Tuesday, October 31, 2006

Symbolic Justice

Over the last seven months, Durham’s legal system has reverted to a mirror image of what existed in the South 50 years ago, when defendants were halfway to conviction based on the color of their skin. The closest historical parallel to Mike Nifong’s behavior comes from the 1950s and early 1960s, when district attorneys in the Deep South routinely filed specious charges against civil rights activists.

Facts had no relevance; everyone knew the accused were innocent. These cases aided the careers of the prosecutors, who, like Nifong, blatantly violated procedures just to get to court. In the process, “community” members could express their hostility to civil rights by misusing the criminal justice system for political purposes.

In a chilling interview with the AP, Nifong explained why he considered it acceptable in 2006 to use the criminal justice system for political purposes. “You can make the case go away pretty easily,” he taunted, “you can do it with the stroke of a pen.” But such an action, said Durham County’s minister of justice, “does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” Indeed, Nifong suggested, “the future of Durham’s in the balance.”

Of course, Nifong himself, in a search for the African-American votes he needed to secure the Democratic nomination against a despised foe, deliberately intensified those divisions. Ignoring the state bar’s ethics requirement to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” Nifong compared the case to a cross-burning and claimed, in his first set of public comments on the case, “The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”

Speaking of “reprehensibleness,” in interviews that occurred as late as March 31, Nifong denied knowing the identity of first 911 caller on the evening of the lacrosse party. But in a March 22 statement to police, Kim Roberts said that she made the original call, after a post-departure verbal squabble in which she and a couple of the players traded racially degrading insults. It’s hard to escape the conclusion that Nifong hoped to inflame sentiments in the black community by creating the impression that team members had spent 45 minutes or so hurling racial epithets at African-American passers-by, to the extent of frightening one of them into making a 911 call.

But leave aside what the blog Liestoppers termed the case’s “hoax within a hoax,” Nifong’s stoking the “underlying divisions” he now promises to ameliorate. Leave aside, also, what appears to be Nifong’s real motive in lurching forward with the case—his knowledge that a dismissal would prove his critics’ argument that he employed massive procedural violations to construct a case out of whole cloth, thereby inviting the state bar’s ethics committee to revoke his license when it adjudicates the ethics complaints against him.

Consider, instead, the ramifications of the DA’s statement that the case is “the first step to addressing those [underlying] divisions”—to such an extent that “the future of Durham’s in the balance.” Nifong seems to have confused his previous profession—social worker—with his current responsibility as chief prosecutor.

A trial is designed to determine whether or not the three people charged committed a crime. It’s not designed to address Durham’s “underlying divisions”—a task, based on what we’ve seen in this case, that the city’s political leadership has utterly failed to perform in the last generation.

Finally, the statement previews the covert appeal to jury nullification that Nifong will employ in any trial. This is a case in which the prosecutor not only has no facts, but where the defense can prove first, that no crime occurred; and second, the three players charged are, for different reasons, demonstrably innocent. (Seligmann because of his electronic alibi evidence; Evans because he can prove he didn’t, as the accuser claimed, have a mustache; Finnerty because he was chosen through the same corrupted photo ID lineup as the other two.)

Facing such a situation, Nifong has no choice but to fall back upon the tactic that has worked well for him to date—appealing to prejudice based on class and race. The investigation, he suggested at NCCU, proved his refusal “to allow Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.” Getting the case to trial, he now asserts, is the necessary “first step to addressing those [underlying] divisions” in the city. And convicting innocent people, he doubtless will tell the jury, will bring closure and allow Durham to move into its bright future, free of racial tension and class envy.

Surely, it would seem, such an argument either would be disallowed by the judge or fail to sway a jury. But who ever could have predicted that Nifong would have gotten away with justifying first the investigation and then the need for a trial on grounds of resolving the abuses of the past?


Nifong’s interview contained three other disturbing, if less breathtaking, statements.

1.) Trying to blunt the avalanche of criticism that greeted his revelation of never having spoken to the accuser about the facts of the case, he reasoned,

Why do I have to be the one that’s interviewed somebody? The police, other people can deal with interviews and they can report to me what they do and I can direct them from that. It’s not necessary for me to ask you about a specific event from your life for me to get a sense of whether or not you’re a reliable individual.

In an interview with ABC News, Linda Fairstein, who headed the Manhattan District Attorney's Sex Crimes Unit for more than two decades, described Nifong’s strategy as “just against the progress that’s been made in this very specialized field,” an approach that “belies anything a prosecutor would do before making charges.”

Even more to the point, in a breach of standard protocol, Nifong assigned himself to supervising the police investigation eight days into the case, with officers ordered “to continue with our investigation, but to go through Mr. Nifong for any directions as to how to conduct matters in this case.”

Perhaps Nifong enablers such as Herald-Sun editor Bob Ashley could locate one other rape case filed in the last year where Heraldthe de facto lead investigator had failed to speak with the accuser about events of the alleged attack.

In short, in his AP interview, Nifong not only defended the highly peculiar—a prosecutor failing to hear from an accuser who told myriad, mutually contradictory, stories her own version of events. He defended the indefensible—the person supervising the police investigation not hearing from the accuser under such circumstances.

2.) Nifong continued to boast of his closed-mindedness: “I think,” he told the AP, “that really nothing about my view of the case and my view of how the case ultimately needs to be handled has been affected by any of the things that have occurred.”

Add the video of the accuser pole-dancing in a limber fashion as her defenders were banging pots and Kim Roberts’ revelations to ABC to the myriad of post-March 27 facts outlined yesterday. Then ask yourself how anyone with even a remote conception of fairness could utter the sort of statement Nifong made to the AP.

3.) After having ridden the case to a win in the primary, Nifong now dismisses its political significance. “I think the people who are trying to make this about the lacrosse case,” he mused, “are saying, ‘Well, the lacrosse case gives us a picture of how this office is going to handle all such cases in the future.’ To which the first response is: What are the chances we're going to have another case that's anything like this?”

I’m unaware of any critic of Nifong who has said, “The lacrosse case gives us a picture of how this office is going to handle all such [emphasis added] cases in the future.” Many, on the other hand, have pointed out that Nifong’s actions in this case predicts the unethical way in which his office will consider all cases in the future. As Duke Law’s James Coleman explained to 60 Minutes, “You know, what are you to conclude about a prosecutor who says to you, ‘I’ll do whatever it takes to get this set of defendants?’ What does it say about what he’s willing to do to get poor black defendants?”

Based on what we saw from Nifong’s AP appeal to symbolic justice, it seems he’s willing to do just about anything.

[Update, 8.13am: Lacrosse player Devon Sherwood spoke out this morning about the stereotyping of his teammates, and revealed the horrific treatment he's received over the last seven months. It's clear that, black or white, lacrosse players have been targets of the Durham establishment.

And Liestoppers also examines Nifong's chilling statement to the AP: “Echoing the sentiments of the potbangers who attached their agendas to the Hoax, Mr. Nifong reveals his own.” Liestoppers continues:

If DA Nifong’s words are to be believed, he clearly misunderstands what his responsibilities within the criminal justice system are. If his words are sincere, he clearly has put three young men in jeopardy of decades in jail while soiling their good names, damaging their lives and causing their families to endure outrageous expense, not in the interests of criminal justice but rather in the interests of serving his own personal agenda of addressing “underlying issues.” In doing so, he has made these three young men pedestals upon which to step while giving himself the opportunity to paint himself as a man seeking to “address underlying issues.”

As misguided, unjust, and unjustified as this abuse of office would appear to be, it is difficult to imagine the Mr. Nifong truly feels his responsibility as a District Attorney is to “address underlying issues” at the expense of three innocent men. It appears far more likely that reading through his message results in finding yet another indication that Mr. Nifong’s intention is to continue to advantage himself of this opportunity, not in the interests of the “balance of Durham,” but rather for the balance of the election campaign.

Monday, October 30, 2006

Sheehan on the Election

Ruth Sheehan has another great column in today's N&O, urging Durham voters to rise to the challenge and remove Nifong from office through the only viable option available: a vote for Lewis Cheek. Her conclusion:

Much as they might wish it were otherwise, this DA's race is a referendum on the Duke lacrosse case.

