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[K.C. Johnson (guest-blogging), September 20, 2007 at 11:10am] Trackbacks
Explaining Brodhead

As a high-profile case of prosecutorial misconduct affected his own institution's students, how is it possible to explain Duke president Richard Brodhead's passive response?

A few explanations can be eliminated. Duke officials did not - - at least privately - - initially believe Crystal Mangum's fantastic lies. Duke cops told their superiors the case would go away quickly, because Mangum wasn't credible. The lacrosse captains met with four senior administrators, including Brodhead, and not only denied the allegations but laid out the scope of their cooperation with police. The president, the executive vice president, the AD, and the dean of student affairs all expressed confidence the captains were telling the truth. (Brodhead has subsequently denied saying this.)

Nor were Brodhead's actions consistent with his own publicly stated justifications. In an interview with Stuart Taylor for our book, the president explained that he remained silent in face of Nifong's dubious procedural behavior because "I do not believe the day ever comes when private individuals have the right to take public judgment back into their hands." Yet between 2000 and 2005, Brodhead twice had spoken out on behalf of his own students in legal matters (both times at the urging of leftists on campus). And, indeed, in the lacrosse case, he ultimately did "take public judgment back into [his] hands." After Nifong dropped rape charges on December 22, the president publicly called for appointment of a special prosecutor. Sexual assault charges were still on the books.

So what did explain Brodhead's actions? First, the president appears to have reacted with a deep, visceral disgust at the captains' decision to hire strippers. In June 2006, when he met with the lacrosse team, he told them that all needed to accept responsibility for the party (the captains, who had hired the strippers, had already apologized), even though he knew that some players hadn't even attended the party. In his October 2006 interview with 60 Minutes, he described the evening as one of "highly unacceptable behavior." Brodhead, it's worth noting, did not have a record of strongly denouncing other spring break parties. It was as if he had spent a lifetime on college campuses and only realized in March 2006 that college students drank and had wild parties during spring break.

Second, and more important, Brodhead appears to have been cowed by extremists within his faculty. (It's worth remembering that this case began just over a year after Larry Summers lost a vote of no-confidence in Harvard's Faculty Council.) A turning point event came in an emergency meeting of the Academic Council on March 30, 2006. The president urged caution and asked faculty to wait for the facts to come in. But the assembled professors, around 10% of the arts and sciences faculty, responded with vitriolic attacks against the team. One speaker claimed that Duke, as an institution, tolerated drinking and rape, and the lacrosse incident reflected a University problem from the top down. Another suggested punishing the team by suspending lacrosse for three years and then making it a club sport. A third asserted that the team embodied the "assertion of class privilege" by all Duke students. A fourth called on the University to do something to help the "victim."

Three professors overpowered the meeting: Houston Baker stated as a fact that African-American women had been "harmed" by the lacrosse players and claimed that students in his mostly white, female class were terrified of the lack of an administration response. Wahneema Lubiano alleged favoritism by Duke toward the team and demanded a counter-statement from Duke denouncing the players. And Peter Wood asserted that two years previously, the team was out of control, and demanded a hard line against the athletic director, coach, and team. These remarks, according to several people who attended the meeting, received robust applause.

One week later, when Brodhead cancelled the lacrosse season, he appointed a "Campus Culture Initiative" to explore issues raised by the case. Wood chaired one of the CCI's four subcommittees. Two other subcommittees (race and gender) were chaired by Group of 88 members Karla Holloway and Anne Allison. And one of the four student members was Chauncey Nartey, an African-American student who had sent an e-mail to the Presslers that the former coach's wife considered a threat against their daughter. The Presslers filed a police report and told the administration what Nartey had done; the appointment went ahead anyway.

Brodhead's disinclination to challenge faculty extremists extended to issues that nearly all academics would recognize as improper. For instance, on April 6, 2006, women's lacrosse coach Kerstin Kimel told the president that multiple instances of in-class harassment of lacrosse players had occurred, with professors using class time to bully their own students. Yet neither Brodhead nor anyone in his administration ever investigated Kimel's claim; in summer 2006, Duke spokesperson John Burness conceded that he had heard "rumors" of unprofessional behavior but suggested the problem had been handled by a dean sending out an e-mail reminding professors to treat all students fairly. The book documents several of these events.

Similarly, the Group of 88's ad presented the administration with a ready-made opportunity to stand up to the worst of its faculty: after all, the ad claimed that five departments had officially endorsed its contents, even though none of the departments had actually voted on the question. Yet Brodhead not only remained silent in the face of this obvious breach of academic protocol, but he thrice, in early 2007, defended the Group of 88's statement as a banal, even welcome, expression of the concerns of race/class/gender faculty on campus.

In the end, it's hard to imagine that his mishandling of the lacrosse case will not overshadow the other events in Brodhead's first term as president.

law clerk (mail):
None of this should be surprising to those familiar with Brodhead. When he arrived at Duke, Brodhead quickly demonstrated that he lacked the courage to act contrary to the wishes of certain elements of the faculty when he allowed the Palestine Solidarity Movement to hold its annual conference at Duke in the fall of 2005. The PSM endorses suicide bombings as a valid means of resistance to Israeli occupation. Despite being informed of this, Brodhead refused to cancel the conference in the name of encouraging dialogue and debate. The "debate" that the conference engendered was a disaster, as those who remember the notorious opinion piece entitled "The Jews" in the Duke Chronicle can attest.
9.20.2007 12:46pm
John (mail):
It's all well and good to criticize the university president, but what about its board of trustees? These are the people charged with responsibility for the operation of the university. Why are they getting a free pass?
9.20.2007 12:46pm
Toby:
You misunderstand the role of Trustees. It is to raise money and get good seats at athletic events. If only Brodhead had failed to defend an athlete in a sport that the trustees wished to attend - like basketball...
9.20.2007 12:55pm
Duke Parent (mail):
Brodhead is evil.

Board of Trustees are worse for condoning (? and guiding) his actions.

"SPINELESS" is an apt description.
9.20.2007 12:55pm
neurodoc:
law clerk, I was going to note those same previous demonstrations of cowardice by Brodhead, but you beat me to it. Unfortunately, for some reason I cannot manage to set up links here. Were I able to do so, I would direct attention to various accounts of the ISM episode, including what was published on the subject in Commentary, to which that weasel John Burness* gave a thoroughly disingenuous response on behalf of Brodhead and Duke. Also, The Chronicle, Duke's student paper, which published that outrageous antisemitic screed by Philip Kurian, an African-American student lashing out at "the Jews" around him, had a lot about the ISM affair. The Chronicle also published Brodhead's strikingly mealymouthed response to that bit of bigotry. (I would encourage everyone to read this "background" material to see for themselves whether I have unfairly characterized Brodhead and Burness, and to see how it was in so many ways premonitory of the LAX affair.) Also, The Chronicle allowed a great outpouring of antisemitic expression on their website for weeks.

K.C. Johnson, I would strongly encourage you in particular to look into how Brodhead handled that earlier challenge, his first after arriving at Duke. Many of the same themes were there then too.

After the ISM convocation and that extraordinary eruption of antisemitism at Duke, I told an organization that I would fund an award for "most pusillanimous university administrator of the year" and thought Brodhead would make a most excellent first awardee. I was dead earnest and ready to put up the money for it, but the organization didn't want to undertake it. (One of the VC told me pusillanimity was not so rare a trait among university administrators. Still, I think Brodhead is a true standout in that department. He's my man for "most pusillanimous," and since more than a year has gone by, I would make it "most pusillanimous of the decade.")

