Updates

[Update, Thursday, 4.27pm: In the latest only-in-Durham moment, false accuser Crystal Mangum, in what is described as a jailhouse interview with the H-S, has now denied that she authored the document (which was filed through the PACER system) described below. This denial came after Durham's attorneys filed a motion to--appropriately--urge the court to ignore the request to intervene.]

A few updates:

False accuser Crystal Mangum, currently awaiting trial on murder charges, has petitioned the court to intervene in the civil suit filed by the falsely accused lacrosse players. (That lawsuit is on hold, pending a decision by the 4th Circuit.) In the petition, a clearly imbalanced Mangum claims to have been a victim of "government controlled sex slavery," and adds that she is currently being "framed for murder by the illuminati and the New World Order."

This, again, is the woman of whose credibility the Group of 88 was so certain that these Duke faculty members asserted, as fact and using Duke funds, that something "happened" to Mangum at the lacrosse party. No apology from the Group for their actions, of course, will ever be forthcoming; it's worth remembering that even the two Group members who privately apologized, Susan Thorne and Alberto Moreiras, subsequently reversed course by signing a public statement saying they'd never apologize.

Another item from Mangum's ranting intervention request will raise eyebrows: she claims that Mike Nifong paid her $50,000 (before, it seems, she even attended the party) to invent the allegations, so as to help him win re-election. Needless to say, she provides no evidence to corroborate this absurd assertion. But Mangum's decision to turn on Nifong might pose problems for her de facto legal team, the committee seeking to restore Nifong's law license.

In an item that might bring chuckles among longtime readers of DIW, a first in the case: several days ago, the H-S quoted my opinion in an article, if in the process reporter Ray Gronberg inaccurately claimed that I "said" rather than "wrote" the item in question. (A note: DIW doesn't do podcasts). Surely the fact that my analysis of the 4th Circuit's likely outcome coincided with the status quo preferences of Editor Bob Ashley played no role in the paper's sudden decision to include a comment from me. (The H-S continued its longtime practice of refusing to identify the name of the blog.)

Needless to say, the article didn't reference any of the criticisms that I made of the Herald-Sun's almost comically-biased coverage of the case.

Finally, as some DIW readers know, Duke successfully petitioned a Maine magistrate judge to compel me to reveal to Duke confidential, non-published communications relating to the book and the blog. I have refrained from commenting on the University's crusade, and will continue that approach, but for those interested, the decision has been appealed to the Maine District Court.

The 4th Circuit Hearing

[Updated below.]

Earlier this week, Durham went to the 4^th Circuit, in an attempt to terminate the civil suit filed by the falsely accused players—before discovery has even commenced. I had previously speculated that this was something of a longshot effort, given Judge Beaty’s summary of Durham’s highly troubling basic contention: that “no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

After the oral arguments, however, it’s clear that there’s a good chance the suits against the city could come to an end. Two of the judges, Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult questions of the falsely accused players’ attorney, Christopher Manning. If either Wilkinson or Motz vote with Durham, the case will end, since the third member of the three-judge panel, Roger Gregory, gave every indication of having made up his mind well before the hearing began. Indeed, at times Gregory advanced arguments that went well beyond anything that even Durham’s own attorney offered, even to the point of insinuating that the indictments of Dave Evans, Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday, and I’ve included clips of some of the hearing’s key segments as links within this post. Audio links, which are in red, will take you to my personal website; click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham attorney Michael Vatis stressed that the indictment by the grand jury shielded the city from liability and that Nifong, in his capacity as prosecutor, rather than Durham city employees made the decision to seek indictments. (Vatis didn’t explain how or why the Durham police allowed Nifong, a county prosecutor, to supervise the police investigation after March 27, 2006.) Christopher Manning, representing the falsely accused players, relied largely on Judge Beaty’s framing of the case, adding that the magnitude of wrongdoing to Durham officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting that there were other alternatives to a civil suit—administrative proceedings, perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he noted that no other inquiry had found wrongdoing by the DPD. He implied that even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t pursued any of these alternative methods. Of course, it was worse than that—in 2007, the city leadership shut down the investigation of the DPD after one hearing, citing an insurance company’s concern that the inquiry might uncover information that would damage the city’s civil case. And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the magnitude and the type of wrongdoing by law enforcement made it difficult to find appropriate precedents (for either side) to guide the court. Motz was blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson pressed Vatis on the seriousness of the allegations. Neither was hostile to Vatis, but neither similarly appeared willing to accept Vatis’ suggestions that nothing much serious had occurred in this case, except perhaps for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about the broader ramifications of the plaintiffs’ position. Even if the falsely accused players had been framed, how could the court draw a line that would not open the way for federal lawsuits from any criminal suspect that thought a police officer looked at him the wrong way? (Wilkinson worried that the question here was “whether a hard case makes some really bad law.”) Manning tried to parry these concerns by noting the extraordinary nature of the misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed convinced (though Wilkinson did suggest that the case should be litigated at the state level if the 4^th Circuit blocked a federal suit). If the falsely accused players do prevail, however, Manning’s uniqueness-of-this-case argument probably would provide the basis.

That left the third member of the three-judge panel, Judge Roger Gregory. During the presentation by the city’s attorney, Judge Gregory contributed little. During the presentation by the lacrosse players’ attorney, Gregory participated actively, sometimes with extremely hostile questions, other times with minimizing remarks about the evidence in the case or the nature of the players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report, arguing that it only said that no matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly concealed) it also said that DNA from other, unidentified males was discovered, and it implied (inaccurately) that Dave Evans’ DNA might be a match. How a finding of other males’ DNA but not that of any lacrosse players could in any way be considered consistent with Mangum’s story (that she was raped for 30 minutes by three people who didn’t use condoms, and she went almost immediately thereafter to the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly, rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in part because no police officers were prosecuted, Gregory argued that a claim of conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,” and that it certainly wasn’t (as he sounded as if he believed Manning was arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very strongly implied (though he never quite came out and said so) that the Durham authorities were within their rights to try and bring the case to trial. Only “in hindsight” did any evidence of innocence emerge, he claimed. He further suggested that the fact that false accuser Crystal Mangum never retracted her charges justified the indictment. In any event, how could the police know that Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?” This is an extraordinary standard by which to evaluate allegations of police misconduct.

