Nifong Delay

Mike Nifong's long-awaited response to the Bar has been delayed due to illness of one of his attorneys. He has received an extension until Wednesday.

It would appear he has two alternatives:
(1) accuse others for unethical behavior, chiefly Brian Meehan and/or Linwood Wilson, and claim that he was an innocent victim of their misconduct;
(2) suggest that he was overwhelmed by the publicity/notoriety of the case and that whatever misconduct he might have committed, he should be allowed to retain his law license because of his record of service.

I suspect we'll see option (1).

Nifong and the Special Prosecutors

ABC-11 is reporting that last week the special prosecutors interviewed Mike Nifong as part of their continuing investigation into the case. The AG's office confirmed that the meeting took place, but did not release details; perhaps the prosecutors received a preview of the line of defense that Nifong will offer in his Friday bar filing.

Somehow, I doubt this will be the only occasion in which Nifong will have to answer questions regarding his handling of the case.

SI Disappointment

Sports Illustrated has an article on the return to lacrosse to Duke. It summarizes the case, and then obtains a quote from one—and only one—outside legal source: Irving Joyner. The article does not identify Joyner as the NAACP case monitor, and therefore a party to the case.

Joyner’s unsurprising analysis? “I think the odds are good that it will go to trial . . . But I think there is enough to go forward -- and I think they will go forward.” The article contains no mention of what evidence Joyner offered to substantiate his assertion.

Ironically, just a few weeks ago, the article’s writer, S.L. Price, was asked, “If it eventually comes out that the alleged victim’s allegations are untrue, how do you think the media will respond? Do journalists have a duty to apologize and/or try to rectify the situation?”

Here was his reply:

If mistakes were made, they should be corrected and responsibility should be taken. But the coverage—and the apology—will never be as spectacular as it was last spring. Some outlets leaped to conclusions, but let’s face it: They were following the DA’s lead in many cases. If the DA says something, especially publicly, it’s hard not to report it.

No one is following the DA’s lead any longer. How, therefore, could any responsible reporter not balance Joyner’s legal perspective with that of another observer, given Joyner’s demonstrated biases about the case?

To use Price’s terminology, I’d say that “mistakes were made” regarding the article’s fairness.

Questions and Answers

Today seemed like a good day for a questions-and-answers post, which I haven’t done in awhile. The blog has now had readers from at least 116 countries, with new readers from the Cayman Islands, Aruba, Dominica, Venezuela, Morocco, Lithuania, Nepal, Cote D’Ivoire, Zimbabwe, and Gambia. Since August 28, the blog has had more than 1.1 million visitors, with more than 2.1 million pages viewed.

Q (via e-mail): In yesterday’s Herald-Sun, Nifong said, “I don’t represent the people who write in from elsewhere. I do represent the people of Durham. They’re the ones I need to do a good job for. Many people tell me they are very happy with our work. I think the results we're getting in court speak for themselves. The DA’s Office has always been about more than just one case.” Do you think this statement was intended as an attack on the bar, which is not based in Durham and which has focused exclusively on Nifong's behavior in "just one case"?

A: This question is an excellent one. Yesterday, I e-mailed Nifong’s lawyer, David Freedman, to ask whether the D.A. has decided to go on the “offensive” against the Bar. Given that the whole DA Appreciation Week affair was divorced from reality, it’s a little hard to determine what Nifong meant by his comments. I’d be curious to know, however, whether Nifong had cleared the event with Freedman before holding it. My guess is no.

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Q: A two-part question:

If the G-88 had the wisdom at the outset to counsel restraint instead of promoting prejudice (purely hypothetical, so please play along):

1) Do you think that justice would still have been derailed the way it was, and

2) If so, would this case still have become a priority for you?

A: The answer to (2) is easy: I doubt very much that the case would have become a priority, in part because my initial interest (the first six or eight posts) all involved the faculty response. Only once I became involved did I start looking at Nifong’s actions more closely.

As to (1), I think the outcome would have been different had the Group of 88 issued a statement counseling restraint rather than rushing to judgment. I was puzzled by a recent discussion thread in the Chronicle where several commenters claimed I had blamed the Group for causing, rather than contributing to, the rush to judgment or for leading to Nifong’s actions. I have never made either claim.

I have, however, argued that the Group’s work facilitated Nifong’s efforts. Recall the context here: amidst a fluid legal and political situation, 88 Duke faculty issued a public statement that any fair-minded Durham resident would have interpreted as suggesting the players were guilty. (We know now that the Group rushed to get the statement out, apparently to ensure that it would appear before DNA test results were revealed.) No professors publicly criticized the statement (though the student newspaper did). These professors, a fair-minded outsider would believe, must have known something of the students they decided to criticize. Surely, they could not be so reckless to issue such a statement otherwise.

Nifong defeated Freda Black by 883 votes in the primary. His behavior in the case got for him the anti-Duke, demagogue vote anyway. Had the public voice of the Duke faculty criticized Nifong, would such an action have caused 500 Durham voters to have switched allegiance from Nifong to Black? We’ll never know, of course, but my best guess is yes.

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Q: Where are the Duke trustees? Are they sitting idly while the thin-skinned professors continue to embarrass the university? Are they happy with Brodhead’s performance?

A: All indications are that the Trustees remain content with Brodhead’s performance—keeping in mind that these are the Trustees who selected Brodhead.

The silence of the Trustees regarding the Group of 88 remains one of the real mysteries of the case.

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Q: Do you suppose a Freedom of Information Act request would allow access to . . . the hiring practices? One has to shudder when one considers who didn’t get the jobs that the Gang of 88 hijacked.

A: A FOIA request would not apply to Duke, as a private institution.

The question raises an interesting issue, however. What other applicants were in the pool that produced the selection of Grant Farred? Or of Thavolia Glymph? Based on the quality of insights we have seen from such figures over the past several months, it’s worth considering whether Duke wound up with the best candidates in those searches.

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Q: My great-nephew is athletic and extremely intelligent. He is being recruited by a number of schools across the country, both athletically and academically. He was leaning toward Duke. I pointed him to this case so he could consider whether a minority of irrational but vocal faculty had created a hostile environment for white male athletes. He is no longer considering Duke. Why take the chance of being hassled?

Q: As time drags on and with no resolution parents ponder and ask; why would I send my child to a university that demonstrate, so clearly, a pandering to extreme political position at the expense of protecting its students? As each day goes on the damage to Duke’s image grows. My business partner’s daughter is a very bright talented lacrosse player. Accepted and recruited to numerous colleges her final consideration was Duke and Yale. While she leaned to Duke her parents, after following this case, were adamantly against it. The final decision was Yale. All over Long island I hear of the same type of conversations.

A: These two comments tie back to the question of the Trustees’ passivity. Obviously, the Group of 88 doesn’t speak for a majority of Duke’s arts and sciences faculty. Yet, as we have seen over the past 10 months, they possess considerable power to intimidate their opponents, and the administration has, to my knowledge, done nothing to indicate either publicly or privately any displeasure with their conduct.

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Q: In direct contradiction to what Kim Curtis appears to hold true about middle class/upper middle class males, I knew in my bones that 40 college kids were not going to sit around and allow a crime to be committed while they were available and able to stop it. Sure, one, maybe two, bad apples might do harm and evil, acting in stealth and away from prying eyes. But 40 kids? 40 bad apples? 40 bad apples with enough brains and drive to make it into a good school? All 40 of them never hearing their mom’s or dad’s voice in their head saying, “Do the right thing?”

A: This point is a good one, and it has not received sufficient emphasis in commentary about the case.

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Q: I am the one who asked Prof. Johnson to cite to his quotes. How do you know that he has kept notes and investigated the truthfulness of the cited quote? . . . I just think that he should practice what he preaches and either cite to the source or state why the person is remaining anonymous (just as I wish to remain anonymous).

A: Point well taken, and my apologies for not explaining my sources in the two potbangers posts.

Some of the comments in the post (those that were linked) came from publicly available sources. The others came from e-mails circulated among the potbangers. These e-mails were forwarded to me by a former potbanger who grew embittered by the movement’s behavior. The person agreed to forward the documents to me provided I not reveal his or her name publicly; since these were documents, I was willing to make the promise.

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Q: I am a Duke student, and I am asking you NICELY, please please PLEASE, STOP IT! Stop sending my professors hate mail and death threats. Stop attributing 5 months of news media sensationalism to 88 professors. Stop your violent and vengeful comments on this blog.

