, whatever motivates the NAACP, or Nifong’s allies in the media, or a segment of the Duke faculty, or people like Harris Johnson, Greg Childress, and Chan Hall, seeking “justice” for the accuser isn’t high on their lists.

---------

Q: Do you seriously believe that Brodhead has the power to stop Nifong from pursuing his case against the LAX players?

A: I do not so believe. I do believe that Brodhead did—and does—have the obligation, as president of Duke University, to publicly demand that Durham authorities treat Duke students according to the same procedures granted to every other resident of Durham. To date, Brodhead has refused to take such a stance, suggesting that he accepts the city’s “separate-but-equal” policy toward his own institution’s students.

In the long term, it seems to me this passivity will be extraordinarily damaging to Duke’s ability to recruit top-flight students. I would imagine that parents considering sending their sons or daughters to Duke (especially sons) would have to think long and hard about whether they are willing to risk their children to an academic environment dominated by the Group of 88 and a legal environment characterized by the “separate-but-equal” system constructed by Nifong.

--------

Q: Did some of the Group of 88’s ads and statements venture from fair criticism into slander and/or libel of the three indicted and the 40-odd unindicted?

A: The Group of 88’s statement and subsequent actions, coupled with the Brodhead administration’s refusal to challenge (to borrow a phrase) the faculty’s “highly unacceptable behavior,” should give any parent great pause about sending their child to Duke under current conditions.

As to the question of legal liability: the Group of 88’s statement betrayed the signatories’ responsibilities as faculty members and was one of the most disreputable acts that I have witnessed in my 13 years as a college professor. While academic freedom gives faculty members a right to operate in a contemptible fashion if they so choose, the question is whether any or all of the Group’s actions crossed the line from contemptible to something actionable.

The clearest case is Peter Wood, who appears to have slandered Reade Seligmann and also made highly negative public comments about other lacrosse players for which the Coleman Committee found no corroboration. That Duke would have nonetheless installed Wood as chair of the athletics subgroup of the Campus Culture Initiative is nothing short of astonishing.

---------

Q: KC, I have a question. During the time you have been operating this web site, have you ever received any financial support either directly or indirectly from any current or former Duke LAX player, any member of the family or other relative of any LAX player, any other person who you have reason to believe is a supporter of the LAX players, or any attorney or law firm representing any of the indicted or unindicted LAX players? Also, have you received any nonfinancial assistance or advice or have you discussed strategy or worked in a coordinated manner with Bob Bennett or his law firm, or any other lawyer, law firm, or public relations consultant working on behalf of the LAX players or their families? Just curious.

A: These questions have a tone somewhat resembling, “Are you now or have you ever been a member of the Communist Party?” I am, however, happy to answer them.

Question Set One: I have received no financial support of any form, from any source, for my work on this case. The site is hosted on a free service (blogger.com), using my personal internet connection and computer. All work is, and has been, done by me. All time spent has been my own. All incidental expenses related to my posts, totaling several hundred dollars since the case began, have come from my personal checking account.

Question Set Two: My interest began when the Group of 88 issued its statement on April 6. As of that date, I had no connections to Duke and knew no members of the team or their families. At the time, I considered the statement a betrayal of the signatories’ duties as professors; I feel even more strongly on the issue now. Of course, as the extent of Nifong’s misconduct became apparent, my interest and involvement expanded as well.

As someone who has followed this case extremely closely, I have detected no role at all by Bob Bennett or his law firm; I have never spoken with him or with anyone representing his firm. I have never spoken with any public relations consultant working on behalf of anyone. Like everyone else seriously covering the case, I would have been derelict not to have asked questions both of defense lawyers and of Nifong’s office, and I have done so; since July, however, attorneys on both sides have operated under the restrictions imposed by the gag order.

---------

Q (via e-mail): This link describes the role of Mike Nifong’s staff members. As you can see, Linwood Wilson is listed as a “Worthless Check Program Coordinator.” If his role is to track down people who write bad checks, why is he the lead investigator in a high profile rape case?

(Here is a definition of the Worthless Check Program I found online: “The Worthless Check Program is a service of the District Attorney’s office in some counties. It allows people who have written checks that have been returned with insufficient funds to pay off those checks and any other fees that go along with them before anyone files a criminal process.”)

A: I have heard that Wilson has been promoted, to “chief investigator,” a position apparently unfilled in the D.A.’s office for several years.

It’s hard to imagine what he has done in this case to merit promotion: Wilson doesn’t exactly project an image of competence. His highest profile moment in the case came when he shouted down defense attorney Joseph Cheshire on the courthouse steps, claiming that he had read the discovery file and that, contrary to defense suggestions, the accuser had never changed her story.

The next day, Cheshire faxed a report to local news sources, with a copy of a police report handed over to the defense the previous day showing that the accuser had told one of the first police officers to interview her that five, not three, people raped her.

Wilson also had some other memorable actions in the case: he discovered Elmostafa’s 2.5-year old misdemeanor warrant, but never discovered the accuser’s previous filing of a three-man gang rape—a combination that provided a sense of his priorities. But I suppose that’s what we should expect when a district attorney hands over a criminal investigation to someone who was hired to track down bounced checks.

--------

Q: Is there any consequence for the attorney general of North Carolina for failing to exercise his duties in this case?

A: In a word, no. North Carolina law, ignoring the recommendations of the American Bar Association, contains no provision for a state attorney general (or governor) to act in the interests of justice and remove a rogue district attorney. Only the district attorney himself or herself can request appointment of a special prosecutor: obviously, that would never occur in this case, since a special prosecutor would obtain access to Nifong’s files, opening up the possibility of charges being filed against Nifong himself.

That said, nothing has prevented Roy Cooper—or Governor Mike Easley—from publicly disassociating themselves from the Nifong Rules. As they have elected not to do so means, I think it’s not unreasonable for observers to conclude that the two men are satisfied with Mike Nifong providing the image to the nation of how justice in North Carolina operates.

--------

Q: KC-Going way off the subject here, but sometimes we need to be lightened up, so here is my question. Are you an everyday bow-tie guy or is that just in the picture? Just curious. Paul Simon would be proud! :)

A: Although the two issues are unrelated (except perhaps subliminally?), I was a strong supporter of Paul Simon’s 1988 presidential campaign; and yes, I’m an everyday bow-tie guy . . .

Thank you for the questions; I will do another Q+A post as appropriate. In the meantime, the bow-tied staff of this blog extends warm holiday greetings.

More Malaklou

Duke Basketball Report has a must-read column appropriately comparing Shadee Malaklou's recent Herald-Sun op-ed to McCarthyism. (The links between McCarthyism and the case also were examined in a fascinating TalkLeft thread.) As DBR notes, quite beyond her other incredible statements, Malaklou twice suggests, without supplying any evidence, "that the lacrosse team has some history of rape." DBR summarizes the column as follows:

So there are three basic points here to consider:

1. Malaklou admits Nifong is abusing the system
2. Malaklou doesn't care that he is abusing the system because the lacrosse players need to be punished regardless of guilt in this particular case.
3. Malaklou infers that the alleged rape is not the first rape by a lacrosse player.
4. Malaklou also maintains that one of the strippers is not willing to put up with their allegedly criminal behavior.