Gregory added that, if the suit goes forward, it could set a precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in the claim—that the authorities merely moved forward with a “weak” case—with Judge Beaty’s summary of the claims (which, at this stage of the process, are supposed to be accepted at face value): that “government officials intentionally fabricate[d] evidence to frame innocent citizens, even if the evidence [wa]s used to indict and arrest those citizens without probable cause.”

With Gregory—based, at least, on both his tone and his line of questioning—as an all-but-certain vote to end the lawsuit, the only question remaining is whether Wilkinson and Motz will both vote to allow the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted, doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed, it’s quite the reverse. To take one example: in a high-profile 2011 decision, Henry v. Purnell, he eloquently wrote of the need to allow a § 1983 action filed by an unarmed man who was shot by a police officer to proceed. (The officer unpersuasively claimed he was reaching for his taser, not his gun; the suspect was not killed.) Unlike the lacrosse case, the Henry case was a bit further along—summary judgment, rather than motion to dismiss, and so discovery had already occurred.

In Henry, Gregory made clear that, at the summary judgment stage, the court needed to view the facts “in the light most favorable” to the plaintiff’s claims as true. (His questioning earlier this week, on the other hand, seemed to be construing facts in the light most favorable to the defendants.) In Henry, Gregory accurately noted that courts needed to employ “a test that focuses on the objective legal reasonableness of an official’s acts,” and that no officer could reasonably believe that firing a gun at an unarmed man was constitutional. (His questioning earlier this week, on the other hand, implied that no officer could have realized it was unconstitutional to participate in a conspiracy to frame innocent suspects, as long as in so doing the officer accurately reported the contents of his [manipulated] case file to the prosecutor.) With these tests, Gregory had no doubt that the Henry case needed to go to a jury.

Obviously, a debate can be made about whether a police officer shooting an unarmed man in the heat of the moment or whether police officers, over a period of many months, conspiring to frame innocent men for a crime that never occurred constitutes a greater constitutional violation. But it’s remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so certain that the victims in the second did not deserve a day in court.]

Farred, Chafe, and Presumers of Guilt

One of the more intriguing admissions about the Group of 88 came in 2007, from a prominent member of the Group, history professor (and former Duke administrator) William Chafe.  “Most of us,” he told the Chronicle, “never presumed guilt.”

In one respect, the remark was preposterous, given that the statement Chafe and the other 87 signed stated without equivocation that they believed something “happened” to false accuser Crystal Mangum. But the remark was nonetheless revealing, given that it came at a time when some Duke apologists were falsely claiming that the statement had nothing to do with the lacrosse case. (It might have been, Charlie Piot mused, a response to Hurricane Katrina’s(!) aftermath.)

Chafe never said which member of the Group even he was willing to concede “presumed guilt.” A few months after Chafe’s remarks, it became clear that one Group member to whom the history professor possibly referred was Grant Farred, who (falsely) told a Williams College audience that unnamed lacrosse players had committed perjury. Farred soon departed Duke for Cornell, which offered him a position as tenured full professor. The reckless hiring, however, backfired on the school after Farred attracted fierce criticism for referring to two students as “black bitches.”

I recently came across a post from one of the few people to speak up on Farred’s behalf, a Cornell colleague of his named Riché Richardson. Richardson—a Duke Ph.D. who specializes in (of course) race and gender, and whose most recent tweet praised a "brilliant talk" by the Group member and "thugniggaintellectual," Mark Anthony Neal—is perhaps the only professor I ever have encountered to have praised herself for her . . . course syllabi, which she claims “can take a long time to research and days to write” and “and are valued by students on their own terms as research and learning tools.”

In the event, long after the Farred controversy, Richardson posted a tribute to Farred on her blog, in which she expressed concern about “a climate on campus that creates an intimidating or hostile environment for Professor Farred.” She would not, huffed Richardson, “appreciate having my own credentials or attitudes misrepresented in the way that his have been in some instances, which is also unsettling given my concerns about protecting academic freedom, collegiality and all the things that reflect the basic values of academia.”

Richardson’s post is most interesting for her comments about Farred and the lacrosse case. The man who called two African-American students “black bitches,” she argued, shouldn’t be deemed “somehow dismissive of black women.” Why not? Because “in the situation regarding the black woman stripper who alleged rape in 2006 by members of the Duke Lacrosse team, he spoke up in her defense by writing a letter clarifying some of the implications of the situation [link to at http://friendsofdukeuniversity.blogspot.com/2006/03/expired-documents-2.html ]. Many of the faculty who had the courage to speak out about this situation, which made national headlines, were threatened, harassed, criticized publicly and were victimized by a very calculated smear campaign. Some eventually moved on, including Professor Farred. I respect the very principled and courageous statement that Professor Farred chose to make in Durham on this case involving the black woman stripper, and do not take the sacrifices that he made in the wake of it lightly. The truth is that Professor Farred put everything on the line at a very prestigious job that he valued to support and help defend a black woman who he at the time believed had been the victim of rape and racist epithets.”

The most significant item, of course, from Richardson’s statement is her last line—even a defender of Farred has publicly conceded that the Group member presumed guilt: he “believed” Mangum was raped. Richardson’s claim of Group victimization is as unsurprising as it is unsubstantiated. But I was struck by her claim that “Professor Farred put everything on the line at a very prestigious job that he valued.” As far as I know, Farred put nothing “on the line” related to his job (other than, I suppose, his reputation). Richardson’s insinuation that there was some sort of connection between Farred having “moved on” and his having put anything job-related “on the line” prompted me to ask if she had any evidence about Farred and Duke.

Richardson declined a direct reply to my question. Instead, she wrote, “The consequences at Duke did not necessarily relate to jobs, but there were definitely reprisals (i.e. hate mail and other negative reactions) for faculty who spoke out about that case at the time, some of whom I know. And even if I indeed defended his comments, would that be any worse than defending perceived rapists and racists, as your scholarship suggests?”

“Negative reactions” constitute reprisals! By Richardson’s standards, Mitt Romney has experienced more “reprisals” than any American alive in the past week, given the “negative reactions” (whether deserved or not) to his comments about the attack on the embassy in Libya. Somehow, though, I doubt that Richardson would apply her “negative reactions” standard to figures with whom she disagrees.

