Changing Standards at the Times

A college athlete accused of a gang rape (involving a 12-year-old girl of another race). Underage drinking acknowledged by all sides. A university (Oklahoma State) allowing the athlete to play despite the pending charges.

Surely these developments would arouse the fury of the New York Times, triggering multiple Page One stories and denunciatory columns from the likes of Selena Roberts and Harvey Araton.

Well, maybe not.

This time, the athlete under suspicion is African-American; his accuser is white.

Here’s how the Times played the story, under the headline, “Charge against a Player Raises Question of Justice.”

Here’s how local news sources (the Daily Oklahoman and the Texarkana Gazette) play the story.

The allegations of racial injustice that the Times detected don’t appear to have come to the notice of either the Oklahoman or the Gazette, even though articles in both papers, especially the Oklahoman, were not unsympathetic to the accused player.

As Clay Waters noted, “the Times seems determined to fit them into the same template of white-on-black racism it used in its botched coverage of the Duke ‘rape’ hoax.”

By the way, there’s been no sign of a Group of 88-like statement at Oklahoma State.

More for McClain

Some more commenters’ suggestions on the topic of Group of 88 stalwart Paula McClain’s convocation address, starting off with my personal favorite:

“I never metanarrative I didn’t like.”

And some other clever suggestions:

“Sex, Lies and Stereotypes.”

“How to publish a thinly-disguised prejudicial ad and intimidate the university president along the way”

“On behalf 87 of my closest peers...PLEASE, somebody take our classes!”

“Poker in Amerika: Playing the Race Cards”

“An Inconvenient Truth”

“We have to change . . . Well, not us. You, maybe. But not us.”

“Can anyone here spell DNA?”

“We don’t have to look out for our students, the Durham Police does it for us.”

“Railroad Express—Don’t leave home and doubt it”

“Hypocrisy 101: What to do when something silly like the truth gets in the way”

“Facts and other threats to race, class and gender scholarship.”

“88 Ways to Just Say No to Being Accountable for your Actions.”

The Times: Still Misleading

Editors of the two newspapers with the worst coverage of the case took different approaches in dealing with the AJR’s comprehensive review of how the media handled events in Durham. For Bob Ashley, delusion was the preferred strategy, as the Herald-Sun editor suggested that his paper had done a good job. For Bill Keller, a perceived middle line was the choice.

The Times editor didn’t even try to defend sports columnists Selena Roberts or Harvey Araton. Without specifically naming the duo, Keller told AJR’s Rachel Smolkin,

I did think, and I told the columnists, that there was a tendency in a couple of places to moralize before the evidence was all in, and not to give adequate weight to the presumption of innocence . . . As a generalization, I’m not dismissive of the people who think that what appeared in the sports columns kind of contributed to a sense that the Times declared these guys guilty. I think that’s a false impression, but I can understand where people got it.

Keller, on the other hand, was less willing to cast blame in evaluating his paper’s news division. Criticism of its performance, he claimed, has “in some instances been unfair to the point of hysteria.” (Keller provided no specific examples of this “hysteria.”) Problems, he asserted, were caused by the Times not initially “focusing a lot of investigative energy on the story.” (In fact, the Times ran nearly two dozen stories before the first two indictments, suggesting the paper was focusing heavily on events in Durham.)

The implication: the critics overstated their case; the Times columnists who rushed to judgment might have been wrong but won’t suffer any consequences for their misjudgments; and the Times eventually got the story right.

Yet Keller raised serious doubts about the good faith of his analysis by making misleading or outright inaccurate statements in the AJR interview. For instance, according to Smolkin, he suggested that “reporters’ jobs were complicated initially because the defense wasn’t talking.”

In fact, the initial Times reporter on the case, Joe Drape, was given extraordinary access to defense sources in late March and early April. Even at this stage, before indictments, some defense lawyers were open to sharing material with the Times—as they were open to sharing material with Mike Nifong.

Once Drape was replaced by Duff Wilson as the Times’ lead Duke case reporter, however, the paper seemed to lose interest in fairly reporting both sides of the story. That was the Times’ editorial judgment—a judgment, in retrospect, that appears badly flawed. But it was off base for Keller to blame his paper’s failures on the defense attorneys’ alleged unwillingness to speak with the Times.

Keller also was misleading at best and inaccurate at worst when discussing Duff Wilson’s 5600-word, front-page August 25 magnum opus.

The article, he asserted, “wasn’t a perfect piece, but it was a detailed and subtle piece that left you with no illusions about the strength of Nifong’s case.”

Really?

• The Attorney General’s report said that Nifong had no case—that there was no credible evidence on which to base a prosecution.

• The Times said, “By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks. But an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation yields a more ambiguous picture. It shows that while there are big weaknesses in Mr. Nifong’s case, there is also a body of evidence to support his decision to take the matter to a jury,” since “in several important areas, the full files, reviewed by The New York Times, contain evidence stronger than that highlighted by the defense.”

Wilson’s story left readers with the “illusion” that Nifong had “a body of evidence to support his decision to take the matter to a jury”—when the Attorney General of North Carolina, who also conducted “an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation,” asserted exactly the opposite.

Keller also creatively reinterpreted how the article used Mark Gottlieb’s “straight-from-memory” report. The notes, he mused, “were interesting not because they proved the crime was committed, which they did not, but because they showed you for the first time what the prosecutor claimed he had, what was the basis for filing his charges.”

On the surface, this rationalization sounds plausible. On closer examination, however, it continues the Times’ duplicitous performance in the case. First, as my colleague Stuart Taylor pointed out, the article featured the notes as its “centerpiece,” and was written in such a way to suggest that the Gottlieb memorandum was plausible.

More problematic, Keller’s assertion that the Gottlieb memorandum “showed you for the first time what the prosecutor claimed he had, what was the basis for filing his charges” is out-and-out untrue. Nifong repeatedly stated that two items formed “the basis for filing his charges”: Crystal Mangum’s version of events from the rigged April 4, 2006 lineup; and the report of SANE Nurse-in-training Tara Levicy.

But don’t take Nifong’s word for it: the Gottlieb memorandum couldn’t have formed “the basis for filing his charges” for an obvious reason—it didn’t exist when charges were filed. Indeed, as Gottlieb admitted in his Bar deposition, the memorandum’s critical elements (the “straight-from-memory” recollection of the March 16, 2006 interview, for example) were written in early July, or nearly three months after charges first were filed.

How, Keller was asked, should the media handle the case now? Providing “more, better reporting.”

Sounds reasonable. Perhaps, then, the Times could share with readers—and with the Attorney General—the basis for the following reporting, from the August 25 article: “The dancers stopped. An argument ensued. Using a racial epithet, someone yelled that they had asked for white dancers, not black ones. That much is agreed. It was 12:04 a.m. March 14.” [emphasis added]

In fact, the only people related to the case who agreed with this version of events were Mike Nifong and (sometimes) Crystal Mangum. The captains, Kim Roberts, and Jason Bissey all said the racially charged exchange occurred outside the house, around 12.45am—long after Reade Seligmann and Collin Finnerty had left the party.

The Times has, to date, refused to correct this item (along with at least two other items from the August 25 story). Nor has the paper ever produced evidence for its assertion.

Given that record—and given his own inaccurate portrayal of the Gottlieb report—how can Keller lecture anyone on the need to provide “more, better reporting”?

McClain as Convocation Speaker

Group of 88 stalwart and incoming Academic Council chairperson Paula (“no to due process”) McClain will be the speaker for this year’s opening convocation for graduate and professional school students. (The convocation occurs on August 22.)

Given the administration’s creative re-interpretation of the Group of 88 statement, I suppose such a selection would be expected.

I invite readers to use the comment section to recommend topics for McClain’s address; I’ll post the most creative responses tonight.

[As of 7.40pm, some of the more creative of the many amusing suggestions; a further update later.]

“How to cost your employer millions of dollars in legal settlements AND get cool new titles”

“Why Due Process is so 20th century”

“To the students of Duke University, we are listening. Well, not to most of you.”

“88 ways to spin racism and politics to sell your product and promote yourself.”

“Actual evidence in the U.S. criminal justice system: who needs it?”

“Why Duke Process is not Due Process”: Subtitle: “Don’t trust anybody over 30. Really. We mean it.”

