Chalmers: Revising History

In an impromptu press conference posted with WRAL, the perpetually absent chief Steve Chalmers gave a series of astonishing statements this afternoon.

The April 4 lineup "was not a lineup."

"It was very disappointing" that the City Council had not allowed him to answer any questions they might have had.

Defense attorneys refused to provide him with exculpatory evidence. He did not say why the Police Department declined to investigate Mangum's inconsistencties.

It might be "confusing" for some people to understand relationship between police and DA.

He wanted a third party inquiry, but apparently told only City Manager Patrick Baker, who overruled him.

Despite considerable evidence to the contrary, the Police Department remained in charge of the investigation until the first indictments.

Chalmers refused to say whether Sgt. Mark Gottlieb and Officer Ben Himan informed the grand jury that Crystal Mangum had selected her "attackers"; he also refused to say whether he thought the case should have gone forward. He did note, however, that the department was fully "prepared to defend" its actions if the case went to court.

The Council voted 6-1 for an outside review of the DPD: Chalmers' statements--which strongly suggested that he still sees nothing wrong with the DPD supporting the indictment of three people without probable cause--are a good example of why such an inquiry is so badly needed.

DCU: "We're Listening"

The Duke Conservative Union has published a powerful advertisement today taking to task the Group of 88. The DCU says that it's "listening" to the Group for a justification of the professors' extreme statements and actions. It seems, however, that Group members who were so sensitive to students' opinions last spring no longer care to hear what Duke students have to say.

The ad is below; click on it to enlarge and read:

Who Are the Clarifiers?

Public attention about the behavior of Duke faculty activists had two turning points. The first came on December 15, when—for what appears to be the first time in American history—the statements and actions of their own professors were cited as grounds for why college students could not receive a fair trial locally. The second came in the so-called “clarifying” statement, issued by 87 Duke faculty members in mid-January.

The statement, which purported to “clarify” the Group of 88’s ad, formed the first leg of the ill-fated Group of 88 rehab tour. The defiant refusal to apologize and the professors’ inability to explain the guilt-presuming statements from the original ad (something “happened” to Crystal Mangum; “to the protesters making collective noise, thank you for not waiting”) generated national attention. Drudge (16 million daily hits) linked to the statement itself; within days, Dan Abrams, John Podhoretz, Mary Laney, and Charlotte Allen had condemned the statement on television or in widely circulated newspapers and magazines.

The statement attracted big names among anti-lacrosse extremists: Anne Allison; Bill Chafe; Kim Curtis; Grant Farred; Karla Holloway; Wahneema Lubiano; Paula McClain; Mark Anthony Neal; Alex Rosenberg. But some Group members, such as Houston Baker, had left Duke by the time the new statement appeared; a select few, such as Arlie Petters, declined to sign the new statement. A total of 28 original signatories did not endorse the clarifying statement.

Perhaps the most inexplicable element of the faculty’s response to this entire case came in the decision of 27 members of the Duke faculty who had the good sense or fortune not to sign onto the Group of 88’s statement to affiliate with the Group’s cause long after it had been discredited.

Who were these newly “clarifying” faculty, and why did they act?

A handful were powerful figures on campus who fall into the Chafe/Lubiano/Allison ideological axis. Take, for instance, Kerry Haynie, co-Director of Duke’s Center for the Study of Race, Ethnicity, and Gender in the Social Sciences. He joined Chafe in a late-February apologia, demanding that Duke “move forward” without addressing the faculty’s response to the lacrosse case, and affirming his belief “students and faculty alike should pledge to uphold a code of mutual respect and of caring about each other.

When asked why he signed the “clarifying” statement, Haynie’s reply, en toto, was, “Get a freaking life! Quote me!”

A half-hour later, he e-mailed back, writing, “Please don’t send me any additional stupid emails on this topic.”

Some people might wonder how Haynie considered himself a figure who could lecture others on the need for “mutual respect.”

Other prominent figures among the newly “clarifying” faculty:

• Charlie Piot is chair of the African-American Studies program. At a February forum, he demanded that the Group’s critics “shut up,” and, in one of my favorite lines of the case, suggested that this blog imitates the propaganda practices of unnamed African dictators.

• Robyn Wiegman is Margaret Taylor Smith Director of Women’s Studies and Professor, Women’s Studies and Literature. Last fall, when Steve Baldwin became the first Duke professor to criticize the Group of 88, Wiegman wildly attempted to tar him with the brush of racism.

• Kenneth Surin replaced Karla Holloway on the Academic Council and confided to Diverse that athletes did not enroll in his courses: “I do not give quizzes . . . I give very hard reading.” He told me that he signed the “clarifying” statement and would have, if asked, signed the Group of 88’s statement because “Duke did not ask the lacrosse team to have a party with under-aged drinking in March 2006. Duke did not ask the lacrosse team to hire strippers at that party. Duke did not ask the lacrosse team to impersonate another Duke sports team [sic] when hiring the strippers. Duke did not ask the lacrosse team to shout racial slurs [sic] at the strippers that night (vouched for by neighbors [sic], no one on the team has denied this). Duke did not ask a member of the lacrosse team to send an inflammatory email later that night (the subsequent excuse is that this email was a ‘parody’, but in the circumstances sending it was not the best thing to do). Duke did not ask the lacrosse team to acquire a significant track record of alcohol-abuse and public-disorder convictions (1/3rd of the team since 2000). Duke did not ask one of the three accused members of the lacrosse team to acquire recently a gay-bashing conviction [sic] in DC. Duke did not ask the lacrosse team to become notorious for its unruly and antisocial behavior in the Edens Quad on campus and the Trinity Park and Trinity Heights neighborhoods off campus (I know first-hand, having lived in the latter neighborhood from 1993-2005) . . . In no way can condemnation of this persistent pattern of lacrosse team misbehavior be a problem for any ethically upright member of the community.”

How this explanation corresponds to the current excuse for the Group of 88’s statement (the ad had nothing to do with the lacrosse case; signatories were merely expressing support for unnamed black students on campus) Surin did not say.

Several other “clarifying” faculty (Erin Gayton, Erik Harms, Fred Klaits, Tamera Marko, Kristin Solli) were instructors in the University Writing Program—which isn’t exactly a hotbed of mainstream thought. Harms, for instance, teaches a course called “URBANcultureSPACEtimePOWER” (all one word), which explores such questions as, “Why are there no supermarkets in some neighborhoods, only liquor-stores? . . . Who gets ‘a view’ and who is put under surveillance?” Klaits teaches a course asking, “Why Have Wealth?”; Solli’s offering critiques “The World According to America.” Marko’s class explores how “cell phones to cybersex to 'designer babies'” to other technologies are “produced, marketed and consumed in terms of [naturally] race, class, gender, sexuality, labor, family and nationality.” All five did not respond to two requests asking why they signed the January statement.

Of the remaining 17 non-Group members who signed onto the “clarifying” statement, only two have publicly articulated their rationales. They, and the other 15, all did not respond to two e-mails from me asking about the statement; the Chronicle, too, found these professors unwilling to explain their actions. Many, however, had the expected (Jehanne Gheith; Robert Korstad; Sean Metzger; Stephanie Sieburth; John Transue; Kathryn Whetten; Tomiko Yoda) race/class/gender worldviews. Covering just about all the bases, Metzger, for instance, lists “performance and queer theory; race, migration and sexuality . . . [and] the intersections of gender, sexuality, race, ethnicity and national belonging as constructed through film, theatre and performance” as his intellectual approach.