If Nifong wins, how can he do anything but take this case to trial?

That is what's so scary.

At this paper, and in this column, my colleagues and I have written plenty about prosecutors with tunnel vision, who press forward with flawed cases at any cost.

Here's a chance for voters to say, "Not here. Not in Durham." Durham voters can set this case before new eyes.

If only they would.

I couldn't agree more.

A "Technicality"

When asked about Mike Nifong obtaining indictments by ordering the police to violate their own procedures in conducting a lineup, CBS legal analyst Mickey Sherman recently stated, “Given the polarization of the community down there and the racial issue, [the case is] not going to get thrown out on this type of technicality.”

Susan Estrich has a healthier respect for procedures: “There are reasons,” she wrote about the case, “you follow procedures. In general, they are there to spare outrage.”

This case is particularly unusual in that a direct relationship exists between Nifong’s procedural violations and flawed outcomes: in effect, the case was constructed upon tissue of procedural irregularities. Had Nifong followed even one of the North Carolina State Bar’s Rules of Professional Conduct outlined below, he could not have brought charges.

1.) Rule 3.3a(1): A lawyer must not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Nifong started his involvement in the case—on March 23-4, when his office filed a motion demanding that the 46 white players on the team submit DNA and photo samples—by violating this rule. It is now clear that this motion was fraudulent in three ways:

  • Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; he had no evidence for either claim, and, indeed, no evidence for either claim exists now.
  • Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup, conducted in two parts on March 16 and March 21.
  • Nifong, it turned out, falsely promised the court that negative DNA tests would “immediately rule out any innocent persons.”

The effect of this procedural violation: without the results of the court order, Nifong would have no case.

Flawed procedures beget flawed results.

2.) Rule 3.8(f): Prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Even the district attorney’s defenders in the state NAACP have conceded that he violated this rule. Some of Nifong’s more outrageous statements:

  • “One would wonder why one needs an attorney if one was not charged and had not done anything wrong”;
  • Deeming all the players “hooligans”;
  • Claiming--“to my knowledge”--that he did not know Kim Roberts had made both 911 calls, thereby creating a false impression of a racist atmosphere throughout the party.

The effect of this procedural violation: had he not made these remarks, Nifong might have had the political freedom to back down following the negative DNA tests—though it’s worth remembering that he had almost $30,000 of his own money riding on the DNA results.

Flawed procedures beget flawed results.

3.) Rule 3.8, comment 1: Prosecutors have “specific obligations to see that the defendant is accorded procedural justice.”

It’s impossible to reconcile this rule with Nifong explicitly ordering police to violate their own procedures for the April 4 lineup:

  • Nifong said lineup would be confined only to suspects, the lacrosse players, despite Durham procedures requiring five fillers per suspect.
  • Nifong allowed Gottlieb to run the array, despite Durham procedures requiring a neutral officer rather than the lead investigator to run the array.
  • Despite Durham procedures requiring telling the accuser that the suspects might or might not be in the array, the accuser would be told that the array was confined to suspects.

The results of this procedural monstrosity, quite apart from the selection of the three accused players:

  • The accuser positively identifying one person who wasn’t even in Durham that night as attending the party.
  • The accuser positively identifying another person who could prove he was not at the party.
  • The accuser incorrectly identifying the person who made the broomstick comment.
  • The accuser not recognizing three people she was 100% certain of having seen at the party on March 16.
  • The accuser claiming to recognize nearly a dozen players that she said she didn’t see at the party during the March 16 session.

The effect of this procedural violation: without it, Nifong had no way of identifying the three people he ultimately charged.

Corrupted procedures beget corrupted results.

4.) Rule 3.8, comment 2: “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

Nifong violated this rule at least twice:

  • when, in his capacity as case lead investigator, he refused to ask or have police ask Kim Roberts about discrepancies between her statement and that of the accuser*;
  • when, in his capacity as district attorney, he refused to meet with Kirk Osborn to consider evidence that Reade Seligmann could not have committed the crime with which Nifong charged him.

The effect of this procedural violation:

  • in the first instance, central elements of accuser’s story would have been contradicted, requiring Nifong to present these contradictions to the grand jury;
  • in the second instance, Nifong would have had to dismiss charges against Seligmann, an outcome that would have set in motion the dismissal of all charges, because Collin Finnerty and Dave Evans were charged according to the same procedurally flawed lineup.

Flawed procedures beget flawed results.

5.) Rule 3.8, comment 1: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”

It is very difficult to reconcile this rule with Nifong’s statement to Newsweek that no facts that have emerged since he first expressed his opinion (March 27) have affected his opinion about the case.

Compare the evidence he had before March 27 with what emerged after that date—the evidence Nifong deemed irrelevant.


  • various police reports of early interviews with the accuser, where she offered at least five different versions of events, most of which were mutually contradictory;
  • the accuser’s failure to identify her attackers when shown photos of the lacrosse players, coupled with descriptions of the attackers that bore no resemblance to at least two of the three people she ultimately picked;
  • Roberts’ statement, which contradicted the accuser’s in almost every way, and a telephone interview with Roberts in which she labeled the accuser’s allegations a “crock”;
  • the statement of the neighbor, who described a loud and alcohol-filled party but also placed the comings and goings of the dancers in such a way to limit the window in which a possible crime could have occurred;
  • the statements of the three lacrosse captains, along with their (spurned) offer to submit to lie detector tests by the police.


  • time-stamped photographs of accuser at the party, which showed what time her dance concluded and when she left the premises;
  • the statement of the person generally described as accuser’s “driver,” which discussed accuser’s various pre-party “appointments” and outlined her erratic behavior on the day of the party;
  • two rounds of DNA tests, which contained no matches to two of the accused players and a match to the third on a towel in his own house; and no matches between any lacrosse player and the accuser;
  • the accuser’s cellphone records, which included a 12.26 call to another escort service and an 11.36-11.39 call before she arrived at the party;
  • two medical reports, one from Duke, which “made no mention of bruises, tears or abrasion to either the vagina or the anus, [and] . . . noted a scratched heel, and no other signs of physical assault”; the other, the next day, from UNC: “[Accuser] states she was drunk and had a lot of alcohol that night”
  • the accuser’s own statement(!), dated April 6;
  • the Seligmann alibi, which included cellphone records, two affidavits, and an ATM video showing Seligmann was either on the phone, in a cab, or at an ATM machine a mile away during the only time block in which a rape could have occurred.
  • the procedurally flawed April 4 lineup.

Can anyone seriously maintain that the pre-March 27 evidence is more significant than its post-March 27 counterpart—much less that the pre-March 27 evidence so conclusively proved that a rape occurred that the post-March 27 material can be disregarded?

Flawed procedures beget flawed results.


We’re now at a stage, to paraphrase Samuel Johnson, where the call of “wait-for-the-trial” is the last refuge of scoundrels, though advocates of this position are advancing different arguments:

  • Herald-Sun editor Bob Ashley demands a trial so as to bring closure to the community, while Duke professor and Group of 88 member Grant Farred yesterday demanded a trial as a step against racism. Neither seem to have noticed that using the criminal justice system for political trials went out of fashion when the Berlin Wall came tumbling down.
  • The NAACP and Duke professor Orin Starn have argued that the accuser has a right to a fair trial. This novel assertion overlooks 220 years of American constitutional theory, which holds that the defendant, not the accuser, has a right to a fair trial.

This claim that the “system” requires a jury to decide a procedurally tainted case represents an upside-down view of the “system,” to which Duke Law professor James Coleman has offered the best response: “If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.”

Flawed procedures beget flawed results. Corrupted procedures beget corrupted results. And anyone who believes that the flawed and corrupted procedures that have marred this case will suddenly become pristine once a trial starts is either willfully naïve or outrageously duplicitous.

[This post is a slightly lengthier version of my presentation at last week’s ACLU@DUKE Town Hall forum. My thanks again to ACLU@DUKE president Daniel Bowes for arranging and moderating the panel.]

[*--Update, 8.52am: This morning's Good Morning America featured a lengthy interview with Roberts in which she asserted that the accuser told her, after the attack, "Go ahead, put marks on me." When asked why his client hadn't shared that information with authorities, Roberts' attorney responded they didn't ask: "She's never met with the [district attorney] and has never been called back for a follow-up interview." Also see the comments section for a thoughtful critique of my comments on Rule 3.3(a)1, which I agree is the weakest portion of the post, and my response.]