“Incoherency, the forgotten virtue”

“Duke University: where anything you say can and will be used against you -- unless you’re a member of the 88, in which case, anything you say (no matter how stupid, defamatory, incorrect, etc.,) will be used to justify giving you a promotion.”

“Turning up the volume and making collective noise: How to throw your classmates under the bus”

“Reality: What a Concept”

Group Profile: Eduardo Bonilla-Silva

[Change in schedule: With week-in-review posts moving to Friday, the series profiling Group of 88 members will now appear on Mondays.

To date, the series has included posts on Wahneema Lubiano, Pete Sigal, Grant Farred, Sally Deutsch, Joseph Harris, Jocelyn Olcott, Irene Silverblatt, and Kathy Rudy. The posts examine the scholarship and teaching of Group members, trying to delve into the mindset of professors who last spring abandoned both the tenets of Duke’s Faculty Handbook and the academy’s traditional fidelity to due process. An item to keep in mind: in higher education, professors control the hiring process. The people profiled in this series will craft future job descriptions for Duke professors; and then, for positions assigned to their departments, select new hires.]

Group of 88 signatory and “clarifying” faculty member Eduardo Bonilla-Silva teaches in the Sociology Department. He received his Ph.D. from the University of Wisconsin; his academic career has promoted a structural explanation of racism in the United States. In effect, he has argued that a quest for white supremacy is embedded within American society, and can be overcome only through government intervention to create an “equality of outcome” between whites and minorites.

At various points in his teaching or scholarship, Bonilla-Silva has used other names for the country of which he is a citizen. In his most recent book, his preface described the United States as “gringoland.” In a course syllabus used at his previous institution, Texas A&M, he wrote, “We conclude the class with a discussion of some of the solutions that have been proposed to deal with the racial dilemmas plaguing the United States of Amerikkka (I will remove the three Ks from this word when the USA removes racial oppression from this country!).” Without explanation, he dropped two of the “Ks” in a forthcoming essay entitled, “Latinos in the Midst: Where Will Latinos Fit in the Emerging Latin America-Like Racial Order in Amerika.”

Bonilla-Silva has authored two books: White Supremacy & Racism in the Post-Civil Rights Era and Racism without Racists. Here’s how he described the thesis of the latter book shortly after its publication:

Racism without Racists opens with the following claim: “In this country, racial ‘others’ of dark complexion are always viewed as incapable of doing much; we are regarded and treated as secondary actors only good for doing beds in hotels or working in fast-food restaurants.” [emphasis added] Simplistic, overblown claims are normally easy to rebut: in this instance, it’s hard to see how the careers of Condoleeza Rice, Colin Powell, Barack Obama, Oprah Winfrey, or Carol Moseley-Braun (to take five high-profile examples) could be reconciled with Bonilla-Silva’s absolute proclamation.

According to Bonilla-Silva, the United States has scarcely moved beyond the era of legalized segregation. Contemporary America, he has written, features “a rearticulation of some racial practices characteristic of the Jim Crow period of race relations.” This new racialized system, which he calls “colorblind racism,” is upheld in part “through social control (the criminal justice system, arrest rates, etc.).” Few would deny that minorities are, for example, disproportionately the victims of prosecutorial misconduct. Bonilla-Silva appears to believe, however, that Jim Crow-like attitudes among whites provide the only logical explanation for the disparate incarceration rates between whites and African-Americans.

University of Wisconsin sociologist Myra Loveman countered that Bonilla-Silva’s analytical framework “depends on the ‘reification’ of race.” Moreover, for someone who claims a “global” perspective,” Bonilla-Silva is quite U.S.-centered: as Loveman observed, he seems to take “differences that are peculiar to the United States at particular times in its history . . . as bases for conceptual generalization.”

Beyond criminal justice issues, what are some of the negative characteristics of this “racialized system” that Bonilla-Silva has detected? Meritocracy, for one. Whites, the Group of 88 member claims, “justify racial inequality” by supporting merit as an avenue for advancement or admission to school; such color-blind racism only helps whites “justify contemporary white supremacy.”

In his writing, Bonilla-Silva regularly employs generic quotes, often invented by him, that he argues typify the “white” viewpoint. (These quotes almost always portray their “white” speaker as transparently racist.) His own style must have made the 88’er particularly amenable to the strategy employed by statement author Wahneema Lubiano, who used anonymous quotes from alleged Duke students to frame the Group’s anti-lacrosse ad.

Bonilla-Silva denies that he seeks “to demonize whites.” After all, he noted, “Historically, many good people supported slavery and Jim Crow”—just like the “good people” in the current environment who “oppose (or have some reservations about) affirmative action.”

I doubt that the majority of voters in California, Washington, and Michigan (all states that have passed referenda banning the use of racial preferences in public jobs) would be comforted knowing that Bonilla-Silva sees them as “good people” even as he compares them to 19^th century advocates of slavery. And, of course, branding those who oppose his views as the contemporary equivalent of slavery’s defenders gives a sense of how willingly Bonilla-Silva tolerates dissenting opinions.

When translating his theories into specific policy recommendations, Bonilla-Silva lapses into either the banal or the extreme. (Little else could be expected from someone who claims that “today there is a sanitized color-blind way of calling minorities niggers, Spics, or Chinks.”) For instance, here’s a paean to the race/class/gender worldview:

How, exactly, will this race/class/gender “coalition for humanity” be accomplished? Bonilla-Silva doesn’t say.

The Group of 88 member has urged minorities to “become militant once again” and adopt “a new, in-your-face, fight the power civil rights movement.” The goal? This movement “must have at the core of its agenda the struggle for equality of results.” In other words, the traditional goal of civil rights activists in the United States—equality of opportunity—would be set aside, replaced by implementation of absolute quotas.

Bonilla-Silva has also devoted some thought to the education system—which is, he has claimed, a place to “nurture a large cohort of anti-racist whites.” For students at Duke, he’s had a direct message: “If you are a college student in a historically white college, you must raise hell to change your college” demographically.

But when minority students at his previous position, Texas A&M, didn’t support his agenda, Bonilla-Silva lashed out. After witnessing a panel in which black and Hispanic A&M students downplayed the racism that Bonilla-Silva sees everywhere, the professor dismissed them as racial Uncle Toms:

At Duke, Bonilla-Silva teaches race-based courses such as “Contemporary Analysis of Racism” and “Comparative Race/Ethnic Studies”; the latter explores “the social, legal and cultural construction of racial and ethnic hierarchies in a comparative international context with the United States and the United Kingdom of central analytical concern. Racial formation and racial segregation in specific historical and national contexts including the normative case of the Anglo-Saxon core in the United States and how its dominance has led to patterns of ethnic antagonism and discrimination; the historical context of racial stereotypes and their representation in various mediums.”

He has conceded that “some times[sic] students perceive some of the material” he teaches as “anti-White,” but that those who enroll in his classes needed to keep in mind that “the very mission of the University is to challenge ‘dogmas’ in pursuit of the always elusive ‘truth.’” Of course, Bonilla-Silva’s definition of what constitutes “dogmas” would seem far out of the mainstream. It seems unlikely, for instance, that he would consider the current “diversity” fad in higher education to be a “dogma” worth challenging, despite its overwhelming support from the contemporary professoriate.

Here’s how one student remembered a class with Bonilla-Silva: “Makes fun of you if you answer incorrectly. Hates Duke students (called us ‘spoiled private school kids’). Wastes time in lecture with stupid drawings . . . Is biased.”

Bonilla-Silva didn’t seem to like his students very much at Texas A&M, either. “I am not an Aggie or believe in any of the so-called ‘traditions’ or ‘heritage’ of this institution,” he informed one class at the university he dismissed as “Crackerland.” Here’s his response when asked if white students at A&M were racists:

With typical overstatement, he compared the thematic difficulty of one of his A&M classes, “Sociology of Minorities,” to the intellectual challenges associated with studying “calculus or the second law of thermodynamics.”

The syllabus for the course stated that students needed to control their “body language” and avoid “irresponsible contestation” with his arguments. Bonilla-Silva further asserted that he would “not accept anecdotal ‘data’ (e.g., ‘I know this because Georgino Bushinsky Presidensky said so and he must know’).” The class ended with a lecture on “Amerikkka’s Racial Future and Social Policy Options to deal [sic] with Racial Problems.”

