Accountability and Pre-Exising Biases

The other day, I came across an item in my Twitter feed from Salon’s Soraya Chemaly. The article, entitled “5 Ways Sexual Assault Is Really About Entitlement,” contained this remarkable assertion about due process and false accusations: “the likelihood of being falsely accused of rape are [sic] no different from that of being falsely accused of any other crime. And women are far more likely to be raped than men are to be falsely accused. The insistence on treating the two as equally prevalent issues is ….an entitlement.”

This sort of extreme victims’ rights rhetoric was associated in the early 1990s with the far right, and is almost never (and for very good reason) seen coming from mainstream liberals, much less from an activist publication such as Salon. Imagine the (appropriate) outrage if a left-of-center publication published something along the lines of the following: “The likelihood of being falsely accused of robbery in urban areas is no different from that of being falsely accused of any other crime. And accusers are far more likely to be robbed than urban African-Americans are to be falsely accused.”

The piece focused, however, on the college environment. Regarding male Division I athletes, Chemaly wrote, with an embedded link, that “while male student athletes make up 3.3% of the U.S. college population, they are responsible for 19% percent of sexual assaults and 37% of domestic violence cases on college campuses.” Note that the sentence was delivered in the present tense (“make,” “are”).

It turns out, however, that Chemaly misrepresented her source, a 2012 Dartmouth Law Journal article by Edward Sansone. Here’s how Sansone described the study [my emphases added]: “A study of sexual assaults at thirty major Division I universities over a three-year period in the early 1990’s came to the conclusion that male student-athletes, compared to the rest of the male population, are responsible for a significantly higher percentage of sexual assaults reported to judicial affairs on the campuses of Division I universities. The survey found that while male student-athletes make up only 3.3 percent of the college population at the surveyed institutions, they were responsible for 19 percent of sexual assault cases and 37 percent of domestic violence cases.”

Chemaly basically copied Sansone’s second sentence (without including quotation marks), but adjusted it in two ways. She changed Sansone’s “were” to “are,” and changed Sansone’s “college population at the surveyed institutions” to “U.S. college population.” Copying word-for-word might have been dismissed as incidental plagiarism, perhaps forgivable because Chemaly included a link. But Chemaly—a self-described “activist and writer of feministy things”—didn’t simply copy Sansone’s words. Instead, she copied most of them but then altered a few of them to make it appear that the survey was current (instead of 20 years old) and comprehensive (instead of only 30 institutions). That sort of behavior is unethical.

What of the survey that Sansone cited? Given that his piece (which calls for using Title IX to crack down on what he sees as disproportionate sexual misconduct by male student-athletes) appeared in a law journal article rather than in Salon, it might be assumed that higher editorial standards would apply. Yet Sansone’s sole source for his claim is an organization called the National Coalition Against Violent Athletes. The group’s website contains the following line, which formed the basis of Sansone’s claim: “A 3 year study shows that while male student-athletes comprise 3.3% of the population, they represent 19% of sexual assault perpetrators and 35% of domestic violence perpetrators.” Yet the website doesn’t contain the actual (20-year-old) study itself. And the group’s assertion that the highly-regarded Northeastern University Center for the Study of Sport and Society “refused to publish these statistics” doesn’t exactly provide reassurance about the quality of the data.

To review: a one-sentence summary of a study on an activist group’s website was then picked up in a law journal article (whose author, at least according to his footnotes, does not appear to have examined the study itself). The law journal article’s item was then picked up by Salon, which altered its meaning to make it seem as if the study was new rather than 20 years old.

Sansone’s article, it turns out, had another item directly connecting to the topic of this blog. Here’s his lede sentence—opening the article’s second paragraph after a first-paragraph vignette. “The dark secret that many male college athletes carry is that they are one of the main perpetrators of domestic violence and sexual assault on college campuses.”

For this extraordinary claim, Sansone (in an article published out of an Ivy League college) cited a grand total of one source, a 2006 article by Jake Tapper and AudreyTaylor. (While Tapper is now a reliable barometer of conventional wisdom in Washington, he worked at Salon before moving on to ABC.) Here’s how Tapper and Taylor opened their piece, entitled “Is Jock Culture a Training Ground for Crime?”:

A year before Duke University’s lacrosse team became the center of scandal, administrators and the school's athletic director were warned that the players had demonstrated "boorish" behavior.

According to news reports, 15 of the team’s 47 players have court records for drunken and disorderly behavior. [The ABC duo was writing before “news reports” revealed the Duke-Durham agreement to maximize charges against all Duke students who engaged in underage drinking or the type of disorderly behavior that likely wouldn’t result in an arrest of an NCCU student.] Two were arrested today on charges of raping and kidnapping a 27-year-old woman at an off-campus party.

The alleged incident may be part of a larger problem, experts said, of athletes whose attitude includes a sense of entitlement that manifests itself in crude and even lawless behavior.

Tapper and Taylor then went on to cite . . . the very same study used by Sansone and misrepresented by Chemaly.

But, of course, the “alleged incident” that Tapper and Taylor speculated “may be part of a larger problem” never occurred. Yet rather than Crystal Mangum’s false charges and Mike Nifong’s unethical behavior discrediting Tapper and Taylor’s article, Sansone had no problem citing it—and citing it for his law journal article’s key claim—as if Tapper and Taylor’s piece provided some sort of special insight. And the journal’s editors had no problem in clearing the article and the citation.

How can a crime that never happened be used to demonstrate a “larger problem” whose relevance to the case would make sense only if the crime had actually occurred? For true believers, it seems, there’s no reason to come to grips with how the initial rush to judgment in the lacrosse case requires some reconsideration of the broader assumptions about due process in campus sexual assault cases embedded in both the Sansone and the Chemaly items.

Reflections on the Supreme Court Move

As I noted Monday, the Supreme Court has declined to hear the falsely accused players’ appeal of the 4^th circuit’s dismissal of most of their case. On the one hand, the decision wasn’t surprising: (1) the Court doesn’t take many appeals; and (2) the politics of this appeal were particularly difficult, since judicial liberals tend to be more favorably inclined to civil rights claims—but as Judge Gregory demonstrated at the 4thCircuit, it appears that at least some judicial liberals are extremely hostile to this particular group’s civil rights claims.

On the other hand, however, the decision was extremely disappointing and at least a little bit surprising, in two respects. First, it’s not as if the Court is overflowing with critical cases this term—its first week of the session featured two cases (Madigan and Burt) that never should have reached the Court in the first place.

Second, it’s worth reiterating the breathtaking precedent that the Court allowed to stand. From here on out in the 4^th Circuit, there’s no federal cause of action against a town or city when the municipality’s police department: (a) turns over a police investigation to a local prosecutor; and (b) stands aside as that prosecutor and police officers manufacture evidence with which to indict innocent people for a crime that never occurred—provided that (a) the police are perfectly candid with their co-conspirator (the prosecutor) that there’s no evidence on which to base the indictment; and (b) a grand jury returns indictments, even if, as occurred in the lacrosse case, the indictment resulted from misleading or outright false testimony from one of the police officers.

The dismissal means that a host of questions are likely to remain permanently unanswered. That list includes the following:

(1) Who in the police department (or city government) allowed Mike Nifong to assume personal command of the police investigation?

(2) What precise interactions occurred between the Durham and Duke police departments?