Sunday, October 29, 2006

Sunday Roundup

Joseph Neff’s latest exposé in the N&O deals yet another devastating blow to Mike Nifong’s crumbling case. As the lead paragraph states, the accuser “performed an athletic pole dance at a Hillsborough strip club at the same time that [she] was visiting hospitals complaining of intense pain from being assaulted.”

It’s a fitting commentary on the media coverage of this case that, nearly two weeks after 60 Minutes revealed the existence of this tape, the N&O broke the story about the tape’s origin, described the accuser’s “limber” performance in detail, and provided the necessary context to understand its significance. We have seen little sign of reporting from any other newspaper during recent months.

Testifying to the tape’s damaging nature for the prosecution, Nifong investigator Linwood Wilson resorted to a seemingly desperate asserting of casting doubt as to whether the dancer in the film was the accuser. The former security manager of the strip club, H.P. Thomas, dismissed that claim: “She was regular. She danced like she always danced, good old Precious.”


Apart from offering more evidence that a rape didn’t occur (has there ever been a high-profile case in which the accused could offer more proof of their demonstrable innocence?), Neff’s article has broader ramifications:

1.) Duff Wilson’s reporting was far, far more flawed than even his critics (including me) had contended.

In his widely panned New York Times piece, Wilson relied heavily on the medical reports from UNC Hospital, which he contended proved that “the [accuser’s] condition appeared worse.” His article was the first discussion of the UNC medical report; it could be assumed that, whatever the other flaws with his article, at least he accurately represented the report’s conclusions.

Neff’s article makes clear that Wilson wildly misrepresented the medical information from UNC—which, far from supporting the prosecution’s version of events, appears to bolster the defense. Wilson’s article, for instance, never mentioned that on March 15, one physician wrote, “Due to the patient's long psychological history, she is at very high risk of narcotic abuse, and at clinic, we have recommended not to prescribe the patient any narcotics.” A nurse wrote, “No apparent distress, appears to be in pain.” The accuser apparently got what she wanted: she was prescribed the muscle relaxant Flexeril and 15 doses of Percocet.

Though she continued to complain of identical pain on subsequent visits to UNC, Neff writes that “the doctor noted that she was in no obvious distress and did not renew the prescription for narcotics. And on April 3, a doctor noted, “The patient is a well-appearing African-American female in no apparent distress.”

2.) Former lead investigator's Gottlieb report is far, far more flawed than even his critics (including me) had contended.

Neff’s article contains an almost hilariously wooden excerpt of the sergeant’s “straight-from-memory” report:

The victim had a very slow gate [sic] that was obviously painful while she was walking. Her facial expressions conveyed her pain as she ambulated. ... The victim had to take time to position herself carefully on the sofa so that her exterior portion of either hip was making contact with the cushion. Anytime her bottom touched the sofa cushion while repositioning during our visit, she groaned and had a facial expression consistent with pain.

At the time, defense attorney Joseph Cheshire said the sergeant’s report was “transparently written to try to make up for holes in the prosecution’s case,” a move that “smacks of almost desperation.”

But the Neff article shows that just over a week after the sergeant termed the accuser in dire pain “as she ambulated,” she was performing in a “limber” fashion at the strip club. And the 60 Minutes outtake confirms that the manager said that the accuser made a similar performance just a day after her groaning experience with Gottlieb.

In short, there is every reason to believe that Gottlieb was simply making up his March 16 description of the accuser, which no other officer mentioned, and which Kathleen Eckelt already has described as medically implausible.


One of the single best general narratives of the case recently appeared in, of all, places, Australia’s leading newspaper, the Sydney Morning Herald. “Even before three of the players were charged with rape,” correspondent Mark Coultan noted, “university academics, the locals, and especially the media, framed it as a morality play about race and class. But the case is crumbling and the play is not following its expected script.”

And what was that script? “All but one of the lacrosse team were wealthy white boys. After the rape allegations posters of the players went up around the university with the word ‘Wanted’. One professor accused the team of hiding behind ‘silent whiteness’.”

Coultan concludes:

Now the rape charges seem in danger of falling over for lack of evidence. With no DNA evidence, contradictory statements from the woman, a flawed identification procedure and at least one of the players appearing to have a convincing alibi, the pressure is now on the district attorney, Mike Nifong, who won an election on the back of charging the men.

The media, having rushed to judgement, have now exonerated the players and excoriated Mr Nifong. The woman, earlier called the “victim” and an “exotic dancer,” is now called the “accuser” and a “stripper.”

Perhaps the New York Times might want to serialize the Morning Herald rather than wasting the expense of having Duff Wilson do any more reporting on the case.


Joan Foster has been a breath of fresh air throughout this controversy. Yesterday, the Liestoppers regular posted her wittiest piece yet—a poem nominating Nifong as a modern-day Inspector Jacques Clouseau.

A Liestoppers reader hypothesized Inspector Nifong’s closing line during his April 11 non-discussion of the case with the accuser: “Until we meet again and the case is sol-ved.”


Durham’s latest Wonderland moment came Friday afternoon, when Steve Monks held a press conference to claim that he, a candidate polling at 2% in the most recent N&O survey, is the most electable challenger to Nifong.

Monks also cited a dubious poll by “John L. Barker Strategies,” a firm whose website I couldn’t locate. Barker told an associate of mine that on October 17 through October 19, his firm polled 1000 people who had voted in each of the last four elections in Durham County. He didn’t supply the demographic, racial, or partisan breakdown of the poll. (I spoke to Monks advisor Cliff Brandt on the 22nd; he told me the campaign wasn’t expecting any polling data.) Barker reported that “John L. Barker Strategies” doesn’t normally do politically polling, and claimed that “powerful people,” not the Monks campaign, had asked his organization to do the poll. The only name he dropped was Elizabeth Dole.

I’d like to believe the “Barker Strategies” poll is accurate, since it showed Nifong at under 40%. But given the reliability of the N&O poll—which came very close to a dead-on prediction of the primary—I see little reason to doubt the N&O’s numbers.

At this stage, only one rational reason remains for Monks’ continuing presence in the race: he has worked out some sort of covert deal with Nifong. In exchange for diluting the anti-Nifong vote, he will receive post-election favors from the D.A.

Yet everyone to whom I have spoken about this possibility denies that Monks ever would enter into such a deal. (From what we’ve seen of Nifong, of course, there’s little he wouldn’t do to be elected.) And so, much like Ralph Nader in 2000, it appears that no rational reason exists for Monks remaining as a candidate.

At this point, the Recall Nifong-Vote Cheek forces can do little but move forward with their campaign, concede to Monks his 4% or 5% as a write-in, and hope that they can edge Nifong nonetheless.


Readers in Charlotte: I will be appearing on NewsTalk 1110, WBT, today at noon, to discuss the case.


Friday’s Chronicle featured an editorial about the Big Bad Blogs, which mirrored in tone and content the sort of gloom-and-doom portrayals of blogs often seen in national newspapers in the late 1990s. The blogs covering the case, readers were told, have failed to examine the “crucial complexities of the sentiments on campus”; have often violated “the very ethical standards of journalism bloggers castigate major media for overlooking”; and feature “assertions [that] are made from afar with little true reporting.”

All serious charges. Unfortunately, the editorial neglects to give any examples to back up its claims; and its “one-size-fits-all” denunciation seems to miss, to borrow a phrase, the “crucial complexities” needed for sophisticated media criticism.


Over the past several months, Duke’s “blue wall of silence” has gradually come crashing down. First, women’s lacrosse coach Kerstin Kimel became the first Duke employee to publicly defend the lacrosse players’ character. Then Duke Law professor James Coleman became the first Duke professor to condemn Nifong’s myriad procedural abuses. Then Steven Baldwin became the first arts and sciences professor to publicly break from the emotionally tyranny of the Group of 88. The last brick to fall: a member of the Group of 88 itself retracting his or her signature, or at least criticizing the course of the case.