I admit that I had never previously heard the lacrosse players described as “perceived rapists.” For Professor Richardson, it seems, no amount of evidence can overcome a false initial perception.

But to answer the professor’s question: yes, I would say that defending a professor who made materially false statements (that unnamed students at his own university had committed perjury) and in the process likely violated the terms of his school’s Faculty Handbook is worse that defending people who were falsely accused of a serious crime.

Penn State Followup

A few weeks ago, disgraced former Penn State president Graham Spanier launched something of a media blitz. His attorney held a press conference denouncing the Freeh Report (while conveniently saying that Spanier, who wasn’t present, would answer the tough questions about the report’s factual findings). Spanier did an interview with the New Yorker’s Jeffrey Toobin, who declined to press Spanier on the critical piece of evidence uncovered by Freeh—an e-mail from Spanier admitting that the decision not to report Jerry Sandusky to police might leave the university “vulnerable” in the future. A follow-up Spanier interview with ABC mostly revolved around the unconvincing argument that because he was the victim of physical abuse as a child, it was inconceivable that he wouldn’t have reported the allegations against Sandusky to authorities.

I wrote about Spanier’s unconvincing defense at Minding the Campus; and, as DIW readers know, have been interested in the similarities and differences between how Penn State responded to the Sandusky scandal and how Duke’s administration responded to the lacrosse case. Stuart and I penned a WSJ op-ed looking at how Penn State, for good or ill, authorized a comprehensive inquiry into what went wrong and why—in contrast to Duke’s decision to have two “diversity”-obsessed advocates of the status quo “investigate” and produce a “report” on the administration’s response to the lacrosse case.

It’s hard to imagine that Penn State’s (or any school’s) faculty could do anything comparably embarrassing to the Group of 88 statement (and the Group’s subsequent rationalizations and refusals to apologize). But it’s also hard to imagine what 30 former and current faculty leaders at the school could have been thinking when they produced a recent letter that exhibited a sense of epistemic closure that would rival the Group of 88 in its bunker.

After what comes across as a token expression of outrage and sadness on behalf of Sandusky’s victims, the PSU profs quickly get onto the real victims—people who work at Penn State, victims of the “current hyperbolic media environment.” (The professors couldn’t find space to identify a single example of this “hyperbolic media environment.”)

Of the Freeh Report, the letter concedes its “investigation appears to have been reasonably thorough, given that it could not subpoena testimony.” (Ironically, a document released by Spanier’s attorney criticized Freeh for relying on subpoenaed testimony from ex-assistant coach Mike McQueary, rather than defying prosecutors’ requests and interviewing McQueary himself.)

But . . . “as a document in which evidence, facts, and logical argument are marshaled to support conclusions and recommendations, the Freeh Report fails badly. On a foundation of scant evidence, the report adds layers of conjecture and supposition to create a portrait of fault, complicity, and malfeasance that could well be at odds with the truth.”

In what ways is the Freeh Report’s evidence scant? Who knows? Is the document truthful or not? Who knows? Far be it from Penn State faculty members to examine the evidence presented in the report and demonstrate items in the report that are factually inaccurate.

Such work, it seems , isn’t necessary—because “as scientists and scholars, we can say with conviction that the Freeh Report fails on its own merits as the indictment of the University that some [who?] have taken it to be. Evidence that would compel such an indictment is simply not there.” The evidence for this sweeping assertion? The “scientists and scholars” present none. Perhaps they ran out of ink.

The “scientists and scholars” seem particularly perturbed with the Freeh Report’s (and the NCAA’s) remarks about Penn State culture. “Not only are these assertions about the Penn State culture unproven,” they thunder, “but we declare them to be false.”

The evidence for this sweeping assertion? Their own personal experience. “As faculty members with a cumulative tenure at Penn State in the hundreds of years, and as former Faculty Senate chairs with intimate knowledge of the University stretching back for decades, these assertions do not describe the culture with which we are so very familiar. None of us has ever been pressured or even asked to change a grade for an athlete, nor have we heard of any cases where that has occurred . . . Some of us have privately witnessed swift and unyielding administrative actions against small transgressions, actions taken expressly to preserve academic and institutional integrity.”

The “scientists and scholars” apparently didn’t notice the interference by the former football coach in the disciplinary process—in instances far more significant than “small transgressions”—that were revealed in the Chronicle of Higher Education. Do the professors “declare” those “to be false,” as well?

The professors’ letter is an embarrassment to their institution. As “scientists and scholars,” they should know better.

A Comment on the Herald-Sun

Careful (or even not-so-careful) readers of the Herald-Sun cannot help but notice its recent pattern of inserting unexplained editorial judgments into “news” articles that reference either Durham-in-Wonderland or Until Proven Innocent. (Curiously, the articles in question do not mention the title of either the book or the blog.) In a way, this development represents a welcome change from the paper’s approach during 2006, when its “news” articles concealed an almost comical pro-Nifong spin behind a pretense of faux objectivity.

The most recent instance came in a Ray Gronberg article that described Bob Ekstrand’s resisting Duke’s efforts to compel testimony from him regarding exchanges he had with non-lacrosse players, including President Brodhead, Tallman Trask, Stuart Taylor, and me. (Ekstrand represents three of the former players suing the university.) In his article, Gronberg—without citing even one piece of evidence—describes Until Proven Innocent (again, without referencing its title) as “a 2007 book sympathetic to the players.” It’s quite true that both the book and the blog exposed ways in which Duke, Nifong, the Durham PD, and certain media sources (including the Herald-Sun, in behavior for which the paper’s editor very belatedly issued a half-hearted apology) mishandled the case, but Gronberg’s article doesn’t suggest that any relevant statement made in the book or blog about the lacrosse case that was incorrect. As even the H-S is fully aware, critical commentary about one side’s behavior does not necessarily constitute a “sympathetic” portrayal of the other side.