(3) What precise interactions occurred between Nifong, the DPD, and former SANE-nurse-in-training Tara Levicy? (Levicy, by the way, is currently working in my home state of Maine, where she notes her particular interest in “women’s health.”)

(4) Who gave Cpl. David Addison the information that he used for his fact-free, race-baiting March 2006 public statements? Why was he not subsequently disciplined for his statement?

(5) Who in the DPD made the decision to involve Sgt. Gottlieb in the investigation?

(6) Why was Sgt. Shelton removed from any involvement in the investigation?

(7) Did any backchannel discussions occur between Durham authorities and the Duke administration?

Supreme Court Update

Scotusblog reports that the Supreme Court announced this morning that it would not hear the appeal in the falsely accused players' case. I'll have some more thoughts later today.

Supreme Court News

Attorneys for the three falsely accused players have filed their reply to the City of Durham’s brief, the final stage before the Supreme Court will decide whether to hear the appeal.

A brief reminder on how we got here: a three-judge panel of the 4th Circuit essentially sided with Durham, dismissing all but one state claim on the grounds that the police were honest with Mike Nifong (acting, at the time, in his improper capacity as supervisor of the pre-indictment police investigation) about the evidentiary weaknesses in Crystal Mangum’s wild allegations; and a grand jury (acting, in the case of Sgt. Gottlieb’stestimony, on an erroneous recapitulation of the facts) returned indictments, breaking the chain between the police misconduct and the arrests.

The falsely accused players appealed to the Supreme Court, citing three lines of argument. First, their brief noted that several other circuits had held that civil liability ensued for pre-indictment police misconduct, even when a prosecutor secures an indictment; and that the Supreme Court, in oral arguments for a case ultimately settled on other grounds (Pottawamie County), appeared to agree. Second, the petition suggested that the 4^th Circuit had strengthened a circuit split on the question of whether police officers fabricating evidence during an investigation violates the Constitution. Finally, the players’ filing noted that even on its own terms (that an indictment wipes clear the city’s federal liability for everything that occurs before) the 4^th Circuit’s ruling made no sense, given that the improper conduct by city employees (the harassment of Elmostafa, Sgt. Gottlieb’s magical “notes”) came after indictments occurred.

Durham countered by reiterating its traditional line of argument, which was previously summarized by Judge Beaty: 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.”

The players’ reply opens with this wonderful line: “In a brief in opposition that is long on invective—and, for that matter, just plain long—[Durham] respondents seek to hold petitioners to an impossible burden.” The Durham argument amounts to a suggestion that because the Supreme Court has never before considered a case precisely like the lacrosse case (was there such a case?), the Court should allow the 4^th Circuit decision to stand. But the Supreme Court often hears cases that involve previously-unseen facts; the issue, as the reply brief correctly notes, is whether this case illustrates a split between the federal circuits on an important issue. And Durham never really argued otherwise.

The reply brief makes three central points:

First, the brief dismisses Durham’s efforts to distinguish its conduct from cases in other circuits where governmental agents were held liable for federal violations. The city had claimed that all of these cases differed from the lacrosse case because in each of them, police had not fully shared information with the prosecutor, but had instead misled or withheld evidence from the prosecutor, which the Durham Police did not do. But the players’ reply brief observes that the circuits whose opinions are in question (the 2^nd and 6^th) did not, in fact, make such a hard and fast distinction, and certainly did not suggest that facts like the lacrosse case—in which police conspired with a prosecutor acting as their de facto supervisor to produce evidence to frame innocent people for a crime that never occurred—should be shielded from constitutional claims. Indeed, the brief notes that one case on which Durham relied (Wray v. City of New York) actually appears to back the players’ position, not Durham’s, on this point.

Second, the brief reasons that the arguments in Durham’s filing “do not pass the smell test” regarding the city’s attempts to differentiate its behavior from earlier cases in which federal courts had found that “the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” For instance, the brief observes, the City had tried to distinguish its behavior from a 1^st Circuit case, Limone v. Condon, on grounds that the plaintiff in Limone was falsely imprisoned using fabricated evidence, while the lacrosse players were only falsely arrested, detained, and would have gone to trial but for a 9-8 decision by the State Bar to bring charges against Nifong. Yet the case that Durham believes helps in cause in fact says that “if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Durham thinks that Limone helps its cause?

Finally, the brief cleverly uses its rebuttal of Durham on this point to remind the Court that the behavior of the lacrosse case was, in a way, more egregious than the cases cited by either side. It’s true, the brief notes, that most of the cases involving constitutional claims based on police misconduct involved the police behaving improperly toward the prosecutor. But that’s because, in each of these cases, the prosecutor wasn’t himself involved in a conspiracy with the police to fabricate sufficient evidence to secure indictments. It’s not as if any circuit other than the 4^th Circuit has held that this sort of record should be shielded from constitutional challenge as long as the prosecutor managed to fool a grand jury into returning an indictment. For instance, the brief points to a 5^th Circuit case, Hand v. Gary, to explain that “a prosecutor’s intervening action ‘remain(s) tainted by the malicious actions of the government officials’ either if the officials ‘join in malicious prosecution by prosecutors’ or if the officials’ malice ‘results in an improperly motivated prosecution without probable cause.’”

The Court does not accept many cert grants. But if the justices decline to hear this case, and thereby allow the 4^th Circuit ruling to stand, they’ll be saying that a victim of a police-prosecutor conspiracy to create evidence to indict the victim without merit has no federal constitutional claim in six states. That would be a terrifying precedent.

Litigation Matters

[Update, Friday, 1.34pm: According to WTVD-11, the latest Mangum lawyer has withdrawn from her case, citing a conflict of interest. Note, by the way, the radically different (and more accurate) way WTVD summarizes the case than that offered by the comically biased Herald-Sun. Two mentions that the Mangum allegations were false, and no bizarre insinuation that charges were dismissed because of national media coverage.]

[Update, Tues., 4.04pm: Mark Anthony "thugniggaintellectual" Neal brings news that Group of 88 leader Wahneema Lubiano--or, in his words, the "brilliant" Wahneema Lubiano--now has a twitter account.]

A few updates on litigation matters.

The City of Durham has filed its response with the Supreme Court, urging the Court not to hear the appeal filed by attorneys for the falsely accused players. The basic argument was the same that the city adopted (successfully) before the 4^th Circuit—that as long as Durham police officers didn’t withhold information from Mike Nifong, and as long as a grand jury came back with an indictment, even if that indictment was based on (in the case of Sgt. Gottlieb) inaccurate testimony about Crystal Mangum’s myriad stories, it doesn’t violate the Constitution for a city to: (1) allow an elected prosecutor to supervise an ongoing, pre-indictment police investigation; (2) then have its police officers work with that elected prosecutor to manufacture evidence implicating innocent people in a crime that never occurred. As long as the police didn’t lie and the grand jury indicted, according to Durham, there was nothing actionable in how the city behaved.

The City of Durham: civil liberties capital of America.

On matters related to civil liberties, I have a piece up at Minding the Campus on the remarkable (and deeply disturbing) reaction of UNC administrators to the recently-passed law boosting accused students' legal rights. (Jane Stancill also obtained some jaw-dropping quotes at the N&O.) As often is the case, defenders of the academic status quo essentially prove the critics' case.

The false accuser, meanwhile, was back in the news—the Herald-Sun reports that her latest attorney, Scott Holmes, is seeking to recuse himself from the case, citing a conflict of interest. The precise nature of that conflict was left very murky by Holmes; he pointed to a colleague whose client was in an “adverse position” to Mangum.

