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Nifong Before Lacrosse
The basic tale of Mike Nifong -- the disbarred, disgraced, jailed-for-a-day former Durham DA who may yet face a felony prosecution -- is widely known. But news reports have barely begun to plumb the depths of what may be the worst prosecutorial misconduct ever exposed while it was happening.
Desperate to win an election against a strong white candidate in a county about evenly divided between whites and blacks, Nifong (also white) seized on a patently incredible, constantly changing rape allegation against Duke lacrosse players. It was made in March 2006 by a deeply disturbed African-American stripper named Crystal Mangum. Using the case to inflame racial discord, the DA rode the black vote to victory.
The problem was that that the rape claim was a transparent fraud. And in hindsight, Nifong's conduct seems bizarrely self-destructive. What kind of man would try to send three innocent young men to prison for 30 years to win an election? How could a career prosecutor not previously known as a nut or a rogue go so bad, so fast? How could he have thought he would get away with it?
Stuart Taylor and I (who jointly wrote this post, and one later today) have found widespread curiosity about these questions, especially among lawyers, while working on our new book, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case. So this first post in a week of guest-blogging focuses on Nifong's background, character, and the months of escalating misconduct that have brought him down. Subsequent posts will examine the misconduct (as we see it) of dozens of Duke professors, many journalists, the Duke administration, and the Durham law enforcement establishment.
A North Carolina native, Nifong was an undistinguished student at the state university in Chapel Hill, where he acquired an intense dislike both for Duke students and for lacrosse players, and its law school, from which he graduated in 1978. His first and only job as a lawyer was as an assistant DA in Durham. The competent, if undistinguished, prosecutor tried around 300 felony cases and rose in seniority amid high turnover.
Nifong had a reputation as a tough, sometimes bullying prosecutor. He was known for throwing screaming, obscenity-laden fits at people he thought he could push around. But he was not known as a zealot or as unethical. After a medical leave in the late 1990s, Nifong moved to a sleepy job in traffic court.
Then Governor Mike Easley named Nifong interim DA in April 2005, after elevating his elected predecessor, Jim Hardin, to the bench. Easley later said that Nifong had pledged not to seek election in 2006 for a full four-year term. If so, Nifong violated the pledge. He declared his candidacy a few months later, apparently because his pension was at stake.
His pension? Yes: In his first day as DA, Nifong had fired a longtime rival, Freda Black. She quickly made clear her intent to run in 2006. Well-known from her work in a high-profile murder trial, Black soon became the front-runner. Nifong knew that Black would fire him, as he had fired her, the first chance she got. His concern, he told his initial campaign manager, Jackie Brown, was not that he cared about being DA; he needed another three years in the Durham DA's office for his pension to fully vest.
Nifong proved an inept candidate. By mid-March, 2006, he was way behind Black and out of money. Even after lending his campaign $30,000 of his own modest savings, he still seemed doomed to defeat.
Enter Crystal Mangum and her fantastic claim of being brutally gang-raped, beaten, kicked, and strangled by three white, out-of-state, supposedly rich Duke lacrosse players. For Nifong, this was a lifeline. And he would define his career by his subsequent actions.
Nifong: The Banality of Evil
After learning of Crystal Mangum's far-from-credible rape allegation, Mike Nifong moved on Friday, March 24, 2006 to take direct command of the eight-days-old police investigation, in a gross departure from standard procedures that avoided oversight of the investigation by any police official above the rank of sergeant. Meanwhile, the police and local papers dramatized the case as an unquestioned example of privileged white athletes victimizing a poor black woman.
Then Nifong met on March 27 with the two main police investigators in the case. They told him that a sexual-assault nurse in training at the Duke hospital thought Mangum had been raped. Perhaps Nifong believed the nurse-trainee, even though the hospital records showed no physical evidence of rape; certainly it was politically convenient to believe her.
But Nifong also had access to the reports of Mangum's wildly inconsistent stories. And he learned from the cops that Mangum had been unable to identify a single attacker in two photo lineups and that the second dancer, Kim Roberts, had called Mangum's allegations a "crock." Nifong's response: "You know, we're f***ed."
Less than an hour later, ignoring ethics rules forbidding prosecutors from publicly seeking to "heighten condemnation of the accused," the D.A. began an unprecedented, week-long media campaign. He declared with certitude in dozens of interviews that white Duke lacrosse players had raped and brutalized a black woman while pelting her with racial epithets.
Nifong compared the alleged crime to a cross-burning, and to a quadruple homicide. He falsely claimed that the players had refused to cooperate with police. Before long he had whipped up African-Americans and others in Durham and at Duke into such a frenzy of rage at the lacrosse players that it would have consumed Nifong himself had he failed to produce rape indictments before the May 2 primary election.
Meanwhile, evidence of innocence came pouring into the DA's office. But there was no turning back for Nifong. So when he learned privately that DNA tests of all 46 white lacrosse players were negative, he publicly abandoned his own office's assurance that the DNA would identify the guilty and exonerate the innocent. Instead, Nifong started saying that DNA doesn't prove anything, and that the attackers might have used condoms. Never mind that Mangum had repeatedly asserted that her "attackers" had not used condoms and that one, two, or three of them had ejaculated.