As Philosophy professor and Group of 88 member Alex Rosenberg made clear in Friday’s New York Sun, he will not provide the final step in tearing down the wall. Rosenberg distinguished himself over the summer by proudly affirming he had joined the Group of 88 despite recognizing that Nifong was exploiting the case for political purposes; he added that people who knew Reade Seligmann should keep their opinions to themselves, thereby allowing Nifong’s demonstrably false portrayal of Seligmann’s character to remain unchallenged.

For good measure, he claimed that I sent him an email accusing him of prejudging the case (my email is here: judge for yourself). At the time, Rosenberg informed me, “Blogs like yours do little but preach to the converted, and when the converted are largely the selfish rich for whom conservatism is but a rationalization for the maintenance of their unearned advantages, it’s really a waste of your time.” To Sun reporter Eliana Johnson, however, he denied ever expressing any such sentiments. I make a habit of saving all my e-mails to avoid such creative “reinterpretations” of the past.

In the Sun, Rosenberg explained his rationale for signing the “we’re listening” ad. He decided to join Nifong’s crusade because of his outrage about “affluent kids violating the law to get exploited women to take their clothes off when they could get as much hookup as they wanted from rich and attractive Duke coeds.” Give Rosenberg credit: more than six months after the fact, he has offered a unique, if crude, rationale for the Group of 88’s statement. He might have been better served, however, by echoing the response of William Chafe. The History professor dismissed blogs that have criticized the Group of 88’s statement as “baloney” he wouldn’t “dignify” with a comment.

No word yet on whether the responses of Rosenberg and Chafe capture the kind of “crucial complexities” that the Duke Chronicle fears the blogs have missed.

Saturday, October 28, 2006

Yesterday's Hearing

Some more considered reflections on yesterday’s hearing:

1.) The Psychologist Isn’t In.

Nifong has played many roles in this case: lead investigator, police department spokesperson, prosecutor, political demagogue. But perhaps the task for which he possesses the least qualifications is court-appointed medical expert.

Dr. Nifong made his first appearance at the September hearing, when—posing as an armchair psychologist—he justified his decision to change from the 30-minute attack publicly described by both the accuser and police affidavits. The attack, said he, actually took only five minutes—10 at most—because “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.” The real reason for the change, of course: Reade Seligmann has unimpeachable evidence that no possibility exists of his committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

Yesterday, Nifong explained that he refrained, before seeking indictments, from hearing the accuser tell her own tale because of her allegedly “traumatized” state. When defense attorneys pressed for a description of what made him deem the accuser excessively traumatized, Dr. Nifong made his re-appearance.

His claim? The accuser was sullen (she spoke barely 15 words in the meeting, according to Nifong); struggled to establish eye contact; and seemed “on the verge of tears.” The former two items seem more characteristic of someone concealing the truth than a person experiencing excessive trauma. The third, meanwhile, seems dubious in light of this bombshell video interview released last night by 60 Minutes, in which the former manager of the accuser’s strip club asserts that she performed normally (both physically and emotionally) in all respects during the time Nifong is now terming her too traumatized to speak.

2.) Lead Investigator Nifong

An item that deserves far more attention than it’s received: Brad Bannon’s statement that according to police documents, Capt. Lamb told officers on March 24—a scarce eight days into the investigation—“to continue with our investigation, but to go through Mr. Nifong for any directions as to how to conduct matters in this case.”

These two video interviews from WRAL give a sense of the astonishment among former prosecutors regarding Nifong’s claim not to have spoken with the accuser about the facts of the case. But Nifong’s admission describes a situation well beyond a district attorney not having interviewed the accuser. In light of Bannon’s revelation, we know now that this is a case in which the city of Durham sought charges against three people without the person supervising the police investigation (in this case one and the same with the DA) even interviewing the accuser. This, truly, is astonishing.

3.) Too Cute by Half

Nifong is the master of the deceptive insinuations. A good example came in his interview with Newsweek, when he left the impression, falsely, that evidence existed of a date rape drug.

But yesterday his gambit backfired, and badly. Nifong appeared to have a two-track strategy toward avoiding disclosing the contents of his April 11 discussion with the accuser. First, he suggested that even if he had gone over the case with her, the defense wasn’t entitled to the discussions—since prosecutors’ notes of pretrial meetings with the accuser inherently involve strategy issues; or because prosecutors can’t function as stenographers and be expected to have substantially verbatim recording.

Bannon, however, quickly called him on this point, asking if he was now claiming that he didn’t have to turn over notes of a conversation that did occur with the accuser. Responding to a direct question from Bannon, Nifong backtracked and asserted that no such conversation occurred on April 11.

That response revealed Nifong’s second track: his hope to avoid asserting that he never spoke with the accuser about the case by hinting—without ever coming out and saying so—that he might have talked with her on another occasion.

But Bannon caught him here as well, saying that the defense wasn’t “wedded” to the April 11 date, and wanted to know once and for all whether Nifong had ever spoken with the accuser about the facts of the case.

Thus the district attorney made his devastating admission.

4.) The Nifong Atmosphere

In his previous court appearance, Nifong accepted the fashion advice of his former foe turned ally, Mark Simeon. Simeon, who endorsed Nifong’s election the day after the DA started his ethically dubious public denunciations of the players, urged Nifong to wear black suits, light shirts and power ties, advice that Nifong followed in the last hearing. (Accoridng to Newsweek, Simeon told the DA that women like power.) Yesterday, however, Nifong appeared in a bland gray suit, easily overshadowed by the wardrobe of his citizens’ committee co-chair and resident homophobe, Victoria Peterson.

The DA entered the court pushing a cart with discovery documents, looking almost giddy. Nifong largely eschewed his trademark smirks or eye-rolls (I saw only one occasion when he did so). Instead, he spent most of his time wringing his hands; when he’s nervous, he has a distracting habit of rapidly blinking his eyes. His behavior doesn’t exactly inspire confidence.

5.) The Medical File

The judge promised an in-camera review of the accuser’s non-case medical file, which he estimated totals between 6 and 10 inches in bulk. The mere size of the file can’t be good news for Nifong.

6.) Gottlieb

Nifong gave no reason for Himan replacing Gottlieb (who briefly went on medical leave, but now is back at work) as lead investigator for the case. Nifong made clear that Himan’s elevation wasn’t caused by Gottlieb’s medical problems. It doesn’t take a genius to notice the coincidence between the timing of Gottlieb’s removal and revelations of his record of excessively arresting Duke students for minor offenses.

The move probably is a tactical error: Gottlieb is involved in the case one way or the other, and removing him now makes it seem that even Nifong gives credence to the attacks against the sergeant.

7.) The Judge

Several people asked about my impression of Judge Osmond Smith, but it was hard to make a clear determination. As Brad Bannon remarked, Nifong’s assertion that he’s never spoken to the accuser about the case—except to ask if she’s used ecstasy—stretched credulity. In theory, the judge could have called him on this point. In practice, the system assumes a minimum of good faith on the part of all sides; when one side, in this case Nifong, exhibits none, there aren’t easy ways to make the system work.

I was more surprised that the judge didn’t rebuke Nifong for his assertion of having received no reciprocal discovery from the defense. Seligmann’s attorneys quickly disabused Nifong of that notion, but the judge might have interjected before they had to do so.

Friday, October 27, 2006

Reciprocal Discovery

This case has exposed a wide streak of self-pity in the conduct of Mike Nifong. That habit was on display today as well: attempting to rebuff defense objections that he had been slow in turning over evidence that Open Discovery required him to produce, the D.A. complained that on the question of reciprocal discovery, it's been more than five months and he has never heard anything back from the defense.*

That claim, of course, was demonstrably untrue: he received a notice of alibi defense, coupled with a description of the exculpatory evidence, from Reade Seligmann's attorneys almost immediately after he obtained an indictment against Seligmann. After being reminded of this fact in court today, Nifong admitted that he had, in fact, received this information. To my knowledge, he still hasn't amended his previous statement that he has never read the motion containing this evidence.