Perhaps the most interesting aspect of the H-S article came in its description of Mangum’s role in the lacrosse case: “Mangum is the woman who accused Duke lacrosse players of raping her after they hired her to strip at their party. After national media coverage about the case, the charges against the lacrosse players were dismissed.”

A casual reader wouldn’t know: (a) that the lacrosse players were declared innocent, and Mangum’s allegations were false; and (b) that the declaration resulted not from “national media coverage” but from an attorney general’s investigation.

At least the distinguishing of the “national media,” while ignoring the excellent work of the N&O and the Chronicle, makes clear that the Herald-Sun‘s coverage played no role in bringing about the exoneration.

Speaking of Mangum, John Tucker from the Independent did a long article on the false accuser’s stoutest defender, Justice for Nifong Committee chairperson (and, at this point, sole member?) Sidney Harr. (The cover art, oddly, portrays Harr as a superman carrying Lady Justice.) While Harr is one of the strangest people to appear in the case, I doubt that before this article appeared anyone realized just how strange Harr actually is. To quote from Tucker’s piece, which brought to the fore a host of previously unknown items about Harr, at least in the Triangle:

Despite Harr’s reputation as a public gadfly and Nifong’s biggest supporter, most people know little about the man and his motivations. It is not well-known that after going broke in California, he bounced around with his wife, leaving a trail of sensational lawsuits marked by paranoia. Between 1985 and 1997, Harr was a party to at least 27 lawsuits in California, Arizona and Ohio. He sought hundreds of millions of dollars in compensation for civil rights violations, employment discrimination and fraud.

“He confidently moved from city to city wrecking people’s lives and careers,” said Dwight James, a physician who runs a practice in Porterville, Calif.

It might be suggested that a man who spent years “wrecking people’s lives and careers” is exactly the sort of character Mike Nifong deserves as chairperson of his exoneration committee.

Tucker also managed to obtain a rare comment from the long-silent Wahneema Lubiano, architect of the Group of 88 proclamation—which falsely claimed official endorsement from five academic departments—that something “happened” to Crystal Mangum. To the best of my knowledge, Lubiano’s last interview with a mainstream journalist about anything related to the case was a highly sympathetic one from ESPN, after which reporter John Pessah nonetheless concluded, with extraordinarily vivid imagery, that his subject, Lubiano, “knew some would see the [Group of 88] ad as a stake through the collective heart of the lacrosse team”—but drove the stake anyway.

Tucker chatted with Lubiano about “issues such as race, class and privilege—ideas never fully reckoned with during the lacrosse chaos.” Not really: it’s hard to argue that these issues—addressed non-stop by the Duke faculty—were never fully reckoned with in the lacrosse case, unless the argument is that those who so badly misjudged the case were never held accountable.

In any event, according to Tucker, here’s the new Lubiano take on the person whose version of events she once uncritically accepted:

Mangum symbolizes a host of uncomfortable ideas, like mental illness and social order, according to Wahneema Lubiano, the associate chairwoman of Duke University’s Department of African & African American Studies. “And frankly we should be uncomfortable,” she said, “but the discomfort should take a different form than collectively rolling our eyes.”

I’d agree with Lubiano that we should be uncomfortable—uncomfortable about Duke faculty members who disregarded their obligations under the Faculty Handbook and then refused to take responsibility for their actions. (By the way: during the case itself, neither Lubiano nor any other member of the Group of 88 ever publicly suggested, or even hinted at, the fact that Mangum was mentally ill.)

Finally, an odd item from the article:

As is his longstanding media policy, Nifong declined to comment for this story. He and Harr have met only a handful of times, but there are parallels between them. Both men tried to take on Duke University, and lost. Both were rebuked by the State Bar. Both declared bankruptcy. Both staked their identities on fighting injustice.

As portrayed by Tucker, Harr comes across as delusional, an almost sad character: it’s entirely possible that he sees himself as a champion of justice, and that he actually believes that Richard Brodhead’s Duke was actually part of a conspiracy to victimize, rather than lionize, Crystal Mangum.

But Nifong—a man who broke myriad ethics rules and tried to manufacture evidence to imprison innocent people, all in an effort to advance his political career—cannot possibly be portrayed as someone who staked his identity on “fighting injustice.” Moreover, Nifong never took on “Duke University.” He took on Duke students, a big difference. Duke University, by contrast, was one of his biggest allies. It employed his star witness (former SANE-nurse-in-training Tara Levicy). Its president repeatedly took actions that communicated to the world a belief in the players’ likely guilt (such as cancelling the Georgetown game while the players were on the field, or publicly remarking that whatever Seligmann and Finnerty did was “bad enough). And, of course, for the critical first weeks of the case, the public voice of Duke’s faculty was the rush-to-judgment sentiment of Wahneema Lubiano and her 87 pedagogical allies.

I nonetheless hope people read the Tucker piece. In a case filled with bizarre characters, Harr might well be the most bizarre—which is saying something.

An Update from St. Joe's

Over at Minding the Campus, I’ve analyzed two federal lawsuits filed by male students found culpable of sexual assault after college procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due process. Today is the deadline for the defendants in the first suit, filed by Brian Harris against St. Joe’s and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket, filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You can read the filing here; I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)

Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 “Dear Colleague” letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe’s policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St. Joe’s has structured a procedure in which“[c]ivil or criminal rules of procedure and evidence do not apply,” while allowing the school to consider hearsay.

But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.

Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings.” In other words: the St. Joe’s disciplinary tribunal should be viewed as “quasi-judicial,” even though it denies accused students the right to counsel, doesn’t guarantee them the right to cross-examine their accuser, doesn’t follow civil or criminal rules or procedure, and allows hearsay.

Rucket argues that Harris has no legal claim to challenge the judgments made by St. Joe’s, no matter how unfair the university’s procedures. “Harris is attempting improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why? In part, because “there is a presumption of fairness in administrative proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect an assertion in the St. Joe’s handbook that “[s]ubsequent reviewers shall not determine anew whether there was a Community Standards violation.” How convenient as a way to shield any university from challenges to potentially unconstitutional behavior.

This line of argument, if upheld by the court, would render beyond judicial review the assault on due process for all college students accused of sexual assault, and Rucket asserts as much. At least with regard to students at private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that decision.” The power this line of interpretation gives to college disciplinary processes is extraordinary: once a private college brands a student a rapist, no matter how unfair the process the college utilizes, the student can never challenge the finding, as long as the college followed whatever unfair procedures it utilizes in sexual assault cases.

Absurdly, Rucket claims that the power he gives to the St. Joe’s process to avoid court challenge is equal opportunity: If, he notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she had then filed a “lawsuit against Harris and SJU, Harris certainly would be making this exact same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this claim will certainly come as news to the anti-due process “activists” glowingly profiled in the New York Times and Inside Higher Ed’s Allie Grasgreen, who have urged federal intervention to effectively relitigate a variety of campus decisions they opposed. Second: as Rucket well knows, even if Harris had been cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris then could have been tried and, if convicted, sued.