Imagine the appropriate condemnation if a white professor stated on his syllabus that he would “not accept anecdotal ‘data’ (e.g., ‘I know this because Jesserino Jacksoninsky Fakereverendy said so and he must know’),” and accused African-American students in his class of displaying threatening “body language.”

When asked by the Chronicle about the inappropriate language of the syllabus, the Group of 88’er asserted that “his syllabus was tailored to ultra-conservative students at Texas A&M, some of whom use The Bible as the main source in an essay.” (Of course, not all or even most students at A&M would be considered “ultra-conservative”; and there’s little reason to believe that Bonilla-Silva sees the student body at Duke or any other historically white school as fundamentally different ideologically.) Incredibly, the chairman of Duke’s Sociology Department, Philip Morgan, dismissed as irrelevant concerns about Bonilla-Silva’s using his syllabus to score ideological points.

With these research and teaching interests, is it any wonder that Bonilla-Silva rushed to judgment in spring 2006; and then refused to apologize for his actions last January?

---------

In his first book, Bonilla-Silva claimed that “writing about a racial ideology that is alive and well and shapes the views of most whites in the United States is a risky business.” Indeed, for him, it has been so “risky” as to secure a lifetime position with a six-figure salary at an elite university.

Bonilla-Silva is a tenured full professor. A favorite of the American Sociological Association, he arrived at Duke in 2005, as part of a “wish list” of faculty members that the Brodhead administration particularly wanted to bring to Durham.

Sunday Roundup

Two important articles appeared last week on the Friends of Duke site. The first, penned by Joan Collins, looked at the role of faith for the players and their supporters throughout the case.

Collins notes that “for me, it was faith that brought me to this case.” A resident of Garden City (hometown of Collin Finnerty and several other players on the team), Collins had never even read a blog before the case began—but she turned to the internet because she wanted to find more information about the case. Attacks on the Finnertys’ generous (longstanding) support for Father Peter LeJacq, a Maryknoll priest who has opened missionary hospitals and trained doctors in Africa, generated her first internet commentary.

Collins recalled,

I decided to pray to St. Raymond Nonnatus, the patron saint of the falsely accused, asking that the case be dismissed. In the spring of 2007, I wrote to Mr. Evans that St. Raymond was the patron saint of the falsely accused. It was another coincidence that Rae Evans and her father, Raymond, shared the same name as the patron saint of the falsely accused. Later, I was touched by Mr. Evans’ testimony at Mr. Nifong’s trial about Raymond Forker and how the family had embraced the patron saint . . .

Over the past year, I encountered remarkable, resolute people in the search for truth and justice in the Duke Lacrosse Case. Their research, writings, poems, videos and cartoons energized us to continue. It was a privilege to meet and speak with some of the lacrosse players, their families and the Presslers. Their courage inspired me. The common theme of the conversations was faith and how it had sustained them, provided them hope, and at times carried them through some of their darkest days. When their university turned its back on them, when the media spewed vile things about them, when our legal system did not seem to be working, what remained were family, friends and faith.

Today I met Rae Evans for the first time. She was wearing a St. Raymond pendant and she gave me a special gift of a St. Raymond medal. Faith has taken me on a journey from that first post on Court TV about faith, to writing the Dave Evans profile of courage on the morning of Raymond Forker’s death, praying to the patron saint of the falsely accused and receiving the medal. The St. Raymond medal reminds me that with faith all things are possible.

None of us will forget the Duke Lacrosse Case. We must move forward and learn from the experience. The Duke Lacrosse team will become better and stronger men, sons, husbands, and fathers because of the case. This is not the end, but the beginning for there is still much work to be done. Hopefully, the players and their many supporters will follow in the generous footsteps of St. Raymond, so that something like this never happens again.

You can read the entire article here.

--------

Meanwhile, FODU spokesperson Jason Trumpbour has delved into the Bar depositions to explore some troubling connections between Duke and the police.

As Trumpbour noted, virtually the only time when the regular Durham judiciary (Judges Stephens and Titus) stood up to Mike Nifong was last July, when Judge Kenneth Titus rejected Nifong’s request for keycard records of the non-indicted players. Titus cited the Family Educational Right to Privacy Act (FERPA). But, Trumpbour noted, the material released by the Bar suggests that “Duke University had already turned these records over to police months earlier in March evidently in violation of FERPA.”

“For those,” Trumpbour concluded, “who insisted that our criticism of the Duke administration for its lack of public support for its falsely accused students was unfair because Duke was probably concerned about its students and was probably working behind the scenes to help them, guess again. For those who have insisted that speaking out against the conduct of Mike Nifong might work against the University’s interests and expose it to unacceptable risks, look at the risks the administration was willing to take in order to further the interests of those working against the players.”

Looking over the case, the FODU spokesperson detected one “common denominator”—that “there was always some other priority for the administration that was greater than the welfare of its students. They wanted to be on the right side in the eyes of the public regardless of the facts or law. They wanted to maintain their cozy working relationships with local officials. They wanted to appease small, vocal constituencies within their faculty. They did not think the lacrosse players deserved their help.”

The Bar depositions brought to light at least two, previously unrevealed, March 2006 meetings between the DPD and the Duke Police. And Ben Himan speculated that information from the Duke Police was funneled to Nifong through his then-assistant, Sheila Eason, whose husband works for the Duke Police.

Trumpbour's post raises the question of what the Duke Police knew, and when the Duke Police knew it.

---------

Yesterday’s post explored the somewhat . . . peculiar . . . arguments of Group of 88 member Pete Sigal. Lest it seem as if Sigal is a fringe figure—either at Duke or in the profession as a whole—guess again. This past spring, Sigal helped to organize a conference under the Duke History Department’s auspices. The title? “Ethnopornography: Sexuality, Colonialism and Anthropological Knowing.”

Sigal, meanwhile, served as co-chair for the Program Committee of the American Historical Association, the nation’s oldest and most prestigious group of academic historians. The AHA long has been considered a paragon of political correctness—it requires, for instance, that all (three- or four-person) conference panels include at least one woman. The conference theme reinforced Sigal’s preconceived notions: he searched for panelists who would call “upon us as historians to reflect on historical processes that have resulted in persistent and dramatic material inequalities” and who would “explore the possibility of alternative narratives that move beyond the Eurocentric explanations of the past.”

Next year, Sigal will have one fewer colleague in the Duke History Department. Peter Wood will still be free to give interviews to Indy appearing to slander Reade Seligmann; and he will still be available to provide unsubstantiated gossip to the New Yorker that lacrosse players in his class advocated genocide against Native Americans. But at the very least he won’t be doing so from the classroom lectern. Wood has announced his retirement, and officially moves to emeritus status this winter.

Wood’s departure would seem to be a case of addition by subtraction—though, no doubt, the Group of 88-dominated History Department will ensure that the anti-lacrosse extremist is replaced by someone of similar ideological and pedagogical biases.

---------

From the Liestoppers discussion forum: Officer Clayton had a busy day on Friday. In the morning, the photo of him at the Elmostafa trial appeared in the Whichard Committee as the embodiment of police intimidation. That evening, Clayton then went onto the mean streets of a local bookstore, on Harry Potter patrol.

---------

The Florida Bar News featured a lengthy profile of Joe Cheshire, Jim Cooney, and wade Smith discussing the case. Their basic message: the system did not work in the lacrosse case, and Durham just as easily could have tried three demonstrably innocent people.

Cheshire: “The most frightening thing that can happen to human beings . . . and it’s happened throughout recorded history, is a rush to judgment. We saw and suffered a rush to judgment and luckily we overcame it. If we had been representing poor, indigent people, we would have never overcome it.”

“What we say is in America today, our justice system has in many ways become politicized. We have a war on drugs; we have a war on crime; we have to be safe in our streets; we have to make all of our citizens afraid to walk to their cars at night,” he said.

“What’s happened is we have developed a culture in this country where winning is more important than seeing justice is done. Winning and statistics are more important than seeing that justice is done.”

Cooney: “The problem is that is nowhere near the truth [to say that the system worked]. There are at least a dozen happenstances . . . that if we missed something by just a hair, we would be in the middle of a jury trial right now. We would be in the middle of a jury trial with three young men who were innocent.”

“It was that open file discovery that changed these three boys’ lives.”

“If it wasn’t for Dave Evans picking up his bathroom, and putting those fingernails in the garbage, we would have missed it. You take away those fingernails and we would be in the middle of a trial. How did Mr. Nifong think he would get away with it? The answer is, he almost did.”