*Columbia had a similar weasel PR person, a veteran of Hollywood, who defended that school in the wake of antisemitic blasts in their student paper The Daily Spectator authored by an African-American student acolyte of Louis Farrakhan, Sharod Baker, IIRC. That Columbia business didn't "blossom" into anything like the Duke affair, but the same demonstration of spineless university leadership.
9.20.2007 1:28pm
Smokey:
The current issue of The Economist has an excellent one page distillation of the whole sordid episode, titled Presumed guilty.
9.20.2007 2:10pm
Kovarsky (mail):
One explanation that people might not be aware of is that Brodhead's female assistant during his tenure as Dean of the Undergraduate College at Yale was brutally murdered in 1999. I think it's probably tacky to go into the details on a blog, but I strongly suspect that his experience in dealing with that catastrophe influenced his reaction here.

I would add on a more personal note that everyone that has come into personal contact with Brodhead, at least at that point, had assessed him as the furthest possible thing from "evil." He is a brilliant man with remarkable emotive capabilities. I can't help but find pathetic some of the commenters who are babbling about how he's spineless because he made some judgment call they disagree with. I assume you are the people that go on cable news shows.
9.20.2007 2:13pm
Kovarsky (mail):
actually, the event was in december 1998.
9.20.2007 2:14pm
Richard Aubrey (mail):
kovarsky.

His public self-presentation affects the facts how?
9.20.2007 2:17pm
Kovarsky (mail):
richard,

i don't believe i understand your question. i was not talking about his public self-presentation. i am talking about a vast number of people, of all different political stripes, that know him personally. moreover, i don't think how he was affected by a personal tragedy is fairly described by "publis self-presentation."

because your comment comes off as so obtuse, i'm inferring that your it was intended as snide, rather than as constructive. if that's not the case, i apologize, and i'll respond in greater detail.
9.20.2007 2:21pm
Kovarsky (mail):
excuse my rather prolific typographic error.
9.20.2007 2:23pm
Jena 6:
this blog loves to rant about prosecutorial misconduct in the Duke Lacrosse case, but seems surprisingly silent thus far on the Jena 6 affair.

i suppose skin color has a lot to do with it.
9.20.2007 2:24pm
Kovarsky (mail):
Jena 6,

"i suppose skin color has a lot to do with it."

That's totally uncalled for. It's not skin color. It's political ideology. Prosecutorial misconduct is really important when the victims are rich white guys and when the angry mob is comprised of liberal duke professors.

I trust that all the enraged commenters are similarly up in arms about brady violations in habeas cases involving indigents.
9.20.2007 2:31pm
Seamus (mail):

this blog loves to rant about prosecutorial misconduct in the Duke Lacrosse case, but seems surprisingly silent thus far on the Jena 6 affair.

i suppose skin color has a lot to do with it.



I'm eager to hear exactly how Justin Barker pulled a Tawana Brawley/Crystal Mangum and made it look like he'd had the living crap beaten out of him by the suspects.
9.20.2007 2:34pm
ejo:
shhh, don't mention those inconvenient facts. doesn't have much to do with the thread here, anyway-those making such comparisons are usually the ones excusing misconduct and moral cowardice here, usually based on some strange political/social grounds.
9.20.2007 2:41pm
Nifonged:
"Prosecutorial misconduct is really important when the victims are rich white guys and when the angry mob is comprised of liberal duke professors. "

That's so unfair to be parody, but why don't you go to the restroom and pat yourself on the back for being such a clever guy (and take a picture of yourself!). After all, this outrage had nothing to the unprecedented media and academic reaction that was played out for the right-thinking (not politically "right", I don't this as ideological but more of a "smart vs. stupid" scenario, but if you want to translate into ideology be my guest) public to watch.

You can't begin to turn this into anything more than it is, an unprecedented...I'm going to repeat that, u-n-p-r-e-c-e-d-e-n-t-e-d occurrence of blatant misconduct in the internet/24 hour news generation. What's the appropriate comparison?
9.20.2007 2:42pm
Kovarsky (mail):
nifonged,

i'd argue that if you think that this is "unprecedented" prosecutorial misconduct, that you're not really familiar with how criminal proceedings ordinarily work.

sure, it's bad. but some perspective might be in order. i don't really understand your smart v stupid comment, other than as some sort of a trite, conclusory name-calling thing.

i would ask whether there's 24 hour news coverage because its unprecedented, or vice versa. all i know is i spent all day watching OJ yesterday, while congress conducted votes on two extraordinarily important pieces of legislation. i don't think the relative zeal of news coverage reflected the abstract importance of the two stories.

as i said, if you really believe there's no comparison, get onto westlaw and type "brady /s habeas."
9.20.2007 2:52pm
wm13:
Kovarsky, if we drop "evil" in describing Brodhead, what shall we substitute? "Cowardly"? "Really, really stupid"?

My guess (but I don't know him as you do) is that we should say "extremely morally insular." If you are like Brodhead (intellectual, effete, given to vapid liberal pieties, etc.), he will find you appealing and you will find him so. If you are not that type of person, he will find you a disgusting subhuman and behave accordingly.

What's your guess? Certainly you can't read these posts by Taylor and Johnson and say that he is a man of good judgment, discernment, moral courage, and a passion for justice.
9.20.2007 2:53pm
SP:
"One explanation that people might not be aware of is that Brodhead's female assistant during his tenure as Dean of the Undergraduate College at Yale was brutally murdered in 1999. I think it's probably tacky to go into the details on a blog, but I strongly suspect that his experience in dealing with that catastrophe influenced his reaction here."

Was she a stripper? Was she murdered by a member of Yale's lacrosse team? Don't bother with the details - I just don't see the logical connective tissue that ties his feelings about that situation with his behavior, over a period of months, in the Duke affair.
9.20.2007 2:54pm
A. Berman (mail):
Jena 6 and Kovarsky:
1) It is certainly possible that the Jena 6 case turns out to be a crazy racist miscarriage of justice. The more I read about it, the more likely it seems. I hope the kids get sentences proportional to the crime-- they did beat a kid into unconciousness after all.
2) The Duke case is simply a very different case and interesting for reasons that don't come up in the Jena case. Specifically, while many people may have been generally aware of the poisonous race/class/gender academic nutjobs on the left, most people didn't really consider how dangerous they could be-- in this case, to the futures and very liberty of three completely innocent people of the wrong race/class/gender.
3) Oh, and specifically to Kovarsky about Brodhead: Whatever might have happened in his background, if he's going to take the job as President of a Universi
9.20.2007 2:56pm
SP:
Re: the Jena 6. I'm not going to claim to have followed this case very closely, but it is apparently beyond dispute that these six students brutally beat the victim. It's also not been established that the victim has anything to do with the "noose" incident, other than being white. So if you are shocked that Eugene Volokh has not come down from his mountain to denounce the result of that case, it's probably because it is about 1000 miles removed from the Scottsboro Boys.
9.20.2007 2:57pm
A. Berman (mail):
Oops:
3) Oh, and specifically to Kovarsky about Brodhead: Whatever might have happened in his background, if he's going to take the job as President of a University then he has to perform it.
9.20.2007 2:58pm
Kovarsky (mail):
SP,

Was she a stripper? Was she murdered by a member of Yale's lacrosse team? Don't bother with the details - I just don't see the logical connective tissue that ties his feelings about that situation with his behavior, over a period of months, in the Duke affair.

I think that's rather poor form. The connection, at least in terms of how an administrater might react more decisively to a campus event like this, is fairly obvious to anyone familiar with the event. And, frankly, it should be pretty obvious to those who aren't. I'm not articulating the precise effect itself; I just made the comment that I think it probably figures pretty prominently in his psychology.