In any event, the filing notes, even without the specific wording in the St. Joe’s handbook, Harris would have no case. Before choosing to attend St. Joe’s, Harris knew (or should have known) the university’s procedures for handling sexual assaults. Courts, Rucket suggests, can’t now intervene. (Oddly, the only two cases that Rucket cites to bolster his point come from Pennsylvania state courts; he doesn’t explain why these decisions should be treated as precedential in a federal lawsuit.) If Harris didn’t want to subject himself to the anti-due process approach used in his case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear Colleague” letter applies to virtually every university in the country, under Rucket’s viewpoint, the only realistic choice for a male student who wants to ensure that he has due process if accused of sexual assault would be not to attend college at all.

Finally, Rucket challenges Harris’ claim that he lacked an opportunity to cross-examine Horst, but, in any case, deems the matter irrelevant—in part because St. Joe’s doesn’t promise such a right and in part because the “Dear Colleague” letter “strongly” discourages granting such a right. To the best of my knowledge, this is the first time perhaps the most objectionable aspect of the “Dear Colleague” letter—its urging schools to set up procedures that deny an accused student the right to confront his accuser—has been cited, positively, in a legal filing.

Beyond legal arguments, the filing also provides Horst’s version of the evening in question, in which she alleges that she was assaulted while incapacitated. Rucket’s writings, however, corroborate several points from Harris’ filing, chiefly that:

• Horst asked Harris to come to her dorm room and spend the night;
• After the alleged assault (which Harris maintains was consensual intercourse), Horst left her room to go to the bathroom, but then returned to her room voluntarily, where she and Harris then spent the night;
• Horst did not seek a medical examination after the incident;
• Horst did not report the incident to police.

The filing describes Horst as “obviously intoxicated” on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.

Rucket does challenge the version of events presented in Harris’ complaint in one significant way. While he concedes that Horst invited Harris to come to her room for “cuddling” and to spend the night, according to the filing, this invitation had no sexual connotation.

Two final notes: (1) This is not the lacrosse case, in which overwhelming and unimpeachable evidence of actual innocence existed. Instead, the Harris case is an excellent demonstration of how due process-unfriendly college procedures—coupled with the newly-mandated preponderance-of-evidence (50.01%) standard—all but ensure that college structures can’t discover the truth in close or even somewhat close cases. And in a campus environment that’s overwhelmingly favorable ideologically to accusers, this is a dangerous thing.

(2) In his brief, Rucket asserts that Harris “was found guilty of (1) sexual assault.” [emphasis in original] Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so. But in the real world, that’s a distinction that’s easily elided, since the stigma of being branded a rapist comes just as easily from a college process as from a jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the result of the St. Joe’s disciplinary process with that of a criminal trial illustrates why universities, when they consider issues that also qualify as criminal matters, need to provide due process to accused students. And if federal courts are the only mechanism for forcing universities to do so, then so be it.

Brodhead, Colbert, and Questions

Richard Brodhead will be appearing Thursday night on Comedy Central’s Colbert Report. Let’s set aside the obvious: why would a group that wants to promote increased public support for the humanities select as its spokesperson a figure best known outside the academy for this disastrous appearance on 60 Minutes?

Instead, since Brodhead himself has said that he sees the interview as “a good chance to show off Duke,” perhaps Colbert could find the time to ask him why, in his first public appearance after their arrest, he said that even if Reade Seligmann and Collin Finnerty were innocent, whatever they did was “bad enough.” Does he continue to believe what he told the Durham Chamber of Commerce in April 2006, and if not, why did he never retract or apologize for his remarks?

Some other items that remain unanswered:

(1) Why specifically did Brodhead and the Duke Board of Trustees demand Mike Pressler’s resignation in early April 2006? What did they expect the public reaction to their move to be? Did they recognize at the time that the forced resignation would likely be interpreted as a sign of the players’ likely guilt?

(2) When did Brodhead and the trustees first learn of the conduct of former SANE-nurse-in-training Tara Levicy? After so learning, what steps did the Duke leadership take to ensure that Levicy would not affect any additional sexual assault cases?

(3) What steps, if any, did the Duke administration take against either Wahneema Lubiano or the African-American Studies Department for their decision to improperly use Duke funds to pay for an ad denouncing the school’s students, and for their falsely claiming that numerous Duke departments officially endorsed the ad? If, as is widely believed, the university took no disciplinary steps on the matter, should Duke professors interpret this inaction as an implicit statement that Lubiano and her department really didn’t do anything wrong?

(4) Why didn’t Duke administrators reveal to the Coleman Committee the university’s then-secret arrangement with the city for Duke students—and only Duke students—to be prosecuted to the maximum for alcohol-related offenses?

(5) Does the university continue to stand by the Bowen/Chambers report as the best analysis for how the administration should have handled the case? If so, how can the university explain the millions of dollars in settlements and legal fees for administrators’ conduct that Bowen and Chambers ignored? If not, why did the university never elect to commission a Freeh Report-style white paper for Duke?

Somehow, I doubt any of these questions will get asked. And in the unlikely event they were asked, I can all but guarantee they would generate a non-responsive reply.

Litigation Issues

As a reader of TheShadow University shortly after it was published, I understood well the due process difficulties in campus judicial systems. But until the lacrosse case, I simply assumed that because sexual assault is a crime, such matters were handled by police, not by a campus judiciary. In any event, how campuses handled sexual assault complaints couldn’t be more troubling than the manner in which they handled other allegations.

That, obviously, isn’t the case. One of the most troubling counterfactuals of the lacrosse case is to wonder what might have occurred if Crystal Mangum had simultaneously filed a complaint through the Duke campus judicial process. If—and it’s not entirely clear—she had standing to have done so, there’s little doubt that a finding of guilty would have occurred. Procedurally, the accused students would have lacked the right to attorneys, been unable to access the critical DNA evidence, and would have faced severe evidentiary and time restrictions in presenting their case. Ideologically, the accused students would have been operating in an environment heavily influenced by the Group of 88 and their race/class/gender agenda. For a less explosive example, consider the case of Caleb Warner, a former University of North Dakota student whose school found him guilty of sexual assault—even as the local police filed charges against his accuser for filing a false police report.

(As an aside, note that the police saying the accuser was lying wasn’t enough for the AP to identify the accuser, since “AP’s policy is not to identify alleged sexual assault victims,” even those the police have formally concluded made a false allegation.)

The basic unfairness of campus sexual assault procedures was intensified by the 2011 “Dear Colleague” letter, about which I’ve written extensively at Minding the Campus, which dramatically lowered the burden of proof in campus sexual assault cases.

In the last two months, however, two students convicted under their school’s wildly biased procedures filed suits in federal court. One lawsuit targeted Vassar College, which handles sexual assault claims through an “Interpersonal Violence Panel” whose procedures the college refuses to make publicly available. The second suit targeted St. Joseph’s University, after a process that appeared to ignore exculpatory text messages sent from the accuser to the student she accused. You can read my Vassar post here, and my St. Joe’s post here.

In the aftermath of the “Dear Colleague” letter, and with administrators responsive to their school’s version of the Group of 88, it’s all but inconceivable to imagine many, or any, residential colleges restoring due process on their own. In the end, only intervention by federal courts—as occurred a generation ago with speech codes—will bring a measure of due process to how campuses handle allegations of sexual assaults.

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Former NCCU chancellor Julius Chambers recently passed away. The most comprehensive obituary came in the Charlotte Observer, which recounted his myriad contributions to the causes of civil rights and due process over the course of his career.