A: Making death threats through e-mail is a criminal offense; if any have been leveled against the Group, they should go to the Durham Police Department and file charges. And, unless e-mails sent to Group members asking them to comment qualify as “hate mail,” I am innocent of the charge. We have already seen the curious way some Duke professors characterize e-mail, as when Alex Rosenberg stated that I sent him an e-mail accusing him of prejudging the case.

As for the “violent and vengeful comments” or “attributing 5 months of news media sensationalism to 88 professors,” the student, unfortunately, did not identify which of the blog’s more than 400 posts had committed such offenses.

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Q: It would not surprise me to learn that most, if not all, of the “student quotes” in the April “Listening” ad were fabricated. Can anyone locate the “big black man” who supposedly said he was uncomfortable with the Duke police shadowing him on campus?

A: An excellent question. We know now that the ad was, effectively, “Listening to Lubiano”—that the “quotes” were not quotes at all, but paraphrases from her notes. To my knowledge, none of the Group members have responded to Friends of Duke’s questions on whether any of them had consulted with the Duke Police to determine whether the department had a policy of slowing down when officers saw a “big black man” on campus.

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Q: How ironic would it be if the accuser, when facing the inevitable prospect of being charged with filing a false complaint, avers that she never made any of the statements Mr. Wilson claims that she made in an interview on December 21^st? How could you be so silly so as not to interview this accuser without a witness and without a recording? This could be the first step in the waltz down witness tampering lane.

A: The Dec. 21 “frame” is one of the most troubling aspects of the case. It seems inconceivable that the accuser knew enough about the specific holes in Nifong’s case to have been able to come up with the appropriate answers to fill those holes. Wilson, of course, knew just which answers were needed.

Another procedural question. At this point, Himan was still on the case. Why did he not accompany Wilson for this interview?

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Q: Take a look at the mini-script at the bottom of the Group of 88 ad. It states in part: “We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology; Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages & Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of additional faculty and staff who signed on in support may be read at the AAAS website…” Does this mean these departments and programs approved of the ad? Was it the head of each department or program that gave assent? Was a vote taken among the faculty of each of these departments or programs approving of their support? Is the list simply reflective of the departments and programs of the 88 signatories? Have this ever been addressed? Let’s say I’m a member of the Post-Raphaelite Studies Department and strongly disapproved of a certain position. If I later saw an ad supporting that position and thanking the Post-Raphaelite Studies Department for signing onto it, I would have a thing or two to say about that.

A: In response to this question, I looked into the issue, and was deeply troubled at what I discovered.

I e-mailed all the professors in the Romance Studies; Psychology: Social and Health Sciences; Art, Art History, and Visual Studies; and Asian & African Languages & Literature departments who did not sign the Group of 88’s ad, and asked when their department formally endorsed the Group of 88’s statement. Many did not respond. Those who did, however, could not recall any formal departmental mechanism through which their department approved the ad.

For those outside of the academy, it is hard to overstate the significance of this point. Departments rarely speak as corporate bodies: in my 13 years as a professor at ASU, Williams, Brooklyn, and (as a visitor) Harvard, I have never been part of a department that formally “endorsed” any public statement. At a minimum, for such an endorsement to have been made, the department would have needed to have voted, either by e-mail or in person.

When did the votes in these four departments occur? Why is there no record of the votes? I would have asked the ad’s author, Wahneema Lubiano, for an explanation, but she had responded to an earlier request from me in the following way: “Do not email me again. I am putting your name and email address in my filter.”

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Only in Durham

Liestoppers has two amusing posts--one of which, correctly, has to go out of its way to announce that it is not a parody--regarding what might be the most bizarre event of this entire bizarre case: the launching of “District Attorney Appreciation Week" in Durham County.

The organizers? The same two people who stood on the platform welcoming Malik Shabazz, head of a hate group, to Durham in June.

The week's first (and, apparently, only) event? A luncheon of barbecued chicken, mashed potatoes and corn.

The attendees? Nifong's staff, the two organizers, plus two other women--one of whom did not give her name.

Nifong--displaying the political tin ear for which he is becoming famous--celebrated the event. "If you rely on certain media, you might think there is universal disapproval of me. But if you're closer to home, you realize that's not true." (The offices of the state bar are, in fact, in Raleigh.) He continued, "I don't represent the people who write in from elsewhere. I do represent the people of Durham. They're the ones I need to do a good job for. Many people tell me they are very happy with our work [the four who showed up, plus his staff?]. I think the results we're getting in court speak for themselves. The DA's Office has always been about more than just one case."

These are the remarks of a figure divorced from reality.


Update, 6.53pm: The Liestoppers board tracked down a photo of the three organizers of the luncheon--in this case, as they welcomed the New Black Panthers--a group considered a hate group by both the ADL and SPLC--to Durham

Joyner's Jurisprudence

One of the most troubling aspects of the lacrosse case has been the decision of the state NAACP to adopt positions at odds with a 70 years’ legacy on criminal justice matters, on issues ranging from changes of venue in racially charged cases, to skepticism about suggestive witness lineups, to opposing victims’ rights efforts.

The extent of this transformation becomes particularly stark in examining the legal opinions of Irving Joyner, a law professor at NCCU who the state NAACP designated as “case monitor” on April 19. Until this case, Joyner had a reputation as a civil rights lawyer, suspicious of state power in general and police misconduct in particular. Yet in the last 10 months, he has embraced a pro-prosecution view with the fervency of a convert.

Joyner, traditionally a critic of the Durham Police Department, had represented two African-American men who (unsuccessfully) sued the department in 1995, alleging civil rights violations. In that case, Joyner portrayed the department as too characterized by lingering racial animosities—of the type evidenced last year in the racially charged argument at Blinco’s Restaurant between a black cook and several Durham officers. Mark Gottlieb and Richard Clayton were present at the scene, but were not charged or disciplined in any way.

Joyner also had a record of demanding that the state provide more clear-cut evidence in rape cases. In a 1984 case, North Carolina v. Randolph and Sanders, Joyner represented a black couple accused of carjacking and then raping a woman. Before the North Carolina Supreme Court, Joyner argued for overturning the guilty verdict on the grounds that the prosecution had not provided a bill of particulars. Yet in the lacrosse case, where the timeline was absolutely critical (unlike the Randolph/Sanders case), Joyner appeared to have no problem with Mike Nifong’s denying a bill of particulars.

In a 2006 case, North Carolina v. Mitchell, Joyner appealed a guilty verdict of second-degree rape. His central claim? That a SANE nurse with 32 years’ experience gave a medical opinion at trial. Yet in the lacrosse case, when the Gottlieb notes claimed that SANE nurse-in-training Tara Levicy gave a diagnosis of “blunt force trauma” consistent with rape, Joyner gave the state a pass.

Joyner’s zeal for his clients occasionally produced questionable character judgments. In 2005, he represented Matthew Lawrence Taylor, a black Durham teenager convicted of murdering Sean Owen, a white, gay man who he had met in a chat room and then lured to a remote location by promising a sexual rendezvous. Taylor’s two accomplices wanted to steal Owen’s car, but Taylor went further. At his trial, an accomplice testified that “Taylor pulled the revolver, cocked the hammer and put the gun to Owen’s head . . . Taylor fired. Owen was hit in the head but did not fall.” Each of the three men ran down Owen and kicked him, before Taylor pushed his body into the Eno River.

Before the trial, Joyner publicly dismissed the prosecution’s case as weak; even after conviction, Joyner maintained that Taylor “was not a knowing participant” in the crime and publicly hailed Taylor’s good character. “This was not Mr. Taylor’s character,” Joyner told the Herald-Sun. “He was trying to move on with a good life as best he could,” and erred by displaying “blind loyalty” to his cousin, one of his accomplices in the murder.

In the last several months, this same figure who affirmed Taylor’s good character has joined forces with people such as Cash Michaels, who has repeatedly described a party with drinking and strippers as “perverted,” and NAACP Legal Redress chairman Al McSurely, who published a memorandum of law describing underage drinking as “Crimes and Torts.” Some might wonder about the apparent double standard in character analysis.

Joyner’s suspicion of prosecutors’ intentions was not confined to cases to which he was a party. In the 2002-2003 murder trial of former Durham mayoral candidate Michael Peterson, then-D.A. Jim Hardin was slow to turn over discovery material to the defense. (North Carolina did not have an open discovery law at that point.) Joyner was openly skeptical. He told the N&O, “In a high-profile case like this, I would expect that the DA is getting information in a timely manner . . . Some of it is gamesmanship, but the delay could be because the prosecutor is being overburdened with so many cases. But in a high-profile case like this, that’s unlikely.” He added that the production of evidence “has to be done in a timely manner, or as soon as practically possible.” The defense needed sufficient leeway to develop trial strategy, Joyner said; delay always was harmful.