Gronberg then insinuates—but carefully does not specifically allege—collusion. In writing about how the book and blog portrayed Sgt. Mark Gottlieb, the H-S reporter notes that “Ekstrand’s most prominent contribution to the case is a theory—embraced by Johnson, Taylor, and all three of the legal teams now pursuing lawsuits against Duke and the city—that the police sergeant [Gottlieb, whom Gronberg doesn’t name] who supervised the investigation of Mangum’s claims was a rogue cop pursuing a vendetta against Duke students.” [Emphasis added]

Leaving aside the dubious claim that this “theory” constituted “Ekstrand’s most prominent contribution to the case,” I gladly would have told Gronberg had he asked me (for the record, he did not do so, nor did he contact Stuart) that I found all the evidence I needed to conclude that Gottlieb was a rogue cop in summer 2006, solely by reading the Gottlieb “notes”—the straight-from-memory report typed months after the fact by the ex-DPD officer. The document, which Gronberg doesn’t mention in his “news” article, conveniently plugged many of the holes then existing in Nifong’s case, often by contradicting contemporaneous written notes from other police officers.

And I reached the conclusion that Gottlieb was targeting Duke students by reading of his behavior in the newspaper. In September 2006, the N&O exposed the existence of and the Chronicle fleshed out the effects of the separate-but-equal arrangement in which the Duke administration and the DPD agreed that Duke students would be treated more severely than any other Durham residents for similar allegations of alcohol-related crimes. Gronberg doesn’t mention the N&O’s or the Chronicle’s reporting as my sources, even though I cited both; doing so, of course, might have reminded H-S readers of how late the paper came to this major story from its own backyard, or even of Gronberg’s own ineffective efforts to discredit the reporting of his rivals.

Both the book and the blog devoted considerable space to exposing the Herald-Sun’s shoddy reporting on the lacrosse case. As UPI noted, “When the police and Nifong demonized the lacrosse players and canonized the ‘victim,’ the media were happy to provide unskeptical coverage, as the Herald-Sun did in its March 25 front-pager quoting Cpl. Addison. And when an opportunity presented itself for journalists to do their own demonizing and canonizing, they seized it with relish. Among local papers, the Herald-Sun, the only Durham-based newspaper of significant circulation (about 45,000 in spring 2006, but falling fast) was incomparably biased in the more than 300 articles and 20 unsigned editorials it churned out in 2006, savaging the lacrosse players and downplaying or omitting altogether the ever-growing evidence of innocence.” The blog provided specific occasions of this behavior, while singling out for criticism the consistent bias of the Herald-Sun’s editor, Bob Ashley.

Ashley, by the way, returned to the H-S as editor a few months ago, after he had left the paper in January 2011.

A cynical person might suggest a relationship between the Herald-Sun’s lacing its “news” articles with unsubstantiated editorial judgments and the criticism both the book and the blog made of its (and its editor’s) substandard performance during the lacrosse case. Alas, the H-S’s new editorializing style doesn’t extend to referencing this criticism, which might give readers the context necessary to understand the publication’s current approach.

To reflect on the merits of the Herald-Sun’s record regarding the lacrosse case, it might be worth quoting from the Chronicle’s post-exoneration analysis. After struggling to find media observers who had even bothered to read the paper, Chronicle reporter Adam Eaglin interviewed with Bill Green, a former Washington Post ombudsman who then lived in Durham. Green’s analysis: “The Herald-Sun has consistently failed to presume the innocence of these three people. They leapt to judgment early and stayed with that thinking.”

Two final notes: (1) The Gronberg article did contain one potentially intriguing nugget. After falsely insinuating that Stuart and I might have concluded from exchanges with then-defense attorneys that Gottlieb was a rogue cop with a vendetta for Duke students, Gronberg reported, “Police commanders have disputed that.”

Since Gronberg doesn’t cite the police commanders to whom he’s referring, it’s not clear if he based that sentence on his analysis of Durham’s legal filings (which were never quite that definitive) or from background conversations with unnamed police commanders. If the latter, this revelation would be important indeed, since it would constitute Durham’s admission that a police officer who: (a) blindly followed orders to set up a photo array in violation of DPD policies; (b) produced a highly suspicious typewritten report months after the fact that wasn’t based on his contemporaneous written notes; and (c) behaved (at best) dubiously toward non-lacrosse students wasn’t, in fact, “going rogue” (the explanation most favorable to Durham) but instead was behaving as Durham thought a DPD officer should under these circumstances. Will Durham embrace this admission in court?

(2) Stuart passes along this comment:

I agree completely with everything in KC’s post. I would add that the only sense in which we were “sympathetic” to the lacrosse players is that we were very glad to cite the overwhelming evidence that they were completely innocent of the monstrous crimes of which they were so widely presumed guilty; that they were a very decent group of young men; and that their accusers—including many in the media and at Duke as well as Durham law enforcement officials—behaved disgracefully. We also included in our book all relevant evidence of which we knew that reflected unfavorably on any of the lacrosse players.

Updates

Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, the situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.

Bitter-Enders

[Update, Sunday, 6.32pm: After an overwhelming number of trustees expressed support for the Penn State president, renegade Trustee McCombie, at a meeting of the Penn State board, announced that he will no longer pursue his appeal of the consent degree. Neither he nor the other most outspoken renegade trustee, Anthony Lubrano, revealed any of the factual errors that they claim exist in the Freeh Report.]

[Update, Wednesday, 1.45pm: Two additional items for the bitter-ender file. ESPN reports that a handful of former Penn State football players will appeal the sanctions, in part on grounds (you guessed it!) that elements of the Freeh Report were “clearly erroneous.” The letter offers no guidance on how, or in what manner, the findings were “clearly erroneous.”

In addition to his communication with the NCAA, renegade trustee McCombie, meanwhile, has also penned a letter to his fellow trustees, asking them (“for the glory,” as he ended his missive) to join his anti-accountability crusade. “I do not do this,” wrote he, “seeking a predetermined result nor do I claim to know what the final answers will be.”

That would be the same Trustee McCombie who told the NCAA that he did know what the final answers would be--namely, that the Freeh Report “contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence.” Whether his fellow trustees will respond to a colleague who plays so fast and loose with the truth remains to be seen.]

In our WSJ op-ed, Stuart and I noted that—thanks largely to the Freeh Report—Penn State had responded to administrative failure far more effectively than had Duke handled its response to the lacrosse case. Yet, we argued, a potential problem remained, in which “Penn State may be doomed to follow Duke's unfortunate example. Duke's appeasing of its faculty extremists symbolized its failed response to the lacrosse case. Penn State, similarly, has shown little willingness to deal with its bitter-enders—those among the campus community who prefer to hide their eyes and ears from the evidence and cling to the belief that the late Coach Joe Paterno was somehow mistreated. Such views exist even among the board of trustees, two of whose recently elected members, Anthony Lubrano and Ryan McCombie, campaigned on a platform demanding that the board apologize to the Paterno family.”