Nifong also spurned several offers by defense lawyers to show him detailed alibi and other evidence that their clients were innocent, including an electronic timeline established by time-stamped photos and cell phone records. The DA avoided ever personally interviewing the ever-changing Mangum about the facts. And he looked the other way as other evidence of innocence accumulated.
This was a classic case of willful blindness to the facts. It was as though Nifong sensed that the rape charge was probably a fraud -- how could he not? -- but wanted to avoid confronting clear proof because he was determined to prosecute no matter what the evidence.
Accordingly, Nifong focused on manufacturing evidence of guilt. He rigged up a third photo-ID process that violated all the rules designed to insure reliability. The police showed Mangum photos only of lacrosse players who had attended the party. They told her this, stoo. In what amounted to a multiple choice with no wrong answers, Mangum "identified" four lacrosse players as possible attackers. Nifong obtained indictments against three of them.
Nifong also sent the DNA evidence to a private lab for more sensitive, "Y-STR" testing. The results were even more conclusive proof of innocence: In three meetings during April and May of 2006, lab director Brian Meehan told Nifong and his police investigators that while the DNA in the rape kit did not match any lacrosse player, the lab did find the DNA of multiple other, unidentified males. Mangum had told police she had no sexual contact with anyone for a week before the supposed rape.
Rather than drop the charges, Nifong and Meehan agreed that the paid expert would hide this powerful evidence of innocence by omitting it from his report. And in the summer and fall of 2006, Nifong lied to two judges when asked whether Meehan's tests contained anything beyond what his report had revealed. What finally blew Nifong's case out of the water was a riveting, December 15 cross-examination in which defense lawyers forced Meehan to admit all the elements of this conspiracy.
Nifong's unethical media campaign, his willful blindness to the facts, his rigged photo lineup, his lies to the public and the court, and his concealment of proof of innocence are a rare study in how to frame innocent defendants by using procedural violations to construct a phony case out of whole cloth.
The DA also had accomplices who joined or assisted in his crimes, including some police officers and others, plus enablers who helped him get away with his flagrant misconduct for so long. Subsequent posts will examine some of the enablers.
As for Nifong, North Carolina Attorney General Roy Cooper called him a "rogue prosecutor" in April, while declaring the three wrongly indicted defendants "innocent." The DA lost his law license in a bar disciplinary hearing in June. He was convicted of criminal contempt and jailed for a day this month. And he still faces possible investigation for crimes that could bring serious prison time, including obstruction of justice and violating the lacrosse players' civil rights.
(KC Johnson co-authored this post.)
"Conservatives" and the Lacrosse Case
Both of the comment threads dealing with the case have featured comments suggesting that conservatives rushed to judgment as well — only on the opposite side because the accuser was a black woman and the accused were white males who were perceived as wealthy.
This seems to misrepresent the pattern of early dissent in the lacrosse case. A few conservatives did criticize Nifong at a relatively early stage (Sean Hannity, Wendy McElroy, La Shawn Barber).
But by far the most passionate — and persuasive — early critic was Jeralyn Merritt at TalkLeft, whose posts saw through Nifong's case even before the first two indictments. The first searing moral critique of Nifong's behavior came from an African-American sportswriter, Jason Whitlock. And the key local public opposition to Nifong came from a liberal Duke Law professor, Jim Coleman.
This case, obviously, came to attract considerable conservative interest — as, indeed, it should have. Prominent liberal organizations, such as the New York Times or the state NAACP, took stances that bolstered prosecutorial misconduct, contradicting their stated general principles. But the idea that the opposition to Nifong originated from some type of conservative cabal is, to me, misguided.
(For the record, I'm a Democrat who's supporting Barack Obama for president and who vehemently favors gay marriage, choice, and fair taxation policies.)
The Group of 88
Professors like to think of themselves as aggressive defenders of due process. In theory, the academy exists for the pursuit of truth. And faculty members are, in an ideal world, more inclined to embrace the dispassionate evaluation of evidence than the passions of the mob.
The behavior of activist members of the Duke arts and sciences faculty during the lacrosse case contradicted all of these myths about the academy. And most other professors at Duke elected to remain silent as their extremist colleagues rushed to judgment and refused to reconsider their actions.
In March 2006, less than a week after Crystal Mangum's rape allegation became public, Houston Baker, a professor of English and African-American Studies, penned an open letter demanding the immediate expulsion from Duke of all 46 white players on the lacrosse team. (Several lacrosse players, in fact, hadn't even attended the party.) Baker mocked the "tepid and pious legalism" that resulted in "male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain."