Finally—and remarkably—the “clarifying” statement attracted a handful of signatures from either prestigious professors in the humanities (Maureen Quilligan, Helen Solterer) or faculty in computer science (Jeffrey Forbes); the natural sciences (Joshua Socolar, Roxanne Springer); and engineering (William Reichert). Of the six, only Forbes responded to e-mail requests from me asking about their reasoning for signing the statement. Forbes wrote back to say he would have no comment.

The statement to which the above figures affixed their signatures was highly problematic. To take just two examples: (1) the Group of 88’s ad claims the endorsement of five Duke departments and more than a dozen academic programs at the school. Yet no evidence exists how any of these departments endorsed the ad--and, indeed, it appears that none of the departments actually did endorse the ad. Why, then, did the clarifiers not repudiate this aspect of the Group of 88’s handiwork?

(2) The clarifiers quoted the Group of 88—“The ad thanked ‘the students speaking individually and . . . the protesters making collective noise’”—but cut off the next five words: “thank you for not waiting.” Why did the clarifiers consider it so important not to pass along the Group’s decision to praise people for not waiting before speaking out last March and April? Indeed, the academy usually advocates gathering all evidence before speaking out, not praising those who rush to judgment based solely on evidence presented by one side.

But with clarifiers such as Haynie lecturing colleagues on how to behave, perhaps such questions are irrelevant at Duke.

La Shawn on Taylor/Neff Panel

La Shawn Barber has a comprehensive summary of Tuesday's Neff/Taylor panel at the National Press Club.

Among her highlights:

Stuart Taylor "rushed [his first] column to print in April 2006, worried that his column might be old news and others would beat him to the punch with this revelation. Taylor assumed many other journalists had reached similar conclusions, and he wanted to get his piece in. He was wrong. His was the only opinion piece from a member of the mainstream media (MSM) who was skeptical about the case."

She added,

It was obvious that Stuart Taylor is no fan of the New York Times. He said the NYT was “infected” with political correctness, which affects the editors, reporters, and the way the paper covers news. A reporter named Joe Drape had written something about the Duke case, which the defense liked. They sent him information, hoping he’d do a big story about the mounting exculpatory evidence. Taylor, who must have first-hand knowledge of this, said the Drape’s editors took him off the story and didn’t run it. The paper put another reporter on it.

Enter Duff Wilson, the NYT reporter who wrote a lot of Duke case stories. Wilson has been roundly ridiculed in the blogosphere because of his biased reporting.

Joe Neff: the case was “the most competitive story my newspaper has ever seen.”

Also, he said he had been planning (correctly) to use the Gottlieb memorandum as an example of what was wrong with the case--only to see it serve as the spine for the discredited Duff Wilson article.

Read it all here.

Nifong, Wilson, Meehan to Testify

WRAL reports that Mike Nifong plans to testify in his own defense at the State Bar's ethics trial. The Bar also plans to call Dr. Brian Meehan and Linwood Wilson to the stand, along with defense attorneys.

Linwood Wilson: Threatening, Intimidating Behavior

It appears that Linwood Wilson’s penchant for improper behavior extends beyond the lacrosse case.

The D.A.’s chief investigator—who received a promotion and a 66-percent raise as the lacrosse case was occurring—behaved like a caricature of a rogue investigator over the past year. He and he alone was present at the December 21 “interview” with Crystal Mangum, where Mangum radically changed her story in ways that—just coincidentally, of course—filled some of the gaping holes in Mike Nifong’s case. As Joe Neff revealed, one witness filed an affidavit accusing Wilson of witness tampering. He played a key role in the bogus prosecution of Moez Elmostafa after Elmostafa helped secure Reade Seligmann’s alibi.

Yesterday, Judge Orlando Hudson dismissed assault and weapons charges against Breon Jerrard Beatty because of Wilson’s conduct, suggesting that Wilson had “threatened” the chief witness in the case, Beatty’s cousin, to give false testimony. Hudson was clearcut: “Intimidation [of a witness] is wrong. I don’t want to reward the state when they do things like that.”

As the N&O’s Anne Blythe wrote, “The two-hour hearing not only highlighted the specifics of one case, it provided hints that the climate in Durham County courts has chilled for prosecutors in the aftermath of the Duke lacrosse case.”

The Herald-Sun’s John Stevenson set the scene as defense attorney Bob Brown cross-examined Wilson, who admitted that in the discussion (that Judge Hudson would later characterize as “intimidation”) with Chasaray Newman, the accused man’s cousin, Wilson had brought up the possibility of revoking Newman’s parole, thereby sending him to prison.

Was Wilson aware the District Attorney’s Office was not empowered to unilaterally terminate someone’s probation, Brown demanded.

“I wasn’t aware the DA did not have the authority to do that,” the investigator replied. “I was under the impression the state did have that authority.”

Brown: “You threatened him [Newman], didn’t you?”

Wilson: “That’s your words. I didn’t threaten him at all.”

And what about Wilson’s demeanor and tone of voice when he talked to Newman, Brown wanted to know.

“You weren’t joking?” he asked.

Wilson: “Absolutely not.”

Brown: “You meant for him to take it as a very serious matter?”

Wilson: “Of course.”

Brown later noted, “That is tampering with a witness. That is intimidation of a witness. If it was me as a defense attorney making these threats, I would be arrested. It is wrong. It is illegal.”

Joe Cheshire perceptively summed up the day’s events: “The Duke lacrosse case opened a window into the Durham District Attorney’s Office and how they operate. That window allowed not only the public to look in, but it allowed judges to look in. Hopefully that will continue for the transparency of justice.”

Shifting Standards

Trustees at other elite institutions ignore the lessons of the lacrosse case at their peril. Ten months ago, the response of the Brodhead/Steel administration might have seemed a skillful navigation between the local community, the media, and faculty extremists on the one hand and upholding the presumption of innocence—if only in a pro forma fashion—on the other. In light of current events, the administration’s disinclination to demand that Duke students be treated according to the same procedures as all other Durham residents doesn’t look so impressive.

At the very least, the case should inspire trustees at other institutions to develop contingency plans on how to respond to high-profile charges against students when the behavior of local law enforcement raises questions.

Duke BOT chairman Bob Steel first addressed this issue in a little-remembered statement on April 7, 2006, which took an expansive view of the University’s responsibilities toward its students. At the time, Steel asserted,

As President Brodhead has consistently stated, the crimes alleged are grave and, if verified, will warrant severe punishment from both the criminal justice system and Duke’s student judicial process. Simultaneously, we must protect the rights of students who have maintained their innocence and not been charged with any crime. [emphasis added]

Before any students were charged with a crime, the lacrosse players’ rights were violated in at least four ways:

• Nifong’s late March/early April pre-primary publicity barrage;
• The false statements of the Durham Police Department that no players had cooperated;
• The April 4, 2006 lineup;
• The DPD’s April 13, 2006 nighttime sojourn to the Duke dorms.

The latter event offered a particularly easy opportunity for Duke to have implemented Steel’s policy. DPD officers surreptitiously gained entrance into the dorms by following behind a Duke undergraduate who swiped her keycard. They questioned Duke students that they knew were represented by counsel—an act that, because Nifong was by then personally directing the police investigation, appeared to violate Rule 4.2 of the North Carolina Code of Professional Responsibility. As the Baker/Chalmers report noted, all but one of the players declined to answer any questions.

The day after the DPD’s nighttime sojourn to his campus, President Brodhead declined comment when asked about the matter while at NCCU. Later that day, Aaron Graves, associate vice president for campus safety and security, issued a statement that suggested the DPD had acted properly. Incredibly, Graves then appeared to chastise the players for not telling the police what Gottlieb & Co. wanted to hear. “Duke,” Graves stated, “reiterates its earlier statements that it is cooperating fully with the police investigation and urges anyone with information pertinent to the events of March 13 to cooperate with the authorities.”