Obituaries, obviously, tend to stress the positive in a career, and it’s hard to find any positive in Chambers’ conduct in the lacrosse case, where he teamed with William Bowen to pen a whitewash report that supposedly represented a critical analysis of how the administration responded to the case. Yet the report didn’t even address the issues that ultimately would cost Duke millions of dollars in legal fees and settlements, largely because Bowen and Chambers operated under an ill-concealed assumptions that the rape allegations were likely true. The Observer didn’t reference Chambers’ conduct in the lacrosse case, which contradicted his career-long support for civil rights and due process.

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The Supreme Court has requested a formal response from Durham to the longshot appeal in the McFadyen case. While this move means the appeal hasn’t been  rejected out of hand, the question doesn’t seem to be the type that’s likely to generate interest from the Court.

The Perils of Political Correctness

Two items showing the continuing failure in the academic world to learn the lessons of the lacrosse case.

The first comes from the Chesterfield (VA) Observer, which ran an article on the status of African-Americans in the sport of lacrosse. The Observer interviewed Jay Coakley, professor emeritus of sociology and sport at the University of Colorado-Colorado Springs. According to the Observer:

In the aftermath of the 2006 Duke lacrosse rape scandal, Coakley was invited to speak to a national lacrosse convention in Philadelphia. His message – that the sport desperately needed diversity – wasn’t well received. “When I gave my presentation, probably about 100 white men walked out,” Coakley recalled.

He offered up slides of photos culled from college websites, which showed a preponderance of white men playing the game. “I was accused on local talk radio of pushing political correctness and not understanding what lacrosse is all about,” he said.

The address to which Coakley referred occurred at the 2007 US Lacrosse convention, which was held January 12-14 in Philadelphia. It’s worth noting the context: by this point, disciplinary charges had been announced against Mike Nifong; Crystal Mangum’s story had been changed to claim that no actual rape had occurred; and even Richard Brodhead (though not the Group of 88) had been moved to denounce Nifong. In short, the version of events to which so many politically correct figures on campus had attached themselves had been revealed as an utter fraud. Yet Coakley’s remarks appear to have ignored the jarring transformation of the case between March 2006 and January 2007; he spoke, instead, as if all events were as commonly understood in early April 2006.

Since there was no record of Coakley’s remarks online, I e-mailed him. He graciously summarized his main points, which—to put it mildly—were stronger than the Observer article entailed. That wasn’t too surprising, since it was all but impossible to imagine that a banal call for more racial diversity in lacrosse could have triggered the mass walkout that he alleged.

A few items: (1) Ignoring any of the new developments between early April 2006 and January 2007, Coakley linked the case to a call that (paraphrased) the “sport desperately needed diversity” because it had (paraphrased) “a preponderance of white men playing the game.” (Whites were, of course, a preponderance of all college-aged men in January 2007.) Even if some sort of racial balancing in college men’s lacrosse was or is desirable, how, precisely, could this goal be linked to the Duke lacrosse case in a way that would reflect well on Coakley?

It’s true that, if the accused students were African-American rather than white, the lacrosse case would have differed. Neither Nifong nor the Group of 88 would have had any reason to have exploited the case, and therefore it likely would have never moved forward or received much campus or media attention. But suggesting that a sport having more black athletes minimizes the possibility of a local prosecutor or a school’s faculty engaging in race-baiting behavior doesn’t strike me as a  . . . progressive . . . argument.

Coakley seems to be insinuating, instead, that if more African-Americans were on the 2006 lacrosse team, the team would have treated the strippers more sensitively. That strikes me as a highly implausible conclusion.

In general, his view of events seemed then, and still seems, frozen in time, as if no additional facts about what occurred at the party came out after early April 2006. He suggested to me that racial epithets were directed at false accuser Crystal Mangum (there’s no evidence of this, since Mangum was passed out during the racially charged argument between Kim Roberts and a lacrosse player that concluded the evening) and that other lacrosse players somehow should have intervened to stop the exchange between Roberts and their teammate. But it’s not clear how they could have done so, since all accounts of the evening suggested that Roberts then immediately called the police claiming a “hate crime,” and then drove off, while the captains told the remaining handful of players to go home. Coakley’s comment about intervention only makes sense if he believes that racial epithets occurred during the party itself—yet the only figures connected to the case to ever have made such a claim were Mangum and Mike Nifong. That he still seems to view the duo as credible speaks volumes as to the biases he brings to the case.

(2) In his e-mail to me, Coakley linked his criticism of the lacrosse team in part to the hiring of strippers—an act that I, too, find distasteful. Yet it’s hard to see any connection between his critical comments about the team’s (or, more generally, lacrosse’s) racial makeup and the hiring of strippers. After all, a few weeks before the party, the majority African-American basketball team had hired strippers for a team party.

More broadly, his basic approach in the 2007 talk—on which he doubled down in his Observer interview—suggests that the hiring of the strippers, and Coakley's seemingly inaccurate view of the development of the party, was such a grave character flaw that it overcomes all that we subsequently learned about members of the lacrosse team, whether in the Coleman Committee report, or in their post-case behavior in the 2006-7 academic year. Much like the Group of 88, it’s as if, for Coakley, the team’s character is frozen in time, as of early April 2006, and nothing that came after was allowed to disturb the preconceived ideological notions that he brought to the case.

(3) In his interview with the Observer, Coakley said that he “was accused on local talk radio of pushing political correctness.” (Coakley didn’t cite which local talk radio leveled the accusation against him; it’s intriguing that he’s evidently a talk-radio listener.) In the event, at least based on what he shared with the Observer and later with me, the accusation seems to be a valid one.

It’s unclear how many people share Coakley’s perspective; in society as a whole, it’s almost certainly a minority, and perhaps a small minority indeed. On campus, however, his politically correct approach is very much mainstream—as we saw, yet again, in a recent event at Duke.

Of all the campuses in the country, it would seem as if Duke—whose students were the victims of the highest-profile rape hoax in modern American history—would bend over backwards to protect due process in sexual assault cases. The reverse was true: in 2009, the university implemented a new sexual assault definition, in which students could be found guilty of rape on the following criteria: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” Why a student could be deemed a rapist based on unintentional actions that any accuser happened to perceive Duke never said, and amidst an outcry from alumni and from national groups, especially FIRE, Duke quietly dropped the new criteria in 2010.

But otherwise, a due process-unfriendly sexual assault policy remained in place—until earlier this month, when Duke announced an adjustment. Students found guilty by the university now will face a presumed penalty of expulsion. Remarked Larry Moneta to the Herald-Sun, “This is not like the measles; there’s no vaccine . . . This is a very complicated issue that is not unique to us that just requires persistence and a multi-varied approach.” Moneta did not mention the importance of due process for sexual assault allegations.

Students properly deemed rapists certainly should be expelled. Actually, of course, they should be sent to jail—but university activists tend to strongly oppose the idea of allowing the criminal justice system, rather than university bureaucracies, to address allegations of sexual assault.

In the event, the heightening of the punishment has to shine the spotlight on the procedures the university employs, since the error resulting from a procedurally flawed decision is now so much greater. Duke’s policy is for a university administrator or a hired outside investigator to examine the allegations. The investigation is almost guaranteed to be slipshod: “Allegations of sexual misconduct will be investigated in a thorough and timely manner, typically within 15 business days of receipt of a complaint.” (Imagine if the police had such a requirement, amidst a bureaucracy that’s strongly predisposed, for ideological reasons, to believe all allegations of sexual assault, as is the case at Duke and many other universities.) The accused student doesn’t have the right to be represented by outside counsel, only a “member of the university community,” and even the role of this advocate is severely restricted: “He/she may only confer quietly or through notes with the complainant and may not address the panel.” And a finding of guilt occurs at the lowest possible threshold—a preponderance of evidence, or 50.01 percent.