Two days after Baker's missive, the former dean of faculty, History professor William Chafe, published an op-ed in the campus newspaper, the Chronicle. Entitled "Sex and Race," Chafe's op-ed suggested that the whites who kidnapped, beat, and murdered Emmett Till provided the appropriate historical context through which to interpret the behavior of the lacrosse players. In an unintentional commentary on the article's intellectual seriousness, Chafe (a historian of civil rights) misidentified the year for Till's murder, one of the crucial events in the development of the civil rights movement.
Then, on the 6th of April, 88 members of the arts and sciences faculty took to "the most easily seen venue on campus," the Chronicle, to publish a full-page ad filled with guilt-presuming anonymous quotes, allegedly from Duke students. In their own voice, the professors asserted unequivocally that something "happened to this young woman" (Mangum). Following up on protests that had featured a "castrate" banner and the widespread distribution of a "wanted" poster with lacrosse players' photos, the signatories said, "To the protesters making collective noise, thank you for not waiting and for making yourselves heard." And the ad, paid for by the African-American Studies Program, claimed the endorsement of five academic departments—even though none of the departments had actually voted on the issue.
Months later, when asked about the propriety of the ad, statement author Wahneema Lubiano (a Literature professor and 1987 Ph.D. who has never published a scholarly monograph) unintentionally testified to the groupthink evident in many Duke departments: "In the moment when the ad came out, I did not hear from one colleague that there was something wrong with the ad."
The signatories, who came to be called the Group of 88, were of differing races, genders, departments, seniority, and interaction with the lacrosse players. But they had one thing in common. Disproportionately housed in the humanities and a few social sciences departments, an astonishing 84.1 percent of Group members describe their research interests as related to race, class, or gender (or all three). Some featured research agendas that came across more as parodies than serious scholarship. To take some extreme examples: Kathy Rudy published a scholarly article reminiscing how, when she arrived in Durham, she and fellow radical feminists oriented their activities around "the ideas that women were superior and that a new world could be built on that superiority." Grant Farred's most recent book looked at the controversy over ex-Rockets' coach Jeff Van Gundy's claim a few years back that officials were making too many calls against the team's star center to wildly assert that Rockets player Yao Ming "represents the spectral presence of Chinese capital within America. He is, precisely because of his complicated ideological heritage, the most profound threat to American empire."
For those whose intellectual approach presupposes an American society deeply oppressive on grounds of race, class, and gender, the lacrosse episode was too tempting not to exploit. As Group member Mark Anthony Neal explained two days after Nifong obtained his first indictments, the allegations proved that Duke needed to rework its curriculum in "an innovative and brave" fashion, so as to teach students to behave "in a progressive manner."
The most striking aspect of the faculty's reaction, however, came not in the rush to judgment but in the professors' utter closed-mindedness as Mike Nifong's case collapsed in late 2006. A post later today will discuss the issue.
The Group of 88's Effects
While the Group of 88 led a faculty rush to judgment against the lacrosse team, the most striking aspect of the Duke faculty's reaction to the lacrosse case came in the professors' utter closed-mindedness as Mike Nifong's case collapsed in late 2006. For instance:
--History professor Peter Wood claimed, in an interview with the New Yorker, that a lacrosse player advocated genocide against Native Americans. His evidence: an anonymous student evaluation in a class of 65.
--Literature professor Grant Farred published an October 2006 op-ed accusing Duke students of "secret racism" for seeking to vote Nifong out of office; in April 2007, he publicly deemed unnamed lacrosse players guilty of "perjury."
--Houston Baker, by this point having been hired away by Vanderbilt, suggested that the lacrosse players might have been guilty of other rapes (he supplied no evidence) and e-mailed one player's mother that her son and his teammates were "farm animals."
Such statements seemed to violate the spirit if not the letter of Duke's Faculty Handbook, which contains the following passage: "Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty."
Yet — as our book makes clear — the Brodhead administration had shown no willingness to enforce the Handbook's provisions at any point in the lacrosse affair. In spring 2006, at least three History professors used class time (in classes with lacrosse players) to deliver guilt-presuming lectures, including one who offered what he termed the findings of his "research" — that an "ejaculation had occurred." An anthropology professor dismissed her class so the students could go outside and watch an anti-lacrosse rally. And a political science professor — after sending an e-mail in which she described the two lacrosse players in her class as accomplices to rape — gave both students an F on the final paper. One sued Duke; in an out-of-court settlement, Duke publicly announced that the grade had been changed (to a "pass") and paid an undisclosed sum.
Group members disinclined toward unsubstantiated attacks or unprofessional behavior engaged in an Orwellian attempt to redefine the past. Perhaps the best example came in a January 2007 op-ed from English professor Cathy Davidson, who rationalized the Group of 88's statement as nothing more than saying "that we faculty were listening to the anguish of students who felt demeaned by racist and sexist remarks swirling around in the media and on the campus quad in the aftermath of what happened on March 13 in the lacrosse house. The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women."
These claims were absurd: in late March and early April 2006 virtually no one was publicly defending the lacrosse players "on the campus quad" or anyplace else, much less using racial stereotypes to do so.