Duke has never explained why it abandoned the standard laid out by Steel in his April 7, 2006 remarks. It is interesting to speculate how Steel, Brodhead, and their advisors might have acted had they been guided by a policy holding that the institution “must protect the rights of students who have maintained their innocence and not been charged with any crime.”

Nearly a year after he wrote the words above, Steel summarized Duke’s general policy in a very different way. In an April 11, 2007 e-mail, he wrote, “We believe that it was essential for the University to defer to the criminal justice system.”

The recently posted Duke Office of News & Communications case summary likewise ignored Steel’s April 2006 words, and instead observed that the Brodhead administration focused on “avoiding interference with the legal process,” since “it was the job of the legal system—not of Duke—to determine legal guilt or innocence.” Indeed, Brodhead at one point described his policy as that of “broad deference to the legal process.”

As a result, the president remained silent as Nifong launched a procedurally improper pre-primary publicity barrage, obtained indictments based on procedurally improper lineups, and shirked his procedural responsibilities by declining to meet with defense attorneys who said they possessed exculpatory evidence. In his summertime response to the Friends of Duke letter, Brodhead explicitly rejected an opportunity to raise these issues publicly, and instead expressed his hope for a speedy trial, where “we are eager for our students to be proved innocent.”

This “broad deference” philosophy also served Brodhead’s short-term interests in dealing with a faculty whose public voice was dominated by the Group of 88. He could pacify the Group with public denunciations of the lacrosse players—as in his April 5, 2006 statement—while avoiding any comment about the case that might have alienated the Group’s rush-to-judgment mentality.

Brodhead has never explained why, in politically correct cases during his tenure at both Yale and Duke, he followed not a policy of “broad deference to the legal process” but instead Steel’s April 2006 approach that a university “must protect the rights of students who have maintained their innocence and not been charged with any crime.”

In the end, Brodhead himself didn’t follow his own policies in the lacrosse case. The ONC document approvingly noted that “soon after it became clear in court that Nifong’s statements were not credible, [Brodhead] invited [Reade Seligmann and Collin Finnerty] to return in good standing, months before Cooper’s decision.” In addition, “after Nifong dropped the most serious of the charges—rape—in December 2006, Brodhead called on him to recuse himself from the case, saying, ‘Mr. Nifong has an obligation to explain to all of us his conduct in this matter.’”

Both of those decisions were, in my opinion, correct; I praised them at the time. Yet they also contradicted a stated philosophy of “broad deference to the legal process.”

The ONC contends that Brodhead reinstated Seligmann and Finnerty “soon after it became clear in court that Nifong’s statements were not credible.” At the time the president made his decision, however, the “legal process” was still ongoing: the two still faced two serious charges, with Nifong as the prosecutor. Brodhead might be correct that Nifong lost credibility “in court” on December 15. But, according to the “broad deference” standard, only a judge or a jury—not Brodhead—had the right to determine whether or not Nifong was credible.

Likewise, Brodhead might have been correct that it was proper for him to call for Nifong’s recusal in December but not in July. But, again, according to the “broad deference” standard, Brodhead had no right to call for Nifong’s recusal.

As Jim Coleman has pointed out, an excessively aggressive defense of the players by Brodhead could very well have backfired, playing into Nifong’s hands. Yet the players’ interests were hardly served by the opposite approach—“broad deference” to a “rogue prosecutor,” coupled with periodic presidential denunciations of the players’ character and the administration’s inexplicable refusal to enforce Chapter Six of the Faculty Handbook.

In the end, the sensible standard would seem to be the moderate one that Steel articulated on April 7, 2006 and Brodhead belatedly adopted: upholding the academy’s traditional support for due process and procedural regularity by criticizing Nifong’s procedural improprieties, while declining comment on the specifics of the allegations.

Council Video Up

The link is here; click on May 21, video. Lacrosse case discussion starts at 1:31.

Council Moves Toward Inquiry

The N&O and Herald-Sun both report this morning that the Durham City Council appears to be moving toward an outside investigation of the Durham Police Department’s handling of the lacrosse case.

At last night’s Council meeting, five members endorsed the idea, championed by Mayor Bill Bell. A sixth member, Thomas Stith, called for the Council to demand Mike Nifong’s resignation and accept responsibility for the DA’s corrupting the investigation. Stith’s position would be tenable if the wrongdoing were confined to the April 4 lineup, but given that apparent police misconduct ran from start to finish in the investigation, an outside inquiry would seem to be needed.

Two figures have particularly stood out in recent weeks. Mayor Bill Bell has been consistent in his calls for a thorough, public airing of what the DPD did and did not do in the case, so the department can avoid similar mistakes in the future. And Councilman Eugene Brown has been on target in his strong criticism of how the department has responded to the AG’s declaration of innocence.

Last night, Brown continued his criticism, commenting that the Baker/Chalmers report, which “embarrassed” many members of the police force, “probably never should have been issued.” He concluded, “We have endured 14 months of deception and lies and distortion about this case. For us not to get to the truth of this issue concerning the role of our police department would represent an absence of leadership and responsibility.”

Patrick Baker, City Manager

The position of city manager dates from the Progressive Era. Progressivism was an ideologically diffuse movement; while some progressives sought to use government power to restrain big business, others essentially sought to move government further away from popular pressure, hoping that such an approach would allow leaders to achieve the public good.

These progressives embraced the cause of efficiency as a path to reform, seeking to shield day-to-day decisions about city affairs from popular influence. In their minds, most municipal problems had fundamentally non-political, rather than political, solutions. It would be best, therefore, for cities and towns to establish a council/city manager system, where executive decisions regarding running the city would be made by someone specially trained in municipal government.

The council/city manager system is one of the few legacies of the Progressive Era to survive to the present day, though it currently exists mostly in towns or small to mid-size cities. Durham, with a population of more than 200,000, is unusually large for a council/city manager type of government. As we all have discovered over the past 14 months, many of Durham’s problems are—in the end—political, and therefore poorly suited for resolution through apolitical, technical means.

I recently spoke with two city managers with more than two decades’ experience, one from the Midwest, the other from the Northeast. Both said that they didn’t want to critique any specific aspects of Durham City Manager Patrick Baker’s performance, but agreed to answer some general questions on what the ideal behavior of a city manager should be.

Generally, the two managers noted, a city manager would have no role in any criminal investigation, beyond receiving periodic updates about cases from the police chief. (One noted that Baker has a law degree, which might make the Durham city manager believe that he is qualified to intervene on criminal matters.) While a manager is bound by a code of ethics to do what he or she believes is correct, even if the City Council believes otherwise, managers ideally want to avoid situations where they lose political support from a majority of the council. Political rivalries between city managers and mayors, in their experience, were quite rare.

I asked both managers if fears about financial losses from future civil litigation against the city could justify a manager shading the truth in a public report. Both said no. Beyond the obvious ethical problems with such a course, the city manager has an obligation to protect the image of his or her city, and misleading the public is bound to produce a backlash.

Trying to deflect Durham’s civil liability would seem the strongest reason for the Baker/Chalmers report’s claim that defense attorneys were to blame for Durham police and prosecutors seeking indictments, without probable cause, against three demonstrably innocent people. Even for the Wonderland that is Durham, that argument was so bizarre as to stand out.

Baker, a graduate of Wake Forest Law School who started out as a personal injury lawyer, came to his position inadvertently: his predecessor, Marcia Conner, had resigned under pressure. Baker, then assistant city attorney, was asked by the City Council to serve as interim city manager and five months later was offered the permanent position. Before taking over the Durham slot, he had no experience as a city manager. In retrospect, the Council might have looked for someone with a demonstrated track record of competence.