“As we drafted the motions, we knew we were drafting the motions for the media; it wasn’t just for the judge. We had to be clear, every assertion had to have a supporting document.”

“The lesson in all of this is there is nothing inevitable about justice. Justice is something you have to fight for every day . . . every hour, and every second. It’s sometimes things you can’t control, like Alan Gell or the vote on the grievance committee. There is nothing inevitable about the right result.”

Smith: “It was time that this man [Nifong] should fall. The excessive weight of this man in human destiny disturbed the equilibrium. He counted of himself alone more than the universe besides . . . .

“Napoleon vexed the gods. Well, so did Nifong. How do you vex the gods? I want to know because I don’t want to do it . . . . It was arrogance, his willingness to use these boys to advance his personal career, a refusal to listen to evidence, refusals to meet with witnesses, a willingness to convict the innocent to advance his career.”

“I think the problem is not only did Nifong take this case out of the superior courtroom and put it in the laps of the public, but he stood up in the court and just spoke untruth to the judges. Then having spoken untruth to the judges, he hid this material for a long period of time. I think everyone knew that [disbarment] was inevitable.”

Group Profile: The Latin Americanists

[The latest installation of a (usually) Friday series profiling Group of 88 members, which has included posts on Wahneema Lubiano, Grant Farred, Sally Deutsch, Joseph Harris, and Kathy Rudy. The posts examine the scholarship and teaching of Group members, trying to delve into the mindset of professors who last spring abandoned both the tenets of Duke’s Faculty Handbook and the academy’s traditional fidelity to due process. An item to keep in mind: in higher education, professors control the hiring process. The people profiled in this series will craft future job descriptions for Duke professors; and then, for positions assigned to their departments, select new hires.]

Duke’s History Department features three professors who study the history of Hispanic Latin America (Mexico, Central America, and South America outside of Brazil). Pete Sigal, Irene Silverblatt,* and Jocelyn Olcott are all members of the Group of 88. Each also signed the statement of the “clarifying” faculty.

Pete Sigal has a B.A. from Bucknell and a Ph.D. from UCLA. This coming fall, he’ll be teaching courses in colonial Latin American history and a junior seminar entitled “Sexual History around the Globe.” That course asks,

“What does it mean to sexualize history?” We will ask how we can sexuality not just as a topic of study, but as a reading practice. What happens when we focus a feminist and queer analysis on history? How does the historical narrative change as we use sexuality as our reading practice? What happens to the sign of history when confronted with the sign of sexuality? As we read historical narratives that focus on a wide variety of topics, we will discuss those topics by developing sexuality as our reading practice. Thus, when we read a military history, we will ask not just about sexuality as a topic with the military (did soldiers have sex with other soldiers? did soldiers impregnate prostitutes?), but also about sexuality as a reading process (what happens when we center our entire analysis of the military by sexualizing the bodies of the soldiers? what happens when we read the military as a sexualized institution?) Similarly, all other topics will be sexualized in our reading practice. We will read primary and secondary literature from various time periods and locations: hence will perform sexual histories around the globe.

Sigal has published one book (From Moon Goddesses to Virgins: The Colonization of Yucatecan Maya Sexual Desire); edited another (Infamous Desire: Male Homosexuality in Colonial Latin America); and written several journal articles. He has condemned the “Eurocentric biases” of studies of homosexuality (in effect, criticizing gay and lesbian studies from the left, not an easy thing to do), and has suggested that his own scholarship sheds light not just on history “but also on current academic and political controversies regarding the cultural and social constructions of sexual identity.”

To give a sense of the themes prevalent in Sigal’s work, here are some chapter and subchapter titles from his 2002 book, which examines colonial Maya society:

• “Transsexuality and the Floating Phallus”;
• “Fornicating with Priests, Communicating with Gods”;
• “Pedagogy, Pederasty, and Political Power”;
• “Having Sex in a Church”;
• “Blood, Semen, and Ritual”;
• “Gendered Blood and Transsexual Bodies”;
• “Ritualized Bisexuality”;
  
• “The Phallus without a Body.”

In From Moon Goddesses to Virgins, Sigal argued, “The gendering of blood signified the transsexuality of fantasy and desire . . . the Maya fantasy world showed that the people would allow the phallus to play a central role in creation.” This development, however, was “mitigated by the importance of the vagina.” In the end, “the phallus certainly was vital, showing a male dominance, but its vitality was most important when it was attached to nobody.”

In a 2002 article, the Group of 88’er maintained that colonial Maya social structure was based on a “phallic signifying economy” that “stratifies the political system based on gender and age.” Maya stories, contended Sigal, showed the “bieroticism of desire as they primarily discuss sexual acts between men and women as they present the male body in an erotic manner, attaining the pederastic relationship.”

In the end, Mayans recognized that “it is the desire for the phallus that will allow access to political power.”

Maya society, it seems, was a hotbed of sexual radicalism. But when Sigal explained how he reached his conclusions about “the central location of homosexual desire” in colonial Latin American history, his arguments sounded a bit more dubious.

The Group of 88’er conceded that much of his evidence was not readily apparent in the texts—even that other scholars had examined the very same documents he used and not detected his “previously unrecognized pederastic political rituals.”

How, then, did Sigal achieve this historical coup? He combined insights from “poststructuralist gender studies and queer theory influences” with use of philology and postcolonial theory to “understand the texts that I read as literary devices which I decode in order to represent the cultural matrix.”

In a 1998 article, Sigal wrote that historians needed to avoid the “traps of reading the evidence too literally.” (Facts, indeed, can be inconvenient things.) Spanish sources, for instance, claim “that the Incas despised sodomy”—but “we cannot take them at their word.” Sigal appears to have gone to the opposite extreme and assumed that any text of whose message he disapproved could be ignored or creatively re-interpreted.

The net result of such theorizing? A discovery that “Maya writing ostensibly was about politics, religion, ritual, and warfare but subtextually was about gender and sexual desire.” And in these texts—as redefined through Sigal’s “matrix”—“homoeroticism is presented as a universal and positive sexual desire, which maintains and enhances the survival of Mayan society.”

Some people might call Sigal’s “matrix” little more than a rationalization intended to produce an outcome that fits the historian’s preconceived political and social agenda. Regardless, creatively interpreting the texts to suggest that the West imposed anti-gay attitudes on a more sexually tolerant Maya society uses history to promote Sigal’s beliefs about current “political controversies regarding the cultural and social constructions of sexual identity.”

Irene Silverblatt has a B.A. from Swarthmore and a Ph.D. from the University of Michigan. In more than 25 years as a professor, she has published two books: a study of the Inquisition in colonial Peru; and Moon, Sun, and Witches: Gender Ideologies and Class in Inca and Colonial Peru. Silverblatt has described her work as part of “research into the origins of women’s oppression—both symbolic and institutional”; she suggested that her first book contributed to debates over “the transculturality of women’s subordination.”

Silverblatt has urged gender historians to recognize that “the interplay between sexual assault, resistance, patriarchal control, and political dominance is intricate.” To take some examples: “What of indigenous women who did not resist forcible rape? Should their lives and actions be deemed any less heroic or any less virtuous? And what, on the other hand, of those who used their sex to open what were often only the most meager opportunities for themselves or their families? Are they any less virtuous for surviving?” Her essay did not explain the reasons for her apparent assumption that historians should view “indigenous women” as “heroic.”

Her general approach? In a vaguely Maoist line from a 1988 article, Silverblatt gushed about the “exciting literature of self-criticism and reflection,” a development that she deemed critical to understanding the origins of women’s oppression.

The third in the trio of Group of 88 Latin Americanists, Jocelyn Olcott, rejoiced at having “started college at a moment when Latin American Studies distinguished itself for its insistence on simultaneous engagement with both scholarship and politics.” She attracted some attention shortly before the lacrosse case emerged, when she joined her future Group colleague, Diane Nelson, in attempting to shout down David Horowitz during his address at Duke.

Olcott describes her research interests as the “feminist history of modern Mexico”; her book “shows women activists challenging prevailing beliefs about the masculine foundations of citizenship” by examining “how women inhabited the conventionally manly role of citizen by weaving together its quotidian and formal traditions, drawing strategies from local political struggles and competing gender ideologies.” In her acknowledgments, she expresses appreciation for intellectual guidance from fellow Group of 88 members Wahneema Lubiano, Sally Deutsch, Laura Edwards, Esther Gabara, Diane Nelson, and Priscilla Wald.