So unless we misunderstand, regardless of whether or not they have committed the crimes for which they are charged, Malaklou thinks this is perfectly acceptable behavior by a prosecutor.

This is madness. Once we abandon the rule of law, the mob is never far away.

DBR concludes, "Shame on Malaklou for such a McCarthyistic attack, and shame on the Herald-Sun for allowing it in print. The paper has become a laughingstock in recent years, but this is a new low."

The Herald-Sun has, it seems, been willing to print any item, no matter how defamatory, against lacrosse players. Without providing any evidence (because none exists), Duke professor Thomas Crowley penned an op-ed claiming that team members “had a previously established history of rowdiness tarnished with racial comments.” Also without providing any evidence (because none exist), Malaklou contended that “very rarely are the Duke lacrosse players not partying or drinking.”

“Very rarely” is a somewhat vague term, but at the very least, it would imply that less than half the time “are the Duke lacrosse players not partying or drinking”—an astonishing claim, given that the players are varsity athletes who, as the Coleman Committee report revealed, are also very good students. I asked Malaklou what evidence she had for her assertion, and she replied, “I am talking about the whole lot of them. Duke Lacrosse players live in a culture of excessive alcohol and partying, and they are reputed to be the most ridiculous and outrageous drunks on campus.” [emphasis added]

Malaklou conceded, in the end, that “the only evidence I have of their ‘partying’ and ‘drinking,’ therefore, are my own experiences with them”—which would imply that, to have knowledge of the lacrosse players’ habits, she, too, “very rarely” would have to be “not partying or drinking.” Malaklou might have provided this fact to Herald-Sun readers, so they could judge her claims accordingly.

Malaklou added that she knew many lacrosse players, and produced her op-ed “as a friend and as a woman.” If only all Duke students could be so fortunate as to have such a “friend.”

Women's Studies Does Lacrosse

Several days ago, as public criticism of the Group’s action intensified, the Group of 88’s statement mysteriously vanished from the Duke server.

Another interdisciplinary program has stepped into the breach, however, ensuring that anti-team propaganda is readily accessible through a Duke academic website.

The Duke women’s studies program homepage supplies a link to none other than Karla Holloway’s “Bodies of Evidence,” in which the Group of 88 member posited, “White innocence means black guilt. Men’s innocence means women’s guilt.” The logical extension of this argument: the only alternative to condemning black women is to find the lacrosse players guilty, regardless of the lack of evidence against them.

Since “justice,” claimed Holloway, “inevitably has an attendant social construction,” judgments about the lacrosse case “cannot be left to the courtroom.” Instead, it seems, Duke’s women’s studies faculty must serve as the final arbiters of the truth.

The Duke women’s studies program includes 18 faculty members—of whom 13, or 72.2 percent, signed the Group of 88’s statement. The only academic work listed on the program’s homepage is Holloway’s article, which appeared in the summer 2006 edition of Scholar and Feminist Online.

This decision leaves two disconcerting options:

(a) “Bodies of Evidence,” an article published in an obscure journal with little academic standing, constitutes the most distinguished piece of recent scholarship produced by a Duke women’s studies professor.

(b) Program administrators included the link to express solidarity with Holloway’s extremist message.

The women’s studies program, home to less than five percent of the arts and sciences faculty, hosts the chairs of fully half of the Campus Culture Initiative subgroups. In addition to Holloway, who chairs the race subgroup, women’s studies and cultural anthropology professor Anne Allison co-chairs the gender subgroup.

Before the lacrosse case, Allison’s academic reputation came from her moonlighting as a “hostess” to research a book examining what she described as “the Japanese corporate practice of entertaining white collar, male workers in the sexualized atmosphere of hostess clubs.” She then attracted some national attention in 2003, when she violated Duke policy by using University funds to pay for an advertisement criticizing the Bush administration’s foreign policy.

Allison seems not to have learned the lesson about the inappropriateness of mixing academic efforts with her personal political crusades. In spring 2007, this professor—who outlines her research interests as “the ways in which desire seeps into, reconfirms, or reimagines socio-economic relations in various contexts in postwar Japan”—will be co-teaching a course entitled . . . “Hook-Up Culture at Duke.”

As the course introduction explains,

This course, designed as a direct result of events last year on campus, will give students a unique opportunity to examine and reflect upon gendered/sexualized life at Duke in relation to contemporary life in the U.S. We will ask: how has the history of university attendance in the US (in terms of race, class, and gender) impacted campus culture? Are new technologies changing intimate or familial relationships between people? How are distinctions between “at home” and “at work” (or public and private) linked to new kinds of subjectivity and sociality? How do particular bodies gain value in contemporary commodity culture? And finally, what does the lacrosse scandal tell us about power, difference, and raced, classed, gendered and sexed normativity in the US?

Each course unit will include theoretical readings that contextualize Duke campus culture within these larger US cultural and economic formations, emphasizing the ways that “hooking-up” at Duke must be understood in relation to larger intersections of sex, gender, power, and capital. To this end, in addition to theoretical readings, we will also devote a substantial portion of the class to both case studies (drawn from popular media, film, or ethnography) and to Duke-focused student ethnographic research projects.

The goal of the course is two-fold: 1) to understand “hooking-up” at Duke in terms of larger frameworks of race, capitalism/consumerism, class, lifestyle, identity, (hetero)normativity, and power, and 2) to enable students to critically assess both the nature of Duke hook-ups and the institutional setting of Duke itself.

If this course were to constitute a legitimate academic offering, it would have to address—among other items—questions that Allison would prefer to avoid, such as:

• What does the lacrosse scandal tell us about North Carolina’s excessively broad rape statute, in which demonstrable innocence doesn’t in and of itself constitute grounds for dismissal?
• What does the lacrosse scandal tell us about racialized politics, and how a district attorney can sell his soul and abandon all legal ethics, pander to a portion of the electorate by appealing to symbolic justice, and gain office?
• What does the lacrosse scandal tell us about groups like the state NAACP, for whom “difference” is such an important characteristic that due process rights appear to depend on a defendant’s race, class, and gender?
• And, finally, what does the lacrosse scandal tell us about, to use Allison’s language, “the institutional setting of Duke itself,” a university where 88 professors could sign a rush-to-judgment public denunciation, while the president publicly responded to the arrest of two of his students by telling local business leaders, “If they didn’t do it, whatever they did is bad enough.”

Does anyone seriously believe that Allison’s class will explore these or related questions?

Some students can use “Hook-Up Culture” as part of a year-long seminar featuring Group of 88 members using classes to rationalize their actions of last spring. This semester, Group of 88 members Thavolia Glymph (best remembered for having lamented that things were “moving backwards” when the DNA tests showed no matches to lacrosse players) and Susan Thorne are teaching a class that, according to the syllabus, “emerged out of our discussions of the allegations of sexual assault and racial taunting at the now infamous lacrosse party of March 2006. The criminal charges have not yet been tried in a court of law, but the allegations alone constituted a ‘perfect storm,’ rapidly escalating into a social disaster of extraordinary proportions.”