Founded at the high tide of the Progressive Era in 1914, the ICMA (International City/County Management Association), with more than 8000 members, describes itself as “the premier local government leadership and management organization.” The ICMA ethics guidelines require city managers to “keep the community informed on local government affairs” and to “be dedicated to the highest ideals of honor and integrity in all public and personal relationships in order that the member may merit the respect and confidence of the elected officials, of other officials and employees, and of the public.”

It’s difficult to see how Baker’s handling of the lacrosse case fulfilled either of these ethics provisions. Liestoppers had a comprehensive review of Baker’s poor performance on both the lacrosse case and as city manager in general. But two items especially stand out.

The first came on May 10, 2006, when Baker gave an interview to the N&O. The city manager asserted, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.”

As we know now, Mangum never told law enforcement the same story twice; Baker’s portrayal of the evidence was, therefore, false.

Only two explanations exist for his statement: (1) in the highest-profile case in the city’s history, he allowed police to mislead him, causing him to mislead the public—calling into question his competence; or (2) he willfully misled the public—calling into question his ethics.

Baker’s second highly dubious act came in another N&O interview; this one occurred last Saturday. Matt Dees reported,

A legal document filed March 23, 2006, ten days after the party, listed every white lacrosse player as a suspect. Baker said in an interview just after Chalmers’ May 11 report was released that everyone was considered a suspect at the start of the investigation. But by the time the April 4, 2006, photo procedure was conducted, he said, that was no longer the case.

“That you’re a suspect in the beginning of an investigation for even one day doesn’t mean you’re going to be a suspect in a week or two weeks,” Baker said.

Much like Baker’s May 2006 assertion about Mangum’s consistency, his May 2007 claim about the status of the investigation is false.

There was no evidence, anywhere in the discovery file, that the police had eliminated any of the 46 white lacrosse players as suspects before the ill-fated April 4 lineup.

As with his May 2006 statement, only two explanations exist for Baker’s May 2007 statement: (1) in the highest-profile case in the city’s history, he allowed police to mislead him, causing him to mislead the public—in turn calling into question his competence; or (2) he willfully misled the public—in turn calling into question his ethics.

If one idea unified Progressive Era thought, it was a fear that public officials would abuse their power to subvert the public good. That, alas, has been the central story of events in Durham since March 2006. I suspect it would horrify Progressive advocates of the city manager idea to see that Baker contributed to—rather than prevented—the subversion.

Tonight's City Council Meeting

Both Liestoppers and John in Carolina have introductions to tonight's meeting of the Durham City Council, which will reveal how aggressively the Council wants to probe the DPD's procedural violations and pattern of questionable behavior.

Hopefully, the Council will hear from concerned citizens that, with the Baker/Chalmers report, enough is enough for the DPD.

More Bad Times

The New York Times continues to go out of its way to present the case against Duke lacrosse players in the worst possible light.

The latest example came in yesterday’s sports section, and was the subject of an excellent critique in Times Watch. The article, by Peter Thamel, featured comments from Syracuse professor Robert Thompson, who, according to Thamel,

was quick to point out the complexities in the Duke case, which he predicted could be glossed over if the team were to make a run to the national championship. The Duke players hired strippers for their party and were heard by neighbors making racist remarks that night. Reports later surfaced that 15 team members had been arrested in the three years before the party in March 2006.

“Were heard by neighbors making racist remarks”? In fact, one player was heard by one neighbor making one racist remark—which, as we know now, came in response to a racial taunt from Kim Roberts. Of course, Duff Wilson (in his August 25 article), Mike Nifong, and Crystal Mangum have disputed this version of events, but none have too much credibility at this point.

“Fifteen team members had been arrested”? The Times neglected to mention that hundreds of other Duke students were arrested for the exact same offenses. And, as we know now, these arrests came as part of an official policy of the discredited Durham Police Department to arrest Duke students for offenses for which all other Durham residents would receive citations or warnings.

The Times also gives two paragraphs to—of all people—Shadee Malaklou, treating her as a credible source. This is the same Malaklou who contended that “very rarely are the Duke lacrosse players not partying or drinking.” (She later admitted that she had only her own personal experience to substantiate the claim.) And the same Malaklou who asserted, after the AG dropped all charges and declared the players innocent, “In truth, even though the case has now been dropped, the events (and potential culprit) are still unclear.” At some point, it would seem to me, people who make repeated unsubstantiated or inaccurate statements cannot be treated as credible figures, especially since the Times article makes no mention of Malaklou’s past inaccuracies.

A final point of irony in the article. The headline notes that with its march to the Final Four, the team is the “focal point again.” Unsurprisingly, the article contains no mention of how the Times sports section helped make the team the “focal point,” through slanted and factually inaccurate stories and columns.

Obviously, all papers need balance in their articles, and any article on the team will mention allegations about the team's behavior. But given the paper's record in inflaming public condemnation of the team throughout most of 2006, is it too much to expect now that the Times will at least be accurate in its condemnations of the team, or quote from critics who have a minimum amount of credibility?

Upholding "Separate-but-Equal" Justice

On September 12, Captain Ed Sarvis of the Durham Police Department admitted that the Durham Police had an official policy of meting out disproportionate punishment Duke students, as a class, for alcohol- and noise-related offenses. When confronted with police records showing that Sgt. Mark Gottlieb had arrested 10 times as many Duke students as the other three District Two supervisors combined, Sarvis replied that the sergeant “was doing his job, and doing what I asked him to do.” The implication? The sergeants who didn’t handcuff and arrest Duke students (and only Duke students) for minor alcohol-related offenses weren’t doing their job.

Duke responded to Sarvis’ revelation without public protest. In her final column of the year, Kristin Butler noted that while Mike Nifong had, to date, not been held accountable for his actions,

Neither have the Durham police officers accused of disproportionately targeting Duke students for arrest and citations. This abuse, which was documented by The Chronicle in September 2006, extended well beyond the lacrosse players; rather, dozens of students were reportedly endangered, and the tales of police violence and inappropriate behavior point to ongoing, systematic abuse. Startlingly, we have no reason to believe that any Durham official has ever confronted or investigated these allegations, nor does it appear that the University has ever asked the city to do so.

Thanks to the efforts of the Duke Student Government, it now appears as if the Duke administration has effectively endorsed this “separate-but-equal” system of justice. In late March, outgoing DSG president Elliot Wolf penned a memorandum expressing concern that the Office of Judicial Affairs, led by Associate Dean of Students and Director of Judicial Affairs Stephen Bryan, had chosen to “pursue judicial action against a student based on evidence collected by law enforcement officers that was illegally obtained or otherwise insufficient to serve as the basis for criminal prosecution.” In other words, Bryan was intending to use evidence that even Durham’s blatantly pro-prosecution judges viewed as suspect.

Duke’s willingness to use such evidence, Wolf argued, undermined constitutional protections and effectively encouraged the DPD “to treat Duke students differently than other members of the community—something that is both antithetical to recent efforts to better integrate Duke students with the rest of the Durham community and, more importantly, unfair to students.” Moreover, Wolf contended that the use of constitutionally suspect evidence was “inconsistent with Duke’s mission of educating students about the importance of upholding the law.”

A few weeks ago, Bryan responded. He noted that the university “routinely” employs its disciplinary processes for offenses that may be “insufficient to serve as the basis for criminal prosecution.” Bryan continued: “Since one of the purposes of our disciplinary process is to help students process the difficult choices they could have made in a situation, it would be antithetical to that mission” to adopt Wolf’s suggestion. Indeed, Bryan reasoned, respecting constitutional principles would compel Duke to dismiss “a learning opportunity because of a technicality in how information was obtained.”