I don't think it's appropriate to discuss the details publicly on this blog, where people are prone to tacky political hyperbole and analogy (see, e.g., you, above) but you can easily look event up online and figure the connection out yourself.

Lee
9.20.2007 2:58pm
Kovarsky (mail):
"Oh, and specifically to Kovarsky about Brodhead: Whatever might have happened in his background, if he's going to take the job as President of a University then he has to perform it."

"You can't begin to turn this into anything more than it is, an unprecedented...I'm going to repeat that, u-n-p-r-e-c-e-d-e-n-t-e-d occurrence of blatant misconduct in the internet/24 hour news generation. What's the appropriate comparison?"

I am finding it rather difficult to engage a contingent that reflexively argues on the one hand that the event was absolutley without precedent, and on the other that brodhead shouldn't have taken this job if he didn't expet something like it.
9.20.2007 3:00pm
Kevin O'Brien (mail) (www):
Re: kovarsky "One explanation that people might not be aware of is that Brodhead's female assistant during his tenure as Dean of the Undergraduate College at Yale was brutally murdered in 1999."

Actually, in that case -- her name was Suzanna Jovin -- in 1998, Brodhead reacted exactly like he did in the LAX case: he supported every effort to frame an innocent whose sex/race/something he didn't like. In that case, the Brodhead-generated witch hunt led away from Brodhead's monstrous behavior in these cases is no less so because it's rooted in everyday moral cowardice rather than some cartoonish dedication to evil.

Monster is as monster does. Brodhead is a thoroughly evil, vile, reprehensible man. And no student or faculty member is safe at any school where he is an administrator.

But if the angry poetasters of the Group of 88 are anything to judge by, no professor need fear discipline for mere incompetence or lack of civility.

And how's Duke doing with the professors? The seniors come out well-indoctrinated in G88 cant, but knowing less of practical civics than they did as freshmen. Must be all the drinking!

Reference
9.20.2007 3:01pm
Kovarsky (mail):
i'd also add that many of you responding to me are running through some sort of wrote formula in your head whereby you don't really argue with what i'm saying, you just sort of assume that i'm arguing that brodhead's conduct was fine.

well, if you read, i'm not arguing that. i'm arguing that the interest in this instance of prosecutorial misconduct is suspiciously disproportionate to its egregiousness.
9.20.2007 3:02pm
law clerk (mail):
Jena 6:

Perhaps you ought to reflect a bit before calling the posters here racists.

First, a large number of this blog's posters are university professors, so it perhaps stands to reason that the blog would focus more on prosecutorial misconduct involving a major university (and specifically on the response of that university's faculty and adminstrators) than prosecutorial misconduct inolving high school students. If you actually read what the posters here are saying, you will discover that they are most upset about the rush to judgment by many members of the Duke community rather than by the prosecutorial misconduct per se.

Second, speaking for myself only, my interest in the Duke lacrosse scandal is because I was a student at Duke at that time.

Third, from what I have heard on the news about the Jena 6 situation, it sounds like it has the potential to be an equally egregious example of prosecutorial misconduct. But the Jena 6 case is still unfolding, so it's hard to know what is really happening there yet. The Duke lacrosse scandal is over. The posters on this blog seem most upset about the rush to judgment by many members of the Duke community before all the facts were in. It would seem hypocritical to commit the same sin and prejudge the Jena 6 case at this juncture.
9.20.2007 3:03pm
Nifonged:
"i don't really understand your smart v stupid comment, other than as some sort of a trite, conclusory name-calling thing."

What's there to understand? It was obvious early in the investigation/prosecution that (1) the guys were innocent and (2) LE/Nifong were engaging in improper conduct.

"Smart" people saw this and expressed their shock that not only was this prosecution moving forward, it was enabled by academic and media.

"Stupid" people either saw nothing wrong with prosecuting demonstrably innocent people on an incredible charge, or worse yet encouraged Nifong to continue his malfeasance.

What other way would you put it? Only someone "stupid" could believe Reade Seligman was engaging in a sexual assault when he has photos of him no where near the alleged crime scene. If that's conclusory so be it. And yes, a significant portion of the Duke faculty is "stupid" for not realizing what harm they were doing in this diasster.

Perhaps "smart" may be too strong of a term since it shouldn't take that smart of a person to have come to the reasoned conclusions in this situation. How about "normal" vs. "stupid?"
9.20.2007 3:04pm
rarango (mail):
Kovarsky: I second wm13 question. I admit the term "evil" is totally misplaced; however, irrespective of Broadhead's ability to relate with faculty and his personal charm, his actions with respect the lacrosse case, his handling of it, and in general the exercise of his leadership, looks pretty sorry to me. So I would infer from what Taylor and Johnson have said, that Broadhead didn't make one bad judgment call; he dropped the ball on the whole sorry affair, and in fact, spineless, cowardly and pusillanimous all seem appropriate adjectives to describe his "leadership."
9.20.2007 3:06pm
Duke Grad (mail):
I have personally met and talked with President Broadhead. He is a charming, intelligent and decent human being. But that doesn't change the facts of his performance on this case. The record shows he failed in his responsibility to support the lacrosse players' presumption of innocence, to rein in the radical faculty bigots on his own campus, or even to lobby the media and community for restraint while the evidence was being gathered and evaluated. When he should have been exercising strong leadership, he was launching the Campus Culture Initiative as a concession to the faculty lynch mob. He could have been a hero but through his own actions (inactions) has become a symbol of appeasement, an academic Neville Chamberlain
9.20.2007 3:06pm
Kovarsky (mail):
Kevin,

Actually, in that case -- her name was Suzanna Jovin -- in 1998, Brodhead reacted exactly like he did in the LAX case: he supported every effort to frame an innocent whose sex/race/something he didn't like. In that case, the Brodhead-generated witch hunt led away from Brodhead's monstrous behavior in these cases is no less so because it's rooted in everyday moral cowardice rather than some cartoonish dedication to evil.

Well, she was my friend and my neighbor and I had to participate fairly exstensively in the police investigation, and so I'm quite comfortable saying that your rendition of the facts pretty much immediately disqualifies you from being taken seriously in this discussion.

Brodhead did not "lead" any witchhunt against Van de Velde. And the basis for those who did try to go after Van de Velde had absolutely 0 to do with his sex/race. Do you have the slightest clue what you're talking about? I find it fairly unconscionable that you would just say something like that with what is quite obviously no familiarity with the situation. You're just making a fairly ham-handed and morally embarassing attempt to frame the facts in a way that favors some position you have about the Duke case.
9.20.2007 3:07pm
Ralph Phelan (mail):
Kovarsky said:
"Prosecutorial misconduct is really important when the victims are rich white guys and when the angry mob is comprised of liberal duke professors."

I think an "angry mob of liberal professors" is odd enough to be newsworthy. Don't you agree?
I also say that joining a lynch mob is diametrically opposed to the supposed values and purpose of a university, and that when professors do so they are deserving of even more criticism than when ordinary folks do so. Would you agree?
I think there might be something wrong with a university whose professors join a lynchmob. Would you say that's at least worth looking into?
9.20.2007 3:11pm
Kovarsky (mail):
Nifonged,

You are obviously failing to grasp the distinction between an argument over whether Brodhead's response was appropriate and an argument over whether the interest in this case's prosecutorial misconduct seems disproportionate to that misconduct's magnitude.

I will politely cease trying to explain it to you, if you will try to refrain from calling people that disagree with you stupid. Especially when you are the person that is not understanding the exchange.
9.20.2007 3:12pm
Nifonged:
"i'm arguing that the interest in this instance of prosecutorial misconduct is suspiciously disproportionate to its egregiousness."

Now you're just beclowning yourself, the interest was spawned by negative media attention and faculty response, I don't think Finnery and Seligman asked to get their mugshots on the cover of Newsweek.