Yet in interviews about the Nifong-Meehan conspiracy to withhold exculpatory DNA evidence, Joyner adopted a position of “no harm, no foul.” The defense had received the evidence, he suggested to the Herald-Sun in late December; it didn’t matter that Nifong had attempted to conceal it in violation of state law.

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I e-mailed Joyner to ask about the relationship between his case record and his comments in the lacrosse case. He replied, “I hope that you understand and appreciate the fact that I was the attorney who represented the clients in the several cited cases . . . I hope that you see the difference between the different roles that I have assumed as an attorney/advocate in some cases and as a commentator in the Duke-Lacrosse case.”

Joyner failed to say why his comments about the Peterson case conformed to his background as a criminal defense attorney while his lacrosse case commentary has gone so far in the other direction. Moreover, the positions that Joyner took in the cases mentioned above (with the possible exception of his hailing the good character of Matthew Lawrence Taylor) fell in line with the viewpoint of the civil rights movement as a whole on criminal justice matters.

Based on his comments in the lacrosse case, however, it appears that Joyner’s personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas. Some might find it a little . . . unusual . . . that it has taken around three decades as a lawyer for Joyner’s vehement pro-prosecution standpoint to suddenly emerge.

For instance, Joyner aggressively defended Mike Nifong’s involvement in the April 4 lineup, when the district attorney, in his role as supervisor of the investigation, ordered Durham police to violate their own procedures and confine the lineup to suspects. “You would expect the prosecutor to consult with the Police Department,” Joyner told the Herald-Sun in late February. “That is a normal role and function of the district attorney.”

It’s not my impression that it is “a normal role and function of the district attorney” anywhere in the country, even in North Carolina, to order police to violate their procedures. But, Joyner informed me over the summer, this issue needed to be evaluated by a jury, not a judge. “The written procedure which was adopted at some point by the Durham Police Department is not constitutionally required,” he stated. “Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities.” Both the NAACP and ACLU have long supported the basic principles behind the exclusionary rule, which holds that judges should shield from juries evidence obtained through violations of due process.

Joyner’s view of due process and eyewitness identifications also strongly conflicts with that of the Actual Innocence Commission—and also with the position the state NAACP had adopted before March 13, 2006. Carried to its logical conclusion, Joyner’s argument would render irrelevant all written procedures for eyewitness ID’s—prosecutors and police could do whatever they wanted, and the jury could sort it out months later at trial.

I have been unable to find other instances in which Joyner publicly defended a procedurally improper lineup.

Joyner also has vehemently opposed any change of venue. In the summer, he told Sports Illustrated that the district attorney “still has a viable shot at victory before a jury in Durham.” He subsequently explained to me, “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, the Joyner viewpoint would suggest that change of venue motions always must fail; it would be hard to argue for a more polarized community than Durham on this question.

Joyner maintained his position in early January, remarking, “I don’t think that there is any evidence of bias which can be presented of those African-Americans who live in Durham and who might be called for jury service . . . the Durham African-American community has conducted itself in an exemplary manner and is to be commended for the public restraint which it has shown.” Harris Johnson? Chan Hall? Victoria Peterson? The lack of any public rebuke for the racist comments of the former two?

From the start, Joyner expressed confidence in the basic case. In mid-June, the Herald-Sun asked him about revelations by the defense, which included Reade Seligmann’s alibi; the procedurally flawed lineup; Kim Roberts’ statement contradicting the accuser; the lack of DNA; and the accuser’s inconsistent statements. Joyner’s characterization of the defense case? “At this point, I don’t think it’s all that strong. A lot will depend on the fortitude of Mike Nifong and his faith in his case. If he believes in what he is doing, it could go all the way.”

I asked Joyner what he would consider a “strong” defense case; he did not respond to the question. It is worth noting that while he described the defense revelations in the lacrosse case as not “all that strong,” in conversations with reporters, he was very confident in the strength of the defense case in the Matthew Taylor murder trial. But, as he suggested, at that point he was an attorney of record, and therefore the analysis he offered to reporters could not be taken at face value. Since, in this case, he is working on behalf of the NAACP, it is unclear why his analysis of the defense case was entitled to any greater consideration.

Even to the end, Joyner has tried to get the case to trial. Almost alone among observers, he contended that the dropping of rape charges made it more likely to get convictions: “The prosecution has tightened up the case rather than diminish [it] because it’s a lot easier to prove sexual offense charges than it is to prove rape.” In theory, perhaps. In this case, the dropping of the rape charge was necessitated by the accuser making up a wholly new story, one that contradicted every other version she had told.

Moreover, Joyner has done what he can to repay Nifong now that the disgraced D.A. is besieged. He dismissed the complaint filed by Beth Brewer: “What they will have to present is evidence of malfeasance—more than just a personal disagreement, a disagreement with legal strategy, which is within the province of the district attorney. I’ve not seen anything that would warrant a judge doing that.” The state bar’s ethics charges claimed that Nifong broke three laws in handling the lacrosse case. Most people would consider such a record “evidence of malfeasance.”

As the lacrosse case perhaps nears an end, it will be interesting to see if Joyner maintains his newly found disdain for procedure in other cases that cross his path. Historians should not speculate on the future: but if I had to guess, I would predict that Joyner’s pro-prosecution ardor will suddenly cool if or when charges in the lacrosse case are dismissed.

Arrest in Rape Case

WRAL and the N&O are reporting that an arrest has been made in the recent rape allegations by a white Duke undergraduate. It appears the suspect is not a Duke student, though the N&O reports that the party occurred at a house rented by Phi Beta Sigma fraternity.

Given the investigative techniques we have seen from the Durham Police in the past, the presumption of innocence should hold unusually strongly in this case. That said, the silence of the Group of 88, the potbangers, and the clarifying faculty to this event is remarkable.

Graceless

Among the broadcast media, three people stand out as the worst: Wendy Murphy, with her penchant for factual inaccuracies; Georgia Goslee, with her preposterous theories of the “crime”; and Nancy Grace.

Grace, who regularly mocked principles of due process, allowed guests (such as the ubiquitous Wendy Murphy) to say virtually anything denouncing the players, while challenging even the mildest assertion suggesting the players’ innocence. And, when the case imploded, this television bully, who takes such joy in shouting down guests who challenge her views, was silent.

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Grace turned to events in Durham amidst Mike Nifong’s pre-primary publicity barrage. Her March 31 broadcast set the tone for subsequent coverage.

Upon hearing from a local reporter that the team played two games after the accuser made her allegation, she mocked, “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape!”

When another guest cited Nifong’s charges of non-cooperation, Grace fumed, “Why did they have to have a court order for 46 or 47 lacrosse members to give DNA? . . . Because there’s really no good reason why, if you’re innocent, you won’t go forward and go, ‘Hey, you want my DNA? Take it. I insist.’”

Grace seems never to have encountered ideas such as a right to privacy or probable cause.

Grace then previewed a regular theme—her incorrect forecasts. Placing herself in the minds of the defense attorneys, she suggested what would occur: “The first line of defense is, ‘I didn’t do it.’ The second line of defense is, ‘I did it, but it was consensual.’ The third line of defense is, ‘She’s a hooker.’ Now, let’s just say we get DNA back. They’ll immediately claim consensual.”

This prediction, like virtually every other one Grace made about the case, was wrong.

Grace also was a master of the within-broadcast inconsistencies. Around twenty minutes into the March 31 show, the host proclaimed that police “actually found the girl’s fake nails torn off in the bathroom where she said the rape occurred.” (Grace generally called the 27-year-old accuser a “girl.”) But around ten minutes later, Grace hypothesized, “If there had been evidence, I’m sure it was flushed down the commode or gotten rid of, innocently or not.”

So how did police find the nails if she was “sure” all evidence had been flushed down the toilet by the guilty parties? Grace never said.

Finally, this initial broadcast introduced a pattern of extremist guests offering outlandish theories. Viewers heard from Kelly Addington, director of Let’s Talk Solutions, an organization that operates under the philosophy that “it is almost impossible for today’s student to avoid being affected by sexual violence on campus.” Addington affirmed “it’s so important, as a community, for us to embrace this woman. And let me say that I respect and admire her for coming forward immediately and for having the strength and the courage to speak out.”