Quite beyond this point, Nifong's interpretation of North Carolina's reciprocal discovery statute is--to put it mildly--creative. Under Open Discovery, the DA must turn over to the defense all evidence in the state's file as the state obtains that information. The criminal procedure statute, on the other hand, makes clear that the defense has no such obligation. According to §15A‑905, defense must [all emphasis added]:

(1) Give notice to the State of the intent to offer at trial a defense of alibi . . . Notice of defense must be given within 20 working days after the date the case is set for trial pursuant to G.S. 7A‑49.4, or such other later time as set by the court.

a. As to the defense of alibi, the court may order, upon motion by the State, the disclosure of the identity of alibi witnesses no later than two weeks before trial ...

(2) Give notice to the State of any expert witnesses that the defendant reasonably expects to call as a witness at trial . . . The defendant shall give the notice and furnish the materials required by this subdivision within a reasonable time prior to trial, as specified by the court.

(3) Give the State, at the beginning of jury selection, a written list of the names of all other witnesses whom the defendant reasonably expects to call during the trial.

In short, Nifong's comments this morning suggest that he is unaware of the differences between Open Discovery and defense reciprocal discovery under the criminal procedure statute. Or--more likely--he deliberately misrepresented the distinction in the hopes of scoring points with the press and distracting attention from his delays in turning over evidence as he is legally required.

*--The original post inaccurately stated that Nifong had filed a request for this information. The dangers of blogging on the fly . . .

Nifong's Creative Ethics

Perhaps the single most bizarre item from today’s court hearing came when Nifong attempted to rationalize his refusal to consider exculpatory evidence from the defense, despite the requirement under Rule 3.8, comment 2, of the bar’s ethics code. He complained that his refusal had been “widely” (and, apparently, erroneously) reported.

The justification for his actions, claimed he: the offers formed part of a defense plot to force his removal from the case by making him a witness. For this reason, “any prosecutor with any sense" wouldn’t talk to suspects and take statements from them.

Joe Cheshire got up to correct the record. He reported that he had asked Nifong to meet with Dave Evans’ lawyers—not to interview or take a statement from Evans—so that the attorneys could, as they were entitled to do under 3.8, comment 2, to get exculpatory evidence. “Other than a very rude response,” Cheshire noted, Nifong never responded to his offer.

In one of the hearing’s better lines, Kirk Osborn termed it “rather stunning” to have Nifong “piously” stand up and defend his refusal to meet when Osborn offered to present him exculpatory evidence. As he noted, Nifong’s assertions in court today meant that the DA, who doubled as the case's lead investigator, had refused to talk to the accuser about the case or the accused’s lawyers about evidence that would prove their innocence. That’s quite a record for Durham County’s “minister of justice.”

Gottlieb Is Out

Joining Nifong in court today were Inv. Himan, Linwood Wilson, and political advisor Victoria Peterson. A notable absence: Sgt. Mark Gottlieb, heretofore described as the lead investigator on the case.

Nifong informed the court, however, that as of July 14, Gottlieb ceased to be lead investigator on the case. The sergeant went on medical leave, but has now returned to work. No reason was given by Himan now occupied Gottlieb's place.

No doubt Nifong wishes he could be free from the burden of defending Gottlieb's procedurally dubious actions. But, without these procedurally dubious actions, Nifong would have no case.

Monks Press Conference

Just back from a bizarre Monks press conference.

He stated that he was committed to defeating Nifong, and for him at this stage, "The primary concern is electability."

But it's hard to conclude that is so.

Sunday, I spoke to Cliff Brandt, a Monks advisor, to ask him if the campaign planned to do any polling; Brandt told me no. But today Monks released a poll showing him with 22% of the vote (as opposed to 2% in the N&O poll). Monks didn't distribute copies of the poll; I asked for one and he promised to send it to me.

The poll seems to make little sense: while the Cheek and undecided voters tally the same amount as in the N&O poll, Nifong is around 10% lower and Monks around 20% higher. The only way to get these figures is hard to believe: in effect, according to the Monks poll, there has been a considerable shift in black support (Nifong's base and the majority of his overall support) from Nifong to Monks.

The only problem? In the N&O poll, Monks registered 0% support from blacks. In his poll (he didn't provide demographic or racial breakdowns), he would seem to be getting between 30 and 40 percent of the black vote.

Monks then offered his "analysis" of an average of his poll and that of the N&O, but the analysis seemed little more then wishful thinking. He added that the campaign was planning a media buy, but refused to reveal the amount or to say what he specifically planned to do. And he repeated his call for the Cheek forces to endorse him.

Since I attended, I figured I'd raise a question, and asked Monks if he could cite an instance of another successful candidate, anywhere in the country, in a county-wide, state, or federal election, at any point in the last 25 years, who was polling at 2% in a major media poll three weeks before election day. Monks replied that he hadn't done any research into the matter. (I have: to my knowledge, there aren't any.)

It seems to me that if Monks' primary goal is ensuring Nifong's removal, the past performance of candidates polling at such a low level at this stage of the race should be enough to persuade him to withdraw. Given that Nifong's base is a solid 45%, it's very hard to see how Nifong can be defeated as long as Monks stays in the race. So, at this point, Monks' primary concern seems to be ensuring Nifong's reelection.


Nifong asserted that none of the defense attorneys had provided him with the info. on "reciprocal discovery" relating to the evidence of their innocence.

He was quickly corrected by Jim Cooney, Reade Seligmann's co-counsel, who noted that months ago co-counsel Kirk Osborn filed a statement of alibi defense.

Nifong, at the time, asserted that he hadn't read the Osborn motion, because he was too busy to read "fiction."

Sheepishly, Nifong then admitted that he had in fact received the Seligmann evidence. Nothing like the DA making a demonstrably incorrect affirmation to the Court.

Stretching Credulity

The tensions between serving as lead investigator and district attorney are catching up to Nifong.

Nifong opened the hearing by complaining about the October 11 letter from Cheshire, and said that the N&O received copy of letter before he did. The Cheshire letter noted that Nifong claimed to have interviewed the accuser, and the only time this could have occurred was on April 11. Nifong asserted that the Cheshire letter deals with matters already dealt with. He said he hasn’t responded previously, but wants to provide historical context

Nifong, speaking, he said, as a man of “integrity,” asserted that on April 11 (days after she was pole dancing, according to 60 Minutes, the accuser was too traumatized for any “meaningful discussion”; “no matter how many times they ask the question, that will still be the answer.”

Then Nifong seemed to backtrack. “Even if such statements were made,” claimed he, the defense’s “right to those statements isn’t nearly as clear as they would have the court believe”—the accuser would not really have made a statement to him, and therefore he wouldn’t have to turn it over one way or the other; def att’ys were claiming “a statement whatever they say it is”; prosecutors' note of pretrial interview with accuser is not a statement.

Or, he mused, prosecutors are not stenographers; and can’t be expected to have substantially verbatim recording. Of course, lead investigators do have this requirement, as Brad Bannon (in an eviscerating response) pointed out. Bannon also revealed publicly, for the first time, that on March 24, Gottlieb and Himan were ordered to report to Nifong as the lead investigator on the case.

When Nifong took over as lead investigator, Bannon noted, “he put himself in the position of being a factual investigator in this case.” In that position, he had meetings with witnesses. Bannon asked: what has the accuser said to Mr. Nifong, and when did she say it?

Nifong’s response: he, as the DA and lead investigator of the case, has only spoken to the accuser on one item relating to the facts of the case—whether or not she used the drug ecstasy.

Bannon, with reason, remarked that this claim “stretched credulity.”

Several weeks ago, Ben Niolet, in his N&O profile, asserted that the file showed Nifong never spoke with the accuser about the facts of the case before seeking indictments. Nifong’s admission in court confirmed the report.

More to come.


I will be attending the hearing later today. If I can get wireless access from the courtoom, will be doing update posts while the proceedings are occurring; please check in throughout the morning.

Thursday, October 26, 2006

Surveying the Poll Results

The N&O poll on the D.A.’s race offers three points of interest. The poll shows Mike Nifong with 46% of the vote, to 28% for Lewis Cheek, 24% undecided, and 2% for write-in spoiler Steve Monks.

The items of note:

1.) While Nifong remains the favorite, he is beatable—especially if the N&O editorial board finally gives a sign of reading its own newspaper and endorses Cheek.

Nifong’s 46% is likely overstated by 2-3%: the actual tally is probably closer to 43-31. Cell-phone users and college students tend to be undercounted in polls; in a poll like this, where the group is one and the same—the 1000+ newly registered Duke students, among support for Nifong is minimal if non-existent—the undercounting probably had some marginal effect on the poll.