I'm not sure what else Nifong could have done to have met the egregiousness threshold to have warranted the interest in your opinion (it would seem to me that conduct that ended up in his disbarment and incarceration is fairly egregious, but that's just me), but your argument is simply disingenuous if you focus only on the actions of Nifong vis a vis the actions of other prosecutors, and not give any attention to the media/academic reaction.
9.20.2007 3:13pm
Richard Aubrey (mail):
kovarsky.
His public self-presentation is that he's a great guy. So? What does that have to do with the facts of the Duke lacrosse case and his actions? Change them in any way? Affect our speculation as to motivation?
9.20.2007 3:14pm
rarango (mail):
Kovarsky: I am having a great deal of difficulty squaring your 2:02 comment with your 1:13 because for the life of me, I can't find a word in your 1:13 about prosecutorial misconduct.
9.20.2007 3:15pm
Kovarsky (mail):
For those of you who are not connnecting the dots, I think the Yale incident explains why Brodhead might have reacted with such visceral disgust at the involvement of strippers and subsequent violent exchanges over email about them.
9.20.2007 3:16pm
Kovarsky (mail):
rarango,

there are two parallel arguments going on:

(1) i am responding to people who are apoplectic about the idea that the yale incident might have had some affect on the way Brodhead behaved after the Duke incident. as a side bar i noted that describing brodhead as "evil" is idiotic (although he exhibited some fairly poor judgment to be sure).

(2) i am responding to a group of people that don't see what is odd, if what you are really worked up about prosecutorial misconduct, about focusing so disproportionately on this particular case.

i agree that the duke faculty and administration acted irresponsibly. it just seems that some people aren't capable of taking the discussion beyond the "good/bad" dimension.
9.20.2007 3:20pm
Kevin O'Brien (mail) (www):
Oops.

When I wrote: "led away from Brodhead's monstrous behavior" I actually wrote:

"...led away from the actual perpetrator, who remains at large. Brodhead's monstrous behavior..." but I evidently finger-fumbled and deleted some words before posting. Sorry for the confusion.

By the way, what I mean is this: Suzanna Jovin had skin from her murderer under her fingernails. The DNA is no match to the man Brodhead fingered. The New Haven police (stumblebums who'd fit right in with Gottlieb, et. al) also had a soft drink container that had Jovin's fingerprints and one other individual's. That individual has never been found. The prints do not match the individual Brodhead publicly ID'd as the suspect.

Not sure if the cops printed Brodhead! They'd probably solve some unsolved crime or other, if not Jovin's murder. Maybe that's why it upset him -- that's as reasonable as the speculation he used to try to frame one of his own instructors (albeit one he didn't like, which makes it OK in his world).

Re: Lee's point about Brady challenges. IANAL (I have some morals), but that wasn't really an issue in this case, was it? However, your grander point seems to be that "rich" white kids (lower-income than the typical G88 salary, eh?) have more access to competent lawyering than poor minority kids -- that's a good point.

You have to wonder how many of the hundreds of black convicts that chuckleheads like Himan and Gottlieb investigated, and that Nifong put away, are sitting in prison now, as innocent as the LAX guys. And you have to wonder how many other prosecutors cut corners, if not as blatantly as Nifong did.

We'd all like to think the answer is "zero," but we all know it probably isn't. We had a case here in Mass. where a bad FBI office (they were basically all dirty) sent two low-level mobsters to prison for life for a murder that another mobster the FBI was cozy with did.

Justice requires vigilance, but even with that it's going to be imperfect. Someone threw out the Jena 6 case. I just heard of it for the first time today, but it certainly has an air of injustice to it. It looks like the problems in that town go a lot deeper than one criminal case, though. I suspect we'll be reading a lot more about it in the days to come.

Fortunately, they don't have a Brodhead to try to frame somebody -- that's the good part.
9.20.2007 3:20pm
rarango (mail):
Kovarsky: thanks for the clarification.
9.20.2007 3:22pm
Ralph Phelan (mail):
I think the single most telling incident with regards to Brodheads character is this one from KC's book:



On March 28, 2006, the four co-captains of the Duke lacrosse team accused of gang-raping an exotic dancer met with university president Richard Brodhead. One of the captains, David Evans, emotionally protested that the team was innocent and apologized for the misbegotten stripper party. "Brodhead's eyes filled with tears," Brodhead "said that the captains should think of how difficult it had been for him." The misbehavior of the players, said Duke's president, "had put him in a terrible position." Listening to Brodhead, Robert Ekstrand, a lawyer representing the captains and many of their teammates, "felt his blood starting to boil," write Taylor and Johnson. "Here, he thought, is a comfortable university president wallowing in self-pity in front of four students who are in grave danger of being falsely indicted on charges of gang rape, punishable by decades in prison."


He was, at worst facing the prospect of losing his job. They were facing thirty years in prison. If you're having difficulty understanding how he could equate the two, go find DSM-IV and look up "narcissistic personality disorder."
9.20.2007 3:26pm
Nifonged:
"You are obviously failing to grasp the distinction between an argument over whether Brodhead's response was appropriate...."

And you are obviously failing to grasp that I have yet to make an argument one way or the other concerning Brodhead's response and whether it was appropriate.

If you get over yourself and read my posts, you'll see that I first responded to a snarky post you made, then futilely tried to explain the interest in this case generally.

Not sure what voices in your head told you that I specifically mention Brodhead in any way, but if you're going to accuse other people of not following exchanges I suggest you proofread. I couldn't care less about your experiences with Brodhead or you at Yale generally, to the extent you're confusing my posts with other people's posts you're simply not following the exchange. That's about as polite as I can say it.
9.20.2007 3:26pm
Harry Eagar (mail):
I hadn't known anything about the Jena 6 case (I guess I still don't), but was the victim beaten unconscious?

A report on NPR this morning reported he was "hospitalized' but was now 'out,' which seemed to minimize the crime.

In my county, at least, an attack by a mob that left a man unconscious would often result in charges of attempted murder. I've seen initial charges of attempted murder in parking lot fights where the loser knocked his head on the pavement, although those got adjusted down.

So far, unless I'm missing something, the Jena-Duke parallel appears to be tendentious and bogus.
9.20.2007 3:35pm
brad (mail):
The Wikipedia treatment of the Jovin affair suggests that anyone familiar with that situation would urge others not to jump to conclusions and to await evidence. I have no idea if Brodhead had anything to do with the Jovin matter, but if he was aware of it I can certainly see why he began bawling about his own fate in the Duke matter.
9.20.2007 3:36pm
Ralph Phelan (mail):
Kovarsky said

there are two parallel arguments going on:

(1) i am responding to people who are apoplectic about the idea that the yale incident might have had some affect on the way Brodhead behaved after the Duke incident. as a side bar i noted that describing brodhead as "evil" is idiotic (although he exhibited some fairly poor judgment to be sure).

I'm not apopleptic, I just consider it irrelevant. It's hard to ever know the essence of another human being, but I think it's safe to say that his actions were evil.

(2) i am responding to a group of people that don't see what is odd, if what you are really worked up about prosecutorial misconduct, about focusing so disproportionately on this particular case.


That happens to be the prosecutorial misconduct case we're looking at in detail on this thread. Others have and will be looked at in detail on other occasions.
9.20.2007 3:37pm
Dan Weber (www):
For those of you who are not connnecting the dots, I think the Yale incident explains why Brodhead might have reacted with such visceral disgust at the involvement of strippers and subsequent violent exchanges over email about them.