While the Group members' positions might have been divorced from reality, they had a chilling effect on campus discourse. For nearly six months, as an extraordinarily high-profile case of prosecutorial misconduct involving their own students unfolded before their very eyes, not one member of the Duke arts and sciences faculty publicly criticized Nifong's behavior. The first who did so, Chemistry professor Steven Baldwin, also blasted the Group of 88 for betraying their responsibilities as professors. The response? The next day, the director of Duke's women's studies program accused Baldwin of using the "language of lynching," while the co-director of Duke's Center for Study of Race, Ethnicity, and Gender sent Baldwin an e-mail implying that they should settle their differences through violence.
This sorry record did not pass without notice. In a virtually unprecedented move, defense attorneys cited the statements and actions of the students' own professors as a major reason why these undergraduates could not receive a fair trial locally. Wade Smith, one of the lead defense attorneys, noted during Nifong's ethics hearing that the D.A.'s publicity campaign effectively transferred this case from the start to the court of public opinion. In that courtroom, the antics of the race/class/gender-obsessed Duke professors had considerable effect. After Nifong recused himself, the defense attorneys prepared a PowerPoint presentation of the case for their initial meeting with the special prosecutors. They ended the presentation not with anything Nifong said or did but with a close-up of the Group of 88's statement, as a prime example of the shameful aspects of the case.
Even now, with Nifong's case having been exposed as a fraud, only one member of the Group of 88 has publicly apologized. Another privately admitted that she was sorry for signing the statement, but wrote that if she apologized publicly, "my voice won't count for much in my world." The Economist recently concluded: "The only people who, it seems, have learned nothing from all this are Mr. Nifong's enablers in the Duke faculty. Even after it was clear that the athletes were innocent, 87 faculty members published a letter categorically rejecting calls to recant their condemnation. And one professor, proving that some academics are as far beyond parody as they are beneath contempt, offered a course called 'Hooking up at Duke' that purported to illustrate what the lacrosse scandals tell us about 'power, difference and raced, classed, gendered and sexed normativity in the US.'"
Media Mob Descends on Duke:
In late March of 2006, the journalistic echo chamber quickly spread the image of drunken, disorderly, publicly urinating lacrosse thugs around the world. It began with an appallingly biased five-column, front-page March 25 article in the Raleigh News & Observer. The headline -- "Dancer Gives Details of Ordeal" -- conspicuously omitted the word "alleged." So did the subhead, "A Night of Racial Slurs, Growing Fear, and Finally, Sexual Violence." False. As was much of the coverage in the Durham Herald-Sun.
Nifong whipped the national media into a feeding frenzy with his assertions on March 27 and thereafter that the lacrosse players were clearly guilty of raping the "victim," of pounding her with racial slurs, and of forming a "wall of silence" to cover it up.
Of course, it was understandable that in the early days reporters and others would wonder: Why would a woman make up such a charge? And why would a prosecutor embrace it so confidently unless he had the evidence to prove it? So the initial coverage was bound to highlight Nifong's charges.
Far less understandable was the sparse coverage of the four captains' public statement on March 28 that the rape charge "is totally and transparently false"; that the "team has cooperated with the police" and "provided authorities with DNA samples"; and that "the DNA results will demonstrate that these allegations are absolutely false."
For a defense lawyer to allow such a prediction unless certain it would prove out would court professional suicide. This put careful journalists on notice not only of the claim of innocence but also of defense lawyers' confidence -- after grilling the lacrosse players and investigating other evidence -- that the DNA would set them free.
USA Today ignored the statement entirely in a March 30 article that, instead, stressed that "the flier being distributed outside Duke's student union Wednesday night looked like a wanted poster: 40 faces of young men, smiling smugly for the camera." Reporter Sal Ruibal reached out for a gratuitously pejorative adverb to describe a bunch of kids smiling for their official photos.
Chimed in columnist Christine Brennan: The lacrosse players were "giving us all a whole new definition of the word teamwork. ...Perhaps if no one is found guilty of any criminal activity in this unseemly affair, the collective silence of the Blue Devils someday will be seen as admirable. For now, though, the sports world's vaunted concept of team is reaching a frightening extreme."
In this atmosphere, The New York Times initially stood out for its reasonably balanced coverage. The first Times reporter to conduct detailed interviewing about the evidence in the rape case was sportswriter Joe Drape, who authored or coauthored articles that appeared on March 29, March 30, and March 31. In each article, he quoted Nifong but also presented a defense viewpoint.
Drape quoted Durham defense lawyer Bill Thomas providing an unanswerable reply to Nifong's taunts: "Everyone asks why these young men have not come forward. It's because no one was in the bathroom with the complainant. No one was alone with her. This didn't happen. They have no information to come forward with."
The more Drape 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. They got what they wanted from Drape's replacement, Duff Wilson, whose reporting would become a journalistic laughingstock by summer, and other reporters including Rick Lyman.
Times editors also got what they wanted from sports columnist Selena Roberts. Her March 31 commentary, "Bonded in Barbarity," seethed hatred for "a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings." Virtually presuming guilt, Roberts parroted already-disproved prosecution claims that all team members had observed a "code of silence." She likened team members to "drug dealers and gang members engaged in an anti-snitch campaign."