I suspect that the students profiled in the September Chronicle article on Sgt. Gottlieb’s dubious conduct would challenge Bryan’s peculiar conception of what constitutes a “learning opportunity.” Moreover, as Wolf observed, the University’s response to the question of off-campus drinking seemed more “rooted in a desire to pacify members of the community” than to “provide a ‘learning opportunity’ for the students involved.”

Bryan also defended the DPD’s work. “It seems unlikely,” he observed, “that there is a higher incentive for officers to cite students versus non-Duke students”—even though Sarvis had effectively said the opposite, months before. Apparently referring to Gottlieb, the Duke dean did concede that he had “heard anecdotally that students feel there is a particular Durham officer who unfairly targets students.”

This blasé response—the first in public by any Duke administrator regarding Gottlieb—was nothing short of extraordinary. Far from “anecdotal” evidence, both the N&O and the Chronicle produced statistical data documenting Gottlieb’s selective enforcement against Duke students.

Bryan did offer a solution to the problem: students who had complaints about Gottlieb could contact—of all people—Sarvis. In other words, Duke’s official position on the Gottlieb problem is that Duke students should get in touch with the very same Durham police captain who told the Herald-Sun that Gottlieb was “doing what I asked him to do.” How reassuring.

As Wolf recently observed, Bryan’s response “did not seem to indicate that Student Affairs will re-evaluate the ways it deals with information provided by DPD and the DA in response to [such] startling realizations” as the Attorney General’s denunciation of the Durham District Attorney as a “rogue prosecutor” and the assertion in the Baker/Chalmers report that much of the DPD’s handling of the lacrosse case was “typical.”

Such a response, Wolf correctly pointed out, bequeathed two separate sets of questions.

• First, “do the events of the past two years change anything about the relationship/collusion/cooperation between the University and the Durham Police Department and the Durham District Attorney? If so, how? If not, then why not?”

• Second, given that “the Durham Police and the Durham District Attorney have demonstrated a clearly prejudicial approach in their dealings with Duke Students,” what “is the University community, and particularly the University administration, going to do about it?”

I cannot recall another recent example of a university facing a situation where local prosecutors and police appear to have sanctioned violating procedures when dealing with students from that university and that university alone. (There is no sign that the DPD’s “separate-but-equal” policy applies to NCCU students, nor has Nifong’s office appeared to treat NCCU students unfairly.)

Yet the Brodhead administration would seem to have considerable leeway to act. Nifong is well on his way to disbarment. Few people are willing to defend the DPD in public after the Baker/Chalmers fiasco. Moreover, since many of the Trinity Park figures who initially demanded the crackdown on Duke students were the same people who championed (and in some cases participated in) the potbangers’ protests last spring, these people hardly have moral credibility to speak about any Duke-related issue at present.

Despite this favorable climate, the Bryan response suggests that the administration appears to believe that Duke students should trust the DPD and Nifong’s office to treat them fairly. The DSG’s approach, on the other hand, reflects the reality of recent events.

As Wolf concluded, the lacrosse case “demonstrated the drastic consequences that can fall upon both students and the institution if rights are not respected and proper procedures are not followed—two things that we feel Judicial Affairs’ current practices contribute to. The institution should recognize that Lacrosse upended university prerogatives with respect to student rights; Mike Nifong and DPD investigators’ erroneous pursuit of the Lacrosse Case caused the University far more of a headache than a few neighbors in Trinity Park calling for Duke to engage in ‘neighborhood stabilization.’”

“Separate-but-equal” systems of justice are all but certain to lead to abuses, as we have seen in Durham over the past 18 months. Rectifying the situation, to borrow a phrase, provides a “learning opportunity” for the administration. President Brodhead and his advisors should seize the chance to act.

Men's & Women's Lacrosse Advance

The Duke men's and women's lacrosse teams both will advance to their respective Final Fours.

The women's team defeated Johns Hopkins, 12-7. The men's squad overcame a 6-1 deficit to oust UNC, 19-11.

Sunday Review

This week’s Chronicle featured an excellent column from Jared Mueller, demanding the resignations of City Manager Patrick Baker and (perpetually absent) Police Chief Steve Chalmers. “The lacrosse case,” Mueller noted, “has drawn national attention to the ineptitude of Baker and Chalmers, but Durhamites have suffered under them for years.”

Mueller is savage—if accurate—in his description of Baker: “He dissembles; he shirks responsibility for his numerous failures; and on occasion has been caught in a bald-faced lie.” And he correctly sees Chalmers as a figure who has “spent the twilight of his career taking it easy, disappearing from the office for stretches at a time and delegating his duties to Deputy Chief Ron Hodge.”

Chalmers, of course, is the figure most responsible for keeping on the job Sgt. Mark Gottlieb, who Mueller cleverly describes as “the sort of guy who I imagine goes home at night, pops in ‘Cool Hand Luke’ and roots for the guards. In the fall of 2005 and winter of 2006, Gottlieb threatened to deport several Duke students for minor alcohol offenses, including one who was an American citizen. In that same period, he let a guy with a concealed weapon off with a ticket.”

Using the DPD’s own statistics, Mueller makes the case for Chalmers’ immediate dismissal:

Who would want to tangle with Durham’s drug cartels when you can make a career of throwing 115-pound college girls in jail for giving a 20-year-old a beer? Thanks for keeping us safe from the real criminals, Mark! The worst part: Chalmers confirmed to the N&O that it was DPD policy to arrest Duke students—and tie up Durham’s overburdened justice system—for violations that they would only cite non-students for.

How did the results pay off? The number of violent crimes rose 35 percent (from 678 to 916) from the first half of 2005 to the first six months of 2006, immediately after the DPD’s in loco parentis policy took force. What do you say to a police chief who sacrifices the safety of his constituents in order to arrest college students at parties? Chalmers chose pacifying the affluent residents of Trinity Park over protecting Durham’s most vulnerable citizens. He deserves unemployment and harsh condemnation.

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Hodge, it turns out, is one of five finalists in the search to replace Chalmers. That the DPD could even consider hiring an inside candidate after the lacrosse fiasco and the Baker/Chalmers cover-up is beyond me.

WRAL reports that the would-be chiefs will participate in a public forum on June 3. A candidate who knows basic rules of ethics and due process would make a good choice.

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The new chief might also want to instruct his or her officers on why they shouldn’t file fraudulent affidavits. Required reading would be an excellent Liestoppers post, which explains why the March 23 non-testimonial was based upon what appears to be a fraudulent summary of the investigative data from Officer Ben Himan.

The source? Ironically, the Baker/Chalmers report, which—no doubt inadvertently—provided “additional reasons to believe that the “evidence” offered in support of the Fake Names Theory was either transparently false or blatantly manufactured.”

In his section of the report, Chalmers admitted what Kim Roberts had confirmed in her March 22, 2006 statement to police: Dan Flannery never used a first-name alias (and, ignored by Chalmers, showed Roberts his ID when she asked). Yet in the March 23 NTO, Himan and Assistant District Attorney David Saacks claimed that Flannery used the name “Adam” at the party. Their evidence for this assertion? None.