Thanks for connecting the dots for me; this room is packed full of elephants, and it was tough for me to figure out just which one people are speaking around at a given point in time.
i am responding to a group of people that don't see what is odd, if what you are really worked up about prosecutorial misconduct, about focusing so disproportionately on this particular case.

One obvious answer is that a whole lot of (white) people who had assumed that they would be safe against prosecutorial abuse have now realized that it could happen to them.

There are whole new legions of (white) people willing to be brought into the camp that says "you can't trust the DA." However, since one big part of this case had some of the traditional "innocence-seeking groups" actively campaigning against the accused (NYTimes, NC NAACP), a bit of persuasion will need to be made that any new innocence projects would actually look out for their interests in the case that they or their family were falsely accused, and not work against them.
9.20.2007 3:38pm
Bob_R (mail):
My favorite joke about the case is that Broadhead was asked what he'd do if the basketball team was caught having a beer party with strippers. He replied that he'd do exactly as he did before - cancel the lacrosse season.
9.20.2007 3:44pm
Roger Rainey (mail):
Its all so very shameful.
9.20.2007 4:27pm
Tortmaster:
That is a funny joke Bob_R!
______________________

"[I]'m arguing that the interest in this instance of prosecutorial misconduct is suspiciously disproportionate to its egregiousness." - Kovarsky

That is a bad argument on many levels. If you are trying to say that the Duke Hoax was not as bad as some case in which an innocent defendant actually spent 18 years in prison, my response is, "Well, duh." Nobody here is arguing outcome-specific egregiousness comparisons.

The Duke Hoax, on the other hand, was the first attempted lynching of obviously innocent individuals in broad daylight since Jim Crow. (The process is egregious, not the outcome).

Many people followed this case since late April 2006 on the CourtTV messageboard. I was one of them. We all saw the source documents -- the evidence that proved the boys were innocent -- as it was filed in the public record. We all knew that exculpatory information was available to the media and to Brodhead and his in-house and retained legal counsel. Yet, the lynching marched on.
______________________

To Jena 6: The Duke Hoax dealt with numerous counts of prosecutorial misconduct, almost all of which have been proved before the North Carolina Bar and the State Court. From what I have heard about the Jena 6 case, it is a question of prosecutorial discretion. I disagree with the prosecutor, but I am not the one with the discretion.

If somebody would report what injuries the African-American male had from the "beer bottle" attack, as well as the criminal history of the beer-bottle attacker(s), and those injuries and criminal histories were comparable to the information dealing with the crime involving the white guy knocked unconcious, then I would start looking at prosecutorial misconduct. Then, there would be a serious question in my mind about equality in charging the crimes. Since the media is not reporting that information, I am very suspicious. I saw how the PC media reported the Duke Hoax case.
______________________

Finally, to Kovarsky and Justin, to equate the Duke case to other instances of prosecutorial misconduct, in which the alleged misconduct surfaced as much as decades after the fact is another straw man.

America watched as the Duke Administration allowed its faculty to join the lynch mob. The media and NAACP had already piled on, and a corrupt, PC-driven local government actively joined in the lynching. To me, that is the very definition of "egregious."
______________________

To Ralph Phelan: That is exactly the passage I was thinking about! Brodhead shedding tears for himself while in the presence of the lynched players. Simply disgusting.
9.20.2007 4:39pm
john smith (mail) (www):
Do you suppose this was part of the confidential settlement between Duke and the players?


DURHAM, N.C. (Sept 19) - In the wake of the now-debunked rape case against three lacrosse players, Duke University will establish a center devoted to justice and training lawyers to fight wrongful convictions, president Richard Brodhead said Wednesday.

Duke will invest $1.25 million over the next five years for the project at the law school, which will also expand its Wrongful Convictions Clinic and Innocence Project. The clinic and the Innocence Project investigate claims of innocence by the state's convicted felons and raise awareness of problems in the criminal justice system.

"The lacrosse case attracted a lot of publicity, but is not the only case in which innocent people have suffered harm through the state's legal system," said James Coleman, a Duke law professor who led a university committee that examined the team's behavior in the weeks following the 2006 accusations.

Coleman and Associate Dean Theresa Newman, both of whom teach at the clinic and serve as faculty advisers to the law school's student-led Innocence Project, are expected to be involved in the development of the new center.
9.20.2007 4:42pm
Ralph Phelan (mail):
Tortmaster sez:

"The Duke Hoax, on the other hand, was the first attempted lynching of obviously innocent individuals in broad daylight since Jim Crow."

And it went on, and on, and on. Every time another damning fact came out, I'd ask, "so is this finally going to be enough? Every time there was another hearing, I'd ask "So will this judge finally do his job and dismiss this turkey?" And over and over and over the system failed.

And so many conspirators were necessary - if there had been residing in Durham a single honest judge, ADA, town or county politician, local newspaper editor, university president, or policeman with a rank higher than Sgt. this whole thing could have been stopped.

The presence of incompetence, malice and corruption doesn't surprise me, it's a normal part of the human mix. It's the absence of decency that was remarkable even by my extremely cynical standards.
9.20.2007 5:12pm
Dan Weber (www):

if there had been residing in Durham a single honest judge, ADA, town or county politician, local newspaper editor, university president, or policeman with a rank higher than Sgt. this whole thing could have been stopped.


I think you misunderestimate some people.

Judge Smith was surely not the pushover the previous judge was. Himan may not have started out on the right side of this, but he came over before he had to. The scrappy News &Observor quickly started examining holes in the case.
9.20.2007 5:19pm
Ralph Phelan (mail):
Tortmaster said:
"To Ralph Phelan: That is exactly the passage I was thinking about!"

Oddly enough, none of Kovarsky's "Brodhead's really a nice guy once you get to know him" posts appeared after I posted that one.

Hey, there's something I asked on the "Media Mob Descends on Duke" thread and never got an answer to; I hope your handle indicates that you can give me an informed response:

The more Drape [NYT sports reporter] pushed, the more he came to believe that Mangum was not credible and her rape charge was probably false. Encouraged, Bill Thomas provided all the evidence of innocence then in his possession to the Times reporter, expecting a great article. But in early April Drape called Thomas and said there would be no article because he was "having problems with the editors."

And soon after Drape privately told people at Duke -- and, presumably, at the Times -- that this looked like a hoax, his byline disappeared from the Duke lacrosse story. The word among people at Duke and defense supporters, including one who later ran into Drape at a race track, was that the editors wanted a more pro-prosecution line. They also wanted to stress the race-sex-class angle without dwelling on evidence of innocence.

If Drape were to swear this acount is substantially true, and name the editor who said that to him, would it constitute sufficient "malice" and "reckless disregard for the truth" to allow the ex-defendants a plausible libel claim?

Would they have a chance of collecting humongous punitive damages?
9.20.2007 5:22pm
neurodoc:
Kovarsky, the first comment this morning came from law clerk, and I joined in a short time later to second what law clerk had said and add my own comments on how Brodhead had handled his first big assignment after arriving at Duke, that the ISM convocation and its aftermath. Are you familiar with the details of that debacle? In particular, did you read that blatantly antisemitic essay by Philip Kurian ("The Jews") and Brodhead's official reaction to it, both of which were published in The Chronicle? If you haven't, you should, since you cannot be at all informed about Brodhead's job performance at Duke otherwise. (Sorry, unable to find and link, but I expect you can manage to locate it.)

After you have read the Kurian piece and Brodhead's apologia, please come back and tell us then whether you think Brodhead hass proved himself to be a great leader or a spineless, contemptible wonder. And where the ISM affair and its aftermath are concerned, I can see no possible relevance of Brodhead's traumatic experience at Yale. Can you? If Brodhead was so emotionally vulnerable before the Yale experience or so emotionally damaged afterwards that he could not be counted on to do the right things as a university president, should he remain president of Duke? At the end of the day, you can cut this man as much slack as possible and there is still not enough to excuse his repeated failures as a leader.