Roberts also took a swipe at Duke itself: "At the intersection of entitlement and enablement, there is Duke University, virtuous on the outside, debauched on the inside.. . . Does President Brodhead dare to confront the culture behind the lacrosse team's code of silence or would he fear being ridiculed as a snitch?" The message was clear (and soon heeded by Duke President Richard Brodhead): Lynch the privileged white boys. And due process be damned.
Despite the passionate commitment to "diversity" and trashing of "privilege" in her Duke columns, Roberts herself lived a rather privileged life, with a home in Westport, Connecticut, a bastion of rich whiteness. Hypocrisy, perhaps?
Duke Coverage: The Good, the Bad, & the Ugly
As of early April, now at the head of the guilt-presuming pack, The New York Times vied from early April 2006 on in a race to the journalistic bottom with trash-TV talk shows hosted by the likes of Nancy Grace, CNN's egregiously biased, wacko-feminist former prosecutor. The Washington Post, The Los Angeles Times, USA Today, CNN's Paula Zahn, and many others joined in.
By late March, CNN, MSNBC, NBC, and Fox TV trucks were filling the parking lots, grabbing random students for interviews, turning the campus into a freak show set. The team's 46 white members had been branded as depraved racists from coast to coast.
Like the extremist professors, the media were not about to let mere evidence get in the way of a delicious "morality play that simultaneously demonized lacrosse, wealth, the white race, the South, and the male sex," as Charlotte Allen later wrote in The Weekly Standard. Consider the coverage of the disclosure of near-conclusive proof that the rape charge was a fraud: the April 10, 2006 release by defense lawyers of undisputed evidence that no lacrosse player's DNA had been found anywhere in or on Crystal Mangum.
The DA's office itself had previously told the court that the "DNA evidence requested will immediately rule out any innocent persons." Case closed, one might think. But most in the media treated it as a mere bump in the road.
The Times, for example, put the defense bombshell on the sports page, rounded up people to dispute the defense claims, and misleadingly quoted a respected DNA expert to suggest that the DNA didn't prove anything. Sports columnist Selena Roberts, apparently oblivious to the evidence, wrote on April 11 that "Duke's lacrosse members established a Lord of the Flies ethos in Durham." Even worse were Nancy Grace and Wendy Murphy (an adjunct law professor who made over 30 appearances on the case and at one point affirmed, "I never, ever met a false rape claim, by the way. My own statistics speak to the truth").
"The authorities were leading the lynch mob and the press was behind them clapping and screaming," defense lawyer Joe Cheshire later recalled. "It was stunning to me how they leapt to a conclusion, and their absolute unwillingness to listen to anything that wasn't what they had already decided they wanted to be true."
There were honorable exceptions, including the meticulously fair coverage of MSNBC's Dan Abrams and ABC News "Good Morning America's" Chris Cuomo. Some conservatives, including MSNBC's Joe Scarborough, also stressed the evidence of innocence that came pouring into the public record. (Our book is critical of Scarborough's coverage based on three early programs, a lapse for which I have apologized after having my attention drawn to his more numerous subsequent comments highlighting evidence of innocence.)
Times columnists David Brooks and Nicholas Kristof put the paper's news columns and sports pages to shame with forceful pieces in May and June 2006 headlined, respectively, "The Duke Witch Hunt" and "Jocks and Prejudice." Newsweek atoned for putting mug shots of two Duke defendants on its cover by running on June 19 a strong piece demolishing Nifong's phony case. Investigative reporter Joe Neff of the News & Observer did stellar work throughout. Producers working with the late Ed Bradley of "60 Minutes" spent months putting together a devastating expose of the case's fraudulence that finally aired on October 15.
The Chronicle, Duke's student newspaper, consistently outclassed almost all of the national media. So did an ideologically eclectic group of case-specific blogs, some flavored liberal (such as TalkLeft.com), some conservative (such as La Shawn Barber's Corner), some mainly just honest (such as Liestoppers and my co-author KC Johnson's Durham-in-Wonderland).
But the Times and Duff Wilson did their best to turn the tide back in Nifong's favor in a 5,600-word monstrosity that ran on August 25, 2006, with Jonathan Glater sharing the byline. It was shredded from top to bottom just over three hours after it had appeared on the Times web site, in a 3:20 AM post by the Liestoppers blog's brainy analysts. A few days later I wrote in Slate:
"The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent. This at a time when many other true believers in the rape charge . . . have at last seen through the prosecution's fog of lies and distortions."
Not until a week after the dramatic exposure on December 15, in open court, of Nifong's conspiracy to hide the most powerfully exculpatory DNA evidence of all did the Times evince the slightest suspicion that this was not a case of privileged white males oppressing poor black woman. This was a rogue prosecutor oppressing innocent young men, aided and abetted by a mob that included the Times itself.