Undecideds at this stage of the race usually break against the incumbent, even more so in a contest such as this one, with an extraordinarily polarizing figure as the candidate.

Nifong isn’t even bothering to reach out to Durham County voters; he actually refused an interview request on the race from one local TV station—an extraordinary action for a candidate seeking any elective office.

2.) Nifong’s base is solid—even if by supporting him, it has compromised its principles.

The N&O poll found Nifong’s support from black voters at 62%, to 9% for Cheek, with the rest undecided. Nifong might have, as James Coleman told 60 Minutes, pandered to the black community—but the N&O numbers suggest his pandering found a receptive audience.

The district attorney has the support of two Durham-area PACs. Last week, he got the nod from the Durham Committee on the Affairs of Black People—marking the first time I can recall in any high-profile race where a minority PAC had endorsed a candidate best known for prosecutorial misconduct and eroding civil liberties. These two issues are normally of considerable concern to the black community.

Meanwhile, among the white left, Nifong retained the support of the People’s Alliance, despite having said he’s “very pleased” to have homophobe Victoria Peterson as his citizens’ committee co-chair. The People’s Alliance purports to favor gay rights, but apparently does so only when it's ideologically convenient for them They could be deemed the Triangle's fair-weather leftists.

Obviously, for Nifong’s backers, some issues are more important than civil liberties, prosecutorial misconduct, and gay rights.

3.) Steve Monks is the Ralph Nader of this race.

The Monks case was laid out recently by advisor Cliff Brandt in a passionately argued Chronicle essay. The appeal most reminds me of the Ralph Nader 2000 campaign. Nader reached out to voters on the left wing of the political spectrum, contending that no difference existed between Al Gore and George Bush, so they should search for the perfect candidate for their ideological principles and vote for him. Enough did, siphoning votes away from Gore, for Bush to become president.

I don’t know too many Nader voters who still maintain there’s no difference between George Bush and Al Gore.

In this campaign, Monks argues he would be a better DA than anyone appointed by Mike Easley. That’s probably true. But as his 2% showing in the N&O poll suggests, he has no chance of becoming DA, at least in 2006. Since Nifong’s base is rock-solid at just under 50%, if Monks secures even 5% of the vote, his total would be enough to ensure a Nifong win.

Monks’ effect is most evident among Republicans. Cheek leads among Republicans with 44% to 4% for Nifong (and 3% for Monks). But half of Durham County Republicans (or 10% of the electorate overall) are undecided. Nifong has almost no GOP support; with Monks out of the race, that bloc of undecided Republican voters would shift almost entirely to Cheek. Such a move would shrink a roughly 43-31 Nifong lead into a 43-41 barnburner.

So, there would seem to be three options:

1.) Durham voters can cast a ballot for continued prosecutorial misconduct by electing the figure labeled:

  • a “petty-tyrant” prosecutor who should “be under criminal investigation” by Stuart Taylor in National Journal;
  • “despicable . . . a disgrace” who “deserves to be pilloried every day the rest of his life” by San Diego Union editorialist Chris Reed;
  • the modern-day equivalent of the unethical prosecutors who oversaw the Scottsboro Boys trial by Nicholas Kristof in the New York Times.

2.) Durham voters can cast their ballots for a spoiler write-in candidate, and thus ensure Nifong’s re-election. It's hard to win, at any time, for a write-in candidate. But there's little evidence that Monks backers, while sincere, have the organization necessary; and I'm unaware of any instance in American political history in the last 20 years where a candidate polling 2% two weeks out has won the election. There should be no doubt, especially for Duke students: for those interested in justice for the three students targeted by Nifong, given the dynamics of this race as they now stand, a vote for Monks is the equivalent of a vote for Nifong.

3.) Durham voters can elect to recall Nifong by voting for Lewis Cheek. This conclusion, it's worth noting, has been reached by several of the most important voices in this case:

  • Duke Basketball Report, which noted as "we've become deeply skeptical about . . . the fairness of the D.A.'s office. If you live in Durham, one of your choices is to get shed of Mike Nifong, and if you think that's the right course of action, then you should visit www.recallnifong.com. And a special note to Duke students . . . not only do you have to take a serious look at Nifong's management of the case (and his ethics as well), but if the article about Sgt. Gottlieb is to be believed (and why not ask the students quoted? They'll surely tell you what you need to know), then Duke students are not being treated the same as everyone else is. You are, in fact, being accorded a harsher brand of 'justice.'"
  • Liestoppers, which contended that the Recall Nifong-Vote Cheek campaign "deserves support, not only from those whose votes will make a difference in this referendum, but also from those beyond, whose voices and actions might help to stop this menace to justice everywhere."
  • Ruth Sheehan and Michael Gaynor, on the left and right two of the most passionate critics of Nifong, both of whom have endorsed RN-VC and called on Monks to withdraw.

We’ve learned over the past seven months that the county has a healthy constituency in favor of prosecutorial misconduct and the politics of revenge. But the N&O poll proves that anyone who is serious about ousting Nifong has only one choice.

Wednesday, October 25, 2006

Baldwin's Significance

In one of the most important publications of the case to date, Chemistry professor Steven Baldwin yesterday became the first member of the arts and sciences faculty to publicly criticize the “despicable” rush-to-judgment denunciations of his colleagues.

For Duke students, Baldwin wrote, “the day they set foot on the Duke Campus for the first time they became members of the Duke family. For most this was the beginning of a life-long relationship that generates intense loyalties and deep love. The assumption is that the relationship is reciprocal, that Duke holds all of its students in high esteem-loves them-and will support them through the rough times as well as the good. Instead, Duke has disowned its lacrosse-playing student athletes. Their treatment has been shameful.”

He noted, correctly, that he did not “believe that a faculty member publicly describing any student in pejorative terms is ever justified. To do so is mean-spirited, petty and unprofessional, at the very least. The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves.”

What was the context for Baldwin's words?

The process began with Houston Baker’s open letter, dated March 29. Baker has since departed for Vanderbilt, but the “emotional tyranny”—to borrow Kim Curtis’ phrase—he helped spawn remains prevalent on the Duke campus.

How is a Duke community citizen to respond to such a national embarrassment from under the cloud of a “culture of silence” that seeks to protect white, male, athletic violence and which apparently prevents all university citizens from even surveying the known facts? How can one begin to answer the cardinal question: What have Duke and its leadership done to address this horrific, racist incident alleged to have occurred in a university-owned property in the presence of members of one of its athletic teams? . . .

There is no rush to judgment here about the crime - neither the violent racial epithets reported in a 911 call to Durham police, nor the harms to body and soul allegedly perpetrated by white males at 610 Buchanan Boulevard. But there is a clear urgency about the erosion of any felt sense of confidence or safety for the rest of us who live and work at Duke University. The lacrosse team - 15 of whom have faced misdemeanor charges for drunken misbehavior in the past three years - may well feel they can claim innocence and sport their disgraced jerseys on campus, safe under the cover of silent whiteness. But where is the black woman who their violence and raucous witness injured for life? Will she ever sleep well again? And when will the others assaulted by racist epithets while passing 610 Buchanan ever forget that dark moment brought on them by a group of drunken Duke boys? [As we know now, such passersby never actually existed.] Young, white, violent, drunken men among us - implicitly boasted by our athletic directors and administrators - have injured lives. There is scarcely any shame more egregious than one that wraps itself in the pious sentimentalism of liberal rhetoric as though such a wrap really constituted moral and ethical action.

Duke University’s higher administration has engaged in precisely such a tepid and pious legalism with respect to the disaster of recent days: the actual harm to the body, soul, mind, and spirit of black women who were in the company of Duke University lacrosse team members as far as any of us know . . .

There can be no confidence in an administration that believes suspending a lacrosse season and removing pictures of Duke lacrosse players from a web page is a dutifully moral response to abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us . . .

How soon will confidence be restored to our university as a place where minds, souls, and bodies can feel safe from agents, perpetrators, and abettors of white privilege, irresponsibility, debauchery and violence?