I asked Thorne why the course’s reading list contained no items on the legal background of Jim Crow justice; or examining, why, in the past if not in the current environment, civil rights groups had championed due process and procedural regularity; or whether Durham authorities had a tradition of overriding civil liberties depending on the political popularity and race/gender of the defendants; or whether some could interpret the real “social disaster of extraordinary proportions” as the extraordinary disregard of due process by Durham’s political and legal elite.

Thorne replied, “While due process is certainly the key issue with respect to the individuals involved, the firestorm generated by the allegations is the result of town gown problems that long predate the incident.”

Civil liberties, it would seem, are not a central concern—either academic or personal—to Duke’s ethnic and women’s studies faculty.

Hat tip: T.D.

Just One Case?

Of the many arguments that have transformed Durham into Wonderland, few have been more peculiar than that offered by local attorney Kerry Sutton. Proclaiming her joy that Mike Nifong prevailed with a plurality of the vote, she remarked, “If I ever mess up a case myself, I hope people won’t judge my entire career based on that case alone.”

Sutton’s words could be dismissed as the rationalizations of a sycophant; as Joseph Cheshire pointed out, “Lawyers whose livelihood and clients’ fates are often governed by the whim of the elected district attorney [need] to remain as close as possible to that DA no matter what he does.”

Yet, as John in Carolina recently noted, “just one case” has, of late, emerged as the last refuge for Nifong enablers. For instance, Steve Ford, explaining why the N&O failed to call for Nifong’s ouster even as its reporters exposed example after example of his unethical conduct, concluded, “To throw him out of office on the sole basis of that performance would have had the effect of substituting the judgment of voters for the judgment of jurors.”

A few weeks before, the N&O quoted a Nifong voter remarking, “Just over that one case, I can’t go against him.” Nifong backer Lee Castle, like Sutton a local attorney, offered the following pre-election endorsement: “Sure the DA needs to understand the law and trial work so he can supervise those working under him, but the ADAs carry the load . . . Nifong may have made mistakes concerning the lacrosse case, but he has done his job as an administrator by gathering around him people who do good work.” In early August, Nifong’s soon-to-be citizens’ committee chair, Kim Brummell, told the Herald-Sun that “Nifong should not be judged on one case.” And, of course, this approach has formed a consistent theme of Bob Ashley and the Herald-Sun for months.

The origins of the “just-one-case” mantra appear to lie with the “minister of justice” himself, who presented it when he unveiled the “New Nifong” at a July 28 press conference. Attempting to present himself as humble, in contrast to the arrogant, bullying image he had projected in April and May, he told the assembled media that he had made a few mistakes on the case. Nifong then added, “I’m here today to tell you the district attorney’s office is not about one case. It’s just not.”

The “just-one-case” argument is so absurd as almost to require no rebuttal. In effect, Ashley, Ford, Castle, Sutton, et. al. are saying that Nifong might well have engaged in massive prosecutorial misconduct in the lacrosse case, but for one reason for another (That the targets are out-of-state defendants? That the defense lawyers are unusually competent? That a sizable portion of the community demanded symbolic justice?), the “minister of justice” should receive a pass for his conduct.

As Duke Law professor James Coleman told 60 Minutes, this rationalization defies all logic. “You know, what are you to conclude about a prosecutor who says to you, ‘I’ll do whatever it takes to get this set of defendants?’ What does it say about what he’s willing to do to get poor black defendants?” It is outlandish to assume that a district attorney who engages in massive ethical violations in one case will not do so in others.

Imagine, moreover, extending the “just-one-case” excuse to other political figures. Backers of William Jefferson could concede that yes, perhaps the New Orleans congressman did act improperly when he took a $100,000 bribe and put the proceeds into his freezer, but, after all, this decision was just one in a long public career, and shouldn’t be singled out for punishment. Or partisans of Bob Ney could have posited that yes, perhaps the former Ohio congressman did sell his influence to lobbyist Jack Abramoff, but, after all, this move was just one unethical act in a dozen-year career of House service, and it would be unfair to judge him on that single instance alone.

There’s no record of either the Herald-Sun or Steve Ford’s N&O editorial page speaking out on behalf of Ney or Abramoff; and, indeed, Sunday’s Herald-Sun ran a lead editorial calling upon Jim Black, the ethically challenged speaker of the North Carolina House, to step down. Perhaps the two editorial boards believe that a different, and lower, standard of government ethics should apply in Durham than in the rest of the state and country.

The “just-one-case” rationalization, finally, is ahistorical. In his pre-primary publicity barrage, the “minister of justice” himself aggressively asserted that the lacrosse affair was more than “just one case.”

• On March 27, explaining why he would prosecute the case himself, Nifong asserted, “I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community,” since “it is a case that talks about what this community stands for.”
• The next day, he told a local TV station that the case would receive the full attention of his office. He then informed the AP, according to the wire-service story, that “he plans to prosecute the case himself to send a message to the community that authorities are taking the offense seriously.”
• And, at his “New Nifong” press conference in July, the “minister of justice” asserted, “The first message I intended to portray [with his pre-primary publicity barrage] was that the community was in good hands with respect to this case, and they did not need to worry about it.”

The lacrosse case is the only one that Nifong has handled personally since becoming district attorney. Should his ethics be evaluated on the basis of cases that others have tried? (Nifong has announced he will personally try a high-profile murder case that hasn’t yet made its way to any hearings, apparently as part of his philosophy of assigning to himself cases “that the national media has shown real interest in.”)

Now that the case has served his political purposes, however, Nifong wants to shift the goalposts. What once “a case that talks about what this community stands for,” he suggests, now should be viewed as simply one among the thousands of cases his office deals with annually.

Nifong enablers, it seems, are determined not to hold the “minister of justice” to the ethical standards of either the state bar or traditional politicians. Is it so unreasonable, however, to expect them to judge Nifong according to the standards that he himself once articulated?

The Herald-Sun's Peculiar Letters Policy

From time to time, I’ve published letters to the editor, in various newspapers. The normal practice, upon the letter’s acceptance, is for the paper to check any factual assertions contained in the letter. If the paper can’t verify the facts, the letters editor asks the writer to do so; if the writer, in turn, can’t verify the facts, the letter must be modified. I’m unaware of any newspaper that has a policy of printing factually inaccurate letters.

Any newspaper, that is, except for the Herald-Sun, at least if those letters reflect Editor Bob Ashley’s party line. In its November 8 edition, it published a letter from Norma Cone, who stated, “Not all 46 lacrosse players were at the party. Those not at the party would not be suspects. Therefore, non-suspects were included in the line-up.”

That statement is demonstrably untrue. Beginning with the March 23 non-testimonial order motion, Mike Nifong had publicly described all 46 white players on the team as suspects. He continued to make such a claim until mid-May.