In explaining the new penalties, Moneta didn’t reference the lacrosse case, or explain why a campus that witnessed such an extraordinary violation of due process wouldn’t be vigilant about due process on such matters in the future. But Bob Ashley’s Herald-Sun filled the void. In an unsigned editorial celebrating Duke’s action (there’s a surprise!!), the H-S reflected in the following manner: “One legitimate debate fueled by the infamously false rape allegations against Duke lacrosse players in 2006 concerned the overall culture of gender relations on Duke and other campuses.” It’s easy to see how “legitimately false rape allegations” might have triggered a debate about why so many on Duke faculty members were willing to rush to judgment against three of the university’s male students. But somehow I doubt that’s the sort of “legitimate debate” about “gender relations” on the Duke campus that Ashley had in mind.

Beyond the rare admission from Ashley that the charges his paper so consistently framed as true were actually false, it’s as if for the H-S editor, much like Professor Coakley, events in time are frozen as of April 2006. 

The Brodhead Commission Report

That any commission, of any type, could consider Richard Brodhead as a vehicle to build public support for anything related to higher education is nothing short of astonishing. That a figure who presided over one of the highest-profile university scandals of recent years—a scandal in which his school’s humanities professors played an outsized role—would seem like a good choice to improve public backing for the humanities is almost comical.

Yet a 53-person commission of the American Academy of Arts and Sciences, which produced a lengthy report at the behest of a bipartisan groupof legislators, did just that. The Brodhead commission report is a combination of the banal with the wonderfully self-unaware. (By the way, the 53-person committee included Ken Burns; perhaps his work on the project suggests theorigins of filmmaker Burns’ . . . unusual . . . interpretation of the lacrossecase.) The commission featured not only Brodhead but several other paragons of campus political correctness, Harvard president Drew Faust, Amherst president Carolyn Martin, and Penn president Amy Guttmann.

Some of the report’s conclusions were almost caricatures of the banal. For instance, who could disagree with the following statement, which appears on page 16? “Our need for a broadly literate population is more urgent than ever. As citizens, we need to absorb an ever-growing body of information and to assess the sources of that information. As workers, we need to adapt to an ever-accelerating rate of technological change and to reflect on the implications of these changes. As members of a global community, we need to look beyond our borders to communicate and interact with individuals from societies and cultures different from our own. As a nation, we need to provide an educational foundation for our future stability and prosperity— drawing on all areas of knowledge.”

Or consider this item, from the study’s acknowledgements: the report “identifies three overarching goals: 1) to educate Americans in the knowledge, skills, and understanding they will need to thrive in a twenty-first-century democracy; 2) to foster a society that is innovative, competitive, and strong; and 3) to equip the nation for leadership in an interconnected world. These goals cannot be achieved by science alone.” Do those who oppose the study’s recommendations favor a society that is luddite, uncompetitive, and weak?

The report also champions such public policy goals as strengthening support for teachers, enhancing access to material available online, supporting study abroad programs, boosting funding for NEH, and promoting the learning of foreign languages. Of course, all of these proposals (each of which seems to me an excellent idea) take money, and the Brodhead commission doesn’t quite explain how or why more tax revenue will find its way into higher education.

And there’s one funding-related question that the Brodhead commission dare not touch. We live in a society that’s deeply polarized along ideological and partisan lines. And yet the humanities skews—wildly—in one direction, to such an extent that it seems almost certain that today the ideological median of humanities professors is further away from the ideological median of society at large than at any other point in American history. Is it possible—just possible—that this ideological chasm, a general sense among most politicians that today’s humanities departments aren’t exactly the most intellectually diverse entities around, has caused a reluctance to fund? The Brodhead commission doesn’t ask that question—perhaps because it doesn’t want to know the answer.

In at least three other respects, the commission is almost blissfully self-unaware in its commentary. First, the commission expresses grave concern about the state of affairs in high school history and social studies instruction. We need more high school civics classes, the report declares, and the quality of teacher preparation is dangerously low.  The report (p. 19) foresees “grave consequences for the nation” that “humanities teachers, particularly in k-12 history, are less well-trained than teachers in other subject areas.”

It’s not hard, however, to detect at least one importance reason for this problem. Public school curricula continue to be set by state boards of education—which are responsible to the public, and which generally mandate curricula that would be deemed somewhat “traditional.” Students in high school history classes are supposed to learn about, among other things, Presidents, and wars, and key court decisions, and major elections.

Yet Brodhead and the many other college presidents who were part of the commission have presided over universities that have emphasized “diversity” and the hiring of specialists in areas related to race, class, or gender over the study of more traditional aspects of the American past. I most recently discussed this issue in a multi-part series at Minding the Campus. As a result, most public school teachers can go through college and M.A. programs with little—or in the case of U.S. military or constitutional history, almost certainly no—exposure to specialists in the fields that they then have to teach to the nation’s public school students.

And so the report urges an expansion of “education in international affairs” (p. 12)—without mentioning the massive decline in the past generation in faculty positions devoted to U.S. diplomatic or military history, the result of hiring decisions that these very same presidents (or their predecessors) have ultimately approved.

The nation’s founders, the report intones (p. 15), understood that the country’s well-being depended on citizens who “understand their own history,” and it’s particularly important to study “jurisprudence.” Yet the report makes no mention that the field of U.S. constitutional history has been all but eliminated in the nation’s history departments, the result of hiring decisions that these very same presidents (or their predecessors) have ultimately approved.

Indeed, virtually the only high-profile president in recent years who was concerned about such matters was Harvard’s Larry Summers. And he was deposed via a faculty revolt.

Second, the commission’s report veers into territory that it would seem to want to avoid—in that it calls into question the ideological imbalances in the contemporary academy. For instance, on page 10, the report asserts that “humanists and social scientists are critical in providing cultural, historical, and ethical expertise and empirical analysis to efforts that address issues such as the provision of clean air and water, food, health, energy, and universal education.”

Health, environmental, and energy policies are among the most contentious in our current political climate. What incentive would GOP legislators or conservative donors—two groups ostensibly targeted by the report—have to boost humanities funding if the result is increased attention to policy proposals where 90 percent or more of today’s humanities professors are on the other side from the targeted funders? I find it hard to believe, for instance, that this line of argument would persuade the Kochs that it’s a good idea for them to start making more donations to college humanities programs.

Finally, the commission itself was blissfully self-unaware in allowing Brodhead to function as its public face. In its section analyzing the problems facing higher education, the report’s first footnote is none other than an item from Brodhead, entitled, “Rebuilding the Public’s Confidence in Higher Ed.” This would be the same Brodhead whose highest-profile off-campus appearance came in a widely-panned 60 Minutes appearance in which he tried, in vain, to defend his university’s rush to judgment in the lacrosse case. Or whose highest-profile off-campus reputation dealing with the humanities came in his presiding over a school that had dozens of humanities professors sign a public declaration affirming that something had “happened” to false accuser Crystal Mangum, and thanking protesters who had urged among other things the castration of the lacrosse captains.