Surely the answer to the question must come in the form of immediate dismissals of those principally responsible for the horrors of this spring moment at Duke. Coaches of the lacrosse team, the team itself and its players, and any other agents who silenced or lied about the real nature of events at 610 Buchanan on the evening of March 13, 2006.

Baker’s letter, appropriately, drew an impassioned rebuke from Provost Peter Lange, in a document that represents the only time in this entire affair that a high-ranking Duke official has unequivocally stood up for due process.

But by this point, Baker had been joined by a powerful and widely respected voice: History professor and former dean of the faculty William Chafe. Chafe, whose work on the Greensboro sit-ins remains among the finest scholarship about the civil rights movement, penned a column for the Chronicle on March 31.

Sex and race have been intertwined since the beginning of American history. They remain so today, throughout America and here at Duke. The events that occurred on Buchanan Boulevard two weeks ago are part of a deep and troubling history . . .

Worst of all, sex was an instrument by which racial power was manifested and perpetuated. Why are most African Americans of a lighter hue than Africans from Nigeria? Because at some point in the past, or present, white males have “had their way” with black women. White slave masters were the initial perpetrators of sexual assault on black women . . . To make matters worse, white men portrayed black women as especially erotic, more driven to sexual pleasure and expressiveness than white women; and then, in a perverse form of projection, created the specter of black men seeking to rape white women. That is why most lynchings of black men in the late 19th and early 20th century were justified by accusing black men of lusting after white women-even though there was little evidence that such attacks ever took place.

So sex and race have always interacted in a vicious chemistry of power, privilege, and control. Emmett Till was brutalized and lynched in Mississippi in 1954 for allegedly speaking with too easy familiarity to a white woman storekeeper . . . What has all this to do with America today, and with Duke? Among other things, it helps to put into context what occurred in Durham two weeks ago. The mixture of race and sex that transpired on Buchanan Boulevard is not new. Whether or not a rape took place (and this is an issue that needs to be assessed objectively and with full fairness to everyone), there is no question that racial epithets were hurled at black people. Nor is there any question that white students hired a black woman from an escort service to perform an erotic dance. The intersection of racial antagonism and sexual exploitation is all too familiar.

Some people might consider an argument that contextualizing their actions by citing the lynchers of Emmit Till was hardly conducive to assessing the question of “whether or not a rape took place . . . with full fairness” to the lacrosse players. When I asked him about this issue, and whether he had any concerns with the district attorney’s procedural misconduct, Chafe responded, “Whether or not a sexual assault took place is something we will not know for months and is a task for the criminal-justice system to establish,” and therefore it wasn’t appropriate for him to comment on such matters.

A week after Chafe’s horrific column, he joined 87 other Duke faculty members in the statement of the Group of 88, which unequivocally asserted “something happened” to the accuser; and said “thank you” to the protesters who had publicly branded the lacrosse players rapists. The author of the statement, Wahneema Lubiano, told ESPN that she understood many would see the Group of 88’s statement as a “stake in the collective heart” of the lacrosse team. She subsequently explained her motivation in a blog posting:

Within the terms of the responses to the incident, I understand the impulse of those outraged and who see the alleged offenders as the exemplars of the upper end of the class hierarchy, the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus. Further, this group has been responsible for extended social violence against the neighborhood in which they reside. In short, by a combination of their behaviors and what they represent in terms of social facts, and by virtue of their relation to the alleged victim, for those who are defenders of the victim, the members of the team are almost perfect offenders in the sense that Crenshaw writes about. As more information circulates and the stakes are raised by virtue of considerations of Duke’s and the nation’s long-standing class, race, and gender disparities, they are increasingly “perfected” as offenders. As part of this dynamic, the young woman, black and non-wealthy, made even more vulnerable by virtue of being employed by the perfect offenders and outnumbered, approaches the state of perfect victim. However, even within the media circulation of narratives, neither the offenders’ nor the victim’s “perfection” is absolutely complete; our own imaginations and our own language has to complete it . . .

Against this solidification of their perfectness as offenders, their defenders have to reinforce and heighten the circulation of rhetoric around a narrative, among other things, of their wonderful athletic ability, understandings of them as fine, upstanding young men or boys who are good students, the products of good homes, and the possessors of good characters attested to by their grades, their performances, and the fine characters and records of those who support them. Their perfectness as offenders has to be lessened, mitigated, or disrupted to the point that any bad behavior is forgiveable by virtue of the mitigations – mitigations such as “they aren’t any different from other young men” who drink and party in boisterous manner and, occasionally, slip over the line of acceptable behavior; therefore, what is happening to them is a horrible injustice. Their offense has to decrease in size and severity . . .

This fight of desires then extends to the question of evidence – a demand for perfect evidence on the part of the defenders of the team (a demand most spectacularly articulated by, but not limited, of course, to their lawyers). The idea that evidence, like all other aspects of the incident, is part of a circulation of narratives seems to be lost as the newspapers and the television move from one flash point to another . . .

Regardless of the “truth” established in whatever period of time about the incident at the house on N. Buchanan Blvd., the engine of outcry in this moment has been fueled by the difficult and mundane reality that pre-existed this incident and that continues to occur in everday and non-spectacular life in this place. Whatever happens with the court case, what people are asking is that something changes.

And, finally, there’s Peter Wood. After issuing a series of bizarre public statements (he told the New York Times, “The football players here are often rural white boys with baseball caps or hard-working black students who are proud to be at Duke,” unlike the upper-class lacrosse team), Wood gave a remarkable interview with Hal Crowther, whose article stated that Nifong’s critics needed to “catch a glimpse of your inner racist in the mirror”; the lacrosse players themselves, he asserts, are “subhuman.”

In the interview, Wood offered one major revelation: he had taught two of the indicted players. Since Reade Seligmann’s transcript is on-line, it was easy to verify that he had taken Wood’s “Era of the American Revolution.” Right after the mention that Wood had Seligmann in class, the professor described the lacrosse players’ personal character: “Cynical, arrogant, callous, dismissive—you could almost say openly hostile.” He also posed for a photo—in front of the lacrosse field.

Wood’s going out of his way to mention he had taught two of the indicted players suggested that his descriptions of the players’ character applied to Seligmann. But I wondered whether he had been misquoted, or hadn’t intended to attack Seligmann. Surely, if there were a misunderstanding, it seemed to me that any professor would rush to correct the record, lest he appear to have falsely slandered one of his students.

Five times I emailed Wood to ask him if his comments applied to Seligmann, as the article suggested; and, if so, what evidence he had to substantiate them. (I have retained all of these e-mails.) Wood never replied. He has, in short, allowed the comments to stand.

If we’ve learned nothing else from this controversy, it’s that Duke’s faculty needs far more people like Steven Baldwin and far fewer people like Peter Wood.

Tuesday, October 24, 2006

Duke Talk

For those interested, I'll be speaking as part of a panel discussion on the case this Thursday night, sponsored by ACLU@DUKE. The talk is at 7pm, in the Von Canon Center (lower level of the Bryan
Center on Duke's West Campus) . The panel also includes Stephen Miller, whose columns and public appearances helped crystallize Duke student opinion on the case.

Steven Baldwin Speaks Out

An extraordinary column in the Chronicle this morning from Chemistry professor Steven Baldwin. He argues,

My biggest concern has always been with Duke’s treatment of the student athletes at the center of the storm. These kids were abandoned by their university. At least one of the indicted students, perhaps all three, was trespassed from Duke property. They were denied the presumption of innocence, despite the mounting evidence that the case against them is made of smoke and mirrors and is fatally flawed procedurally. They have been pilloried by their faculty and scorned by the administration. They are pariahs.

As a Duke faculty member I regard my students in much the same way I regard my children. When my kids do something wrong, I demand accountability. When they break the rules they pay the price, whatever that might be.

With that accountability, however, comes support. My kids know I love them and that I will do everything I can to help them through the rough times. That is what families do. I treat my students the same way.

Duke students should expect nothing less from their university. The day they set foot on the Duke Campus for the first time they became members of the Duke family. For most this was the beginning of a life-long relationship that generates intense loyalties and deep love. The assumption is that the relationship is reciprocal, that Duke holds all of its students in high esteem-loves them-and will support them through the rough times as well as the good. Instead, Duke has disowned its lacrosse-playing student athletes. Their treatment has been shameful.