Then came a November 12 letter from Laura Blasberg that almost comically compared the video of the accuser pole-dancing to the average person having “worked sick.” Blasberg didn’t explain how going to work with a cold or cough is comparable to being captured on video performing in a limber fashion while telling doctors of such pain that the dancer could barely walk or turn her head.

Blasberg further asserted, “The news media spent days, fueled by defense attorneys, focusing on whether or not the rape victim went back to work in the weeks following the rape. They report on differing accounts as to this - some co-workers say that she did go back, some say that she didn’t (of course, according to the defense attorneys, the ones that say what they don’t want to hear are liars, but their witnesses are truthful).”

As with Cone’s assertion in her letter, this statement is demonstrably untrue. I have encountered no “media” reports claiming that any “co-workers” of the accuser stated that she didn’t go back to work following the incident. In an e-mail to me, Blasberg claimed to have based her letter on the repudiated affidavit of the strip-club owner—hardly a “co-worker” of the accuser; unclear is why she didn’t correct her letter after the owner himself admitted, the next day, his affidavit was untrue.

I’m also unaware of any defense attorney, at any point in the case, who has said that any of the accuser’s “co-workers” are “liars.” It’s nice to see, as well, that Blasberg has obtained knowledge that a rape definitely occurred—though she left unclear which of the accuser’s myriad, mutually contradictory, stories that she believes. I asked Blasberg about this matter; she did not respond.

(Blasberg represents a group called “Take Back The News,” which describes its mission as confronting “the misrepresentation and underrepresentation of sexual assault in mainstream media,” while raising “public awareness about the epidemic nature of rape.”)

---------

The Blasberg letter contains another inaccuracy: it identifies her residence as Durham, North Carolina. Yet in a pro-Nifong letter published on April 22, Blasberg listed her residence as Hewlett, New York.

I wrote to Blasberg to ask whether she had recently moved to Durham. She replied that she hadn’t, and speculated that the H-S letters editor listed her residence as Durham because she forgot to list her hometown on her letter submission. That’s an intriguing hypothesis, but one that strikes me as unlikely—the H-S might not check facts, but it does call letter-writers to confirm submission. Unless the H-S letter editor was under the impression that Long Island’s 516 area code now extends to Durham, it would appear that the H-S knew Blasberg wasn’t from Durham.

(In the Lexis/Nexis version of the letter, the H-S added a correction that Blasberg is, in fact, a New York resident—but I doubt many in the H-S target audience read the letters page through Lexis/Nexis.)

The Blasberg letter marks at least the second occasion when the H-S inaccurately claimed that a pro-Nifong letter came from a Durham resident. During the campaign season, the H-S listed the residence of Nifong citizens’ committee co-chair Kim Brummell as Durham—even though Brummell lives in Oxford, as an August 5 H-S letter had conceded.

It almost appears as if the H-S—which in an editorial admitted to being “surprised” that a majority of Durham County voters opposed Mike Nifong’s election—is using its letters page to create a false impression that Nifong enjoys broadly based community support. The pattern is especially intriguing given that in the days after the Blasberg letter appeared, the H-S printed letters critical of Nifong from out-of-state residents.

Could it be that Editor Bob Ashley is attempting to pander to Durham parochialism as part of his pro-Nifong campaign?

-------

An item posted on the Friends of Duke website, meanwhile, offers a frightening glimpse inside the mindset of the H-S editorial staff.

Debrah Correll, a Chapel Hill resident and frequent Herald-Sun letter writer, reported about “a shocking conversation with one of the guys on the editorial staff of the Herald-Sun.” She said that the content of the discussion so appalled her that she came forward despite understanding that doing so would affect her ability to publish future pieces in the paper.

In the midst of the conversation, Correll said that she “brought up their October ‘60 Minutes’ editorial again, which was very petty and cast aspersions on the LAX players in a personal and most unprofessional way. I mentioned that it was not well-written and was unprofessional work coming from a newspaper editorial staff.” (She’s right on all counts.) Correll added her concern that “they have openly and forcefully been aiding Mike Nifong at every turn.”

She then noted,

The reply that I received from [letters editor] Greg Childress was that countless black men have been falsely accused in the past . . . so what’s such a big deal about these lacrosse players?

Correll recognized the stunning nature of this admission: following the Ashley “trial-at-all-costs” agenda, “this employee of the Herald-Sun . . . actually admitted that he felt it’s OK for this to happen because there have been many black men from decades past who were falsely accused.”

Perhaps the Herald-Sun should simply dispense with its editorial staff and simply turn the pages over to NCCU student government senator Chan Hall, who can expand on his theories that the Duke students should prosecuted “whether it happened or not. It would be justice for things that happened in the past.”

At least, unlike the Herald-Sun, Hall is open about his agenda, and offers no pretense of either journalistic objectivity or ensuring that readers receive factual accuracy.

[Update, 11.39: It almost seems as if the H-S is eager to print anything, no matter how bizarrely argued or inaccurately sourced, that attacks the lacrosse players. Liestoppers notes the latest in H-S audacity, an op-ed from a women's studies/cultural anthropology dual major who asserts, without citing any evidence, that "very rarely are the Duke lacrosse players not partying or drinking." She adds, stunningly, "Much of this emphasis on ‘innocence’ has ignored the gender and racial prejudice of the March 13 party. If nothing else, Nifong is holding the lacrosse players accountable for that; and as a woman at Duke who knows just how much these men get away with, I’m thankful…Nifong might not be in the right legally, but that doesn’t mean he's not doing the right thing."

Meanwhile, today's H-S has a long article on a tax lien filed against Jerry Clayton, a local attorney (not the subject of a normal news story, to say the least)--and concludes with the following sentence, ' Clayton attended a mid-September political dinner in Raleigh orchestrated by former state attorney general and secretary of state Rufus Edmisten, with several other Nifong opponents who wanted to persuade write-in candidate Steve Monks to drop out of the DA's race so another challenger would have a better chance to win." The connection between Clayton's political beliefs and his tax returns? Who knows.]

Hat tip: K.R.

Sunday Items

Last week, Herald-Sun editor Bob Ashley published a personalized memoir of the election, in which he spent 723 words saying remarkably little. He did blast the sometimes “venomous” critics of his legal mentor, Mike Nifong, and mused that it seemed unlikely that opinions about the merits of the lacrosse case would change anytime soon.

Ashley contended that the outcome of the election ensured that the lacrosse case would go forward: “Whether the case is eventually tossed out on procedural grounds or proceeds to a jury trial, I’m glad it will be resolved in the judicial system, not at the ballot box.”

I recall little or no distress from Ashley, however, at Nifong’s manipulating the case for success “at the ballot box” in the run-up to the primary: the editor’s concern about the intersection between politics and the judicial process has been quite one-sided. Those awaiting the Herald-Sun to demand that the “minister of justice” adhere to city regulations and the guidelines of the state bar will have, it appears, a very long wait.

Ashley’s assertion was also a little hard to follow. If the case has merit—as Ashley has consistently maintained, even as nearly 10 percent of his subscriber base has evaporated since his pro-Nifong crusade began—it would seem to me that any prosecutor would pursue charges. Or was Editor Ashley implicitly conceding that only a “minister of justice” as ethically challenged as Nifong would continue with such a procedurally tarnished case?