Shortly thereafter, Grace chatted with potbanger Serena Sebring, who criticized the Duke administration for “not addressing the things that have been admitted,” such as “the clear evidence of some sort of an assault having happened.” The Duke graduate student never shared exactly what constituted this “clear evidence.” But she nonetheless demanded “more accountability from the administration for the sexual and racial nature of this crime.”

The accusation, for both Addington and Sebring, implied guilt.

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Over the next 35 editions of her show, Grace would devote portions of 24 to the Duke case. These broadcasts exhibited some common characteristics.

Innuendo

Grace was a mistress of innuendo.

• “Are DNA results being held back while the controversy, hopefully, subsides?” (April 5)
• The grand jury was “where the real evidence will come out.” (April 11)
• “Tonight, police try to enter students’ dorm rooms to question witnesses, and they refuse to cooperate with police. Why? I want to know why.” (April 14)
  
• Those following the case needed to become “familiar with the charge called terroristic threats.” (April 14)
• “It’s hard for me to believe not one person came forward to say what happened.” (April 17)
• “There’s something else. The DA has got an ace up his sleeve.” (May 11)

Non-Existent Evidence

When innuendo didn’t suffice, Grace would cite non-existent evidence. Here, for example, is how she said the case would be won even without DNA (April 5):

Physical trauma. You’ve got possible vaginal, anal bruising and tearing. Torn clothing. Torn clothing indicates an attack. Contusions, which is a big word for bruises. Tears, broken nails, which we know we have in this case. She also said in the affidavit that she scratched one of the perpetrators’ on the arm. Look for DNA under that nail, people! Emotional trauma, change in her demeanor, the outcry she makes to the first person. That would be in the Kroeger parking lot.

The only accurate item of the those she referenced above was the broken nails. (Indeed, two nights before, the police had released a 911 tape in which Grace’s “outcry” witness, the Kroeger security guard, said, “There ain't no way she was raped--ain't no way, no way that happened.”) Grace never addressed the discrepancy.

On April 18, meanwhile, she wondered whether Reade Seligmann and Collin Finnerty were “two housemates in the home where the alleged rape took place.” After a few minutes of discussion, she settled on a theory that “they lived together at another time,” in a different house, and “they’re very familiar with each other.” The location of this house has never been revealed.

On May 11, Grace announced that “the allegations that this young lady changed her story were completely false.” In fact, members of the Durham Police Department had the accuser telling them there were zero, two, and five rapists, or three rapists plus three accomplices. Grace never mentioned any of these police documents.

On the same day, she cited the “breaking news” of “human tissue found under the nails of the 27-year-old student-turned-stripper reported a match to a Duke lacrosse player at the party where she was allegedly raped.” Human tissue? A match to a lacrosse player? As we all learned from Dr. Brian Meehan’s December 15 testimony, this assertion was so wrong as to be laughable.

Grace also liked to cite non-existent eyewitness evidence.

On April 5, she anticipated “some brave young man who could be a friend of the alleged rapists to come forward and say, ‘I heard her screaming. I heard them in the bathroom. I saw her come out. They said one, two, and three when they came out of the room. That’s what this case will take to be cracked.’”

A few weeks later, Grace developed a theory as to why her prediction had turned out wrong: “You’ve got to keep into account that a lot of the guys were probably downstairs.” But 610 N. Buchanan was a one-level house.

Factual Problems

Grace seemed unaware of basic facts about the case. For instance, after playing a clip of Nifong at the April 11 NCCU forum, she observed, “There you see the alleged district attorney there in Raleigh-Durham speaking out.”

In fact, Nifong was the “district attorney,” not the “alleged district attorney.” (What would an “alleged district attorney” even be?) And his jurisdiction was Durham, not Raleigh-Durham, a mistake that Grace frequently made. (She often had the Herald-Sun being published in Raleigh.) It’s almost as if Grace believed that because the name of the Triangle’s airport is Raleigh-Durham, a city exists named Raleigh-Durham as well.

Grace also seemed unfamiliar with the key players in the case. When a guest commented about Keith Bishop, she wondered, “Isn’t he one of the defense in this?”

In fact, Bishop was the black challenger to Nifong in the primary. He had no connection to the defense.

Indeed, Grace struggled with the political angle as a whole. In what might be the strangest piece of analysis of the entire case, she dismissed allegations of Nifong’s political motivations by announcing that no evidence existed “that this young lady planned the whole thing in order to help Nifong get reelected.” (April 14) To my knowledge, no one except for Grace had ever suggested that the accuser made her charge to help Nifong politically--or that, on March 14, the accuser even knew who Mike Nifong was.

The April 14 broadcast also featured a trio of high-profile wrong predictions.

• “Was this woman drunk? How come the medical records don’t say that?” [Of course, the UNC medical records did say the accuser was drunk.]
• “You know, along with that, that’s not to say that the alleged perpetrators, the alleged rapists, didn’t go ‘CSI’ and use condoms.” [Of course, the accuser claimed her “assailants” didn’t use condoms.]
• When told that defense attorneys possessed exculpatory evidence, “Well, if you want to ward off a grand jury investigation, if you want to ward off an indictment, if you want to go, ‘Look, this isn’t true; hey, look at her,’ wouldn’t you show it [to Nifong]?” [Of course, defense attorneys had tried to show the evidence to Nifong, only to be rebuffed.]

Denigrating Skeptics

The contempt that Grace demonstrated for those who cited defendants’ constitutional protections becomes clearer when keeping in mind her own record of prosecutorial misconduct.

• When a former FBI investigator charged Nifong with rushing to obtain indictments, Grace ridiculed him: “Wait a minute. Wait a minute. It’s all fitting together to me. You weren’t on the Duke lacrosse team a couple of years ago, were you?” (April 14)
• When a defense lawyer suggested (prophetically) that the accuser might suffer from mental instability, Grace pounced: “Isn’t that something they call—what is that? Slander, yeah.” (April 10)
• After Dave Evans’ press conference proclaiming his innocence, Grace brought on a person described as a “body language expert” to contend that Evans was untruthful.
  
• On June 9, after a defense attorney noted that Kim Roberts’ police statement contradicted the accuser’s claims, Grace shouted, “I’m glad you have already decided the outcome of the case, based on all of the defense filings. Why don’t we just all move to Nazi Germany, where we don’t have a justice system and a jury of one’s peers?”

When all else failed, Grace’s guests could offer ludicrous assertions:

• April 10, Wendy Murphy: “Apparently, at least a couple of the players are cooperating and have provided [inculpatory] statements there.”
• April 17, Travis Mangum (the accuser’s father): “I could see the bruises on her face. She had a scratch on her arm . . . A lot of things I learned later . . . like the broom they used on her and stuff like that.” (All of these assertions were unsubstantiated.)
• April 18, psychologist Dale Atkins: “So often, these kids who really bond together feel entitled and privileged and really kind of above the rules. They don’t think they apply to them, so they want to stay together and they want to be a group, and they’re not going to talk about one another.”
• April 18, Group of 88 member Charlotte Pierce-Baker: “I worry for this victim survivor that we’re talking about.”

But when Nifong’s case went south, so too did Grace. The day the D.A. dropped the rape charges, Grace gave way to a guest host. Meanwhile, her show never mentioned:

• the December 15 hearing (Nifong-Meehan DNA conspiracy);
• the filing of either round of ethics charges against Nifong;
• Nifong’s recusal from the case.

To paraphrase psychologist Dale Atkins, so often, it appears, these TV hosts on primetime Headline News feel entitled and privileged and really kind of above the rules.

--Unfortunately, the very funny SNL portrayal of Grace and the case no longer is up on youtube. [Update, 1.13am: A commenter found the clip here.]

Sunday Review

Financial cutbacks led to a consolidation on the Boston Globe’s op-ed pages, and the paper unfortunately decided to eliminate Cathy Young’s weekly column—by far the most interesting offering on the page. In her last column, Young noted, “The apparent collapse of the rape charges against the lacrosse players at Duke University clearly illustrates the dangers of the ‘women don’t lie about rape’ stance adopted by victim-advocacy groups, whose credibility is likely to sustain serious damage.”

As if to confirm Young’s observation, a post from Kathleen Bergin, a law professor at South Texas College of Law (not exactly a Tier 1 school) whose expertise comes in the one-sided areas of “critical race theory and feminist jurisprudence.” (In the academic arena, Bergin’s latest article is entitled, “Sexualized Advocacy and the Ascendant Feminist Backlash Against Female Lawyers.”)