Over the past six to eight years, I can recall having only a single men’s lacrosse player in one of my undergraduate classes. That young man was bright, focused, respectful and engaged. He earned one of the highest grades in a large, difficult and very competitive class. He is now in medical school, well on his way to a career as an orthopedic surgeon.

I mention this because I believe the young man would not mind my describing him in these terms. On the other hand I do not believe that a faculty member publicly describing any student in pejorative terms is ever justified. To do so is mean-spirited, petty and unprofessional, at the very least. The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves.

They should be tarred and feathered, ridden out of town on a rail and removed from the academy. Their comments were despicable. I suspect they were also slanderous, but we’ll hear more about that later.

Finally, I urge the Duke community to take a reality check. Speak your minds. Do what you think is right. Tell the administration that you are not satisfied with the way they have handled the lacrosse affair. Demand better.

The conception of a professor's duty described in this article is one that I share--and, indeed, one that I considered common to virtually every member of the academy before dozens of members of the Duke arts and sciences faculty over the past seven months showed me differently.

In the lacrosse affair, Baldwin is the first of the nearly 500 members of Duke's arts and sciences faculty to stand up publicly and testify to my profession's best qualities. I sincerely hope others, perhaps unwilling to take the lead on this issue, now will join him and redeem the honor of the Duke professoriate.

Checking in with the Group of 88

In contrast to their compelling need to speak out last spring, in recent weeks most members of the Group of 88 have turned silent on issues relating to the lacrosse case. When asked recently if she would publicly affirm the need for the students accused by Mike Nifong to receive due process, political science professor Paula McClain responded succinctly, “NO.” So much easier, I suppose, to sign denunciatory public statements based solely on what turned out to be the prosecutor’s misleading version of events.

As a sensational Liestoppers post pointed out, Mark Anthony Neal is one of the few Group members to have recently commented, albeit obliquely, on the case. “The strip club,” said Neal,

is the new church. That raises all kinds of interesting possibilities around spirituality and black bodies, dealing with issues of spirituality outside traditional notions of what spirituality in a church is supposed to be….When we think about women who work in strip clubs, the key component there is that word “work.” In some ways this is legitimate labor, and we need to be clear about that. And women make these decisions based on what kind of legitimate labor is in their best interest. While it’s important that black women’s sexuality not be exploited, at the same time, I don’t want to get into the business of policing black women’s sexuality, which is just as dangerous.

Last week at Williams College, Neal gave a lecture laying out his thoughts on other issues relating to gender and sexuality. The lecture’s title? “Looking for Leroy: HomoThugs, ThugNiggaIntellectuals and ‘Queer’ Black Masculinities.”

It’s worth remembering that Neal is the professor—of the nearly 500 members of Duke’s arts and sciences faculty—with whom Richard Brodhead chose to share the stage at an event to combat the university’s alleged “culture of crassness” following Nifong’s first two arrests.

The fall-term catalog, meanwhile, features a first-year seminar (all Duke students must take one) that, according to the syllabus, “emerged out of our discussions of the allegations of sexual assault and racial taunting at the now infamous lacrosse party of March 2006. The criminal charges have not yet been tried in a court of law, but the allegations alone constituted a ‘perfect storm,” rapidly escalating into a social disaster of extraordinary proportions.”

The course is co-taught by two members of the Group of 88, including Thavolia Glymph. Glymph made what might be the most outrageous remark of any Duke professor throughout this entire affair: the day after reports that DNA tests revealed no matches between the lacrosse players and the accuser—an outcome, according to Mike Nifong’s March 23 court filing, that should have “immediately rule[d] out” as suspects all the players—Glymph lamented the outcome could result in the Group of 88’s crusade to transform the campus “moving backwards.”

The seminar’s first-week reading assignment? The statement of the Group of 88.

Glymph’s academic profile is rather slim: holder of a 1994 Ph.D. from a second-tier graduate school (Purdue), she hasn’t published a book. Like Glymph, fellow Group of 88 member Kim Curtis, a political science professor, possesses seemingly meager credentials for a Duke faculty member (San Francisco State B.A.; University of Massachusetts Ph.D.). Curtis, at least, has a book (on Hannah Arendt) to her credit; her most recent publication is on the politically correct topic of multicultural education.

Curtis’ signing the Group of 88’s statement contributed to her pattern of adopting ideologically extreme positions that fail to stand the test of time. For instance: like many feminists, she struggled to reconcile her sympathy for Bill Clinton with her backing of the sexual harassment law that laid the groundwork for Paula Jones’ lawsuit. Rather than consider that Jones’ ability to subpoena Monica Lewinsky showed that sexual harassment law was too broad, Curtis rationalized Clinton’s behavior while remaining faithful to the work of “feminist theorists” who “have shown interrelationships between sexuality and the exercise of unjust power.”

In general, said Curtis,

The liberal feminist legal framework . . . does not speak to the important relationship between consent, relations of power and gender socialization. This is its most serious limitation. Interrogation of these relationships have become salient in legal debates over issues ranging from pornography to prostitution to surrogacy to date rape. Troubling the liberal framework of consent is a vital, on-going intellectual project with potentially deep political significance. In the case before us, however, judgment is not ill-served in being guided by it.

In plain English: the “relationship between consent, relations of power and gender socialization” suggests that the sexual harassment law that Paula Jones used to subpoena Lewinsky is perfectly written—except when the target is someone Curtis likes.

Before joining the Group of 88, Curtis’ recent protest efforts had focused on real and imagined national security issues in the post-9/11 world. In 2002, she joined Group of 88 members miriam cooke, Bruce Lawrence, and Rom Coles in “Iraq and Us,” a faculty initiative urging Duke professors to “devote a period of time during your class to addressing” the administration’s approach to a possible invasion of Iraq. This suggestion contradicted one of the profession’s guiding principles, laid out in the American Association of University Professors in its 1940 Statement of Principles on Academic Freedom and Tenure. That document cautions professors against introducing “into their teaching controversial matter which has no relation to their subject.”

Shortly after 9/11, Curtis also condemned an alleged attempt “to silence professors who encourage students to probe the history of U.S. foreign policy in the effort to understand the September 11th attacks.” She protested efforts to remove from the ranks of the nation’s faculty those “who feel shame, fear and anger over the violent suppression that the United States has undertaken in so many states across the globe in the near and the distant past”; and those who “feel distress over the long-time support by the U.S. of the mujahadeen in Afghanistan, whose oppression of women has been brutal.”

This tale is, indeed, a frightening one. It is also wholly divorced from reality. Take a glance through the archives of FIRE, a nonpartisan, non-ideological group devoted to defending free speech on campus. The overwhelming majority of threats to campus free speech (both before 9/11 and after) have come from the far left, not the far right; and have come from within the university, not outside of it.

Meanwhile, a survey published last week shows that—among other items—one-third of the nation’s college faculty consider the United States among the two greatest threats to world stability. Fewer professors so designate Iran, which has defied the UN to continue with a nuclear weapons program while its president has repeatedly, and publicly, called for the State of Israel to be wiped off the map. A faculty where the nation’s professoriate rank the United States as a greater threat to international stability than Iran hardly confirms Curtis’ thesis that radical critics of U.S. foreign policy are under-represented and silenced on today’s college campuses.

Curtis further analyzed the post-9/11 university: “There is an emotional tyranny at play here” . . . “Tyranny thrives where there are no dissenting voices” . . . Universities “should be strongholds of people who defend independent thinking.”

Since March 14, nearly 100 of Duke’s arts and sciences faculty engaged in rush-to-judgment denunciations of the lacrosse players based on the “emotional tyranny” of appealing to what Brodhead described in his 60 Minutes interview as “people’s deepest fears, deepest anxieties, and dreads.” Events on Duke’s campus over the past seven months have, indeed, proved that “tyranny, thrives where there are no dissenting voices”—a situation among the arts and sciences faculty, fortunately, I understand will be remedied in this morning’s Chronicle.

Note: I e-mailed Professor Curtis last week, to ask if in light of the many facts that have emerged since April 6 she entertained any second thoughts about signing the Group of 88's statement. I also asked if she had considered making a public statement supporting due process for the accused students.

She did not reply.