The latter, it would seem: a trial, proclaimed Ashley, “has a chance of reassuring many in the community who indicated by their votes Tuesday that, with or without doubts about how the case has proceeded, they want to see this resolved in a rational fashion.”

Ashley has, at last, revealed his basic agenda: the purpose of a trial is not to satisfy justice; or to try only those for whom probable cause is established; or even to uphold standards of legal ethics. The purpose of a trial is, instead to “reassure” an unspecified segment of the minority of Durham County residents who cast ballots for Nifong.

How, shall we say, reassuring.

---------

Duke earth systems science professor Thomas Crowley has talents that extend beyond his unusual skills at legal analysis. His CV, for instance, includes among honors and awards the following item: “Winner, Division of Earth and Ocean Sciences NCAA Basketball Pool.”

Crowley should consider himself fortunate that Duke’s new student behavior code doesn’t apply to professors. Among its draconian provisions is a total prohibition on 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.”

Certainly NCAA basketball pools would fall under the provisions on the code. Look for arbitrary enforcement of this rule in March: the provision gives the administration the grounds for targeting virtually any student or group of students that are out of favor.

---------

The curious practices of the Durham Police Department continued this week, after a freelance photographer demanded an internal affairs inquiry. The photographer claimed that a Durham officer roughed him up when he was photographing a crime scene on November 3. A magistrate dismissed all charges.

The photographer was arrested for “abusive language.” If this constitutes a crime in Durham, I wonder why the DPD failed to arrest Mike Nifong this summer, after the “minister of justice” unleashed a public, profanity-laced tirade against a lawyer representing an unidicted lacrosse player.

According to the Herald-Sun, the arrest “resulted in about $500 in damage to the car” of the defendant. (For reasons that the story failed to explain, the arresting officer threw the photographer up against his car.) A spokesperson for the Durham Police said the department wouldn’t conduct an internal affairs investigation of the incident.

How, again, reassuring.

--------

In the Duke 2005-2006 yearbook, the section on the men’s lacrosse team has five paragraphs. After opening with a paragraph on the season, the yearbook contains the following four paragraphs on the case:

The Blue Devils had jumped out to a 5-1 start when allegations of rape, robbery, kidnapping, strangulation and racist remarks arose after a March 13th party held at an off-campus house leased to captains of the team. As the investigation began, the team continued to practice, defeating rival University of North Carolina Chapel Hill 11-8 and losing to then third-ranked Cornell 7-11.

Protests ensued as various media swarmed the campus. Some billed the incident a “perfect storm” of race, class, gender and town-gown relations. On March 22nd, 46 members of the lacrosse team were ordered to give DNA samples and a search of the off-campus house was conducted. Athletic Director Joe Alleva suspended the Blue Devils' next two games. He cited the team’s irresponsible behavior of under-age drinking and hiring two exotic dancers, both of which the team acknowledged had occurred at the party. University President Richard Brodhead then announced the further suspension of the season until the case was concluded.

On April 4th, head coach Mike Pressler resigned. Coach Pressler was a three-time ACC Coach of the Year and the 2005 USILA National Coach of the Year. He led the Men’s Lacrosse Team to a 153-82 record, 3 ACC Titles and 10 NCAA Tournament berths in 16 seasons at Duke.

Since then, at least one player has been suspended and three players have been indicted for 1st degree forcible rape, 1st degree sexual offense and kidnapping. The court date is May 15th. The initial DNA tests returned negative, although results of a new round of tests are still pending. A committee asked by President Brodhead to investigate the conduct of the lacrosse program has recommended that the team be reinstated for the next school year. The members of the team's junior class have all stated that they will remain at Duke for their senior year.

No mention of the Group of 88’s statement. No mention of the dubious nature of Mike Nifong’s conduct, or the torrent of criticism that Nifong has received. No mention that the inquiry occurred during a tightly-contested primary in which Nifong desperately needed to win the black vote. No mention of the Durham Police Department’s official policy of disproportionately targeting Duke students. No mention of Reade Seligmann presenting an alibi that included an ATM video of his someplace else at the time of the alleged attack. No mention of Richard Brodhead’s appalling remark, after the arrest of Seligmann and Collin Finnerty, that “If they didn’t do it, whatever they did is bad enough.” No mention, even, that the players had strongly maintained their innocence.

In fact, no mention of anything negative about anyone except for members of the lacrosse team, despite the significance of this contextual information. And people wonder why the Brodhead administration has received criticism for throwing the players under the bus.

--------

North Carolina Central has a community service requirement, whereby students must perform between 4 and 11 hours of community service per semester, depending on their overall courseload. The guidelines state that students who fail to perform their community service will be blocked from registering in the following semester.

In a follow-up on the accuser’s status as a “student,” a poster on the TalkLeft boards noted that while the accuser is listed (p. 80) as performing 15 hours of community service in the current academic year, she has no community service hours listed for any other year. This anomaly raises the question of how the accuser previously was able to maintain full-time status.

I should note that it amazes me, given FERPA requirements, that NCCU places this information on the web.

---------

espn.com reports that the NBA just fined Houston Rockets coach Jeff Van Gundy a total of $25,000 after Van Gundy publicly complained about . . . poor officiating regarding the Rockets' center, Yao Ming. This time, however, Van Gundy cited not "phantom calls" but instead that the officials tolerated "reckless" behavior that produced "mayhem." The coach added,

It just irritated me. The whole game irritated me the way he was officiated. 'There was no contact,' [officials said] yet there was blood streaming down his arm. They tell you there's no contact and you're watching blood flow, unless he's so self-hurtful he's taking his own nails to his skin and ripping it open to draw attention to himself, you have to ask yourself, 'What am I seeing? Why can't what I'm seeing and he's obviously feeling and seeing be seen?'

Readers are invited to speculate on how Group of 88 member Grant Farred will interpret this comment in his widely expected sequel, Phantom Calls, II: The Duke Faculty’s Rush to Judgment.

---------

Group of 88 member Alex Rosenberg has struggled to offer a convincing rationale for his decision to sign the so-called “listening statement.” To the New York Sun, he made a blatantly sexist comment about Duke female students; in the Duke Chronicle thread, he put forward a new rationale, suggesting that he signed to express his disgust with excessive drinking—even though the statement contained no mention of alcohol use by students.

Rosenberg’s responses generated strong criticism from Chronicle readers, prompting the professor to recently post an item wondering why no one had defended the stance he took. (I can’t imagine why . . . ) He added, however, the following paragraph.

As Johnson seems to have discovered (I have no idea how...in the defendant's discovery process?), Reid [sic] Seligman [sic] was a student in a class I taught a few years ago. It was a small class and I got to know Mr. Seligman pretty well. We had lacrosse as a common interest (I studied at Hopkins and taught at Syracuse for years--two centers of the game). Based on my acquaintance, I cannot believe Reid Seligman guilty of the rape charges lodged against him.

(As I have noted on several occasions, I learned that he taught Seligmann when Seligmann’s transcript was included in a defense motion, which appeared online.)