The post’s thesis: the players are “not innocent,” and, “If brought to trial, my bet is they will be found ‘not guilty.’ And yet, they are so far from ‘innocent.’” This view is an amplification of the Group of 88’s assertion that their crusade would continue regardless of “what the police say or the court decides.” Bergin termed it “undisputed” that racist and sexist epithets were used toward the dancers in the house, and also termed it “undisputed” that the broomstick comment was a threat of rape. Yet the only “witness” to have made the first claim is the accuser; the first figures to make the second claim were the police.

Case expert Bob in Pacifica pointed out these and other factual errors in a detailed reply. The blog’s response? “Based on the comments elicited by this post and some conversations with other bloggers, it appears that an orchestrated ‘opinion shaping’ astroturfing campaign is underway on behalf of the defendants in the ‘Duke Lacrosse Players’ sexual assault case . . . The defendants’ defense lawyers are doing a very zealous and thorough job on behalf of the accused lacrosse players, and that is exactly what they are supposed to do. I need to make it very clear that I have no evidence that they are behind the blog astroturfing campaign that seems to be going on.”

No, but the implication was as clear as it was absurd. No further comments have appeared on the post. So--if even the blog’s commenters are out of step with the post, it’s not because the post is off-target; instead, it’s because Brad Bannon is busily posting anonymous comments when he’s not busy cracking conspiracies to hide DNA evidence. Not exactly the most convincing argument.

Amanda Marcotte, it’s worth recalling, simply deleted comments critical of her view on the case.

As Young observed, people who refuse to consider facts that contradict their worldviews are those whose “credibility is likely to sustain serious damage” from the case.

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Friday is the deadline for Mike Nifong’s attorneys to file his response to the State Bar. If nothing else, the response should be creative—especially since the words of one Nifong lawyer, David Freedman, powerfully indicted the defendant for the very offenses the bar cited.

Also on Friday, Stuart Taylor will be speaking on the case at the University of Memphis. It’s worth remembering that Taylor was months ahead of most national journalists in recognizing the gravity of Nifong’s procedural misconduct; he published his first critique in early May.

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WUNC (a public radio station well-known in the Triangle for its politically correct views) ran a segment on the case last week, featuring an interview with Sara Lipka, the author of the lengthy story on the Group of 88 in the Chronicle of Higher Education. The teaser? “One of the less-publicized impacts of the Duke Lacrosse case has been a widening division among the University’s faculty. It began with an open letter published in the Duke student newspaper back in the early days of the case. It was paid for and signed by a collection of faculty now referred to by some as the ‘Group of 88.’”

The interview was basically a fair one. When even NPR won’t put its credibility on the line to defend the Group, it seems the 88 have few reliable allies remaining.

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Today’s Liestoppers contains a summary of an important article, by Henry Korn, in the New York Law Journal. Korn’s conclusion:

This is a story that squarely teaches that 'rushing to judgment' without wisely stepping back and reviewing the evidence runs directly counter to the ethical obligations that govern how attorneys are required to conduct themselves. The harm of such ignorant conduct is that others are grievously wounded. Familiarity with, and adherence to, the code of professional responsibility provides the foundation for attorneys to avoid abuse of their license and harm others by so doing.

The significance of the piece: Nifong’s record is increasingly making it into national legal circles as an example of gross prosecutorial misconduct. This development heightens pressure on the Bar to deal with him severely.

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A peculiar column in today’s Des Moines Register, which to my knowledge has not previously commented on the case. Columnist Rekha Basu writes on what she terms the myths about sexual assault, with a thesis that attackers often come from family or friends.

It would seem the lacrosse case has nothing to do with this thesis. But that she quotes from Wendy Murphy gives some sense of Basu’s perspective. On the case, Basu writes,

Recent reporting on the Duke lacrosse case, including a "60 Minutes" segment, also gives the impression that the prosecution’s case fell apart because the victim recanted the allegation (and therefore that it didn’t happen) . . . As to why the rape charge was withdrawn, instead of blaming the victim, you could blame the limitations of North Carolina law, which limits its definition of rape to penile-vaginal penetration.

As if eager to prove Cathy Young’s thesis that this case will be devastating to the credibility of so-called victims’ rights groups, Basu turns to the head of an organization called North Carolina Coalition Against Sexual Assault to establish the validity of her portrayal of events.

It’s not clear from her article if Basu actually watched the 60 Minutes broadcast; if she had, she would have learned that the prosecution’s case fell apart because Nifong’s massive prosecutorial misconduct was eventually exposed. As for the “victim” recanting her allegation, the significant issue came in the December 21 version of events contradicting in virtually every important way every other story the “victim” had previously told.

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In a post last week, I erroneously attributed the following quote to Christina Headrick: The real enemy was “white people who are incredulous and skeptical that racism exists at all and attribute claims that racism does indeed exist to some sort of enigmatic and massive hallucination on the part of people of color.” That quote actually came not from Headrick but from another potbanger. I apologize for the error.

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An event from a week ago that I should have mentioned last Sunday: Assistant Attorney General Brian Wilks has just become a Durham assistant district attorney, serving as supervisor of District Court operations.

John Stevenson—faithful to Nifong to the end—assured Herald-Sun readers that the move “has nothing to do with the controversial Duke lacrosse sex-offense case.”

Right. Every day, bright and talented people give up a post in the state attorney general’s office to go work for a prosecutor who faces an ethics trial a few months down the road.

Wilks' background is interesting: an African-American, he has a J.D. from NCCU, served as a public defender, and seems to have good ethical reputation. (“Seems” is necessary here because the figures that Stevenson quoted praising Wilks’ ethics also had defended Nifong’s ethics, and so have little or no credibility on the issue.)

A Machiavellian observer might suggest that Wilks is the frontrunner to get Easley’s nod if and when Nifong is forced to resign.

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I received two follow-up tips to the post from last week on the potentially “jaw-dropping” proposals under consideration from the Campus Culture Initiative. The first suggested that the Towerview article understated the degree to which Peter Wood, chair of the athletics subgroup, had misrepresented the views of his subgroup in his report to the full committee. The second suggested that the CCI's most dramatic recommendations involve changes to university housing and athletics policies, changes that overwhelming numbers of alumni would oppose. Neither piece of news came as a surprise, given the dominance within the CCI of the most extreme critics of the lacrosse team.

It is my sense that most Duke alumni look back fondly on their time at the institution; at some point, they might need to mobilize to counter a body whose leadership the Chronicle effectively critiqued last month: "Stacking the CCI with critics of 'white male privilege' suggests that the initiative was created to pacify countercultural professors, rather than to shape a new and improved campus culture."

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Bill Anderson has a must-read column up this week outlining the possible criminal charges to come, in a case that he calls a classic example of “a criminal fraud.” Ominous signs that he sees: the erasure of police recordings whose preservation the defense had requested. Police spokespersons covering up the fact that the captains “willingly gave DNA samples, and then offered to take lie detector tests,” and refusing to consider how this behavior suggested strongly for innocence.

The case should have ended, Anderson notes, no later than March 22: “Police should have told the district attorney that there was no evidence for rape other than the numerous conflicting stories told by a woman whose previous criminal behavior and dishonesty were well-known to the Durham police . . . Instead, the Durham police at this point chose to lie; why they chose to lie is a question that has not yet been answered.”

Anderson also reminds us of an incident mostly forgotten now: a lacrosse player supposedly emailing “his teammates to tell them that he was coming forward to testify.” The player, Anderson correctly notes, never sent that email. “Instead, it was manufactured by another party. Was it the police? That is where the evidence points, but the ‘blue wall of silence’ is not giving in at this point.”

Nifong, meanwhile, “conspired with Brian Meehan, who directed a private lab that tested the DNA samples, to withhold a large amount of exculpatory evidence.” This action, Anderson correctly observes, opens up the possibility of a federal conspiracy charge—in which Nifong, Sergeant Gottlieb, and Linwood Wilson would be prime targets.

Anderson also poses some other interesting questions. Why, on March 28, did Kammie Michaels, the DPD public affairs officer, still claim that the origin of Kim Roberts’ first 911 call was unknown? I e-mailed Michaels to ask her this question; she refused comment.

And how would investigators view Gottlieb’s “straight-from-memory” report? Anderson sees it as “a blatant attempt to manufacture inculpatory evidence, and manufacturing evidence is a felony.”

Finally, was the December 21 statement from the accuser simply an attempt to continue the frame against innocent suspects?