The bias driving media coverage of the Duke case had many roots. "When this case first made national news," Sharon Swanson of the News & Observer reflected later, with commendable candor, "I was viewing the scenario through the prism of white liberal guilt. I felt somehow responsible that young black women were still being exploited by affluent young white men in the South. I stereotyped the entire Duke lacrosse team."
Also at work was the attitude underlying a hoary slogan long embraced by reporters as the essence of their trade: "Comfort the afflicted and afflict the comfortable." How many of those who glory in this idea ever stop to ask themselves whether all of "the comfortable" deserve to be afflicted? Should every child born into an affluent family be afflicted for that alone? A stunning array of journalists and academics -- many quite comfortable in their own right -- exuded exactly that attitude in their gleeful sneering at the "privileged" Duke lacrosse players.
The Administration's Response
"Pandering" (New York Times). "Clearly terrified of the racial and gender activists on his own faculty" (Wall Street Journal). "Did little, if anything, to defend the lacrosse players or to criticise the faculty for its lynch-mob mentality" (Economist). "Weak-kneed" (Newsweek). "Seemingly terrified of the protestors and a radicalized faculty with the power to turn him into another Lawrence Summers" (Weekly Standard).
The reviews on Duke president Richard Brodhead's performance in the lacrosse case are less than glowing. Such a poor performance hadn't been expected in 2004, when Brodhead arrived in Durham after serving as dean of faculty at Yale. In New Haven, he distinguished himself for his urbane, witty charm; clear intelligence; and ability to accommodate the faculty's demands. Yet Brodhead also lacked experience dealing with a top-flight athletic program or with elite college athletes. Duke's national reputation came from its ability to combine first-class athletics with first-class academics.
Brodhead set the tone of his lacrosse response in his initial decisions on the case. On March 25, 2006, the same day the egregiously biased News & Observer "interview" with Crystal Mangum appeared, the Duke lacrosse team was scheduled to play Georgetown. In a virtually unprecedented move for a Division I athletics program, Brodhead canceled the game with Georgetown already on the field for its pre-game warm-ups. He described the move as punishment for the team's party - - even though, as AD Joe Alleva later admitted, the party had violated no Duke rule and Duke never before had canceled a game because of moral distaste about team members' behavior.
Lacrosse parents believed that Brodhead's actions conveyed an impression of guilt. But he spurned repeated requests to meet with a group of them, either on March 25 or any time thereafter.
As the crisis intensified, Brodhead's statements increasingly minimized any reference to a presumption of innocence. On April 5, reacting to the release of a vile e-mail that administrators knew or should have known was not a direct threat, the president cancelled the entire season. In a 2,377-word statement explaining the move, he didn't mention a presumption of innocence or the players' denial of all charges at all.
Instead, in a passage that perfectly captured the race/class/gender mindset that dominated Duke's public response to the case, Brodhead declared, "The episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed."
This was Brodhead's final public statement before the first two indictments obtained by Mike Nifong.
The president took a similar approach in his first public appearance after the indictments of Reade Seligmann and Collin Finnerty. Speaking to the Durham Chamber of Commerce, he stated, "If our students did what is alleged, it is appalling to the worst degree. If they didn't do it, whatever they did is bad enough." What, precisely, did Seligmann and Finnerty do? They attended a party they played no role in organizing, and they drank some beer.
A few months later, asked by an alumni group to speak out not on the players' guilt or innocence but to demand that Nifong respect the rights of Duke students, Brodhead instead turned the American system of justice on its head. It would be improper, he suggested, to criticize Nifong in any way. Instead, he articulated Duke's policy in the following way: "We are eager for our students to be proved innocent . . . which is all the more reason why we require the legal system to proceed in a fair-minded, even-handed, and speedy fashion."
Between March and December 2006, Brodhead displayed a broad deference to the criminal justice process, implying that academic institutions should never criticize legal misconduct. He also compiled a pattern of actions that conveyed an impression that the administration believed that the lacrosse players were the kind of people who could commit the horrific crime that Nifong described. And, even as he was complaining that "the facts kept changing . . . every day we learned new things that no one knew the day before," he spurned at least three offers from defense attorneys or the parents of indicted players to give the University Council unfettered access to the state's discovery file, to prove that Nifong's case was a fraud.
How to explain this pattern of behavior? A post this afternoon will offer some hypotheses.
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.
Nifong's Enablers
For those who believed the lacrosse case was over, the past two weeks brought news on two fronts. First, Brendan Sullivan and Barry Scheck, on behalf of the three falsely accused players and their families, presented representatives of the City of Durham with the outlines of a devastating potential lawsuit against the city, former DA Mike Nifong, several police officers, and other individual defendants. The initial demands: $30 million, plus a wide array of procedural reforms, unless the city caves in and settles.
Second, after acting DA Jim Hardin urged a state criminal investigation of Nifong and others, reports surfaced that Justice Department investigators had arrived in the Triangle to look into the case.