Anyhow, it’s good to see Rosenberg do now what he should have done instead of joining the Group of 88’s public denunciation—defend a student that he’s taught who’s both of demonstrably high character and demonstrably innocent.

Given the high profile that the Group of 88’s statement received, I hope that Rosenberg will strive to make his faith in Seligmann’s innocence as widely known as his earlier condemnation.

Hat tips: S.D., J.R.

"Counselor" Crowley Hangs His Shingle

Demonstrating a Nifongesque ability to adapt new facts to fit old, discredited theories, the resident legal expert of Duke’s earth systems science department, Thomas Crowley, has launched an aggressive e-mail campaign to defend his widely ridiculed Herald-Sun op-ed.

Crowley wondered if one correspondent was suggesting that he “should not be writing letters to question throwing out the case.” Actually, this criterion came from Crowley himself, who commented in his op-ed about “the number of letter writers . . . who, although they have no legal qualifications, seem to assume they have sufficient knowledge about the Duke lacrosse case to conclude that the case should be thrown out before even it goes to trial.”

In the event, the earth systems science professor has abandoned the view he expressed in the Herald-Sun. He now maintains: “I do not believe someone has to be a total expert in a particular matter before they can express their view in a newspaper letter.”

The Crowley Criterion seems to be that only “total experts” (Jim Coleman? Susan Estrich? Stuart Taylor?) can express views that oppose Nifong’s wishes; while, to achieve some sort of balance, non-experts can defend Nifong, even if they publish error-filled, illogical op-eds to do so.

Crowley also has retreated from his suggestion that the accuser was “possibly drugged by someone when they encouraged her to have a drink.” He admits that “it turns out that yes indeed I was wrong on the toxicology report”; he also notes that the accuser had a record of previously passing out; and he further recognizes that the accuser was taking a drug (Flexeril) that, when used in combination with alcohol, can produce blackouts.

In true Nifongesque fashion, however, Crowley asserts that these new revelations have no bearing on his overall interpretation of the case. For Nifong, the DNA would “immediately rule out” the innocent—until it offered no matches, at which time it became irrelevant. Or the attack lasted 30 minutes—until Reade Seligmann produced alibi material showing he had left the premises at 12.14, at which time the attack suddenly lasted no longer than 10 minutes.

For “Counselor” Crowley, in his Herald-Sun piece, the accuser passing out implied that she had been slipped a date-rape drug. But now that he has learned of a toxicology report that contradicted his claim, the passing-out suggests a new theory of guilt: the episode “may have been related to something that just happened to the woman.” Why didn’t he float this novel theory in his op-ed? Perhaps he’ll explain in a future Herald-Sun column.

To one correspondent, Crowley admitted that he went out of his way to identify himself as a Duke professor in his op-ed, despite having “never” done so before on any commentary he wrote “not directly related to [his] area of specialty.”

Why did he take this unusual practice? “My motivation was based on the fairly one-sided stream of opinions coming from the Duke community about the innocence of the lacrosse team.”

The last I looked, the “lacrosse team” wasn’t on trial, despite Mike Nifong’s best attempts to make the case about symbolic justice.

In any event, I wonder what world Crowley has occupied for the past seven months. Indeed there has been a “fairly one-sided stream of opinions coming from the Duke community”—beginning with Houston Baker’s open letter, moving on to the Group of 88’s statement; continuing through the diatribes of Peter Wood, Karla Holloway, and Orin Starn; including Richard Brodhead’s remarkable statement after the arrest of Reade Seligmann and Collin Finnerty (“If they didn’t do it, whatever they did is bad enough”); and more recently featuring Grant Farred’s assertion that Duke students were attempting to project their racism onto Durham by voting while Education professor Joseph Dibona’s suggested (in the Herald-Sun, of course) giving the accuser $1.5 million to withdraw from the case.

Balanced against this record? James Coleman’s call for a special prosecutor. Kerstin Kimel’s defense of the lacrosse players’ character, and the later remarks of interim men’s coach Kevin Cassese. Steven Baldwin’s letter in the Duke Chronicle. Commentary from Michael Gustafson.

On the one side, then, stands 92 people. On the other side are five. And Crowley considers the opinions of the five to constitute “fairly one-sided stream of opinions coming from the Duke community about the innocence of the lacrosse team”?

Joining the likes of Karla Holloway as a victim of this case, Crowley complains that he has received selective condemnation: “I certainly have not heard,” said he, “of anyone being bludgeoned by emails and letters from [a] lawyer for mis-stating some fact on the case when the writer was in favor of throwing out the case.”

Some people, of course, might consider what Crowley did—suggesting that a date-rape drug was used despite a negative toxicology report; or asserting that defense lawyers were attempting to “manipulate” the public and the law despite admitting that he possessed no evidence to substantiate the claim or, indeed, couldn’t even identify the defense lawyers by anything beyond the status of their facial hair—to go well beyond “mis-stating some fact on the case.”

But Crowley’s claim of selective treatment might be aided if he provided any evidence for it. In neither his op-ed nor in his subsequent defenses of his action has Crowley pointed to errors in Herald-Sun letters from writers critical of Nifong. It’s almost as if Crowley believes that contending that the case should be dismissed in and of itself means that the writer is operating from faulty premises.

The earth systems science professor is also ruminating on the outrage his op-ed has generated. His explanation? The powerful criticism indicates the strength of his argument. “I even wonder,” he mused, “whether the vehemence of the reactions reflects not so much righteous indication but the possibility that my statements hit just a little too close to home.”

I have an alternative explanation for Crowley. Perhaps—just perhaps—people are outraged that a Duke professor would publish an op-ed that defended a procedurally tarnished case brought against three of his own institution’s students; and that he would produce a piece in which he admitted that he was so reckless that he didn’t even take the time to determine if some of his attacks on the players and their attorneys were true.

Crowley says that he considered it critical to identify himself as a Duke professor in the op-ed. Does such intellectual sloppiness reflect the vision of the Duke professoriate held by President Brodhead? Thus far, we’ve seen nothing to suggest to the contrary.

Understanding SANE, V

To the extent that the run-up and aftermath of the election distracted attention from the details of the case, we’ve all missed out on a series of first-rate posts by Kathleen Eckelt at Forensic Talk.

Eckelt, it’s worth remembering, was way ahead of the curve in using her professional experience to cast doubt upon the medical evidence in this case. At a time when Duff Wilson of the New York Times was suggesting that the medical evidence was quite strong, Eckelt was maintaining the opposite.

The recent revelations—the accuser pole dancing in a limber fashion, the former security manager saying she was boasting about getting money from “white boys,” the former manager saying that she frequently passed out in the strip club—suggest that, on the medical front at least, the blogs’ coverage was far superior to that of the Times.

Several recent posts continue Eckelt’s impressive work on this case. Her major conclusions:

1.) The accuser’s behavior is far more typical of someone “hospital shopping” for drugs than of someone who was sexually assaulted.