Based on this record, Anderson concludes, “We now officially have the Alice-in-Wonderland state in which the accused are innocent, but the accusers are the criminals. While state authorities would like for us to believe that only Nifong has committed ‘questionable’ acts, we can see that the criminal conspiracy runs much deeper than a rogue prosecutor. Much deeper.”

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March 24 is a critical day in the case, since it was on this day that Mike Nifong—in a violation of standard procedures—assumed personal control of the criminal investigation.

March 24 is also the day in which the national media first came to know Cpl. David Addison, who, it turns out, was filling in for Kammie Michaels as the department’s spokesperson.

John in Carolina recognized the procedural impropriety of Addison’s conduct before just about anyone else, and he’s in the midst of a three-part series re-examining the corporal’s role in the case.

Is it any coincidence that on the day Nifong assumed personal command of the case, the police department starting making factually inaccurate, inflammatory public statements?

More Airbrushing

Creatively reinterpreting the past appears to be a theme in case-related matters this week. The potbangers blazed the trail; Amanda Marcotte took up the challenge.

The ex-official blogger for the Edwards campaign published an explanation of her departure yesterday in Salon.

Her departure from the Edwards campaign, in her view, was a cataclysmic setback. In her article, she claimed:

• “Regardless of its motive, the result of the smear campaign was to send a loud, clear signal to young feminist women. It tells them that campaigning for Democratic candidates, and particularly doing so in positions that would help the candidate connect with young feminist communities like the one that thrives in the blogosphere, is a scary, risky prospect.”

• “When I was trying to decide whether to resign, no other concern weighed as heavy as the fear that resigning would tell the right-wing mob that harassing young feminists works.”

• “It’s also plausible that the right-wing noise machine was working on pure misogynist emotion.”

• “This was just the first sign that the established media and political circles will not be letting the blog-writing rabble into the circle without a fight.”

Marcotte mostly attacked the Catholic League’s Bill Donohue. But, she conceded, her problems began when she “noticed a small flare-up of oddly aggressive and misogynistic comments in my moderation queue over a short, irritated post I wrote about the coverage of the Duke lacrosse rape case on CNN.” That post, dated early January, openly asserted that a sexual assault took place.

Her response? To assume “that some anti-feminist blogger had linked me and so, in frustration, I went and rewrote my by-then week-old post to mock the commenters by spelling out my views in childish, easy-to-understand language.”

Marcotte is a professional blogger; I’m not. But I don’t consider it common practice at most blogs to, upon receiving questioning comments, eliminate the original post and replace it with something else.

And how does Marcotte define an “anti-feminist blogger”? Apparently anyone who believes that no evidence exists in this case to suggest that a rape occurred.

The affair, laments Marcotte, “may have been the first indication that the right-wing noise machine had noticed me and was looking for something with which to hurt me and my new employers.”

The blogs that did the most postings on Marcotte and the Duke case were Liestoppers and DIW—hardly part of the “right-wing noise machine.” Liestoppers was devoted to a campaign designed to allow Mike Easley, a Democrat, to appoint Durham County’s next DA; this blog is run by someone backing Barack Obama.

But, as Marcotte made clear in her original (airbrushed) post about the case, she clearly is someone for whom the facts are secondary to advancing her ideological agenda.

By the way, Marcotte also claimed in her Salon column that “liberal blogs are issue-oriented and good at parsing out complex ideas that don’t fit well into the sound-bite-driven mainstream discourse. They are a good fit for wonky Democrats.”

Here’s a compilation of Marcotte’s postings on the lacrosse case. How many people would consider these postings examples of “parsing out complex ideas,” or “wonky,” or “issue-oriented”?

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Another redefining occurred this week in the Chronicle column of one of the few remaining defenders of the Group of 88, Samson Mesele. Echoing the assertion of Charles Piot from last Monday’s edition of the Group of 88 Rehab Tour, Mesele claimed that the Group of 88 is really the Group of 89—that “in my view, [President Brodhead] is an honorary signatory of the ad and its references to student-identified problems of racism, sexual coercion and social inequality at Duke.” (I’m not sure Brodhead would agree with this claim.)

Mesele articulated the Group of 88’s current talking points—(1) the ad had nothing to do with the lacrosse case; (2) dozens of professors taking out full-page ads “listening” to their students is somehow routine in higher education: (3) critics have willfully misinterpreted the document, which no one noticed at the time.

“Indeed,” he wrote, “the April ad’s social commentary transcends the very dimensions of the lacrosse case. Publishing student experiences is . . . an extension of the University’s educational interests.”

The latter claim is, of course, absurd: it would imply that every day, college newspapers are filled with dozens of ads published by dozens of professors “listening” to students with whom those professors agree on ideological issues.

But what of Mesele’s first claim? His assertion echoed that of the “clarifying” faculty, whose defiant open letter asserted that the Group of 88’s statement was not “a comment on the alleged rape, the team party, or the specific students accused.”

Here’s an announcement (scroll down the page) of an April 12 event at the John Hope Franklin Center:

Wednesday, April 12th, 2006: 07:00 PM - 08:30 PM

Room 240, John Hope Franklin Center

Panel Discussion

Thinking About This Social Disaster

Wahneema Lubiano (AAAS and Literature), Thavolia Glymph (AAAS and History), and Serena Sebring (Sociology)

The presenters will talk about what has happened, what is happening, and what is coming together in the framing of the accusation of rape against members of the Duke men’s lacrosse team and its afterlife. [emphasis added] There will be plenty of time for audience members to be part of the discussion.

The same announcement on the African-American Studies program blog helpfully contained a link to the (since-removed) URL of . . . the Group of 88’s ad.

Serena Sebring, as a post earlier this week noted, was a prominent potbanger; when asked whether the protesters should apologize for their rush to judgment, she eloquently replied, “Nope.” At the forum noted above, Thavolia Glymph lamented how “since the [negative] DNA results were returned Monday, we [have been] moving backwards.” And Lubiano, of course, was not only the author of the Group of 88’s ad, but the author of eight of the student quotes in the ad, which came not from a transcript but from her (apparently unverified) notes.

To review:

• The “listening” statement, which contained quotes about what “happened to this woman” and thanked protesters for not waiting, was entitled, “What Is a Social Disaster?”

• Six days after its publication, the AAAS hosted a forum entitled “Thinking about a Social Disaster,” which addressed “what has happened, what is happening, and what is coming together in the framing of the accusation of rape against members of the Duke men’s lacrosse team and its afterlife.”

• The official announcement of the event on the AAAS website linked to the “listening” statement.

But the ad was not “a comment on the alleged rape, the team party, or the specific students accused.”

As Marcotte discovered, it’s difficult to airbrush the internet.

Condemned to Repetition

The Group of 88’s Monday event—ostensibly designed to confront “the current of criticism and attempts at intimidation directed against faculty who comment on larger social and political issues, and following the events of last spring, this forum addresses connections between faculty interests and local, national, and international politics”—seems to have fared no better in improving the Group’s reputation than did the “clarifying” letter.

Instead, the event only confirmed the aphorism that those who cannot remember the past are condemned to repeat it.

Flyers for the event contained “McCarthy” with a line struck through the word. The invocation of McCarthyism generated a thoughtful letter to the editor from Economics professor Roy Weintraub, who had more than his share of personal experience with the issue:

In the late 1940s, my father, an economist, was attacked in newspaper editorials in The Brooklyn Eagle for teaching communism to nice Catholic boys at St. John’s University. He was, of course, an early Keynesian. In the late 1940s, the man who would become my doctoral adviser had to leave the United States for almost a decade to avoid the agitated involvement of the Regents of the University of Michigan in his tenure case, based on his admitted connection with the Communist Party as a graduate student and young instructor. In those years with the Smith Act in place, one could be jailed for being a Communist Party member. That he was doing the work for which he would later win the Nobel Prize mattered not at all to the Regents.

And my college classmate was Julius and Ethel Rosenberg’s older son.

So I read with astonishment the recent panelists’ invocation of McCarthyism as their characterization of the criticism they have received for their public statements or writings. They face no death sentence, no jail time, no threats from Trustees or administrators of employment termination, no loss of income, no loss of custody of their children, no loss of their passports, no reduction whatsoever in their public or private circumstances.

I don’t ask the panelists to shut up and teach. I ask them instead to understand that for various Duke faculty, staff, administrators, students, parents and alumni to disagree with them in public or in private is neither McCarthyism nor an academic travesty and betrayal of the values of our institution, but is rather an expression of their believing otherwise.

Shorn of its inflammatory rhetoric, the Group members’ position appears to be:

(1) Their critics should “shut up and teach”—as, indeed, one presenter, Charles Piot, stated outright at the conclusion of his Monday remarks.