Events of recent days confirmed our pessimism. First, the Paterno family announced a desire to appeal the various NCAA sanctions against Penn State. (No member of the Paterno family is currently employed by Penn State, and the university continues to honor the terms of the sweetheart 2011 contract negotiated between the late football coach and ousted Penn State president Graham Spanier.) Beyond expressing rage at the condemnation of a “great educator, philanthropist and coach,” the family targeted the Freeh Report:

As will become evident in a thorough and impartial review, the NCAA acted hastily and without any regard for due process. Furthermore, the NCAA and Penn State’s Board Chair and President entirely ignored the fact that the Freeh Report, on which these extraordinary penalties are based, is deeply flawed because it is incomplete [in unidentified ways], rife with [unidentified, it seems] unsupported opinions and unquestionably [at least, it seems, according to the Paternos] one-sided.  [emphasis added]

The NCAA immediately rejected the appeal on grounds that a consent decree can’t be appealed. And even if such an agreement could be appealed, it hardly seems likely that a family of someone who no longer works for Penn State would have grounds for action.

Then, yesterday, ESPN reported that a renegade group of trustees, headed by the apology-demanding Ryan McCombie, had informed the NCAA that they intended to appeal the sanctions. The McCombie group complains that Penn State president Rodney Erickson kept them in the dark about his negotiations with the NCAA, and lacked authority to enter into an agreement with the NCAA—which, if true, would be grounds for the board to dismiss Erickson.

But after raising what could very well be a legitimate governance issue, the renegade trustees’ letter veered into the absurd. Here’s an excerpt:

The NCAA decree is fundamentally unfair in that the Freeh Report, on which it is predicated, contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence [in ways that, it seems, must remain unidentified]. The Report failed to consider evidence or afford certain [unidentified, it seems] individuals an opportunity to be heard, failed to acknowledge the absence of [unidentified, it seems] important and material evidence, and reached [unidentified, it seems] conclusions based on assumption, conjecture, and misplaced characterizations that are contrary to the [unidentified, it seems] available facts and evidence.

ESPN added that if—as is expected—the NCAA rules either the consent decree can’t be appealed or that a renegade band of trustees lacks standing to appeal, the McCombie group will file a federal lawsuit.

The two documents’ descriptions of the Freeh Report were nothing short of wishful thinking. The Paternos’ letter asserted that the report is—not “likely is,” not “could be,” but “is”—incomplete and “rife with unsupported opinions.” Yet, in what could only be deemed a highly peculiar public relations strategy, the letter (just like all of the family’s other public statements about the Freeh Report) neglected to pass along even one of these “unsupported opinions” of which the Freeh Report supposedly is “rife.” Why, do you suppose, that is?

Likewise with the McCombie letter, which maintained that the report contained findings and conclusions that are—not “probably are,” not “could be,” but “are”—“contrary to the evidence and/or unsupported by credible evidence.” Yet the renegade trustees’ letter couldn’t find space to identify even one conclusion of the Freeh Report that was “contrary to the evidence,” or even one finding that was “unsupported by credible evidence.” Why, do you suppose, that is?

We’ve seen, of course, this type of thinking in the Duke case, with the bitter-enders among the Group of 88 and their supporters. The Group statement, apologist Charlie Piot claimed, wasn’t about the lacrosse case at all—even though the e-mail soliciting signatures described the ad as “about the lacrosse team incident.” Or, Group member William Chafe wildly asserted, “Bloggers who have targeted the ‘Group of 88’” were guilty of “sending us e-mails and making phone calls wishing our deaths and calling us ‘Jew b-’ and ‘n-b-’.” Yet when pressed, Chafe couldn’t identify which of the dozen or so “bloggers critical of the Group of 88” had engaged in such behavior.

Like the Paterno family and the renegade trustees on the Freeh Report, for bitter-enders like Chafe and Piot, the “facts” simply had to fit their preconceived notions.

As demonstrated most recently in the promotion of Paula McClain, Duke effectively surrendered to the Group of 88. Will Penn State likewise be drawn low by its bitter-enders?

Duke's Deposition Strategy

The H-S brings news this morning that Duke’s attorneys have succeeded in obtaining a protective order to prevent discovery items from being revealed before trial. Such an approach would come as little surprise: a university, after all, for which the Bowen/Chambers report remains its sole official word on how theadministration botched its handling of the lacrosse case would hardly be eager to have material emerge publicly that would contradict the party line.

The order does, however, contain an unusual line: “Although Plaintiffs initially disagreed as to the contents of the order, the parties have now submitted a Stipulated Protective Order for consideration.” The line is unusual because Bob Ekstrand, as Duke’s attorneys apologetically conceded, never agreed to such a submission. It seems likely that, nonetheless, the order will remain in place (one already exists for the Carrington lawsuit).

In various court filings since January, Ekstrand has attached three discovery items: a deposition from associate AD Chris Kennedy; a deposition from Duke PD officer Gary Smith; and two e-mail chains of Brodhead and his advisors. Given Duke’s determination to keep the discovery secret, it’s worth reviewing the scant material that has become public.

Smith Deposition

The Smith deposition was characterized by the officer’s memory problems—he said he couldn’t recall at least 30 items, including (preposterously) whether there was any conversation about the lacrosse case among Duke police officers in the early weeks of the affair. When not recalling, Smith was stonewalling: he purported to have no opinion on the integrity of the Nifong-Gottlieb investigation. (That would be the investigation of course, that set the stage for Nifong’s disbarment.)

Perhaps the most damaging admission in the Smith deposition, however, came in an apparent contradiction. Smith asserted that—on his own volition, and without a subpoena—he gave to Sgt. Gottlieb the FERPA-protected keycard information. And, he added, he didn’t tell his superiors he had done so, because he didn’t want them to know he had done wrong.

Yet when Smith e-mailed Gottlieb to tell the Durham officer he’d need to subpoena the information Smith had improperly supplied him, Smith blind-cc’d the director of the Duke Police Department, Robert Dean. Naturally, Smith couldn’t remember who told him to bcc Robert Dean. But if he had concealed his mistake from his superiors, why would he have bcc’d anyone at the Duke PD?