“Those who engage in drug seeking behavior,” Eckelt noted, “or 'doctor shopping', often hit the various emergency rooms, complaining of extreme pain, hoping to get a physician to prescribe the drug.” Specifically, why, the day after the alleged attack, did the accuser go all the way to Chapel Hill and UNC Hospital to complain of pain and request drugs?

According to Eckelt, “part of the standard discharge instructions given to our patients is to instruct them to call or return to the ER or SANE unit if they have any further problems or bruising showing up . . . The accuser showing up at UNC the next day indicates to me that she did not receive a prescription at Duke, even though she supposedly was in ‘extreme pain.’”

Indeed, Eckelt wonders how the accuser could have received Percocet and Flexeril from UNC even though the doctors knew “that she had mixed alcohol with Flexeril.”

2.) The only item listed on the SANE nurse-in-training’s report—diffuse edema of the vaginal walls—is not characteristic of sexual assault; and, in fact, several behaviors with which we know the accuser was associated would account for this condition.

Eckelt wrote that she recently asked a colleague with almost 15 years experience, who hasn’t been following the Duke case, how she could recognize diffuse vaginal wall edema in a sexual assault case. According to Eckelt, “she gave me this kind of dumb founded look, then asked the same question I’ve been asking myself all along: ‘How could you even see it?’”

Eckelt has “never” seen diffuse vaginal wall edema “by itself, without any redness or other signs.” Yet, according to SANE nurse-in-training Tara Levicy’s report, this is exactly what Levicy saw with the accuser. But, notes Eckelt, “edema, diffuse or otherwise, is not an injury. It is the body’s response to an injury, an infection, or a disease or inflammatory process of some sort.” According to Eckelt, what could cause diffuse vaginal wall edema?

• Smoking
• Sex within 24 hours of the vaginal exam
• Frequent sex
• Tricyclic anti-depressants, or other medications with properties similar to them—such as Flexeril.

It’s unclear if the accuser smokes. But she certainly seems to exhibit the other characteristics.

Eckelt concluded that neither she nor her colleague “felt that diffuse vaginal edema, alone, without any other symptoms or injuries, would be indicative of sexual assault,” and that certainly “neither one of us would be willing to walk into court and state that it is.”

3.) The Inside Edition “pole-dancing” video is extraordinarily damaging to the prosecution’s case.

“Patients who engage in fraudulent behavior or doctor shopping,” Eckelt recently wrote, “are often videotaped by investigators displaying behavior not consistent with their claims.”

According to Sgt. Mark Gottlieb’s infamous “straight-from-memory” report, on March 16 the accuser was, as Eckelt notes, “limping, grimacing, crying, and couldn’t sit down—shifting from one side to the other—not able to sit on her buttocks.” These symptoms would be associated with a herniated disc, yet those with herniated discs could not be captured on the Pole Dancing Video.

Moreover, Eckelt writes that studies have shown those with lower back pain—as the accuser claimed in her multiple trips to UNC Hospital—”have a significant problem with flexion and movement of the hips and lower back.” Again, based on the pole dancing video, it seemed as if the accuser had little difficulty with these matters.

While the person captured on the Inside Edition video thus had few, if any, signs of legitimate pain, she did demonstrate behavior consistent with someone faking an injury for ulterior purposes: “exaggerated symptoms and continued complaints of extreme pain (8 - 10/10) with no obvious physical basis for the pain.”

In Eckelt’s words,

Nurses spend a lot of time dealing with patients’ pain. We’ve seen many different types of people, different types of pain, and different responses. After awhile, we get a sense of what appears to be true pain and what appears to be exaggerated. We know how long it should take for medicine to kick in and how that medicine works on the body to relieve the pain. As I said before, when a patient’s behavior is inconsistent with their claims, red flags go up. In my opinion, with this particular case, red flags are popping up all over the place.

4.) The accuser’s claimed conditions are inconsistent with that of a full-time college student.

Eckelt recently noted that the case reminded her of a previous fraudulent-pain claim, when a patient, a full-time college student, was actually obtaining drugs to sell on the open market. Though he complained to his doctor of extreme back pain, the doctor could find no other symptoms, but initially prescribed the drugs anyway.

When the case was reviewed for insurance fraud, the investigator wondered, “Just how did he manage to sit all that time in those hard chairs, and for studying, when he had such extreme back pain?”

In this case, it would be interesting to ask the accuser’s professors how she behaved in class—did she, for instance, constantly fidget in her seat, indicating the kind of extreme back pain that Sgt. Gottlieb claimed to notice in his “straight-from-memory” report?

In general, the revelations over the last couple of months raise some doubts to me. The accuser hasbeen described as an “honors” student at North Carolina Central. To my knowledge, the only source for that claim is the March 25 article in the N&O—an article that, essentially, is no longer credible.

I teach at a school (Brooklyn College) where a majority of students have jobs; a good chunk work full-time. Yet in my seven-plus years at Brooklyn, I can never recall a student who had anything resembling the schedule described of the accuser in the Jarriel Johnson statement, the recent Joseph Neff article, or a similar piece in the Herald-Sun. These items reveal a person who spent long periods of time—frequently extending into the wee hours of the early morning—in a strip club, where she sometimes, according to the Herald-Sun article, ended the evening passed out.

The Jarriel Johnson statement goes into considerable detail about the accuser’s activities in the days before the lacrosse party. Driving around to “appointments” or strip clubs forms a prominent role in the Johnson narrative; driving the accuser to class (the accuser, of course, had her license revoked) is never mentioned.

How, exactly, did the accuser get to class? Based on the schedule we now know she kept, how did she maintain a regular courseload? Her written statement to police suggests someone operating at a 9^th or 10^th grade reading level. In light of that, and based on the kind of behavior seen in the Johnson statement and recent articles, how did she maintain an honors GPA—at the same time that she was, allegedly, experiencing such extreme back pain that she couldn’t sit properly?

I have no answers to these questions. But—coming at the matter from the standpoint of an academic rather than a SANE nurse—I agree with Eckelt that the accuser’s behavior seems rather atypical of a full-time honors student.

[Update, 5.28: A correspondent and one of the commenters correctly points out that beyond the N&O, the first Newsweek story on the case listed the accuser as a member of the "Golden Key" honour society. I checked the web but couldn't find a link for the NCCU branch of the society; it's unclear, therefore, what membership in the society entails.

I doubt we'll ever resolve the issue of the accuser's academic credentials: this material is protected by FERPA, and my sense is that the defense would obtain access to it only if Nifong claimed in court that the accuser was an honors student.]

Legal Analysis by Thomas J. Crowley, Esq.

As Liestoppers observed yesterday, Duke professor Thomas Crowley has penned an op-ed in the Herald-Sun, in recent weeks Duke faculty members’ home away from home. The professor expressed concern “at the number of letter writers . . . who, although they have no legal qualifications, seem to assume they have sufficient knowledge about the Duke lacrosse case to conclude that the case should be thrown out before even it goes to trial.”

Crowley, whose academic training is in geology and whose research speciality is earth systems science, then proceeded to produce a column that combined errors of fact derived from insufficient knowledge about the case with a faulty legal analysis flowing, presumably, from his own lack of legal qualifications.