(2) It is McCarthyism to criticize faculty members at one of the nation’s most prestigious institutions for issuing a statement so extraordinary that it was cited in a defense motion for change of venue, even though they have given inconsistent and even demonstrably incorrect explanations regarding the statement’s origins.

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Monday’s event seemed unable to remember the past in another way. Though billed a “teach-in,” it restricted the exchange of ideas.

In their purest form, 1960s teach-ins consisted of faculty attempting to transmit their knowledge about Southeast Asia to students and even a public that had little understanding about the area. Participants in 1960s teach-ins wanted to make sure as many people as possible had access to their ideas, and weren’t afraid of defending their positions in the face of skeptical questions.

The Monday “teach-in,” on the other hand, went out of its way to prevent dissemination of the speakers’ ideas. At least two bloggers attended with video recorders, with intent to post a tape of the event on the web—so people could hear the Group members in their own words. Given that Group members have consistently claimed that their writings have been “misread,” they should have welcomed this move. Instead, they banned all recording devices from the event.

At the very least, participants in a “teach-in” should have been willing to defend their viewpoints. Indeed, one participant, Group of 88 member Mark Anthony (“thugniggaintellectual”) Neal, asserted, “We live in the world of ideas, in the marketplace of ideas.”

The participants did not practice what Neal preached. Instead, they seemed outright afraid of getting tough questions—perhaps on the basis of the open (and thus far unanswered) questions from Friends of Duke. The session opened with an announcement that journalists and bloggers would be forbidden to ask questions. In other words, the goal would be to preach to the converted, not to persuade the undecided.

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So what did occur at the session? John in Carolina, Locomotive Breath from the Liestoppers forum, and a blogger from Duke New Sense attended the session and took careful notes. Their reports make clear why the Group members worked so hard to prevent dissemination of their words from outside the confines of the “teach-in” room.

Looking forward to the day when “we’ll all get along together after the revolution’s over,” lead speaker Wahneema Lubiano promised to run to the barricades, to save her job at least, if the university adopted policies she opposed. Lubiano was fresh off the revelation in the Chronicle of Higher Education that eight of the anonymous student “quotes” from the Group of 88’s ad actually came not from a transcript but second-hand, from her notes. In effect, 87 other Duke professors signed a public statement declaring that they were “listening to Lubiano.”

Lubiano appears to have received only one tough question—from a Duke junior, who asked how the “listening” ad was formulated, how signatories found out about it, and why there was no response from the sciences. Her response? Reported LB, the African-American Studies program “wanted to produce ad and had to do it quickly. Circulated it to people on their lists. Sent to some departments and not to others. Gave them a 48 hour deadline!!” As LB notes, “If the ad wasn’t about lax, why the rush, except to capitalize on the moment?”

Recall the timeline: based on Lubiano’s remarks, it appears to Group wanted the ad out before the DNA reports came in, lest a report of no matches lead to—as Group member Thavolia Glymph would lament—things “moving backwards” on campus.

Then, according to LB’s notes, Charles Piot made an extraordinary claim: the Group of 88 is now, effectively, the Group of 89, because President Brodhead had signed on to the ad in a recent Chronicle interview. This assertion, to put it mildly, seems an overstatement of what Brodhead actually said.

Other speakers devoted themselves to less worldly matters. Pedro Lasch handed out a set of questions entitled, “game scenario: knowledge/power/violence vs. knowledge/power/social justice.” Diane Nelson passed around to participants a string, which a student then cut, to symbolize disconnectedness. As one commenter at Liestoppers noted, this activity seemed more appropriate for elementary school playtime than a serious academic presentation.

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As occurred in Lubiano’s and Piot’s assertions about the Group of 88, the presenters consistently strayed from the claim that the forum wasn’t about the lacrosse case. Amidst his game scenario, Lasch departed from the script to assert that “women live in an environment of constant sexual violence.” Robyn Weigman, Director of Women’s Studies, added, “It’s not a crime to assume alleged victim of sexual violence is telling the truth.” No, it’s not. But it is a rush to judgment, especially when 88 professors take out an advertisement based on this assumption.

Piot, meanwhile, devoted his presentation to . . . criticizing this blog—which, he hastened to add, was not read by even one of 100 students he had sampled. A good portion of Piot’s remarks came almost verbatim from an e-mail distributed by Orin Starn, to which I had previously responded by e-mail (a copy is here).

Piot’s assertion that the blog employs tactics comparable to those of unnamed dictators in West Africa was more than mildly amusing. His refusal to respond to straightforward questions from John in Carolina is unsurprising. His claim that the “blog produces vile racism” might have been more persuasive had he provided a quote from even one of the blog’s 403 posts. His complaint that the blog “had the temerity to question one of the Duke faculty on IRB approval for a study” might have made more sense to the undoubtedly perplexed audience had he mentioned that the issue involved a course taught by his partner, Group of 88 member Anne Allison.

Piot explained that he and members of the Group of 88 are not anti-athlete, and that “hundreds of athletes enrolled” in AAAS courses (since the program has only 33 majors, this claim seems remarkable). Nonetheless, if true, it seems to me Piot should eagerly sign the Economics Department professors’ public petition, which stated, “We welcome all members of the lacrosse team, and all student athletes, as we do all our students as fellow members of the Duke community, to the classes we teach and the activities we sponsor.”

Piot added a final charge: the blog, he fumed, had engaged in “publicizing syllabi” of Duke professors. At most academic institutions, syllabi are not considered top-secret documents: indeed, all of my syllabi, along with my lecture notes, are available on-line.

I fear that Piot based his belief that faculty should be free from public scrutiny on another overlooked aspect of the past. It seems that he has forgotten the famous saying of former Supreme Court Justice Louis Brandeis: sunlight is the best disinfectant.

The Potbangers Airbrush the Past

Yesterday’s post traced the first phase of the potbanger movement—from March 24 through March 30, when the potbangers, approaching the issue from an ultra-feminist angle, expressed certainty that a rape occurred. Today’s post examines the movement’s second and third phases, in which the potbangers continued to denounce the players, though now for different offenses.

The second phase lasted from March 31 through April 10. Recognizing that a rape might well not have occurred, the potbangers refused to abandon their denunciation of the lacrosse players, and instead began to stress the team’s alleged racism.

The third phase spanned from April 11 onward. After defense attorneys revealed that no DNA match to any lacrosse player existed, the potbangers shifted wholly to claims that they were never seeking punishment for the lacrosse players, but were merely addressing the broader societal issues of racism and sexism. This approach was coupled with defiant refusals to apologize for their rush to judgment and a rationalization of their actions by stressing the drinking habits of the lacrosse players.

Phase Two

While ideologues, the potbangers were among the closest observers of the case. They understood that two events of late March (defense attorneys’ predictions that there wouldn’t be DNA matches, the Herald-Sun’s belated concession that the captains had fully cooperated) made it uncertain that a rape occurred.

But, they were determined, the crusade would continue. It would need a new focus—racism, not rape, would assume center stage. The potbangers took their cue from two people: Mike Nifong and Group of 88 member Mark Anthony Neal.

On March 28, the day after Nifong began his procedurally improper publicity barrage, the potbangers took notice. Rejoiced potbanger leader Rann Bar-on, “I think that these statements from Nifong can create a shift in the tone of those who think we are going after way too wide a target.” Duke graduate Sarah Ogburn agreed, wondering if there was “any way to have some of Nifong’s statements added to [the group’s] materials,” since “his statements are extremely powerful.” Ogburn noted that when she posted Nifong’s remarks “on the TrinityPark listserv, a lot of people either spoke up when they had not before, or seemed to shift their thinking.”

The D.A.’s comments so celebrated by the potbangers emphasized the racial element of the alleged crime. “In this case,” declared the district attorney on March 27, “where you have the act of rape—essentially a gang rape—is bad enough in and of itself, but when it’s made with racial with racial epithets against the victim, I mean, it’s just absolutely unconscionable. The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”

Meanwhile, Mark Anthony (“thugniggaintellectual”) Neal, soon to be a member of the Group of 88, gave an interview to NPR. He suggested that for the African-American community, the allegations of racism were attracting much more attention than the claim of rape. He also wondered whether the “privilege” of some protesters had caused them to downplay the racism angle and instead focus on the alleged sexual assault.