Meanwhile, we have learned, Duke, its administrators, and its extremist professors are not out of the legal woods yet either. The University settled months ago with the three falsely accused players. But now a high-powered legal team representing most of the other 44 members of the 2006 lacrosse team is exploring a possible lawsuit. The grounds would include mistreating the entire team, including misleading smears of the players by Duke President Richard Brodhead and dozens of professors.
The first two moves are a reminder that the law enforcement misconduct in the lacrosse case extended well beyond Mike Nifong. Stuart (who co-authored this post) and I thought we would wind up our week of guest-blogging by reviewing the performance of Nifong's criminal justice enablers.
Two people were vital in sustaining a case with no evidence and a complaining witness utterly lacking in credibility for Nifong to exploit. After the DA took over the case, the duo did everything possible to help him keep the charges alive.
The first was Tara Levicy, the sexual assault (SANE) nurse who wrote up Mangum's Duke Hospital report. A women's studies major in college, Levicy worked for several years for a Maine company that ran nature tours. She then changed careers, got a nursing degree through an accelerated program for liberal arts majors, and moved to Durham. Eight months later, she was a SANE trainee.
Levicy later told a defense attorney that she had never encountered a woman who lied about rape. She came across as an ideologue. And she applied her women-don't-lie ideology to the lacrosse case regardless of the evidence.
Since Levicy was still a trainee at the time, Dr. Julie Manly, a resident physician, conducted the physical exam of Mangum on the morning of March 14, 2006. Yet Levicy, essentially a note-taker, told a police investigator two days later that the exam showed signs consistent with a sexual assault even though the medical records said nothing of the kind. (Neither the Durham Police nor Nifong ever interviewed Dr. Manly.) By March 21, Levicy was saying that Mangum had experienced "blunt force trauma," even though nothing in Levicy's own official report suggested such a diagnosis.
Over the next nine months, Levicy consistently changed her story to fit new prosecution theories of the "crime." At the beginning, she had written that Mangum said her attackers were named Matt, Adam, and Brett and that they hadn't used condoms. But when Nifong later claimed that the players used aliases and suggested that condoms might explain the lack of DNA evidence, Levicy adjusted her story to fit Nifong's theory.
In a January 2007 statement, Levicy contradicted her initial report by saying that the "victim" had been uncertain if her "attackers" had used condoms and had been aware that they had used aliases. When asked by a defense attorney why, if Mangum were uncertain, Levicy had thrice written in her rape report that Mangum said "no" when asked if the assailants used condoms, the SANE nurse had no reply.
She also explained away the lack of DNA evidence with an unscientific feminist slogan: "rape is a crime of power, not passion." As the interview continued, it became clear that Levicy didn't understand that DNA could be obtained from items other than sperm. Skin cells, for example.
Most SANE nurses, it should be noted, are professionals. But a minority (how large is unclear) are, like Levicy, ideologues determined to use their medical authority to uphold an ultra-feminist view of rape. Asserted defense attorney Joe Cheshire: "There's a Tara Levicy in every hospital."
A second Nifong accomplice -- or at least enabler -- was Mark Gottlieb, the Durham police sergeant who supervised the case. Gottlieb was already notorious before the stripper party for arresting ten times as many Duke students (all for trivial offenses) as the other three Durham officers of comparable rank and assignment combined. Several students leveled credible allegations that he violated their rights in these arrests and lied in court to cover his tracks.
Gottlieb muscled his way into case after the initial responders had concluded that Mangum was lying. The sergeant, on the other hand, seemed interested not in finding out what happened but in proving Mangum's allegations and settling scores with Duke students.
When Nifong ordered him to violate Police Department procedures and run a third photo-ID process confined to lacrosse players, Gottlieb did so unhesitatingly. By his own admission, in a March deposition for the State Bar, the sergeant gave at best misleading and at worst outright false testimony to the grand jury that voted indictments against Reade Seligmann and Collin Finnerty.
But Gottlieb's most remarkable contribution to the case came in July 2006, when he submitted an undated, unsigned typewritten memorandum that purported to memorialize events from months before. (When asked why he had no contemporaneous notes, Gottlieb claimed that he had kept them on a "dry-erase board," from which they had been accidentally erased.) Among other dubious items, Gottlieb's memo claimed that in a March 16 conversation, Mangum had given dead-on descriptions of the three players ultimately indicted — even though his partner's contemporaneous handwritten notes showed that her descriptions had been radically different.
With people like Levicy and Gottlieb helping him out, Nifong was able to keep a non-existent case alive. A post later today will look at other aspects of the troublesome legal culture that figured in Durham's persecution of innocent lacrosse players.
A Corrupt Legal Culture
This morning, KC (who co-authored this post) and I looked at two principal enablers of Mike Nifong's efforts - - SANE nurse Tara Levicy and Durham Police Dept. sergeant Mark Gottlieb. Levicy is no longer working for Duke Hospital; Gottlieb remains on the job at the DPD.