As Liestoppers tartly concludes,

It is unclear whether the discrepancy is an indication that the Durham Police Department is having difficulty keeping their stories straight or simply an honest mistake on the part of Himan, Saacks, and/or Chalmers. Alternatively, the discrepancy might indicate that Crystal Mangum attached three fake names (“Adam”..”Matt”..”Dan Flanagan”) to Flannery sometime after the first four lineup attempts on March 16, 2006, and the next two lineup attempts on March 21, 2006, and well before Linwood Wilson produced her December 21, 2006, statement that Dave Evans was “Adam”... “Matt”.. and “Brett.”

The Liestoppers post also reminds readers of another false claim of the March 23 NTO—that the lacrosse players had claimed that they played other sports, or that they were graduate students: “Himan’s handwritten notes from the interview indicate that Ms. Roberts specifically stated ‘lacrosse team’ and offer no indication that a baseball team, a track team, or any other team was mentioned by Roberts.”

Himan, of course, has never explained how he developed this evidence. Perhaps he was planning a “straight-from-memory” addition to his report at a later stage.

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Baker also came under criticism this week from Cash Michaels, whose column asked, “Do Mayor Bill Bell and the Durham City Council have any confidence left in City Manager Patrick Baker, especially after a series of damaging fiascos, the latest being the Duke lacrosse case?”

Michaels terms the City Council’s reception to the Baker/Chalmers report “icy cold,” and notes that Baker’s report evaded the question of whether Mike Nifong directed the police investigation, “in an obvious attempt to blur the issue out of fear of probable litigation.”

The column has several interesting quotes from Jim Coleman. “From all appearances,” he correctly observed, “Nifong took over complete control of the case. The police did nothing to indicate they were operating independently of Nifong.”

Coleman also dismissed the report’s attempt to blame on defense attorneys the authorities’ decision to charge three people without probable cause. “If [Nifong] personally was not interested in anything the defense had, no purpose would have been served by going to the police. A reasonable expectation would have been that the police would have used anything given to them (that the DA refused to see) to try to undermine the alibi or to manipulate the accuser’s statement to take into account the evidence. We saw that with the [police intimidation of the] taxi driver, with Sgt. Gottlieb’s typed ex post facto notes, and later with the December 2006 interview of the accuser by the DA’s investigator.”

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A fascinating article in last week’s National Law Journal explicates the “Nifong effect,” or what one New Jersey prosecutor calls “a tool and a buzz word for defense attorneys to say, ‘Look what happened at Duke.’”

Reporter Tresa Baldas discovered that “prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove.”

Ohio criminal defense attorney Ian Friedman notes, “Everyone in my firm is well aware that this [Duke] example should be raised—during voir dire, during closing arguments— . . . because this may cause a jury not to rush the judgment.”

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University of Iowa law professor Tung Yin has been through a draft of the Yaeger/Pressler book, scheduled for release on June 12, and writes that “you can’t read this book without getting angry.”

Yin notes that when the case first broke, he believed that the players “had probably committed the act,” and that he certainly “did not have an instinctive bias to take the side of the white, supposedly privileged players. That's why following the case and the apparently outrageous steps that Nifong took in leading the investigation and prosecuting/persecuting the players is so angering. When there is evidence of such massive abuse of authority for what seems like pure personal/political gain (the book argues that Nifong made a spectacle out of the case so that he could win election as DA and thereby keep his job, since his main opponent was the second Assistant DA, Freda Black, whom he fired when he was appointed DA by the governor), it's impossible not to be angry.”

Yin especially praises the book for providing “a nice look into former lacrosse coach Mike Pressler’s side of the story . . . [someone who] had nothing to do with the stripper party, and yet, he was—according to Pressler—forced to resign from the institution that he’d spent 16 years at. I didn’t fully appreciate the injustice to Pressler before, and the book does that well.”

The book is scheduled for release on June 12; in addition to summarizing some of the book’s strengths and weaknesses, Yin’s post offers some thoughtful commentary (with which I agree) on the differences in approach between books and blogs.

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On Friday, the Houston Rockets fired coach Jeff Van Gundy. The stated reason: in four seasons at the helm, he had failed to take the team past the first round of the playoffs.

But could another reason have existed for the move? Perhaps team owner Les Alexander wanted to punish Van Gundy for setting in motion a chain of events that revealed Yao Ming as “the most profound threat to American empire.”

No word yet on whether the originator of this claim—Group of 88 stalwart Grant Farred—is scurrying the old quotes of Rick Adelman, the frontrunner to succeed Van Gundy, to determine whether Adelman, too, has inadvertently exposed the threats to the American empire.

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I attended yesterday's Delbarton-Chaminade lacrosse game, won in overtime by Delbarton, 8-7, before a boisterous crowd. Delbarton and Chaminade have been models of how an academic institution should handle a situation when a former student is subjected to charges from a "rogue prosecutor." Both schools stood by their students without sacrificing any of their ideals.

As for the game itself: I was struck by the exceedingly high quality of assistant coaching for both teams.

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In this week’s Durham News, Matt Dees previews Monday’s City Council meeting, which figures to address a number of issues of import. Dees lays them out:

Will the city commission an independent study of the police department’s handling of the Duke lacrosse case?

Will Chief Steven Chalmers, who has yet to speak publicly about the case, be called to answer questions from City Council members?

Will the council formally call for District Attorney Mike Nifong to resign?

The council agenda is filled with dozens of other items as well; it’s anyone’s guess whether the body will exercise its legitimate oversight powers on the police question.

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Finally, ABC-11’s Tamara Gibbs is reporting that Reade Seligmann and Dave Evans will attend Mike Nifong’s ethics trial (scheduled for June 12); State Bar prosecutors will decide, Jim Cooney stated, whether Seligmann will testify.

Indeed, apart from Crystal Mangum, it’s entirely possible many of the other key figures in the case—most notably Gottlieb and DA “investigator” Linwood Wilson—will testify. I will be in Raleigh for the entire trial.

Neff, Taylor at DC Event

For DIW readers in Washington, DC: this Tuesday morning, at 10am, the National Press Club will be hosting a “Newsmaker” Panel on the lacrosse case featuring Joe Neff, who broke more stories on the case than the rest of the print media combined; my colleague Stuart Taylor; and Rem Reider, editor of The American Journalism Review.

The trio will discuss will “how this case ran away with media and what journalists can do differently the next time.”

The panel is in the Lisagor Room in the Press Club building, at 529 14^th Street NW (14^th Street and F Street, NW), 13^th floor.

The Dowd Case in Perspective

The Dowd suit settlement has received a good bit of attention, including a high-level critique in the Chronicle and some scurrilous criticism from a few others. I thought it might be useful to put the case in some perspective.

In general, grade retaliation lawsuits are extremely difficult to win. In the humanities and social sciences, grading is somewhat or entirely subjective. Judges, for understandable reasons, have little interest in substituting their evaluation for that of the professor. Most institutions (though not, before the Dowd case, at least, Duke) have internal procedures for handling complaints of improper grading. Courts tend to be very reluctant to second-guess academic procedures.

Finally, courts have afforded academic freedom some constitutional protection since the 1957 decision Sweezy v. New Hampshire. Though Sweezy dealt with speech by a professor on a public campus, courts have generally shied away from rulings that could be perceived as attacking academic freedom in general. This tendency only heightens judges’ unease with overturning grades assigned by professors.

All that said, the Dowd suit was about as strong a grade retaliation suit as could be imagined. Between March 27 and April 6, Kim Curtis attended rallies denouncing the players (background, in this photo); suggested, in writing, that the lacrosse players (including two students in her class) were protecting the real rapists; and signed onto the Group of 88’s statement.

The grades of the two players in Curtis’ class showed an identical plunge: both received C- on a paper due the day before the Group of 88’s statement appeared; both received an F on the final paper. In Dowd’s case, this grade seemed highly suspicious, since the third paper was pretty clearly the best of his three for the class.