(Crowley, it’s worth noting, just completed a three-year term as a member of Duke’s Committee on Appointment, Tenure, and Promotion—meaning that he cast a vote on every Duke tenure decision during the past three years.)

Crowley’s central argument, based on law and evidence, revolved around a claim that “items [exist] about the case that would lead one to hesitate before throwing out the case.”

On the pages of the Herald-Sun, the earth systems science professor offered three claims of fact that I hadn’t previously seen, so I e-mailed him to ask about his evidence.

1.) Crowley asserted that the lacrosse team “had a previously established history of rowdiness tarnished with racial comments.” [emphasis added]

The Coleman Committee, however, uncovered no evidence “that the cohesiveness of this group is either racist or sexist,” and said that its investigation showed that the players’ conduct before March 13 “has not involved fighting, sexual assault or harassment, or racist behavior.”

Crowley subsequently informed me: [original all caps]

THIS [claim] WAS BASED ON A LETTER WRITTEN TO THE DUKE STUDENT NEWSPAPER BY AN AFRICAN AMERICAN I BELIEVE SEVERAL DAYS AFTER THE NEWS BROKE. IT MADE A NUMBER OF CHARGES ABOUT RACIAL SLURS.

I searched the archives of the Duke Chronicle and could find no such letter. In any event, it seems to me extraordinary that a professor would disregard the conclusions of a faculty investigation and instead rely on his recollection of a months-old alleged student letter to publicly testify that students at his own school had a “previously established history” of “racial comments.”

2.) Crowley stated that “one of the accused had been previously arrested for anti-gay comments.”

I know of no location in the country—even Mike Nifong’s Durham—where someone can be “arrested for anti-gay comments.” Certainly no one involved in this case was “arrested for anti-gay comments.”

3.) Crowley charged that “defense lawyers continue to make inappropriate public comments about the accuser to the point of blackening her name to the potential jurors. These lawyers are continuing to manipulate the law and the public, yet they are being criticized by virtually no one.”

This is an extraordinarily serious allegation—a claim that some of the state’s finest lawyers have engaged in unethical conduct and are attempting to “manipulate the law and the public.” I asked Crowley for evidence to substantiate his charge: [original all caps]

I DON’T HAVE POINT BY POINT DOCUMENTATION ON THIS. ALL I KNOW IS THAT, EVEN THOUGH I DON’T FOLLOW THE LOCAL NEWS VERY CLOSELY I HAVE BEEN SURPRISED HOW OFTEN I HAVE SEEN ONE OF THE LAWYERS (A BEARDED ONE) MAKING SOME STATEMENT. ONE OF THEM EVEN HAD AN OPINION PIECE IN THE HERALD SUN YESTERDAY.

The only mention of the accuser in the Herald-Sun column penned by Joseph Cheshire (who wears a goatee, and thus presumably was the abovementioned “BEARDED ONE”) was the following: “Justice is not done in any criminal prosecution when a DA who assumes the role of chief factual investigator and does not bother to talk with the chief prosecuting witness about her allegations to assess her credibility.”

I assume Crowley wouldn’t consider that sentence to constitute “inappropriate public comments about the accuser to the point of blackening her name to the potential jurors.” And while defense attorneys have released police reports showing that the accuser gave varying accounts of her story, I can’t imagine that even Crowley would consider this information to constitute “blackening” the accuser’s name—unless, of course, he’s suggesting that these police accounts were untrue.

There have been, of course, many newspaper and television reports that have cast serious doubt on the accuser’s veracity and integrity. Yet newspapers or TV networks aren’t “defense lawyers.”

Again, it seems to me extraordinary that a professor would level such serious allegations against attorneys representing three of his institution’s students without performing even a rudimentary check to determine whether his allegations had any merit.

---------

While ignoring the mountain of evidence that does exist, Crowley seemed particularly excised about evidence that does not. “Why,” he asked Herald-Sun readers, “are photographs available before and after the alleged event, but not during it?”

Crowley has the scientific expertise: I do not. But it’s my understanding that laws of space, time, and motion make it difficult to photograph an “alleged event.” If an “event” didn’t occur, it’s hard to see how anyone could photograph it.

The earth systems science professor stated in the Herald-Sun that he had “no preconditioned preference for whether the accused were guilty or not.” He also told me to “NOTE THAT I DON’T THINK THE ACCUSED ARE NECESSARILY GUILTY.” [emphasis added] But asking why photographs don’t exist of an “alleged event” strikes me as a pretty strong indication of what direction Crowley leans.

Crowley also wondered why the accuser was “sober when she arrived and staggering to the point of passing out a mere 30 minutes later? Was she possibly drugged by someone when they encouraged her to have a drink? If so, what were their motives?”

Of course, after stalling on the item for several months, Nifong recently conceded that a toxicology report done by the state was negative. Crowley responded: [original all caps]

I DID NOT KNOW ABOUT THE TOXICOLOGY REPORT.

Yet again, it seems to me extraordinary that a professor would publicly suggest that a student or students at his own institution could have used a date-rape drug without checking as to whether the state had performed a toxicology test; and, if so, what results that test produced.

He added, [original all caps]

I STILL THINK GOING FROM APPEARING SOBER TO BEING DROP DEAD PASSING OUT IN A MATTER OF A HALF AN HOUR SEEMS VERY STRANGE.

But what Crowley finds “very strange” few others do: as Kathleen Eckelt has repeatedly pointed out, the accuser’s acknowledged use of Flexeril and alcohol explains her erratic behavior, while Tuesday’s N&O revealed that two nights before the lacrosse party, the accuser was exhibiting the same “very strange” behavior. I assume Crowley wouldn’t contend that the accuser was also given a date-rape drug several nights before at the strip club.

While Crowley went out of his way to condemn both the players and their attorneys—even if he had to invent facts to do so—he took a far more charitable approach when analyzing the conduct of Mike Nifong. Indeed, he affirmed that he was “hesitant to be totally critical of Nifong’s response.” Why? As Crowley stated in the Herald-Sun, “I could not say for sure if I too might have been swept away by all that was happening.”

The earth systems science professor concluded his Herald-Sun opus by revealing his motives: he wanted to counter the efforts of “a group of lawyers and advocates who seem to be doing their best to confuse the public.”

Some might argue that the only people “doing their best to confuse the public” are Nifong and Crowley.

---------

As with Grant Farred’s “phantom insights,” in one respect Crowley’s musings are almost comical, the latest manifestation of a Duke faculty member’s detachment from the reality of Mike Nifong’s Durham.

But in another, more significant, respect, Crowley’s op-ed is deeply disturbing. At a time when Nifong’s factual case is collapsing, and evidence of his procedural misconduct grows by the day, Duke professors seem to have no problem in going public with even with wildest and most unsubstantiated allegations to continue their condemnation of the lacrosse players.

Chapter Six of the Duke Faculty Handbook opens with the following passage:

Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty.

Can anyone seriously maintain that the columns of Farred or Crowley—or various other actions and statements by the Group of 88—conform to this standard?