The Brodhead commission report seeks to build off-campus support for the humanities—from legislators, from donors, and ultimately from the public. Yet Brodhead’s record in the lacrosse case is merely a click away for any of these target audiences. Could the commission not have found someone less compromised than Brodhead to serve as its public face?

The commission’s selection of the Duke president as its member most likely to persuade legislators or the public would be a little like trying to persuade a gay rights group by turning to a high-ranking figure in the Catholic Church; or seeking to solicit financial contributions from a mining organization by soliciting a report penned by a prominent Sierra Club lobbyist. After his performance in the lacrosse case, why should any public official accept Richard Brodhead’s advice about anything?

Supreme Court Update

For those expecting an analysis of Durham's reply to the cert petition, which originally was due today, the city has obtained an extension from the Supreme Court. The new deadline is August 23.

Updates: Mangum, Academic Freedom

First, Crystal Mangum’s long-delayed murder trial—the false accuser has gone through several attorneys, slowing down the process—is now scheduled, for mid-November. Mangum, who is supposedly financially destitute, posted bond several months ago, and is currently free awaiting the proceedings.

Here’s how the Herald-Sun described Mangum’s infamy: “Mangum became nationally known in 2006 after she accused some Duke lacrosse players of sexually assaulting her after they hired her as a stripper for their party. Those charges were later dropped.”

No mention of the charges being “false.” No mention that the state’s attorney general declared the players “innocent”—not merely that the charges were “dropped.” And a bizarre description of Reade Seligmann’s and Collin Finnerty’s role in the case, given that the quoted sentence—literally interpreted—suggests that “they” hired Mangum for “their” party, even though neither of them played any role in the organization of the party.

Such slanting in hard-news items has become increasingly common in the H-S since Bob Ashley’s return as editor. It’s almost as if Ashley wants to subtly shade post-case news coverage to make up for the discredited manner in which his newspaper covered the case itself.

Along those lines: the H-S applied its normal biases in covering Duke’s unsuccessful efforts to force me to turn over confidential, unpublished exchanges with sources for the book and the blog. The paper sympathetically portrayed Duke’s legal filings, triumphantly reported on Duke’s short-term victory before the magistrate judge in Maine, and mentioned my appeal. And then the paper suddenly lost interest—no analysis of major Maine newspapers and TV stations filing an amicus brief portraying one of the nation’s major research universities as hostile to the First Amendment; no coverage of the hearing before Judge Brock Hornby in which Duke’s high-priced attorneys found themselves immediately on the defensive, and in which they made extraordinary claims about the future standards to which Duke’s own professors should be held; no discussion of the collapse of Duke’s efforts and the ultimate vacating of the magistrate judge’s order. As far as readers of the H-S know, Duke now has access to my e-mail files.

The transcript of the January hearing is now publicly available, and I thought it might be worth highlighting two exchanges that the H-S did not deem newsworthy—since Duke’s attorneys, speaking (they said) for the university, articulated an approach to academic freedom that I’m not sure any other research university in the country holds.

The first exchange occurred less than a minute into Duke’s oral argument:

THE COURT: Well, I do have two questions. One is this, and this may be a rhetorical question, but Duke University obviously has a lot of researchers and academics of its own who write books, and whatever you’re seeking here may come back to affect Duke. So I take it this is the institutional posture of Duke University in terms of the academic freedom interests of its researchers and faculty members; is that right?

MR. SEGARS: Your Honor, I think Duke University would be happy with the rule that it’s asking this Court to impose on the facts of this case.

I expect that the next time a Duke faculty member receives a third-party subpoena demanding that he or she be deposed and turn over confidential, unpublished correspondence with sources, this exchange will be cited.

The second exchange came near the end of the proceedings, after Duke’s attorneys attempted to mischaracterize my arguments:

THE COURT: I understand the argument [presented by my attorney, Patrick Strawbridge] to be slightly different than that. I don’t think there’s any claim that the plaintiffs cannot waive their own rights or should not perhaps expect that they can be explored, but what does this do to future academic researchers, and future journalists as they decide to publish a book or decide to write something else? Do they know they’re thereby opening themselves to considerable expense and time involvement in responding to lawsuit discovery?

MR. SEGARS: That’s a good question, Your Honor. I think that the rule we’re seeking would tell those researchers academicians, journalists that, A, I need to be clear about the confidentiality I promised to my sources, and B, if I’m ever subpoenaed I need to make a record of that confidentiality with respect to the communications that I’m intending to withhold.

THE COURT: But it also says if I write a book I’d better expect to spend a lot of time dealing with lawyers in terms of producing all of the research work that I did and distract me from the next book I want to write because I’m responding to what lawyers want for an earlier lawsuit, right?

MR. SEGARS: That’s a fair question, Your Honor. On the facts of this case where the subpoenaing party has literally gone out and deposed 41 plaintiffs, we’ve subpoenaed the attorneys, we’ve tried to get what we could, and I hear what Mr. Strawbridge says, that I am unable to point to a particular document that Dr. Johnson has that I don’t.

To reiterate: Duke’s attorneys said they’re entirely comfortable with this standard being applied to Duke faculty in future cases. I wonder how many Duke professors are actually aware of the new academic freedom rules under which their institution operates.

W. Murphy, Hypocrite

During her myriad media appearances commenting on the Duke lacrosse case, adjunct law professor Wendy Murphy came up with virtually everything bad she could possibly say about the three falsely accused players. She wondered whether one of them had been abused as a child. She wildly claimed that false accuser Crystal Mangum had been bribed, that exculpatory photographs had been doctored, and that neighbors had claimed the lacrosse players were involved in other sexual offenses. She even managed to work in an oblique Hitler comparison.

(A reminder: These erroneous statements and bizarre comparisons did not trouble Poynter, the supposedly good-journalism organization which brought in Murphy to lecture to journalists.)

But in all of her media appearances, one area that the adjunct law professor did not explore was a claim that the case was receiving too much attention from journalists. There was no Murphy denunciation of Newsweek for placing the falsely accused players’ mugshots on its cover, under the equally false headline of “Sex, Lies, and Duke.” Nor did the adjunct law professor criticize Nancy Grace for the extraordinary amount of time the HLN host personally devoted to the case (except, of course, on the evening of the exoneration).

Imagine my surprise, then, to read a Murphy op-ed in this morning’s Boston Herald, in which she lambasted the media coverage of murder charges against former Patriots tight end Aaron Hernandez. “Like a lot of people who don’t follow sports,” Murphy confesses,  she hadn’t known much about Hernandez until a couple of weeks ago—just as she hadn’t heard much of other athletes charged with violent crimes, such as Kobe Bryant, Rae Carruth, and Michael Vick. Why does her ignorance about sports matter? Because “it’s hard for people like me to appreciate the wall-to-wall coverage of a story that seems no different than any other gang-banger murders of late.” Curiosity about athletes allegedly committing crimes, Murphy continues, “doesn’t make its answer news.”

Murphy’s conclusion? “If sports were better understood as simply entertainment, the prosecution of Hernandez would be correctly framed as a run-of-the-mill alleged gang murder in the news section — and sports writers could spill all the ink they want on how people feel about the guy in their section. With angles firmly separated, nobody would misapprehend the story as proof that some murders are more important than others, or that some people’s lives are more valuable than others. We’ve seen enough violence perpetrated by people of wealth, power and influence to know that crime happens in all communities and at all points along the economic spectrum. It’s time for the news media to start conducting itself in a manner that reflects this reality.”