Kennedy Deposition

The Kennedy deposition contained no comparable blockbusters, but did feature some telling insights. Perhaps the most disturbing regarded the (successful) NCAA appeal to grant the non-seniors on the 2006 team an extra year of eligibility. In his draft of the request, Kennedy referenced the (undeniable) on-campus threats to the lacrosse players, as well as the dubious behavior of some Duke professors. The Duke counsel’s office—committed, it seems, to the Bowen/Chambers line—removed these items from the document sent to the NCAA.

Kennedy also provided what seems to be obvious analysis, regarding Pres. Brodhead’s infamous “whatever they did was bad enough” remark. He said, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.'"

Administrators’ E-mails

To date, only five contemporaneous e-mails from the time have been made public. The whitewash Bowen/Chambers committee cited a handful of others, but didn’t reproduce any of them—and, perhaps most damningly, cited none of the e-mails uncovered in the current lawsuit, raising questions of exactly what the racial preferences duo saw.

The e-mails shed some light on one of the unanswered (and, perhaps, unanswerable) questions of the case: what motivated Brodhead?

Did fear—of being labeled a racist, of facing a faculty revolt from the Group of 88—form the principal guide of his actions? Or did he, in fact, privately sympathize with the Group’s response to the case, and issue documents such as his April 5, 2006 open letter because he shared the Group’s worldview?

The e-mails provided some ammunition for advocates of the second viewpoint—as Brodhead implied that the appropriate frame for the case might be the movie Primal Fear, in which a criminal defendant fools his lawyer into believing his innocence, only to end the film by admitting that he had committed murder.

It shouldn’t come as much surprise that Duke doesn’t want more of Brodhead’s movie criticism to see the public light.

Updates

A couple of updates:

Stuart Taylor and I had an op-ed in yesterday’s Wall Street Journal, examining the . . . considerable gap between how Penn State responded to the scandal of the Spanier/Paterno cover-up and how Duke’s trustees and administration responded to their lacrosse case failures.

The op-ed focuses on the (almost comical, in retrospect) conclusions of the Bowen/Chambers report—for background, you can see here and here.

The H-S reports that next week, the State Bar will send a letter admonishing pro-Nifong crank Sydney Harr to cease practicing law in his attempt to represent false accuser and accused murderer Crystal Mangum.

The article’s most interesting comment, however, came from Woody Vann, Mangum’s attorney. During the lacrosse case, Vann distinguished himself as one of the fiercest of Nifong enablers. Even as Nifong moved toward disbarment, Vann told the AP, "Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won."

Now, however, Vann has changed his tune: “I’m the first one to say I don’t think it’s good for my client to have her name in the same paragraph with … anyone who is a member of the Committee for Justice for Nifong. All that does is tie their names together and dredge up memories of 2006 and 2007 and that’s not what we’re dealing with.”

Duke's Version of Freeh (Updated)

[Update, 18 July, 8.38am: The Chronicle of Higher Education interviews, among others, John Burness about the Freeh Report. In his remarks, Burness essentially praises Penn State for doing what Duke did not do:

"They wouldn't have been able to put this behind them for the next several years if they hadn't gone about doing this the way they've done it—getting someone like Judge Freeh, whose character is pretty unassailable and who was given carte blanche to see what he found and report it without fear or favor," said John F. Burness, a visiting professor of public policy at Duke University and the university's spokesman during the 2007 lacrosse scandal. 

"There is some very bad news in here for Penn State and Coach Paterno and a lot of the leadership of Penn State," he said. "But this is a really critical inflection point for the institution because it is one of the thresholds they had to get through. As difficult as it will be, it was necessary to restore confidence in the integrity of the institution."]

I have a post over at Minding the Campus examining the Freeh Report—and what the document says about the continuing need for oversight by trustees. In short, at Penn State, the trustees failed in their fiduciary duties, and the university will now pay the price. The report describes a top-to-bottom failure in the Penn State administration—from the former president, to the former AD, to the former football coach, and back up again to current and former trustees.

At the very least, however, Penn State deserves credit for critically examining where and how the administration went wrong, and for trying to change a culture that both enabled and contributed to these administrative failures. And it’s hard to criticize the research behind the Freeh Report, which pored through e-mails, other university documents, transcripts of interviews, and publicly-available information from the criminal investigations. Any university that is attempting to move beyond errors would do well to look at the Freeh Report as a model.

For anyone who closely, or even not-so-closely, followed the lacrosse case, the flip-side of the Freeh Report is obvious. Though Duke steadfastly refused to publish a White Paper or even establish a Coleman Committee-like investigation of why and how the administration and “activist” faculty got the lacrosse case so wrong, there was—technically, at least—a Duke version of the Freeh Committee.

In his guilt-presuming April 5, 2006 letter (the document in which he dropped all reference to a presumption of innocence, and merely asked the Duke community to “wait until the authorities act before reaching any judgment in the criminal case”), President Brodhead announced an “Investigation of [the] Duke Administration Response.” He hoped, in part, “to address the concern that my administration did not respond as quickly as we should have and to learn any lessons this episode can teach.” The rush-to-judgment crowd that needed appeasing were unnamed “faculty, students, community members, and others.” While the identity of the “others” is unclear, it seems the remaining figures were either members of the Group of 88 or their student supporters.

To fulfill the role of Louis Freeh in the Penn State case, Brodhead chose former Princeton president and prominent affirmative action-defender William Bowen and former NCCU chancellor Julius Chambers; the duo added a third member, Danielle Carr Ramdath, who they helpfully  identified as an “African-American woman.” While the three admitted they didn’t have enough time to actually conduct a full-fledged inquiry, they nonetheless claimed that they “gained an understanding of the principal issues.”

Departing from the Freeh investigative approach, the Bowen/Chambers report gave no indication of examining internal Duke e-mails to get a sense of how and why the administration responded as it did. (Bowen and Chambers—Carr Ramdath, for reasons that are not clear, did not sign the report—never explained how they could investigate the “Duke administration response” without examining what would be the most relevant evidence to determine that response.) And the report gave no sign of the massive legal liability that Duke ultimately would face—the reported eight-figure settlement with the falsely-accused players, the legal bills piled up in defending the lawsuit from the unindicted players, the settlement with former coach Mike Pressler. Indeed, a reader of the Bowen/Chambers report—which faulted Duke largely for an insufficient commitment to diversity in its hiring process—would have been utterly mystified to ultimately learn that this “administration response” that the duo supposedly investigated had exposed the university to legal liability.