In short, the Dowd suit could portray the allegation in an easy-to-understand fashion: a professor accused two of her students, in writing, of criminal acts and participated in various public protests against them; and then the grades of the same two students plummeted even though the quality of their work stayed the same or even improved.

All of the above information was in the public domain. And it stands to reason that the Dowds’ highly regarded lawyer, Joseph Zeszotarski (past chair of both the Criminal Law Section, North Carolina Academy of Trial Lawyers and the Criminal Justice Section, North Carolina Bar Association), did not reveal all of his evidence in his initial filing, which requested monetary damages and also that Dowd’s grade be changed to a “P” (pass).

Duke, no doubt, recognized these problems as well. After a mediation effort, a settlement was reached. In an all-but-unprecedented development, a university resolved a grade retaliation suit before trial by not only agreeing to the student’s demand for the grade change, but by admitting publicly that the grade had been changed.

Moreover, the announcement of the grade change made clear that Curtis had been overruled: the statement indicated that the case was settled to the “mutual satisfaction of Kyle Dowd and his family and Duke University.” The name of Curtis, who was also a party to the suit, was conspicuously absent.

In theory, the Dowds could have rejected the mediation offer and sought to move forward legally. Yet the mediation changed the dynamics of the legal case: a court, properly, could ask whether the Dowds had a good-faith basis for continuing the lawsuit in light of Duke’s offer—especially since Duke already had agreed to their principal request (changing the grade to a “P”).

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Since the fall, the Talk Left discussion forum has been periodically hijacked by a handful of Nifong enablers who reveled in others’ misery and appeared to operate under the belief that an accused was guilty until proved innocent beyond all reasonable doubt. The Dowds’ willingness to do the obvious and settle the case generated faux outrage from two figures in this contingent, who in turn were quoted in an anti-Dowd e-mail missive that I received yesterday. Such criticisms are hard to take seriously, given that they came from people who have spent the last 12 months engaging in anonymous character assaults against the lacrosse players.

A more serious response came from the Chronicle, which greeted the resolution of the case with a thoughtful editorial. Noting that the settlement “carries a sweep-it-under-the-rug feel to it, and its details are still murky and need to be cleared up,” the editorial noted:

There are still a number of loose ends to a story that raises crucial questions of academic freedom and campus culture. Students want to know how the University will step in if a teacher crosses certain lines, and they also want to know whether they should still take a class with Kim Curtis-the major actor in this story, who the administration did not respond to in its settlement.

It’s unnerving that Duke hasn’t been transparent in this case. The administration’s handling of the Dowd suit sets a bad precedent for how Duke may handle other similar cases in the future and how it is moving on in the aftermath of the lacrosse case.

Closure is now in sight for a campus that has been rocked in a major way this past year, but closure will also be hard to come by if Duke opts to start cleaning up by sweeping crucial matters like the Dowd case under the rug.

Though the parties’ statement explicitly said that Duke admitted no legal liability, the exclusion of Curtis’ name and the fact that Duke settled at all certainly contained an implicit message. But the Chronicle’s call for transparency by Duke is compelling: few acts violate academic integrity more severely than grade retaliation. The Chronicle is correct that the University has an obligation to ensure that all of its professors grade students fairly—and the facts in the public domain raise grave doubts about Curtis in this regard.

The Dowds showed extraordinary courage by standing on principle and filing the suit. It is encouraging to see that they received justice.

Revisions

Yesterday’s post referenced the summary version of the lacrosse case, and the University’s response to it, produced by Duke’s Office of News and Communications.

That essay has now been revised, and no longer contains the sentence (“From his first statement in March 2006, Duke President Richard H. Brodhead repeatedly emphasized both the seriousness of the charges and the need for the players to be presumed innocent until proven otherwise within the legal system”) discussed in yesterday’s post.

As an institution of higher learning, Duke has a commitment to the truth. On the other hand, as a private university, it has an obligation to safeguard its financial well-being, including guarding against the potential of lawsuits down the road.

As the case has progressed—and even more now, given the one-sided resolution—Duke has been torn between these two contradictory pressure points. The revised ONC essay indicates a desire for accuracy by Duke that is worthy of praise—even if, as would be expected of an official publication, it presents the administration’s case in the most favorable light possible.

The essay does make one new revelation: “With input from the athletics department and some of the players themselves, Brodhead suspended the remaining games—not as punishment, but as a necessary action until the legal situation became clearer, based on concerns including the safety of Duke’s players.”

With benefit of hindsight, it seems to me that Brodhead had no choice but to cancel the season—the combination of Nifong, the Herald-Sun, the Group of 88, and the potbangers had created such a poisonous atmosphere that the players would have been unsafe.

Yet in their contemporaneous explanations, neither Brodhead nor BOT chairman Bob Steel mentioned safety as a rationale for canceling the season. Here’s what they said at the time:

--Steel: “We had to stop those pictures [of the players practicing]. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done.”

--Brodhead: “Sports have their time and place, but when an issue of this gravity is in question, it is not the time to be playing games.”

It’s possible, however, that administration officials referenced the safety issue in internal documents that have not yet been released to the public.

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Several DIW and Liestoppers readers attended Jim Coleman’s Wednesday talk at the Duke Delaware Club. I had a few questions about Coleman’s remarks, and so contacted him for clarification.

As he did at the post-dismissal law school panel, Coleman “credited Brodhead, Chancellor Ammons, and Mayor Bell for working together to hold down the rhetoric; if any of them had acted differently, it might have given traction to the racial tensions Nifong tried to exploit. Because all of them asked their constituents to defer to the legal system to seek out the criminal allegations, racial tension never became a factor in the case. That also permitted Cooper and the bar to act as they did.”

At the talk, Coleman commented on the April 5, 2006 dismissal of Mike Pressler and the suspension of Ryan McFadyen. He noted, “I did not say it was wrong to discharge Pressler or to suspend the student, only that I thought it was a mistake to do so without finding out what all of the relevant facts were. Although I did not agree with the timing of Pressler’s dismissal, I also said that did not mean that his ultimate dismissal could not have been justified.”

Common sense guided Coleman’s remarks about the Group of 88: he stated that “all of them should accept responsibility and none should complain if the ad was mis-interpreted or if people criticize them for signing it. That is the price of participating in a public discussion.”

To me, this issue has been one of the strangest aspects of the case. The Group consisted of faculty members who went out of their way to inject themselves into the case at a time of considerable legal and political fluidity (with statement author Wahneema Lubiano later admitting that she gave some signatories only six hours to decide whether to sign, thereby ensuring that the statement would appear before the DNA tests that Mike Nifong had promised would exonerate the innocent came back with no matches). Moreover, the Group acted in a highly public fashion—signing onto an ad, as their statement itself noted, “printed in the most easily seen venue on campus.”

Then, after having taken such an extraordinary step, they have lashed out at those who have criticized them, comparing their critics to McCarthy; publicly suggesting that their critics should “shut up”; and alleging that a “conspiracy” explains the criticism that the statement received.

Such behavior is puzzling coming from figures who claim to be public intellectuals.

Finally, Coleman reiterated to me that he has no knowledge of any discussion between the University and lawyers for the students about Duke’s civil liability. In his remarks, he only said that he was sure it was a matter that both sides were thinking about.

Cheshire, Cooney on DPD

Joe Cheshire and Jim Cooney harshly criticized the Baker/Chalmers report in an article that appeared in today’s Chronicle.

Cheshire:

“I would not be surprised if [an independent investigation] would uncover conduct that was criminal in nature as it relates to obstruction of justice and creation of evidence.”