For a group as politically correct as the potbangers, Neal’s assertions aroused enormous concern. Christina Headrick, a former N&O reporter who had opened up what she described as the “unforgettable scrapbook store,” confronted the issue head-on. She fantastically wondered whether the potbangers could “have a ‘Talk-In’ or some kind of discussion about racism in Durham,” perhaps by setting “up six chairs under a tent on the sidewalk at Buchanan and go for as long as we can get participants. Or would that just be a bunch of guilt-ridden middle-class white folks sitting around? I don’t know . . .” (Headrick declined comment for this post.)

Bar-on concluded that Neal was correct: “since we are more non-religious/leftist/liberal/progressive (pick one that applies), we focus equally on the sexual assault and the race issues, whereas much of the community around us focuses on one of the two rather than linking them.” But, he added, “If our position is indeed privileged, is that a positive use of privilege?” In other words, the potbangers would lead the masses to revolution.

In any event, race assumed a much greater role for the potbangers by the end of March. (Reconsidering their initial certainty that the lacrosse players were morally deficient appears not to have been an option.) On March 30, the daily protests shifted in tone, to take note that “women, especially women of color, have repeatedly stated to President Brodhead that they do not feel safe on Duke’s campus or its surroundings.”

Despite this assertion, the protest announcement maintained, “We are not prejudging the outcome of the criminal case, but we demand measures be put in place to ensure that we never see this again.” What, precisely, was “this”? A false allegation?

The group also started shifting its demands. They still wanted the season canceled and Coach Mike Pressler fired. But according to a March 31 memorandum prepared by Headrick, they now also demanded “creation of a huge, multi-million dollar fund to address racial inequities/issues by Duke”; “improved educational programs to combat racism at Duke”; and an “educational scholarship fund to be created at NCCU.”

Headrick* explained the issue to a Duke student who had worried about having rushed to judgment. The real enemy, she declared, was “white people who are incredulous and skeptical that racism exists at all and attribute claims that racism does indeed exist to some sort of enigmatic and massive hallucination on the part of people of color.”

Potbanger Jacob Remes, a Duke graduate student in History, had come to Durham after serving as a coordinator of the “Yale Social Justice Network.” A sharp critic of Yale athletes as an undergraduate, Remes concisely explained the new approach on March 31. Activists, he maintained, should use the allegations “to examine the cultures of white, male, class, and athlete privilege in their own communities.”

No longer should the focus be on getting the season canceled or the coach fired—although Remes and his colleagues would have no problem with these outcomes, either. In a letter to the New York Times, he blasted the Duke administration for allowing the players to continue to practice in the days before the cancellation of the season. “I fear,” he asserted, “that the practices continue in order to build up and maintain team solidarity.” (Privately, Remes claimed that he received this information from a male History professor who taught several lacrosse players: Peter Wood?) “This is exactly,” he continued, “the opposite of what the university should be doing. Instead, it should be trying to isolate the players in the hopes of getting one of them to tell the truth.”

I e-mailed Remes to ask if, in light of recent events, he had reconsidered his springtime actions or his astonishing recommendation that the University act as Nifong's deputy. He replied, “I have had no role in any criminal case against Duke undergraduates, and I have expressed no public opinion on the guilt or innocence of any accused individuals.” (Some might consider having urged the administration to “isolate the players” or belonging to a group that used slogans such as “castrate” and “time to confess” as having adopted a public opinion.) According to Remes, he continues “to believe that all charges of rape and sexual assault deserve full investigation and hearing, especially when the victim is less privileged than the accused attacker . . . and that Duke’s particular combination of athletics, fandom, and alcohol use promotes a culture of violence, misogyny, and abuse of privilege that corrodes the university’s intellectual community and academic mission.”

Mostly, however, Remes wants the potbangers’ critics to butt out, so the group can champion its agenda free from criticism. He told me, “I believe that these important questions about the university’s ‘campus culture’ (although I am deeply suspicious of that term) are primarily relevant to the Duke and Durham communities, and I am frankly perplexed by your ongoing efforts to involve yourself.” As John in Carolina has noted, this sentiment seems quite prevalent these days among the rush-to-judgment constituency.

Phase Three

The racism storyline encountered a major obstacle on April 10—the defense lawyers announced that no DNA matches occurred. Potbangers debated whether they should apologize for having presumed guilt, an option that most rejected.

Serena Sebring, a Duke Sociology grad student who focuses on “the convergence of race, gender, sexuality, identity, and the law,” explained the rationale for refusing to apologize. As of April 11, she saw no reason for anyone to say they were sorry:

Regardless of the end result criminally, I have a problem with the idea that it was wrong to react to the racial violence of March 13 with anything other than immediate urgency. If that reaction included belief in the word of an alleged rape victim who we know was subject to racial assault, I would say this is not a “rush to judgement [sic],” but rather a logical inference.

In any case, she added a couple of days later, “not having been present in that house on that night, I am inclined to believe the victim.”

Meanwhile, the potbangers reinvented history, suggesting that their earlier protests had focused on the players’ behavior, not on the certainty of rape. (They never revealed how signs saying things like “Castrate” or “Time to confess” reflected the new storyline.) Explained one potbanger, “I’ve said it time and again... even if they didn’t commit sexual assault, the behavior of these guys was absolutely unacceptable. Concentrate on that; let the legal system deal with the criminal charges.” Added another, “I have been saying all along that, even if there was no rape, we know that (1) these guys had an underage drinnking [sic] party (2) strippers were hired (3) they hurled racist remarks at the strippers and possibly others (4) they have been terrorizing the community for quite a while.”

Bar-on took this approach one step further; on April 11, he urged his fellow protesters to deny that their focus ever was on the lacrosse players themselves.

He predicted (incorrectly, as it turned out) that the “media will turn to a pretty harsh, but pretty short-term, assault on us (the people who ‘jumped to conclusions’...we will see that phrase a lot in the near future).” To avoid the collapse of the movement, he recommended that:

We focus on the notion that this case merely uncovered a far deeper problem, namely the sense of entitlement and privilege so pervasive on Duke’s campus. Duke-Durham relations are tense for a reason: Duke kids are upper-class, rich, entitled, privileged and so on. This case merely highlights their lack of respect for the community in which they live. The players’ guilt or lack thereof has no effect on this. [emphasis added]

Bar-on articulated more bluntly the basic thesis that Group of 88 leader Wahneema Lubiano would offer two days later: “Regardless of the ‘truth’ established in whatever period of time about the incident at the house on N. Buchanan Blvd.” The crusade would continue.

The new line of argument was embraced by Bryan Proffitt, a self-described “Hip-Hop generation white man that writes, organizes, teaches, and lives in Durham.” In mid-April, this co-founder of a group called “Men Against Rape Culture” produced an essay that laid out the group’s new agenda. Group of 88 member Mark Anthony Neal posted the essay on his blog, shortly after Neal’s blog also published Lubiano’s attack on the team.

Everyone, Proffitt wrote, knew the facts of the case: upon leaving the party, “a Black student/mother/daughter/woman/human . . . calls the police, and reports that she and a companion have been racially assaulted, and that she has been sexually assaulted by three members of the team. There is a medical exam that reveals sustained physical trauma.” Actually, of course, all of those “facts” were wrong.

False assumptions, however, didn’t stop Proffitt. The basic issue was simple: “We have a commitment to believing those who come forward with stories of survival first . . . Something dehumanizing, frightening, and wrong happened in that house. Regardless of the specifics, there is healing to be done and justice to be fought for.” In other words, don’t let the facts get in the way of a good crusade.

This case, Proffitt explained, “is the ‘Rape CNN.’ It is the sensationalized version of what happens every single day in this world.” What did the case expose? Among other things, that

America, and the world, is sick with white supremacy and racism; heterosexism and homophobia; patriarchy, sexism, and transphobia; and poverty and capitalist excess. These systems all interact to create a culture of violence that must be changed. We teach our children the lessons of these systems, and they grow up to reinforce them. We must dismantle these systems if we hope to end the onslaught of violence . . . Survivors will create the path forward. In resisting violence, homophobia, transphobia, racism, sexism, and capitalism, survivors of oppression generate the vision for the rest of us to follow.

Proffitt did not respond to a request for comment.

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From firing Mike Pressler and getting the season canceled to overturning “poverty and capitalist excess.” From breaking down the alleged “wall of silence” to resisting “violence, homophobia, transphobia, racism, sexism, and capitalism.”

The potbangers certainly made a striking intellectual evolution. There was only one problem. The underlying case upon which they built their crusade was a fraud. The Group of 88, of course, has the same problem.

*--This quote actually came from not from Headrick but from another potbanger. I apologize for the error.