Larry Summers "abrasive" (he really angered Harvard A&S faculty); Richard Brodhead "remarkable emotive capabilities" (tears filled his eyes as he told the Duke captains what it was like for him). The wrong guy was discharged; the wrong guy was retained. (Yale thought they lost, but in fact they got lucky.)
9.20.2007 5:23pm
Jim Rhoads (mail):
Novarsky's persistent defense of Brodhead's action is impressive in its persistence. But its substance is less so.

The gist is that Pres. Brodhead had a traumatic experience regading a homicide at another campus. This may have informed his handling of this situation.

Apparently, his handling of the former situation was not much better than his handling of this one. It seems to me he did not learn anything from his experience at Yale. If he did, he forgot when faced with the LAX problem.

For that, he gets an F. Strike two, Brodhead. I don't think his career will get any boost from this episode.

As to the Jena matter, the parallel to the Duke case is not compelling at all. It is just starting. The demonstrators are supporting the accused, not advocating railroading them as was the case with the Duke 88.
9.20.2007 5:25pm
peterhaley (mail):
Brodhead blew it, but what mystifies me is what appears to have been very little activity by prominent Duke alumni who are lawyers, and by Duke law school faculty, to get him straight. It was obvious to me after hearing Nifong would not even meet with the defense team that the case was ridiculous. Other than Jim Coleman, who was appointed to officially look ino the matter, and who presumably talked to Brodhead privately, no law faculty people did anything. I emailed Walter Dellinger early on about how important it was that he get involved, but he did not reply and, far more crucially, did not do anything that I know of. Aren't those guys the ones who have to answer in small part for some of the shortcomings of Brodhead?

I attended Berkeley and lived there for 30 years and am very familiar with spineless faculty of all stripes, so perhaps I should not have been surprised. Still, I think Dellinger and a few others could have done more---and maybe they did behind the scenes. I hope so.
9.20.2007 5:25pm
Ralph Phelan (mail):
"Judge Smith was surely not the pushover the previous judge was."
Judge Smith isn't from Durham.
"Himan may not have started out on the right side of this, but he came over before he had to."
He was the first conspirator smart enough to "flip," but he didn't until the state AG came in.
"The scrappy News &Observor quickly started examining holes in the case."
One scappy reporter at the N&O started examining holes - after the N&O had spent weeks pushing their phony "Saintly mother of two dancing her way through school" portrait of Mangum, which the had the evidence to know was false when they first "reported" it. If the N&O had an honest editor they might have decided that her drug charges, psychiatric history, previous unfounded gang-rape charge, and attempt to run over a policeman with stolen car were newsworthy before a whole year had passed.
9.20.2007 5:29pm
Tortmaster:
To Ralph Phelan: A poster at TalkLeft questioned whether Stuart &Johnson were a smidge too harsh on Brodhead in their book. I quoted the excerpt from Until Proven Innocent that you provided above and some additional material:


"On March 28, 2006, the four co-captains of the Duke lacrosse team accused of gang-raping an exotic dancer met with university president Richard Brodhead. One of the captains, David Evans, emotionally protested that the team was innocent and apologized for the misbegotten stripper party. "Brodhead's eyes filled with tears," Brodhead "said that the captains should think of how difficult it had been for him." The misbehavior of the players, said Duke's president, "had put him in a terrible position." Listening to Brodhead, Robert Ekstrand, a lawyer representing the captains and many of their teammates, "felt his blood starting to boil," write Taylor and Johnson. "Here, he thought, is a comfortable university president wallowing in self-pity in front of four students who are in grave danger of being falsely indicted on charges of gang rape, punishable by decades in prison.' "




--Until Proven Innocent, by Taylor &Johnson

Also:

1. Look at the timing of faculty meetings, the "Listening Ad," and the Campus Culture Initiative.

2. Think about all of the exculpatory discovery available to all of us, but ignored by Brodhead and his in-house and retained legal counsel.

3. Think about the firing of Pressler.

4. Think about canceling the Georgetown game.

5. Think about canceling the lax season.

6. Think about "whatever they did was bad enough." Bad enough for 30 years?

7. Think about the committee appointments, the Nartey accolades, the new Diversity &Equity position at Duke.

8. Think about the lack of a reprimand for Kim Curtis.

9. Think about the lack of any reprimand for numerous other violations of the Duke Faculty Handbook by Duke faculty.

10. Think about Brodhead's refusal to review the evidence or meet with parents.

11. Think about what a strong President could have done.

These are my opinions.

P.S. Ralph, your 4:12 posting is brilliant as history and commentary.
9.20.2007 5:30pm
neurodoc:
Ralph Phelan, please identify what specifically (the actual words, date of publication, reporter's byline, etc.) you think was libel, as the law, not common parlance, understands "libel" and "libelous." I very much doubt that the NYT libelled the LAX players (Floyd Abrams wouldn't have vetted it), though they have excellent reason to despise the NYT for its execrable reporting of the case. Much that we might see as "unfair" does not create a cause of action. (Yeah, somebody will always suggest negligent infliction of emotional damage, but that is under all but the rarest of circumstances a non-starter.)
9.20.2007 5:37pm
Tony Tutins (mail):
The Jena 6 story did not get any significant play in the mainstream media till quite recently. The accused did not get his picture on the cover of Newsweek at the time he allegedly helped beat the white boy. I first read about it on liberal blogs that chronicled
1. The attempt to sit under a tree
2. The nooses
3. A store clerk's pulling a gun on a black youth.
4. A black youth being turned away from a party to which he had not been invited.
5. The cutting down of the tree
6. Six black youths allegedly beating up a white boy.
7. The white boy going home two hours after he went to the hospital.
8. One of the black youths being convicted while the store clerk and the party guests were not prosecuted.
9.20.2007 5:44pm
quasimodo (mail):
Jena 6: this blog loves to rant about prosecutorial misconduct in the Duke Lacrosse case, but seems surprisingly silent thus far on the Jena 6 affair.

i suppose skin color has a lot to do with it.



I invoke internet debate rule 46: if you don't address every instance of racially motivated misconduct, you may not address any of them.
9.20.2007 5:53pm
ejo:
having now read the Van De Velde stuff online, one can only say that the person reaching for that as an explanation for this imbecile must be another university professor. other than attempting to frame someone who seems to be innocent and a showing of cowardice and incompetence, it has no relation.
9.20.2007 6:03pm
Tortmaster:
To Ralph: I have had experience in defamation law, including winning summary judgment for the producers of the documentary "The Thin Blue Line" and, in another case, a major newspaper. I also won damages for a private individual who sued based upon claims involving slander and libel. The judgment award was remitted somewhat on appeal, so I think I exceeded expectations.

The first hurdle in suing any newspaper (or Wendy/Nancy) for the Duke mess would be to establish that the lax players were NOT public figures. This would make the case much easier to prove. I have seen case law which holds that a public figure is someone who voluntarily injects himself into the public discourse or conciousness. I find it hard to believe that a false accusation qualifies as voluntary acceptance of "public figure" status.

Moreover, I would hate to be the media attorney arguing to the Federal Judge that the Duke boys were public figures, when it was the MEDIA that made them public figures. Finally, any argument that the boys were public figures because they played Division I lacrosse doesn't understand the fan appeal of Division I lacrosse.

(More to come)

My opinions only. I have not spent weeks (only hours) researching North Carolina law on the subject.
9.20.2007 6:04pm
x (mail):
I might be able to see charging someone with a crime in the case of (3) above, but exactly what 'crime' is committed by refusing to allow someone to crash a party?