“The report by the city manager and police begs for a lawsuit to be filed against the City of Durham and the police department for their complicity in the corrupt prosecution of innocent men and to protect the citizens of Durham in the future.”

Cooney:
“It is fairly clear that the chain of command in this case got usurped,” Cooney said.

“If the identification process was to ID witnesses only, why was that videotaped? The fact of the matter is that was the only piece of so-called evidence that allowed this case to continue, and it’s just flat-out wrong.”

“I don’t know how change can come from [the report] because they don’t admit they were wrong. What this police department still needs to explain is how they managed to arrest three innocent people for a crime that never happened-you’ve got to work really hard to do that.”

Cooney also ridicules the report’s claim that the police were interested in exculpatory evidence: “What [DPD] also failed to address is when they received evidence of Reade Seligmann’s innocence-they arrested one of his alibi witnesses. How is that an attempt to find innocence? Blaming the defense attorneys isn’t doing that either.”

Point of Emphasis

Duke’s Office of News and Communications has posted what amounts to an official version of the lacrosse case and the University’s response to it. Unsurprisingly, the essay casts the administration’s actions in a wholly positive light.

The ONC document opens by noting AG Roy Cooper’s proclamation of innocence. It then identifies the villains of the case:

• Nifong: “Cooper spoke of a ‘rush to accuse’ and said ‘there were many points in this case where caution would have served justice better than bravado’”;

• The media: “In one of the many similar judgments made about how the news media covered the case, columnist David Broder described ‘a painful exercise in journalistic excess.’”

(The document also takes note of “extensive commentaries on blogs and tabloid television shows.” Given that in January, President Brodhead had linked blogs with vile anonymous e-mails, I suppose being linked with tabloid television shows is a step up.)

The ONC report contains five principal sections: the administration’s record of upholding the accused players’ presumption of innocence; the cancellation of the 2006 lacrosse season; the significance of Jim Coleman’s opinions on the case; the standards the administration offered for when a University should comment on legal matters; and the effects of the case on Duke.

Today’s post examines the first of these issues; tomorrow’s will look at the other four.

From his first statement in March 2006, Duke President Richard H. Brodhead repeatedly emphasized both the seriousness of the charges and the need for the players to be presumed innocent until proven otherwise within the legal system.

April Statements

This assertion does not accurately describe two of Brodhead’s key statements from April 2006.

(1) In Brodhead’s April 5, 2006 statement—the president’s final remarks on the case before the first two indictments—he announced the cancellation of the season, the dismissal of Coach Mike Pressler, and the formation of five investigative committees. This statement included no reference to a presumption of innocence, although it spoke of the seriousness of the charges at length, and in passionate terms. The statement opened with four paragraphs based on the thesis that

we can’t be surprised at the outpouring of outrage. Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure. When reports of racial abuse are added to the mix, the evil is compounded, reviving memories of the systematic racial oppression we had hoped to have left behind us . . . Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed. And they include concerns that, whether they intend to or not, universities like Duke participate in this inequality and supply a home for a culture of privilege. The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it.

Meanwhile, in its 2,399 words, the April 5 statement made no mention of presumption of innocence. The closest it came to even entertaining the possibility that Crystal Mangum was lying came in the following two sentences:

I assure you, however, that the Duke disciplinary system will be brought to bear as soon as this can appropriately be done. Until that time, I urge us to be patient and remind ourselves that allegations have been made, the team has denied them, and we must wait until the authorities act before reaching any judgment in the criminal case.

I don’t think that many people would seriously argue that those sentences constituted “emphasizing” a presumption of innocence.

(2) On April 20, 2006, Brodhead made his first public appearance after the arrests of Reade Seligmann and Collin Finnerty. He informed the Durham Chamber of Commerce, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

There were, however, victims in the case, according to the president: “This has been such a difficult issue for our campus and throughout the community . . . Of the things that have pained me about this episode, one of the greatest ones is all the publicity that this has brought, unwished to Duke University and, indeed, Durham.”

Again, I don’t think that many people would seriously argue that those sentences constituted “emphasizing” a presumption of innocence.

March Statements

In his first two statements on the case, on the other hand, Brodhead did affirm his support for the presumption of innocence.

On March 25, 2006, he asserted, “The facts are not yet established, however, and there are very different versions of the central events. No charges have been filed, and in our system of law, people are presumed innocent until proven guilty. We also know that many members of the team, including some who were asked to provide DNA samples, did not attend the party.” These 58 words comprised 33 percent of the total statement—the highest percentage dealing with a presumption of innocence in any Brodhead statement for months.

Yet none of the newspapers that covered the statement—the N&O, the Herald-Sun, the Chronicle, or the AP—quoted the remarks above. (The H-S paraphrased it, while the Chronicle mentioned but didn’t quote Brodhead’s assertion that not all team members attended the party. The N&O and AP didn’t quote or reference the three sentences at all.) Perhaps that was because the three sentences were overshadowed both by the abrupt cancellation of the Georgetown game and by Brodhead’s opening, arresting sentence: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke.” All three papers plus the AP quoted the sentence—which implied that the president believed a crime occurred—verbatim.

If, as the ONC document now claims, Brodhead was determined to emphasize “both the seriousness of the charges and the need for the players to be presumed innocent until proven otherwise within the legal system,” he might have adjusted his subsequent statements to guard against any media misrepresentation. Instead, by April 5, comments about the presumption of innocence had vanished entirely. Over the next two months, Brodhead would label the lacrosse players “arrogant,” “dishonorable,” “disrespectful,” and “irresponsible”; say their behavior was “heinous,” “highly inappropriate,” and “unacceptable”; and blast the team’s “culture of privilege.”

Even Duke’s own official publications paid little attention to the president’s increasingly pro forma comments about the presumption of innocence.

Take, for instance, the Office of News and Communication summary of the March 28, 2006 press conference in which Brodhead announced the indefinite suspension of the season. Brodhead’s remarks paralleled those of March 25 (he used the same words in many places); both contained sizable chunks dealing with a presumption of innocence. Yet the ONC summary—entitled, “Brodhead: ‘It Is Not the Time to Be Playing Games’”—didn’t mention the president commenting on presumption of innocence. The Duke document did, however, quote the president saying, “Physical coercion and sexual assault are unacceptable in any setting and will not be tolerated at Duke. As none of us would choose to be the object of such conduct, so none of us has the right to subject another person to such behavior. Since they run counter to such fundamental values, the claims against our players, if verified, will warrant very serious penalties, both from the university and in the courts.”

The longest official Duke summary of the lacrosse situation was Robert Bliwise’s “Spring of Sorrows” article, which appeared in the May/June Duke Magazine, an official University publication sent to all Duke alumni. In more than 6000 words, Bliwise never claimed that Brodhead emphasized “the need for the players to be presumed innocent until proven otherwise within the legal system.” In fact, Bliwise never mentioned Brodhead even uttering the phrase presumption of innocence. Instead, the Duke publication quoted liberally from Brodhead’s April 5 statement.

It would seem that if Brodhead wanted to emphasize his commitment to the presumption of innocence, he could have ensured that official Duke publications made the point.

In his July 25 letter to Friends of Duke, meanwhile, Brodhead stated that “we are eager for our students to be proved innocent.” Of course, a presumption of innocence presumes that the accused don’t need to be proved innocent.

People of good faith can disagree on the merits of Brodhead’s original approach to the case. As Jim Coleman has pointed out, an excessively aggressive defense of the accused students by the Duke administration could very well have backfired.

But it’s hard to see how the record above could support an assertion that a “presumption of innocence” was “emphasized” by the administration throughout the case.