The Freeh Report is a long and difficult read. But for those with the time, compare it to the Bowen/Chambers report, to which I’ve linked in its totality. Which of the two constitutes an investigation, and which constitutes a whitewash?

Updates

Three brief items:

1.) The N&O reports that Crystal Mangum, in papers filed by her de facto attorney, Sydney Harr, has demanded that her bail be reduced (to $50,000) and that the murder charges against her be dismissed, on grounds of self-defense.

The Harr/Mangum team had already made requests along these lines; chances of getting a better outcome this time seem doubtful.

2.) Speaking of Harr (a local retiree best-known for heading a committee of die-hard Nifong fanatics): the Durham News reports that the State Bar will investigate him for practicing law without a license. Harr had admitted that he had "helped" Mangum write her previous legal filings, but argued that he did so after informing her he wasn't an attorney.

“You can’t disclaim the unauthorized practice of law simply by saying I am not an attorney,” David Johnson, deputy counsel for the State Bar, told the Durham News.

Harr (hilariously) claimed he wasn't aware of the rule. (This is the same figure who has termed himself so expert in ethics rules that he can demonstrate the incorrectness of Nifong's disbarment.) He also has told the Bar he won't practice law again--a promise that would seem to be undermined by his delivery of the most recent batch of Mangum papers.

3.) Continuing the practice of Duke elevating Group of 88'ers into positions of authority, as of July 1 the Duke Sociology Department will have a new chair--Eduardo Bonilla-Silva, one of the two or three most extreme members of the Group. In addition to signing the Group statement, Bonilla-Silva had signed onto an even more extreme case-related document, a May 1, 2006 letter that could only be described as willfully ignorant about events in the case.

I looked at Bonilla-Silva's scholarship and teaching record in this post. To give a taste: in a syllabus (a legally binding document between university, the professor, and students), Bonilla-Silva 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!).” And, as an example (he said) how he wasn't biased against white people, the chairman-designate 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.”

Imagine the (appropriate) howls of outrage if a university like Duke named as a department chair someone from the far right whose views and rhetoric were as extreme as Bonilla-Silva. Perhaps Bonilla-Silva is being prepped to succeed Paula McClain when his Group colleague steps down as graduate dean.

Follow Me

A reminder that you can follow me on Twitter; I tweet links to all my new posts both here and (on other higher-ed matters) at Minding the Campus, as well as assorted other links of interest.

Fairness

In general, the lacrosse case featured a level of non-responsiveness from key figures at Duke. (There were clear exceptions to this pattern: John Burness responded to virtually every request for comment from me.) Perhaps a fear of likely lawsuits explained this reticence; perhaps it came from a recognition—to borrow the chair of Dean McClain’s selection committee’s “Kinsley gaffe”—that many in Duke were “not on the right side of history.”

Among the faculty, the best example of reticence was the principal organizer of the Group of 88 statement, Wahneema Lubiano. Lubiano, author of two perpetually forthcoming manuscripts, aggressively solicited signatures for the Group ad, but subsequently refused all comment to me (or to any other blog that focused on the case), leaving unanswered such critical questions as to why she (falsely) claimed that five academic departments endorsed the statement. Within the administration, the case reticence award went to Larry Moneta, who declined an interview request for UPI, and who did his best to stonewall comment in this interview:

To what extent, however, could it be said that the blog (or, I suppose, other blogs) was unfair in not including sufficient information from the Duke faculty and/or administration? A few days ago, I was asked this question which is a rather interesting one, in reference to this post, which examined how the Duke and Durham communities responded to the sexual assault of Duke student Katie Rouse in a dramatically different approach than how the very same people had responded to the lacrosse case.

The post included one Moneta statement about the assault, in an interview with NBC-17 captured by Liestoppers: The situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time. This happens around the country. Duke is no different in that respect.” The post did not include Moneta’s earlier statement on the case, a four-sentence press release mentioned here, which claimed that Duke was giving an unidentified type of “support” to the student and cooperating with the police investigation.

Duke not cooperating with the police investigation likely would have violated federal law, and so saying the university was cooperating with police would be a little like saying the sky is blue—clearly true, but of no relevance. In this instance, then, by the time of the post, the only appropriate reference to the Moneta press release would have been sarcastic—to note that a prominent Duke administrator apparently was defining “support” as seeming to shift the blame for the crime to the student.

But what if Moneta hadn’t done the interview with NBC-17? It’s still hard to see any news value in his press release, which was little more than pabulum. Given his position as president, the blog in general referenced all case-related press releases from Brodhead (even those that amounted to little more than pabulum), but generally referenced lower-level administrators only when they said something of substance. The handful of people who had any interest in generic statements issued over the signatures of various Duke officials could find them on the Duke website.

The idea that statements from affected parties must be referenced in the name of fairness—even if those statements either don’t say anything or non-responsive—has become a hallmark of contemporary political journalism, as reporters desperate to prove their “objectivity” include quotes from campaign press officials that amount to little more than talking points about issues that are at best tangential to the subject of the article. Reading past such non-sequiturs has become a requirement for anyone who glances at articles in the Times, Washington Post, or Politico. “Fairness” doesn’t immediately jump to mind when describing the impact of the inclusion of such statements.

The lesson from the Moneta press release? If administrators want their words noticed, their statements should actually say something. Then again, at Duke during the lacrosse case, administrators’ most substantive remarks (for instance, Brodhead’s April 5, 2006 letter to the campus community) often backfired. Perhaps they should have stuck to the pabulum strategy.

Coach K Defends Campus Due Process

In many ways the lacrosse case that hit the Duke campus was a perfect storm. A media that (thanks to the botched Samiha Khanna interview in the N&O and then the Times’ initial biased coverage) portrayed the affair as a brutal example of racism. A corrupt local prosecutor who positioned himself as a latter-day Atticus Finch. A diversity-obsessed faculty whose “activist” members were more than willing to play the race card against anyone who opposed them, even as they violated Duke rules and procedures to get their way. And a president who was at best intimidated by his own faculty and at worst a willing accomplice of the faculty mob.