Exactly what are you all attempting to prove by pointing to various cases involving minority defendants? Nifong (and others) malfeasance isn't lessened or excused by your lame attempts at finding equivalent cases. referenced in the last couple of days don't involve many of the factors relevant to the Duke lax players. Show me a case with a minority defendant where the following is true


The victim is an unreliable witness (and being a different race than the defendant doesn't indicate unreliability)

Physical evidence positively excludes the defendant as a suspect (not just that the evidence is circumstantial and can be explained away with a clever story, or prior acts some how *justified* the criminal actions of the defendant)

The prosecutor continues to press for indictments and hides exculpatory evidence from the defense
9.20.2007 6:07pm
SP:
"I think that's rather poor form. The connection, at least in terms of how an administrater might react more decisively to a campus event like this, is fairly obvious to anyone familiar with the event. And, frankly, it should be pretty obvious to those who aren't. I'm not articulating the precise effect itself; I just made the comment that I think it probably figures pretty prominently in his psychology.

I don't think it's appropriate to discuss the details publicly on this blog, where people are prone to tacky political hyperbole and analogy (see, e.g., you, above) but you can easily look event up online and figure the connection out yourself."

I'm sorry, but I can't fathom how any incident would justify the rush to judgment that Broadhead encouraged. Even if it did, that suggests that Brodhead's judgment is so susceptible to previous baggage that he doesn't need to be a university president.

Basically, I find you hiding behind a dead body instead of pointing out that what Broadhead did was wrong. Just because Broadhead is "liberal" and it was "liberal" to side with Mangum doesn't mean some things - like not rushing to judgment - should have nothing to do with politics.
9.20.2007 6:09pm
C. Bennett (mail):
I'm willing to accept that Kovarsky's inside knowledge of a previous and traumatic incident in Brodhead's life helps explain his behavior in facing a later traumatic incident. His actions may be fully explainable and it may be that reactions to him and to the case are, as in Kovarsky's eyes, over-wrought. This might be good material for a follow-on book or an extended essay.

The fact is, he should have the personal insight to realize he should not be a university president, a position where exercising moral discernment in applying law and using the authority of the President's office to maintain a rule of law is central to the responsibilities of that position. He may be, as Kovarsky says, brilliant, sensitive, emotive and otherwise gifted -- he is not a clear thinker on moral issues. He is easily swayed by crowd emotion, by his own past, by demanding faculty and student groups (left or right -- it makes no difference).

He is, unfortunately, a man who very much wants to be president of Duke and he appears willing to skirt an issue or roll over for any angry constituency that appears to imperil that great personal desire. He has, in fact, read the power structure correctly: misconduct in prosecuting the white lacrosse team will anger blog posters like those here; failure to prosecute, evidence notwithstanding, would have led, he knows, to a no confidence vote that would have removed him from office. Give him that: sensitive, brilliant, emotive AND savvy.
9.20.2007 6:23pm
neurodoc:
Tortmaster, are you saying that you see the makings of a strong libel case, one that you would encourage the players and the parents to pursue, one that you would take on a contingency fee basis? Or are you only saying you see a "colorable" claim, a term I have never heard attached to a slam dunk winner of a case? What have you identified as clearly libelous publications, or do you think it can be seen as libelous "in the aggregate"? Is there such a notion as "in the aggregate," meaning that no single sentence or paragraph would constitute libel, but somehow the totality of what was published added up to libel? What exactly was "false" rather than just imbalanced, selective, insinuative, and otherwise objectionable?
9.20.2007 6:47pm
Tortmaster:
To Ralph Phelan: Here is some of the law about defamation. This is North Carolina stuff, so, unless it has changed recently, I think it is still good.

1. Elements of Defamation.

In order to recover for defamation, a plaintiff must allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person. See Tyson v. L'eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987). Libel per se is "a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; ... or (4) otherwise tends to subject one to ridicule, contempt or disgrace." Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995).

2. Media-Specific Defamation Law.

The State of North Carolina does have a minimum standard for the media. The media has to be "substantially correct" and fair and complete. In Lacomb v. Jacksonville Daily News Co. (2001), the North Carolina court held that the defendant newspaper had to be "substantially" accurate. Here is the relevant portion of the decision:


"Although the fair report privilege has never been explicitly defined by North Carolina case law, the privilege nonetheless exists to protect the media from charges of defamation. In Kinloch v. News &Observer Pub. Co., 314 F. Supp. 602, 606 (E.D.N.C. 1969), affirmed, 427 F.2d 350 (4th Cir. 1970), the federal district court, citing North Carolina law in a case involving a newspaper report of a hearing before the Alcohol Control Board, referred to a conditional or qualified privilege which protects "publication of matters of public interest." This conditional privilege refers to the protection afforded a newspaper when the account of an incident is substantially accurate: The law does not require absolute accuracy in reporting. It does impose the word "substantial" on the accuracy, fairness and completeness. It is sufficient if it conveys to the persons who read it a substantially correct account of the proceedings."


3. Venue, Substantially Fair and Complete.

The Duke boys could make these pendent claims in federal court in North Carolina. I think there would be no long arm problems because the Times is manually distributed in that state; Moreover, it is on-line throughout the United States (e.g. the company does business in North Carolina).

The next question is whether the reporting was substantially fair, accurate and complete. In my opinion, all of the following are liable in descending order of "egregiousness": The Herald-Sun, The News&Observer, The New York Times, Nancy Grace, Wendy Murphy, etc.... The final question is damages.

Hope this was helpful. Any NC practitioner who wants to jump in is welcome. MOO! Gregory
9.20.2007 6:51pm
neurodoc:
Correction: I have been mistakenly referring to that '05 gathering at Duke as an International Solidarity Movement (ISM) thing. law clerk had it right, it was the Palestinian Solidarity Movement, an affiliate of the ISM organization, who convened on the Duke campus not long after Brodhead arrived on the scene. Both ISM and PSM are similarly tainted by great sympathy for terrorists and their causes.
9.20.2007 6:54pm
Tortmaster:
To Neurodoc: I'm sorry, I did not see your post before posting my post. I believe there are slam dunk cases out there IF the families want to pursue them. (If my analysis above is correct). Caveat: I am not a North Carolina practitioner, and I have only spent hours on issues that deserve weeks of research. Just a few of the specific torts:

1. The Herald-Sun. This newspaper provided the most one-sidedest reporting I have seen outside of Pravda. Their wrongdoing was a day-to-day campaign of disinformation, mostly dealing with the remarkable ability to ignore important evidence in their reporting. It fails the "fairly complete" standard cited in Lacomb in the post above like no other paper in the history of ... well ... journalism.

2. The N&O. Joe Neff was an excellent reporter in this case. He should win a Pulitzer for courage, and his reporting was a huge bonus. A couple of others on the staff, Niolet and Blythe, also deserve kudos. The remainder at the plant should be bankrupted. Their most egregious violation was to omit crucial information from the Samiha Khana article that basically started the Hoax. They failed to mention that Crystal Mangum implicated Kim Roberts in theft, and they failed to mention that Mangum claimed that Kim was RAPED TOO! This paper also failed the "substantially complete" standard from Lacomb.

3. The New York Times. Duff Wilson looked at substantially the same evidence that the NC Attorney General reviewed. The NC AG stated that the boys were "INNOCENT." Duff Wilson wrote that Nifong had enough evidence to go to trial. There was never a mention of all of the exculpatory evidence that was available to the public. It failed the "substantially complete and fair" standard.

4. Wendy Murphy. K.C. Johnson has quoted Wendy Murphy on this case. One of her quotes is posted on his list of the worst of the hoax. For that quote alone, she should be bankrupted.