Last spring, Olcott co-taught a class with Lubiano (Introduction to Critical U.S. Studies), which attracted seven students (for 40 slots). The jargon-laden description gives a sense of why: “The course,” Lubiano and Olcott wrote, “will ask us to think about what it means to be an ‘American.’ Thinking about that concept demands considering the critical production in the United States from different disciplinary perspectives. We will take what we learn about ‘making’ the U.S. and apply what we learn to problems closer to ‘home.’”

What course will this self-described specialist in Mexican feminism, whose most recent journal article is entitled “Miracle Workers: Gender and State Mediation among Textile and Garment Workers in Mexico’s Transition to Industrial Development,” teach in fall 2007? “Regime Change and U.S. Interventions,” which

will examine episodes of U.S. interventions abroad that resulted in the overthrow of democratically elected regimes. While we will focus on Latin America as the primary region of study, we will also consider comparative cases. Readings and research will consider cultural, social, and economic tools of intervention as well as military and diplomatic methods. Students will divide into four research teams and, using documents provided by the instructor as well as those that student find on their own, will research and write histories of U.S. interventions in Guatemala, Chile, Iran, and Congo.

The ideal of a research university is based on the belief that professors will use their research to bring new knowledge into the classroom. In this instance, for $43,000 in tuition and fees, parents are sending their children to be taught about U.S. foreign policy toward Iran and the Congo by a professor whose research has come in . . . Mexican feminism. But Olcott is a Group of 88 member, which apparently is all the qualification needed in some quarters of the Duke faculty.

With their research and teaching interests, is it any wonder that Sigal, Silverblatt, and Olcott all rushed to judgment in spring 2006; and then refused to apologize for their actions last January?

---------

In the end, Duke students who want to study the history of Mexico, Central America, and South America (other than Brazil) can choose between taking classes from:

• a specialist in Mexican gender history;
• a specialist in Maya gender history;
  
• a specialist in Peruvian gender history.

That’s intellectual diversity, Group of 88-style.

*--Silverblatt has a joint appointment with the Department of Cultural Anthropology.

The Defense Thirteen

The 13 issues identified by the defense attorneys as worth exploring for the Whichard Committee:

1. Who's in Charge?

2. Sergeant Shelton

3. Moez Elmostafa

4. The DPD Public Statements

5. Sergeant Gottlieb's Supplemental Case Notes

6. The DNA

7. The Search Warrant Affidavit

8. Jason Bissey

9. When Did They Plan and Cover-up

10. The False Accuser's Weekend

11, Her Work Schedule

12. Was She Drunk?

13. The "Identification" Process

Summarizing the Day

Mayor Bell opens the committee inquiry--publicly thanks the committee members.

"You have the full support of the Durham City Council as you carry out your duties." The committee is charged with investigating the "conduct" of the DPD and of Mike Nifong.

The purpose is to ascertain the "truth" and to assist the department in avoiding similar problems in the future. If DPD performed correctly, then the Council wants to know that, too.

Chairman Whichard: purpose is to ascertain the "truth" about whether "unconstitutional or otherwise improper procedures" were followed. "The goal is a properly functioning justice system." Importance of producing reliable results and constitutional procedures, with goal of bringing "clarity" and "closure."

Wants people to know that policemen take risks--part of their jobs. "Deeply grateful" to what police do. But must also be mindful that "we have a Constitution. We have statutes." These impose "some restrictions" on enforcing the law. "It is essential to an orderly and just society that the public have confidence" in law enforcement.

---------

Jim Cooney, Joe Cheshire, Bill Cotter, and Brad Bannon are present to represent the players; Cooney is presenting.

Cooney volunteered to do a presentation for the committee; Justice Whichard agreed. Neither Reade Seligmann nor Collin Finnerty had any particular interaction with the police--since they were never interviewed. Dave Evans the only defendant to have interaction with the police. It is undisputed that Evans cooperated with the police completely. Evans offered to take polygraph, was denied, then volunteered to take DNA. Evans didn't have anything of import to offer the committee.

The three clients also were worried about distracting from the committee's focus. Focus is not what happened to the defendants--focus is what happened during the investigation.

Presentation in two parts: what happened, what the false accuser said, background.
Second: 13 areas that committee should look into. Defense doesn't believe it's seen all the documents relevant to any inquiry.

It might be there are adequate explanations for these 13 issues--but if so, the defense never heard them.

Finally, not here as part of civil lawsuits. Defense attorneys are not being paid to be there today. Presenting because they are officers of the court.

---------

Begins with photograph of the "false accuser"--12.30am photo. Mangum is laughing, four minutes after calling escort service, holding purse and Dave Evans' shaving kit.

Urges the committee to look at the AG's report--clear that players were innocent, no credible evidence, AG found evidence DPD never uncovered.

Cooney--described by Joe Cheshire as the "best PowerPoint attorney in North Carolina"--has put together a PP presentation for the committee, running through the AG's report.

"Inconsistencies so significant and so contrary to the evidence"--as the AG noted.

Himan probably the person in the DPD who knows the case best. (Cooney urges the committee to look at the Bar depositions of Himan, Gottlieb, etc.)

Cooney quotes Himan deposition statement: "I came to the conclusion that . . . she was not telling the truth about anything."

Question for committee: "We know three innocent men were prosecuted for a crime that never took place. Did that come about solely because a DA pushed forward unethically, or did that come about because of deficiencies in the investigation"--and were these caused by human error or by systemic problems?

Wants to share with the committee what he did with the SP's--but can't show everything, because Mangum's mental health issues remain under seal. Some 2000 pages of material.

Cooney: when he came onto case, saw that Mangum gave varying statements, so did a checklist. Proved that there were serious inconsistencies in her statements.

Cooney now reviews the who/what/when inconsistencies, laying out the chart below: It examines who allegedly did what to Mangum, as well as the marital status of her “attackers”:

• A green X corresponds to the story that Mangum told Tara Levicy on March 14, 2006.
• A blue Y corresponds to the story that Mangum told Gottlieb and Officer Ben Himan on March 16, 2006.
• A red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

	Oral	Anal	Vaginal	Married
Matt	X	YZ	XZ	X
Brett		YZ	YZ
Adam	XY	X		Z

Mangum, in short, described three quite different “attacks.” Of course, when she was asked about the “attack” on December 21, she would come up with a fourth different story. And when the special prosecutors would ask her about the “attack,” she would come up with a fifth, entirely different, story.

Defense consulted Dr. Anne Burgess--one of leaders in rape treatment. Sent her all the records, asked her, and she said: after working with hundreds of rape victims, having worked with FBI, having written a textbook--had never seen a real victim change her story as much as Mangum did. Burgess said there was "something terribly wrong" with what Mangum told the police.

When Cooney was hired, Reade Seligmann asks him, "Who am I?" Was never entirely clear from Nifong who was Matt, Adam, or Brett.

---------

Issue: what did the attackers look like?

Himan took notes during March 16 interview; then mentions Gottlieb's contrasting descriptions.

"Of course, Sgt. Gottlieb didn't take any notes of the meeting"--report prepared after indictments.

First thought of defense attorneys: did Mangum remember things later? No: Himan made clear that on March 21, she didn't remember anything more.

"We don't know where Sgt. Gottlieb got his descriptions from."

ID process supposed to be governed by G.O. 4077--indpt. administrator, fillers must resemble description, don't reuse fillers, five fillers, administrator should give identical instructions, don't give feedback, and tell witness that suspects not necessarily present in ID array.

March 16: Mangum saying that she was 70% certain of seeing Seligmann at party, but couldn't remember where. That should have ruled him out as suspect.

March 21: doesn't recognize Dave Evans.

Never shown picture of Collin Finnerty: why? Didn't resemble any of the descriptions.

March 31: Gottlieb and Himan meet with Nifong; mugshot photos with suspects-only ID.

Investigation at a dead end by March 31--Mangum couldn't ID anyone, couldn't give any descriptions of suspects, couldn't remember anything further, no semen anywhere in rape kit, other dancer had told police that the accusations were a "crock."

Big question: was this an ID process? Patrick Baker says this wasn't an ID process--just goal was to identify witnesses rather than alleged attackers. No ID process; therefore, G.O. 4077 doesn't apply.