In this environment, perhaps no one could have provided the voice of reason. Yet the voice of arguably the most powerful person on the Duke campus, men’s basketball coach Mike Krzyzewski, was conspicuously silent in the initial weeks of the case. The co-author of several books on leadership, Krzyzewski refrained from all public comment on the case until late June 2006, eleven weeks after President Brodhead had fired coach Mike Pressler and issued a guilt-presuming public statement, and nine weeks after Brodhead had traveled to the Durham Chamber of Commerce to say of the accused lacrosse players, “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.”

In his June 2006 remarks, Krzyzewski said, “If you're going to be in here for the long run, you're going to have trying times. That's just what happens, whether it's a business, a family or a university if you're in it for the long haul." Of the accused players, the coach said, “What I've tried to do behind the scenes is say, 'We're with you. We'll see what happens, and whatever happened if you did it, you should be punished.’” (From everything I learned in the case, whatever behind-the-scenes support Krzyzewski provided to the falsely accused players was very, very quiet indeed.) The sports blog Deadspin mockingly characterized the remarks in the following way: “Blue Devils basketball coach Mike Krzyzewski has spoken out in full solidarity, um, in utter opposition, ah, in lukewarm, half-hearted support of the Duke players in this high-profile controversy.”

Such rhetoric, the coach concluded, was consistent with a university’s values: “Giving support does not mean you're choosing sides. Giving support is what a university should do ... because we're in the kid business.” Of course, the leadership that was needed on the Duke campus in spring 2006 was not giving support (if the players were guilty, why would they have deserved the support of the men’s basketball coach, whether or not he was in the “kid business”?), but speaking out on behalf of fairness—ensuring that Duke faculty treated all students fairly, and ensuring that Durham authorities treated all Duke students fairly.

Krzyzewski made no such statements while the case was ongoing. He gave somewhat contradictory reasons for this approach. In an interview with the AP, he said that he decided to privately “lend whatever guidance or insights I might have into the situation,” including to President Brodheead, because “I am the basketball coach. I'm not the president, I'm not the athletic director and I'm not on the Board of Trustees and don't want to be.” (If, in fact, Krzyzewski did privately advise Brodhead, he either saw his advice completely rejected or gave very bad advice.) In an August 2006 interview with Time, however, the coach implied that he had remained silent to help the players, since “in [the Durham] area, I am like a lightning rod for some things, because there are a lot of Carolina fans or whatever.” And by March 2007, in an interview with Bob Costas, the coach enhanced his recollection again: “I met with my college president. I told Dick Brodhead, 'If you need me ... you tell me, and then put me in a position where I'm not the basketball coach. But I am that special assistant to you.’ Dick Brodhead did not bring me in.”

Krzyzewski eventually did criticize the Group of 88, though not until the spring of 2007, and only once he realized that the Group’s statement targeted not only the lacrosse players but also indicated “a latent hostility or whatever you want to say towards sports on campus. I thought it was inappropriate, to be quite frank." And he issued by far the most gracious statement of anyDuke administrator once the case imploded, when he commented after Nifong’s disbarment, “The Lacrosse Community, the Pressler Family, the Danowskis, there's some real heroes, but the main heroes are those kids and their families.”

Yet at no point in the lacrosse case did Krzyzewski issue a public statement on behalf of due process—urging Duke administrators to ensure that all Duke students were treated according to the rules by Durham authorities and by Duke professors, or that Duke administrators avoid precipitous action until the facts were clearer.

Why revisit Krzyzewski’s silence on lacrosse case due process? Because CNN reports that in an interview to appear tomorrow, the coach will criticize Penn State’s board of trustees for acting too hastily in firing longtime coach Joe Paterno. Penn State, said Krzyzewski, made a “real mistake” in how it handled affairs; “it was really not well done.” He continued, “You had somebody who’d given six decades of service to the university and done such an incredible job. Somehow, you have to let—something has to play out and respect the fact that you’ve gone through all these experiences for six decades. And it doesn’t just go out the window, right at the end.”

Penn State’s trustees faced an extraordinarily difficult decision regarding Paterno’s fate when the indictments of the school’s AD, security chief, and former football defensive coordinator came down. Viewing the facts the Trustees had through the lens most favorable to Paterno, the coach (a) had received a report of a horrific crime by his former chief assistant, waited a day before phoning his AD about it, and then never followed up on the report even as his former chief assistant continued to frequent the football facilities; (b) had, despite his prominence in State College, no knowledge of the 1998 police investigation into another child sex abuse claim against Jerry Sandusky; and (c) did not notice Sandusky bringing along one of his sexual-abuse alleged victims to a 1998 bowl game. Finally, and again assuming facts in the most favorable light toward Paterno, the trustees would have needed to believe that Sandusky's abrupt resignation as defensive coordinator in 1999 was not motivated by hopes of distancing the football program from Sandusky following the 1998 investigation.

With these (and especially item a) as the facts viewed most favorably to Paterno, it seems to me Penn State’s trustees acted properly, though I can see how people of good faith could disagree. It would seem odd, however, for someone who didn’t criticize his own university’s trustees and administrators for not upholding due process to then criticize another school’s under the circumstances that Penn State faced in November.

Moreover, even if someone believed in November that the trustees mistreated Paterno, virtually every piece of information that’s emerged since then has placed Paterno in a less flattering light. In the late coach’s only interview aboutthe affair, he suggested that when he first heard of the allegations against Sandusky, he couldn’t even conceive of them, since “I never heard of, of, rape and a man.” To accept that statement required believing that Paterno—a high-profile Catholic who made large donations to Catholic causes—had never heard of the sex abuse scandal that rocked the Catholic church in the United States.


Then, an Esquire article offered tantalizing, if circumstantial, evidence that Paterno might in fact have known of the 1998 investigation into Sandusky.


And finally, reports in recent days have suggested that in 2001, Paterno’s nominal superiors (whom he had faced down in 2004 when they urged him to retire) extensively discussed the charges against Sandusky, and made a conscious—and probably illegal—decision not to report the allegations.

Given all that, it seems remarkable that Krzyzewski still believes that the Penn State trustees should have kept Paterno as their coach for the rest of the 2011 season—all the more so given his disinclination to publicly support due process or criticize his own school’s administrators during the lacrosse case.