These are my opinions only. MOO! Gregory
9.20.2007 7:13pm
Elliot123 (mail):
Kovarsky: "I can't help but find pathetic some of the commenters who are babbling about how he's spineless because he made some judgment call they disagree with."

Do you contend his judgements in the case were correct and admirable? How did he exhibit his brilliance and remarkable emotive capabilities?
9.20.2007 7:41pm
Elliot123 (mail):
Kovarsky: "You are obviously failing to grasp the distinction between an argument over whether Brodhead's response was appropriate and an argument over whether the interest in this case's prosecutorial misconduct seems disproportionate to that misconduct's magnitude."

The reaction to this case is in response to far more than prosecutorial misconduct. It also responds to repeated and widespread editorializing by MSM outlets, public faculty presumption of guilt and calls for punitive action, and claims that the case was an empirical demonstration of the meta-narrative that rich white men are regularly abusing poor black women.

I would ask if the response of the MSM and faculty was disproportionate to the evidence at the time?
9.20.2007 8:08pm
Tortmaster:
For a more in-depth look at some of the actions of the News&Observer in the Duke Hoax, check out John in Carolina's excellent latest:

John in Carolina

Excerpt from John's letter to the N&O Editor:


On March 25 you also had the critically important news Mangum told you that the second dancer had also been raped at the party, but hadn't reported it to police for fear of losing her job, as well as the statement she made to you that she thought the second dancer would "do anything for money."

You failed to report that news, so extraordinarily exculpatory for the players. And what is worse by many magnitudes of mendaciousness, you covered it up for thirteen months as you watched the players and their families endure an horrific ordeal while you sold newspapers every day of those thirteen months.

...

On April 2, 2006 the N&O published a photo of the "Vigilante" poster large enough so that anyone, including unstable and dangerous people, could enlarge it and have face photos of the 43 white Duke students pictured on it.

The N&O published the photo after Duke had expressed concerns that doing so would add to the already considerable danger the players were facing. Did Newsweek or any Noth Carolina daily do that?
9.20.2007 8:59pm
JSwift (mail):
Tortmaster is far too kind in his summary of Duff Wison's August 25 article. This article has been described as the single worst piece of journalism in this entire case (given the horrendous job done by the MSM, that is saying quite a bit). Tortmaster notes Wison's claim that his review of the 1,850 pages of discovery showed a body of evidence that supported Nifong's decision to take the case to a jury. The NC AG in April concluded that there was "no credible evidence" that any crime had been committed.

In reaching his conclusion, Wilson relied on a 33 page typed report provided by Sgt. Mark Gottlieb to Nifong in late June and provided to the defense in early July. This report, composed months after the activities it described, was not composed with the benefit of contemporaneous notes. Gottleib essentially composed it from memory. This report contradicted the reports of several other police officers that had been provided on a timely basis. Not surprisingly, each of the inconsistencies in Gottlieb's report filled in holes in the prosecution case. Wilson did not focus on the many inconsistencies or the fact that the preparation of the report from memory months after the fact was not consistnet with standard police procedures..

This report was viewed by most observers as a transparent fraud. This report, however, was the primary piece of evidence Wilson used to support Nifong's decision to take the case to trial. Moreover, this report didn't even exist when Nifong made the decision to indict the players in April and May. Wilson simply ignored this inconvenient fact.
9.20.2007 9:23pm
Charlie (Colorado) (mail):
There's actually a fairly simple model for Brodhead's behavior, which in fact has been pretty consistent as a model back at least to when I was a student there and Terry Sanford was President:

in all cases, the Duke Administration will do whatever they think has the greatest chance of impacting positively the ability of the university to attract more funding. Brodhead didn't care about the students's situations --- he was concerned it would make life harder as he tried to accumulate a bigger Endownment.
9.20.2007 10:58pm
Harry Eagar (mail):
Dan Weber sez: 'One obvious answer is that a whole lot of (white) people who had assumed that they would be safe against prosecutorial abuse have now realized that it could happen to them.'

He just made that up. I know plenty of white people (practically anybody in a newsroom) who understand the ways of prosecutorial misconduct.

If 'a whole lot of white people' didn't think about prosecutor misconduct, it would have been because they never thought about prosecutors at all.

Weber's implication, that whites were for prosecutorial misconduct toward minorities, is pretty slimy.
9.21.2007 1:14am
neurodoc:
Charlie (Colorado), I don't doubt that Governor Sanford was a vigorous fundraiser, even a standout among university presidents whose job it is to bring in the $$$. But did Sanford ever do anything like Brodhead has done on repeat occasions? (I do know a Duke alum who in Sanford's time was seriously injured when punched by an All-American basketball player and the school shielded the basketball player from any legal consequences.) I think you are unfair to Sanford's memory (no relation to me) when you liken him in any way to the pusillanimous worm who currently serves as Duke's president.

(Yes, I do like "pusillanimous" to describe Brodhead.)
9.21.2007 1:41am
Mike G in Corvallis (mail):
Brodhead reminds me of the story of one particular Politburo member during Stalin's purges ... alas, I don't recall his name, but he was noted for being a spineless suckup. It got to the point that, when his own wife was accused of plotting against the Soviet state, he did not speak up in her defense during her trial. As they were leading her away, she shouted out to her husband, "How can you let them do this to me? You know I'm innocent!" He replied, "But darling, the evidence against you was so persuasive!"
9.21.2007 5:03am
haskell (mail):
For me, the real issue is the attack of the mad-dog faculty. How does one handle that degree of confrontation and anger in a constructive way? Emotional blackmail should not be tolerated, but how can a University president respond with being branded, dare I say it, insensitive? Peter Lange tried, and got a nasty letter from a bunch of AA True Believers.
9.21.2007 10:33am
haskell (mail):
I apologize for the typo in my 9:21 post. I meant "without being branded". Sorry.
9.21.2007 10:38am
James Kabala (mail):
"Duke officials did not - - at least privately - - initially believe Crystal Mangum's fantastic lies."

This may be the most horrible revelation of all. I admit that when the case first broke I was not following it in depth and assumed the charges were probably true, which I now sincerely regret and apologize for - although this was only for about the first week, of course, after which it became clear to anyone with a brain that the charges were most likely bogus. I assume that those who still held on to banging the drum for guilt for weeks and months afterwards - Murphy, Grace, Marcotte, Wood, Baker, Feinstein, Wilson, etc. - deluded as they were, actually believed the players were guilty. Maybe even Nifong actually believed the charges were true. But for Brodhead and the Duke administration to know the players were innocent and take the actions that they did? That is truly evil.
9.21.2007 10:47am
Dan Weber (www):
Weber's implication, that whites were for prosecutorial misconduct toward minorities, is pretty slimy.


Oh, you caught me in my slimy implication! Curse you Internet! Curse you blogosphere! My nefarious schemes have been outed once again! Foiled again!
9.21.2007 11:18am
Carson (mail):
Dan Weber's contributions here of first sliming whites and then patronizing sarcasm when it is noted (light and humorous sarcasm is not his gift) make him a great example of what the lacrosse players were up against, except their opponents also had badges. Thanks, Weber -- it's sometimes possible to forget these events aren't from fiction: there really are people like that. He has a website for those looking for more condescension.
9.21.2007 3:05pm
Toby:
The favorite response (to me) to Brodhead that I have heard is the vow of several (many) DU alums who claim to have been long term donors that they will send in $0.88 checks each year until the faculty are dealt with...
9.21.2007 4:49pm
neurodoc:
Jonathan Feinstein, the sportswriter? Diane Feinstein, the senator?
9.22.2007 5:23pm