More broadly, this case provided a depressing glimpse inside the Durham criminal justice and legal system; while Nifong has been discredited, most of his allies remain on the job:
--Linwood Wilson, Nifong's chief investigator, was a man who had given up his PI's license because of myriad ethical complaints. Wilson displayed a disturbing habit of seeming to intimidate witnesses in the case. One witness, the former manager of the strip club where Mangum danced, swore out an affidavit that Wilson pressured her to change her story that Mangum was behaving erratically in the days before the lacrosse party. Another, the cab driver who corroborated Seligmann's alibi, was arrested on an old (bogus) warrant uncovered by Wilson.
Both of these witnesses were African-American; local civil rights groups did not criticize Wilson's actions in any way.
--The DPD command structure (Lt. Mike Ripberger, Deputy Chief Ron Hodge, and ex-Chief Steven Chalmers) was AWOL at best. The key procedural violation in the case came on April 4, 2006. After Mangum had failed to identify any of her "attackers" in studying photo arrays that had at best stretched DPD guidelines (five fillers per suspect, telling the witness the suspect might or might not be included in the lineup), Nifong ordered the DPD to run a third lineup, this time including only the 46 white embers of the Duke lacrosse team, all of whom were suspects. And Gottlieb opened the session by telling Mangum she would be shown only photos of people police believed attended the party.
In recent months, Ripberger, Hodge, and Chalmers have all stated that the DPD handled the lineup properly.
--City Manager Patrick Baker asserted in a May 2006 interview: "I've had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I'm sure someone would have mentioned it to me."
In fact, Mangum never told law enforcement the same story twice; Baker's portrayal of the evidence was false.
In May 2007, after the dismissal of all charges, Baker co-authored a report stating that the DPD's handling of the lacrosse case was "typical" of its general performance, and that the officers committed no significant procedural errors. This at a time when there was massive evidence in the public record of gross violations of factually innocent defendants' rights and good law enforcement practices.
--Dr. Brian Meehan and his lab, DNA Security, conducted the Y-STR testing on Mangum's rape kit samples. Nifong had obtained the lacrosse players' DNA through a court order promising that negative DNA results would "immediately rule out any innocent persons." Meehan's tests not only found no matches to lacrosse players, but also showed that the rape kit contained DNA matching multiple unidentified males, even though Mangum claimed to have had no sexual contact with anyone for a week prior to the lacrosse party.
Aside from driving another stake through the heart of Mangum's credibility, these results showed that Mangum's story could be true only if three lacrosse players had somehow contrived to leave no trace of themselves on or in her body while beating, kicking, and raping her vaginally, anally, and orally for 30 minutes, with no condoms, and with at least one ejaculating. Meehan's tests also showed that Mangum was such a hospitable host for preservation of left-over male DNA that stuff from previous encounters with several other men was still lying around. In other words, her story could not possibly be true.
The presence of the unidentified males' DNA -- virtually conclusive proof of innocence -- was suppressed in Meehan's report. After defense lawyer Brad Bannon had figured this out by doggedly sleuthing through almost 2,000 pages of documents, Meehan tried to bluff his way out of the problem during a climactic hearing on December 15 by initially denying what his own documents proved. Bannon -- briefly terrified that he might have missed something -- proceeded to dismantle the DNA expert, cell by squirming cell, in the most thrilling cross-examination either of us have ever witnessed.
--Judge Ron Stephens, former Durham DA (and Nifong boss), who handled the case from March into June 2006, consistently rubber-stamped whatever Nifong asked and evinced hostility to defense lawyers who challenged the DA.
North Carolina non-testimonial orders require probable cause to believe that a crime was committed and reasonable grounds to believe that each individual subject of the NTO could have committed the crime. Yet Stephens signed off on a March 23, 2006 NTO requiring all 46 white lacrosse players to give DNA -- even though police didn't show reasonable grounds that many of the lacrosse players even attended the party, much less could have committed the "crime."
The move previewed the judge's performance throughout the case. In April, he set $400,000 bonds, suggesting that Collin Finnerty and Reade Seligmann were flight risks. In an early November interview with The New York Times, he issued a de facto endorsement of Nifong's re-election. And last month, he served as a character witness for Nifong at the ex-DA's criminal contempt trial. His argument: Nifong's punishment should be minimized because Nifong was an ethical beacon to a generation of Durham ADA's.
The last 18 months, in short, have revealed a deeply flawed legal culture in North Carolina's fourth largest city. And good reason exists to believe that the lacrosse case only exposed a fraction of Durham's corruption. To conclude with a vignette: during Nifong's criminal contempt trial, Durham judge Marcia Morey testified for the ex-DA. Morey offered an unusual argument to minimize Nifong's repeated lies to the court to conceal his discussions with Dr. Meehan of the undisclosed exculpatory DNA test results.
Prosecutors, Morey asserted, had less of an obligation to be candid before a trial date was set. "I do think it makes a difference," the judge continued. "Are you are at a trial stage, [or] are you at a pretrial conference?" Her apparent implication: Pretrial, at least, why make a fuss about a little lying between friends -- prosecutors and judges -- for the sake of helping prosecutors oppress innocent people?
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