But this doesn't make any sense: Devon Sherwood was at the party. They knew he was at the party. Yet police never showed Mangum Devon Sherwood's picture.

Police also knew there were non-lacrosse players at the party (Boehmler and Saeli); police knew this as of March 28, 2006. Why weren't there pictures included if sole goal was to ascertain witnesses?

If goal was to simply ID witnesses, why would the police have videotaped the 4-4 lineup? And why did the police then not videotape the 3-16 and 3-21 lineups? "What sense does that make"?

If purpose was simply to identify witnesses, why did the police need to show Mangum the picture of Seligmann, since she had already claimed that she was 70% sure of seeing him at the party?

Then fundamental flaw: never show witness the same photos she has already seen. "That's what leads to misidentifications and false identifications."

Finnerty: very tall, obviously. Mangum had never said that person who assaulted her was unusually tall.

"Critical" to look at else who she identified: fourth person, used almost same language as was done with Dave Evans--but no follow-up on the fourth person ID'd.

Brad Ross: Mangum identifies him with 100% certainty twice, the only person done so. But he was in Raleigh--this evidence was presented to DPD.

Chris Loftus: she says she 100% sure she saw him--but he was in his dorm room.

"A procedure that DPD admits didn't comply with GO 4077." Yet this became the sole basis on which Seligmann and Finnerty were indicted. One month later, Seligmann and Finnerty were on cover of Newsweek--as a result of this procedure. Seligmann gets death threats.

All of this evidence DPD either had or could have received before first indictment issued.

Defense doesn't have all of the answers in this--don't know about internal conversations, doubt the defense has received all the correspondence.

After March 24, investigation based toward proving the truth of Mangum's story rather than determining what actually happened.

"In this rush to indict, to cut off an investigation"--don't know what role chain of command had, and how chain of command interacted with Nifong.

---------

Police knew as of March 16, 2006--from Dave Evans' statement--that there were photos of the party. Yet police never executed a search warrant to obtain these photos.

When looking for 20-30 minutes, not possible to find it with the electronic and digital record: shows that there was no opportunity. Police either had all this evidence or knew of its existence before seeking indictments.

Electronic evidence wholly incompatible with Mangum's Dec. 21 story: yet DPD and Nifong treated this story as credible. Police never followed up on evidence presented by Mangum's "driver," Brian Taylor, that determined exactly when Mangum arrived at the party (around 11.40pm).

Cooney also showed the photo of Officers Ben Himan and Richard Clayton at the Elmostafa trial--a visual that effectively demonstrated his general point that the DPD engaged in witness intimidation.

Another investigative issue: from where did the DPD obtain evidence that the players were calling each other by their numbers? Neither Mangum nor Kim Roberts had ever made such a claim, no other evidence so existed, yet it appeared in the police affidavit for the March 23 NTO.

---------

Back from lunch, Joe Cheshire is addressing the Whichard committee.

Notes he has tried criminal cases in 85 NC counties. "A North Carolinian in my heart, a lawyer in my heart. I am enormously proud of being a North Carolinian, and I am enormously proud of being a lawyer."

Very proud of his record and the record of his family in its commitment to civil rights. Joseph Blount Cheshire, I and II were ministers who integrated their churches (in the pre- and post-Civil War eras). Cheshire III was an early lawyer for NAACP.

Praises "political courage" of Bell in setting up committee. "Really good things can come out of bad things"--opportunity to grow from mistakes.

Inquiry could benefit not only Durham but could aid justice throughout NC. Unquestioned that Nifong a "rogue prosecutor"--but hopefully justice will be stronger.

Real victims of sexual assault hurt by this case--set back their cause 5-10 years.

Certainly the defendants and their families were victims.

Other victims:

• Duke University (though "they may have played some part in this");
• law enforcement;
• justice system in NC--need to ensure that all citizens have "faith and trust" that justice is being done;
• community of Durham "victimized terribly"--just watch cable TV to find this out;
• state of North Carolina--NC actually a forward-looking state. But "the Duke lacrosse case backed us up in the minds of a lot of people who want to think of us as a backwater place";

One other critical victim: race relations was a "huge victim" in this case--Mangum "knew the explosive capability of those words"--what effect it would have in Durham--took the city back 30 or 40 years. "Let me just be clear: Nifong pandered to race."

"All of the evidence is that in that house that night not one single slur was uttered" (despite, of course, what Duff Wilson and the NYT continue to maintain);

Two racial slurs: Roberts initiated, then one player uttered it back.

People who wanted to make it a racial case did so--national media, Nifong, others whose self-interest motivated by race-agenda.

Basic questions:

Mangum a "very ill young woman, but she is a false accuser." Believes that she "knowingly and willingly" made racial statements to make her story more believable.

"How is it possible that a person could give that many inconsistent statements and not have the DA interview them or not have a law enforcement officer go over the inconsistencies?" Has practiced law for 34 years in NC and has never seen anything like it. Most police officers don't like to charge innocent people.

"It doesn't take a rocket scientists to put mental health records together with multiple diverse statements" and figure out that Mangum was not credible.

Police didn't even try to get electronic records--no one in law enforcement tried to create timeline.

"At some point in time, you have to ask yourself why?" Bissey never interviewed, Mangum's employers never interviewed.

DNA--no way you could possibly have attacks as Mangum described and leave no DNA. Police several times heard there was no DNA, yet did nothing about it, didn't go back and recheck her story. Indeed, these officers "had to know" that Nifong was lying when he repeatedly told court that Dr. Meehan didn't tell law enforcement anything beyond what was in the report.

---------

Strongly urges the commission to "really pay attention to Sgt. Gottlieb. I am just absolutely flummoxed" by the fact that in this case--and the only people working on case were Himan (who was young and did what he could) and Gottlieb. "Where were the experienced investigators?"

"It appears to me that the Police Dept. was so excited to get rid of this case" to Nifong "that they just handed it to him" and "Pontius Pilate-d it."

Gottlieb: "This supervising sergeant was the most experienced police officer in this case"--first officer assigned, last to provide a report. Urges them to look at 32-page typewritten document--although he says he never took any notes.

Gottlieb "simply a document designed" to cover up--Gottlieb report not supported by any other contemporaneous handwritten notes. Did he make it up? At the very least, this question must be asked.

Potentially "enormously egregious misconduct, bordering on criminal conduct."

Then go from there to the lineups--a no-wrong-answer lineup.

Police helped to create atmosphere stoked by Nifong.

Basic story: what was described as a racial gang rape, with a DA saying it was true, and then an investigation that "simply stopped with her initial statement" and Tara Levicy's report. DA then took over case and made himself police investigator, decision made to charge, and then everything that happened was designed to justify that charge--not to see that justice was done, but to justify that charge.

Picture of this story is treatment of Elmostafa.

---------

Whichard: asks Cooney about the Baker/Chalmers report claim that defense attorneys were responsible for not providing information to DPD.

Cooney: at start of the case, everyone assumed that three residents were prime suspects. Seligmann first finds out that he's a prime suspect when he's told he was being indictment.

Then, before end of April, Osborn filed out detailed notice of alibi. Police knew about this--which is why the police go to Elmostafa.

Cheshire: Evans, without counsel, gave full statement to police. Then Nifong, as lead investigator in case, wouldn't talk to them.

Cooney: he and Nifong met early December--prepared to bring Reade Seligmann into meet with Nifong and police. Nifong: "As long as she can identify him, this prosecution will go forward." Why would defense deal with the officers when it was Nifong making all the decisions?

Bill Cotter: "We were getting the idea that people were cheating"--"so determined to convict these boys that they're not playing by the rules. That was our biggest fear in this case."

Cooney: responsibility clearly vested in Gottlieb and Himan. Couldn't identify any other officers in the case--clear that they were reporting to Nifong.

Whichard: was attempt on Elmostafa initiated by DPD?

Cooney: warrant discovered by Linwood Wilson; Wilson made it clear to Himan that Nifong wanted Elmostafa arrested; Himan goes to someone in chain of command to ask if reasonable; Elmostafa asked if he wanted to stand by this story.

Chief Pat Norris asks about alleged internal affairs inquiry into Sgt. Shelton--Cooney: no indpt. evidence other than Linwood Wilson's testimony. But it is clear that Linwood Wilson did go around and interview people who worked with Shelton that night.

Cheshire: police and Nifong statements created "enormously dangerous" atmosphere.