Where was this Wendy Murphy during the lacrosse case, denouncing the media for spending far too much time covering claims against a group of college athletes? It appears as if there’s an exception to this new Murphy rule: crimes allegedly committed by athletes in which members of the media interview Murphy for her opinions deserve wall-to-wall coverage. But if Murphy isn’t seen as an expert, than excess coverage leaves the message that “that some people’s lives are more valuable than others.”

Your daily dose of hypocrisy (and media criticism), courtesy of Poynter’s favorite adjunct law professor.

Astonishing

The liberal arts are “endangered,” according to a new report. The New York Times describes the document’s high profile: “Requested by a bipartisan group of legislators and scheduled to be distributed to every member of Congress, it is intended as a rallying cry against the entrenched idea that the humanities and social sciences are luxuries that employment-minded students can ill afford.”

And who was the co-chairman of the commission that produced the report? None other than . . . Richard Brodhead.

In what other profession would a figure as utterly discredited by his actions—at least to anyone outside the profession—as Brodhead then be tasked with writing a major policy document justifying the existence of a key portion of that same profession?

Perhaps, it might be surmised, a reason why the liberal arts are “endangered” is that they embody a profession in which accountability seems like a dirty word.

The Cert Petition

Now that Supreme Court has at least forced Durham to respond, I thought it might be worthwhile to analyze the falsely accused players’ petition, written by Williams & Connolly attorney Kannon Shanmugam. A couple of general points:

(1) The petition doesn’t even bother to respond to JudgeGregory’s race-based opinion in the 4^th Circuit—perhaps presuming, correctly, that any Justice who would find even one word of Gregory’s rant persuasive would never vote to grant cert anyway.

(2) The petition frames the question for the Court in a narrow manner: “Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the conspiring prosecutor’s decision to use the evidence.” This framing accomplishes two purposes: first, to preemptively meet at least some of the concerns expressed by Judge Wilkinson in the 4^th Circuit; and second, to more clearly distinguish the Evans case from the McFadyen case, which might also still be appealed to the Supreme Court.

The petition opens by pointing to a 2009 case, Pottawamie County, which revolved around the question of whether a prosecutor had absolute immunity if he conspired with police to procure false evidence, and then used that evidence at trial. The case was ultimately settled before the Supreme Court decided it, but the cert petition notes that the Solicitor General and (at oral argument) five justices argued that the police in such a circumstance could be held civilly liable. On this point, of course, the 4^th Circuit disagreed; and since Pottawamie County was settled before resolution, these sentiments didn’t form a clear precedent.

The petition’s description of the lacrosse case facts pulls no punches. Noting that although Mangum “provided wildly inconsistent and patently implausible statements concerning the circumstances of the alleged rape to Durham police officers and to personnel at the Duke Medical Center,” Durham authorities elected to turn the case over to Sgt. Gottlieb, “an officer with a known history of malicious prosecution, false arrest, excessive use of force, fabrication of evidence, and filing of false police reports directed against students at Duke University.” (Keep in mind that news of Gottlieb’s past was initially broken not by defense attorneys but by the N&O and then in greater detail by the Chronicle.) Gottlieb and Himan, in turn, were instructed to take orders from Mike Nifong, who despite acknowledging that the lack of evidence left the trio “fucked” made dozens of inflammatory statements to the media. Those “false statements inflamed the Durham community” to such an extent that on “March 29, Durham police supervisors . . . ordered them to expedite the identifications and arrests of Duke lacrosse players.” Misconduct continued through the rigged photo array to the meeting with Dr. Meehan, and directly led to the indictments of the falsely accused players.

But the misconduct did not end when Nifong achieved his twin goals: indictments, coupled with his successful nomination.

In a clever and important point, the petition notes that Nifong, Gottlieb, and Himan continued their wayward behavior—whether overseeing the arrest of cab driver Moezeldin Elmostafa, or through Gottlieb’s production of an “after-the-fact ‘report’ of his purported activities in the investigation.” Even by the 4^th Circuit’s claim that indictments broke a chain of misconduct, this behavior occurred after indictments. As the petition notes, the 4^th Circuit opinion did not explain how these examples of post-indictment misconduct were shielded by “an independent intervening act—i.e., (p)rosecutor Nifong’s decision to seek the indictments,” between the arrests on false causes and the untoward pre-indictment behavior of Gottlieb and Himan. The 4^th Circuit nonetheless dismissed the federal civil rights claims against the duo, which in turn provided grounds for the dismissal of the suit against the city of Durham.

The petition invites the Court to determine that the 4^th Circuit erred on any of several different grounds. First,  several courts of appeals have taken much different approaches than did the prosecution-friendly 4^th Circuit panel on what sort of intervening conduct can shield police officers, and the city that employs them, from a federal civil rights suit. The 2^nd and 6^th Circuits, for instance, “have held that police officers may be liable for the ‘natural consequence’ or ‘reasonably foreseeable result’ of their investigative misconduct, despite a prosecutor’s subsequent action that contributes to the injury.” The 9^th Circuit wasn’t quite as broad, but did render an opinion that would seem to allow suits for clear cases of police misconduct leading to indictments. And while, the petition asserts, the 5^th, 7^th, and 11^th Circuits have adopted standards that an intervening indictment “breaks the causal chain absent evidence that the officers misled or pressured the prosecutor,” their specific guidelines would not have shielded Gottlieb and Himan.

The petition also explains that the breadth of the 4^th Circuit’s opinion “implicitly took sides in another Circuit conflict, on an issue that stands as a logical antecedent to the causation issue: . . . whether the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” The 1^st and 8^th Circuits have said it does; the 2^nd Circuit said it does not. Obviously the 4^th Circuit panel agreed with the 2^nd Circuit.

Finally, and in perhaps the document’s most interesting section, the petition forcefully takes on Judge Wilkinson’s absurd arguments that allowing the case to go forward would initiate a floor of lawsuits from other figures, or that somehow we should see Durham police employees as victimized figures in the process. The petition argues that Supreme Court holdings dating back nearly 80 years have established that “prosecutorial action undertaken as part of a conspiracy to fabricate evidence with investigating officers does not absolve the officers of liability for their improper investigative acts in furtherance of the conspiracy.”

And yet, “in reaching a contrary decision, the Fourth Circuit heavily relied on the concern that recognizing liability in the circumstances presented here would open the floodgates to similar claims that officers conspired with prosecutors ‘render(ing) the officers’ qualified immunity from suit effectively lost and mak(ing) discovery the rule, rather than the exception.”

This fear, the petition correctly notes, is absurd. First of all, “one would hope that there are few, if any, cases in the pipeline even remotely similar to this one.” Second, judges already have more than sufficient tools to toss out weak or implausible cases under relevant Supreme Court precedent. Durham, of course, tried and failed at that task—an indication of just how strong the plaintiffs’ case is on a factual basis. Finally, and contrary to Judge Wilkinson’s concerns, the petition observes that the Supreme Court “has consistently declined the invitation to insulate officials entirely from liability in the face of similar ‘floodgates’ arguments.”

As I’ve noted previously, from a factual standpoint, the case made in the petition is extremely strong. Indeed, in light of the 4^th Circuit’s ruling, the standard in Maryland, North and South Carolina, and Virginia and West Virginia is that (to quote Judge Beaty) “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.”

Will four justices be willing to evaluate the case individually, on its own merits—in a manner that Judge Wilkinson in particular did not?