Cooney: key documents: AG's report; Himan's notes; Sgt. Gottlieb's "report"; suppression motion lineup contains all the key documents; Himan and Gottlieb depositions to State Bar; Linwood Wilson deposition; Nifong deposition.

Cotter: read Roberts' and Mangum's statements side by side.

Chief Pat Norris: wants timeline of police actions from start to end.

Aurelia Sands Belle (whose statement suggests that a rape might have occurred) had no questions of the defense attorneys.

Kenneth Spaulding: as case progressed, "I was very concerned about not hearing from Chief of Police . . . It is not the job of defense attorneys to see that law enforcement does its job." Felt Chalmers was "missing in action." Wants Chalmers as a witness before the commission.

It appears, unfortunately, as if members of the commission believe that Himan and Gottlieb were both trying to get information to Nifong, and were trying to do the right thing. Gottlieb, of course, was not doing so.

In the second round of questions, Sande Bells is asking a question, as to any evidence of Mangum's intoxication.

The role of Sgt. Shelton appears to be quite interesting to law enforcement members of the commission. Cotter praises Shelton--first officer on the scene and he figured out the case. Suspects that all people up in the chain of command believed Shelton.

Judge Barber (committee counsel) questions:

Cooney: no specific request by DPD to interview Seligmann alone.

First two arrays didn't comply in that the "fillers" were all lacrosse players--but in other respects complied with G.O. 4077.

Barber: What should a good police chief do to protect the integrity of his department?

Cooney: importance of following chain of command.

Barber: question of police veracity?

Cooney: "integrity" of report and reporting system re Gottlieb--report seemed to do exactly what NYT article said it did--closed holes in case.

Have concern about claim in affidavit that Duke players were calling each other by numbers.

Chief Pat Norris: her questions, of the entire panel, seem to be the most impressive--she seems to understand exactly what needs to be asked.

Whichard: next step in the process seems to be hearing from police. The week after next they will confer with the Police attorney and set up the next meeting.

City Council has made it clear if the commission needs to exercise subpoenas, can do so.

Mayor Bell personally sat through the entire session--an important statement of political support.

Question Session

Whichard: asks Cooney about the Baker/Chalmers report claim that defense attorneys were responsible for not providing information to DPD.

Cooney: at start of the case, everyone assumed that three residents were prime suspects. Seligmann first finds out that he's a prime suspect when he's told he was being indictment.

Then, before end of April, Osborn filed out detailed notice of alibi. Police knew about this--which is why the police go to Elmostafa.

Cheshire: Evans, without counsel, gave full statement to police. Then Nifong, as lead investigator in case, wouldn't talk to them.

Cooney: he and Nifong met early December--prepared to bring Reade Seligmann into meet with Nifong and police. Nifong: "As long as she can identify him, this prosecution will go forward." Why would defense deal with the officers when it was Nifong making all the decisions?

Bill Cotter: "We were getting the idea that people were cheating"--"so determined to convict these boys that they're not playing by the rules. That was our biggest fear in this case."

Cooney: responsibility clearly vested in Gottlieb and Himan. Couldn't identify any other officers in the case--clear that they were reporting to Nifong.

Whichard: was attempt on Elmostafa initiated by DPD?

Cooney: warrant discovered by Linwood Wilson; Wilson made it clear to Himan that Nifong wanted Elmostafa arrested; Himan goes to someone in chain of command to ask if reasonable; Elmostafa asked if he wanted to stand by this story.

Chief Pat Norris asks about alleged internal affairs inquiry into Sgt. Shelton--Cooney: no indpt. evidence other than Linwood Wilson's testimony. But it is clear that Linwood Wilson did go around and interview people who worked with Shelton that night.

Cheshire: police and Nifong statements created "enormously dangerous" atmosphere.

Cooney: key documents: AG's report; Himan's notes; Sgt. Gottlieb's "report"; suppression motion lineup contains all the key documents; Himan and Gottlieb depositions to State Bar; Linwood Wilson deposition; Nifong deposition.

Cotter: read Roberts' and Mangum's statements side by side.

Chief Pat Norris: wants timeline of police actions from start to end.

Aurelia Sands Belle (whose statement suggests that a rape might have occurred) had no questions of the defense attorneys.

Kenneth Spaulding: as case progressed, "I was very concerned about not hearing from Chief of Police . . . It is not the job of defense attorneys to see that law enforcement does its job." Felt Chalmers was "missing in action." Wants Chalmers as a witness before the commission.

It appears, unfortunately, as if members of the commission believe that Himan and Gottlieb were both trying to get information to Nifong, and were trying to do the right thing. Gottlieb, of course, was not doing so.

In the second round of questions, Sande Bells is asking a question, as to any evidence of Mangum's intoxication.

The role of Sgt. Shelton appears to be quite interesting to law enforcement members of the commission. Cotter praises Shelton--first officer on the scene and he figured out the case. Suspects that all people up in the chain of command believed Shelton.

Judge Barber (committee counsel) questions:

Cooney: no specific request by DPD to interview Seligmann alone.

First two arrays didn't comply in that the "fillers" were all lacrosse players--but in other respects complied with G.O. 4077.

Barber: What should a good police chief do to protect the integrity of his department?

Cooney: importance of following chain of command.

Barber: question of police veracity?

Cooney: "integrity" of report and reporting system re Gottlieb--report seemed to do exactly what NYT article said it did--closed holes in case.

Have concern about claim in affidavit that Duke players were calling each other by numbers.

Chief Pat Norris: her questions, of the entire panel, seem to be the most impressive--she seems to understand exactly what needs to be asked.

Whichard: next step in the process seems to be hearing from police. The week after next they will confer with the Police attorney and set up the next meeting.

City Council has made it clear if the commission needs to exercise subpoenas, can do so.

Mayor Bell personally sat through the entire session--an important statement of political support.

More from Cheshire

Strongly urges the commission to "really pay attention to Sgt. Gottlieb. I am just absolutely flummoxed" by the fact that in this case--and the only people working on case were Himan (who was young and did what he could) and Gottlieb. "Where were the experienced investigators?"

"It appears to me that the Police Dept. was so excited to get rid of this case" to Nifong "that they just handed it to him" and "Pontius Pilate-d it."

Gottlieb: "This supervising sergeant was the most experienced police officer in this case"--first officer assigned, last to provide a report. Urges them to look at 32-page typewritten document--although he says he never took any notes.

Gottlieb "simply a document designed" to cover up--Gottlieb report not supported by any other contemporaneous handwritten notes. Did he make it up? At the very least, this question must be asked.

Potentially "enormously egregious misconduct, bordering on criminal conduct."

Then go from there to the lineups--a no-wrong-answer lineup.

Police helped to create atmosphere stoked by Nifong.

Basic story: what was described as a racial gang rape, with a DA saying it was true, and then an investigation that "simply stopped with her initial statement" and Tara Levicy's report. DA then took over case and made himself police investigator, decision made to charge, and then everything that happened was designed to justify that charge--not to see that justice was done, but to justify that charge.

Picture of this story is treatment of Elmostafa.

Cheshire Statement

Back from lunch, Joe Cheshire is addressing the Whichard committee.

Notes he has tried criminal cases in 85 NC counties. "A North Carolinian in my heart, a lawyer in my heart. I am enormously proud of being a North Carolinian, and I am enormously proud of being a lawyer."

Very proud of his record and the record of his family in its commitment to civil rights. Joseph Blount Cheshire, I and II were ministers who integrated their churches (in the pre- and post-Civil War eras). Cheshire III was an early lawyer for NAACP.

Praises "political courage" of Bell in setting up committee. "Really good things can come out of bad things"--opportunity to grow from mistakes.

Inquiry could benefit not only Durham but could aid justice throughout NC. Unquestioned that Nifong a "rogue prosecutor"--but hopefully justice will be stronger.

Real victims of sexual assault hurt by this case--set back their cause 5-10 years.

Certainly the defendants and their families were victims.

Other victims:

• Duke University (though "they may have played some part in this");
• law enforcement;
• justice system in NC--need to ensure that all citizens have "faith and trust" that justice is being done;
• community of Durham "victimized terribly"--just watch cable TV to find this out;
• state of North Carolina--NC actually a forward-looking state. But "the Duke lacrosse case backed us up in the minds of a lot of people who want to think of us as a backwater place";

One other critical victim: race relations was a "huge victim" in this case--Mangum "knew the explosive capability of those words"--what effect it would have in Durham--took the city back 30 or 40 years. "Let me just be clear: Nifong pandered to race."

"All of the evidence is that in that house that night not one single slur was uttered" (despite, of course, what Duff Wilson and the NYT continue to maintain);

Two racial slurs: Roberts initiated, then one player uttered it back.

People who wanted to make it a racial case did so--national media, Nifong, others whose self-interest motivated by race-agenda.

Basic questions:

Mangum a "very ill young woman, but she is a false accuser." Believes that she "knowingly and willingly" made racial statements to make her story more believable.

"How is it possible that a person could give that many inconsistent statements and not have the DA interview them or not have a law enforcement officer go over the inconsistencies?" Has practiced law for 34 years in NC and has never seen anything like it. Most police officers don't like to charge innocent people.

"It doesn't take a rocket scientists to put mental health records together with multiple diverse statements" and figure out that Mangum was not credible.

Police didn't even try to get electronic records--no one in law enforcement tried to create timeline.

"At some point in time, you have to ask yourself why?" Bissey never interviewed, Mangum's employers never interviewed.

DNA--no way you could possibly have attacks as Mangum described and leave no DNA. Police several times heard there was no DNA, yet did nothing about it, didn't go back and recheck her story. Indeed, these officers "had to know" that Nifong was lying when he repeatedly told court that Dr. Meehan didn't tell law enforcement anything beyond what was in the report.

Eugene Brown on the Inquiry

Durham City Councilman Eugene Brown: "It's really an embarrassment that we're going through this and that we have to do this process. It's painful, but the truth, sometimes, is painful, and it needs to come out."

Jim Cooney's presentation has shown that Brown's words were on target.

Cooney: Problems with Inquiry

Police knew as of March 16, 2006--from Dave Evans' statement--that there were photos of the party. Yet police never executed a search warrant to obtain these photos.

When looking for 20-30 minutes, not possible to find it with the electronic and digital record: shows that there was no opportunity. Police either had all this evidence or knew of its existence before seeking indictments.

Electronic evidence wholly incompatible with Mangum's Dec. 21 story: yet DPD and Nifong treated this story as credible. Police never followed up on evidence presented by Mangum's "driver," Brian Taylor, that determined exactly when Mangum arrived at the party (around 11.40pm).

Cooney also showed the photo of Officers Ben Himan and Richard Clayton at the Elmostafa trial--a visual that effectively demonstrated his general point that the DPD engaged in witness intimidation.

Another investigative issue: from where did the DPD obtain evidence that the players were calling each other by their numbers? Neither Mangum nor Kim Roberts had ever made such a claim, no other evidence so existed, yet it appeared in the police affidavit for the March 23 NTO.

More Cooney: Lineup Procedures

Issue: what did the attackers look like?

Himan took notes during March 16 interview; then mentions Gottlieb's contrasting descriptions.

"Of course, Sgt. Gottlieb didn't take any notes of the meeting"--report prepared after indictments.

First thought of defense attorneys: did Mangum remember things later? No: Himan made clear that on March 21, she didn't remember anything more.

"We don't know where Sgt. Gottlieb got his descriptions from."

ID process supposed to be governed by G.O. 4077--indpt. administrator, fillers must resemble description, don't reuse fillers, five fillers, administrator should give identical instructions, don't give feedback, and tell witness that suspects not necessarily present in ID array.

March 16: Mangum saying that she was 70% certain of seeing Seligmann at party, but couldn't remember where. That should have ruled him out as suspect.

March 21: doesn't recognize Dave Evans.

Never shown picture of Collin Finnerty: why? Didn't resemble any of the descriptions.

March 31: Gottlieb and Himan meet with Nifong; mugshot photos with suspects-only ID.

Investigation at a dead end by March 31--Mangum couldn't ID anyone, couldn't give any descriptions of suspects, couldn't remember anything further, no semen anywhere in rape kit, other dancer had told police that the accusations were a "crock."

Big question: was this an ID process? Patrick Baker says this wasn't an ID process--just goal was to identify witnesses rather than alleged attackers. No ID process; therefore, G.O. 4077 doesn't apply.

But this doesn't make any sense: Devon Sherwood was at the party. They knew he was at the party. Yet police never showed Mangum Devon Sherwood's picture.

Police also knew there were non-lacrosse players at the party (Boehmler and Saeli); police knew this as of March 28, 2006. Why weren't there pictures included if sole goal was to ascertain witnesses?

If goal was to simply ID witnesses, why would the police have videotaped the 4-4 lineup? And why did the police then not videotape the 3-16 and 3-21 lineups? "What sense does that make"?

If purpose was simply to identify witnesses, why did the police need to show Mangum the picture of Seligmann, since she had already claimed that she was 70% sure of seeing him at the party?

Then fundamental flaw: never show witness the same photos she has already seen. "That's what leads to misidentifications and false identifications."

Finnerty: very tall, obviously. Mangum had never said that person who assaulted her was unusually tall.

"Critical" to look at else who she identified: fourth person, used almost same language as was done with Dave Evans--but no follow-up on the fourth person ID'd.

Brad Ross: Mangum identifies him with 100% certainty twice, the only person done so. But he was in Raleigh--this evidence was presented to DPD.

Chris Loftus: she says she 100% sure she saw him--but he was in his dorm room.

"A procedure that DPD admits didn't comply with GO 4077." Yet this became the sole basis on which Seligmann and Finnerty were indicted. One month later, Seligmann and Finnerty were on cover of Newsweek--as a result of this procedure. Seligmann gets death threats.

All of this evidence DPD either had or could have received before first indictment issued.

Defense doesn't have all of the answers in this--don't know about internal conversations, doubt the defense has received all the correspondence.

After March 24, investigation based toward proving the truth of Mangum's story rather than determining what actually happened.

"In this rush to indict, to cut off an investigation"--don't know what role chain of command had, and how chain of command interacted with Nifong.

Cooney Presentation

Begins with photograph of the "false accuser"--12.30am photo. Mangum is laughing, four minutes after calling escort service, holding purse and Dave Evans' shaving kit.

Urges the committee to look at the AG's report--clear that players were innocent, no credible evidence, AG found evidence DPD never uncovered.

Cooney--described by Joe Cheshire as the "best PowerPoint attorney in North Carolina"--has put together a PP presentation for the committee, running through the AG's report.

"Inconsistencies so significant and so contrary to the evidence"--as the AG noted.

Himan probably the person in the DPD who knows the case best. (Cooney urges the committee to look at the Bar depositions of Himan, Gottlieb, etc.)

Cooney quotes Himan deposition statement: "I came to the conclusion that . . . she was not telling the truth about anything."

Question for committee: "We know three innocent men were prosecuted for a crime that never took place. Did that come about solely because a DA pushed forward unethically, or did that come about because of deficiencies in the investigation"--and were these caused by human error or by systemic problems?

Wants to share with the committee what he did with the SP's--but can't show everything, because Mangum's mental health issues remain under seal. Some 2000 pages of material.

Cooney: when he came onto case, saw that Mangum gave varying statements, so did a checklist. Proved that there were serious inconsistencies in her statements.

Cooney now reviews the who/what/when inconsistencies, laying out the chart below: It examines who allegedly did what to Mangum, as well as the marital status of her “attackers”:

• A green X corresponds to the story that Mangum told Tara Levicy on March 14, 2006.
• A blue Y corresponds to the story that Mangum told Gottlieb and Officer Ben Himan on March 16, 2006.
• A red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

	Oral	Anal	Vaginal	Married
Matt	X	YZ	XZ	X
Brett		YZ	YZ
Adam	XY	X		Z

Mangum, in short, described three quite different “attacks.” Of course, when she was asked about the “attack” on December 21, she would come up with a fourth different story. And when the special prosecutors would ask her about the “attack,” she would come up with a fifth, entirely different, story.

Defense consulted Dr. Anne Burgess--one of leaders in rape treatment. Sent her all the records, asked her, and she said: after working with hundreds of rape victims, having worked with FBI, having written a textbook--had never seen a real victim change her story as much as Mangum did. Burgess said there was "something terribly wrong" with what Mangum told the police.

When Cooney was hired, Reade Seligmann asks him, "Who am I?" Was never entirely clear from Nifong who was Matt, Adam, or Brett.