ADN

The trial doesn't begin until this spring.

60 Minutes' Hoax episode: A first take

I saw that 60 minutes episode...

I hope the chick gets time for this shit...

Duke lax coach: Players may return if exonerated


ESPN.com news services


Duke lacrosse players Collin Finnerty and Reade Seligmann will be permitted to rejoin the team if they are acquitted of rape charges, their coach told The Baltimore Sun.

"If their eligibility is intact, we certainly would welcome them back," coach John Danikowski told The Sun in an interview.

The newspaper reported Saturday that Finnerty and Seligmann, who would have been juniors at Duke this year, have been taking classes near their homes as they await trial. Finnerty lives in New York state, Seligmann in New Jersey.

The two men and David Evans, who has since gradauted from Duke, were charged in April with first-degree forcible rape after a 27-year-old North Carolina Central University student hired as an exotic dancer alleged that she was sexually assaulted by three men at a house rented by team members. The players have pleaded not guilty and denied the charges.


Seligmann told CBS' "60 Minutes" last Sunday that cell phone and ATM records and other evidence would prove his innocence. On the same program, Finnerty said he thought he would be cleared by DNA samples.

District Attorney Mike Nifong was not interviewed by "60 Minutes," and he has generally refused to comment about the case. A trial isn't expected to begin until next spring.

Information from The Associated Press was used in this story.



More news below

mismanagement of lacrosse

Thursday, November 23, 2006

Questions and Answers, III

It¢¢¬¢ž¢s been more than three weeks since the last Q+A post, and it seemed an appropriate time for another. Since August 28, the blog has received over 255,000 unique visitors, with just more than 460,000 page views. It now has received visitors from 94 countries, with new additions including the Dominican Republic, Guatemala, Luxembourg, Moldova, Bulgaria, Azerbaijan, Kuwait, Ethiopia, Kenya, Senegal, and Djibouti.

Q: KC, I am wondering what your professional opinion is. I believe I read somewhere that there is factual evidence that not all lacrosse players were at the party. If that scenario is true, would it be possible for the lacrosse players who were in the lineup photos and not at the party be considered fillers?

A: There were, to my knowledge, three lacrosse players who could prove they weren¢¢¬¢ž¢t at the party. For three principal reasons, they would not be considered fillers:

On March 31, when Nifong ordered the police to confine the lineup to lacrosse players, he had no firm information on which players were and were not at the party; he publicly stated, in fact, that all 46 were suspects. (In his capacity as lead investigator, Nifong ordered two non-lacrosse players he knew attended the party to be excluded from the lineup, presumably because in his capacity as police department spokesperson, he had failed to mention them in his public remarks about the case.) Durham General Order 4077 required police to have supplied five fillers for each suspect¢¢¬¢‚¬or, 230 fillers, in 46 separate arrays. If lead investigator Nifong had wanted a narrower photo array, he should have asked the police to actually do some investigating before moving on to a ¢¢¬…œmultiple choice¢¢¬‚ lineup.
Filler photos are supposed to consist of people wholly uninvolved in the investigation that bear some physical resemblance to the suspects¢¢¬¢‚¬i.e., other white college athletes, perhaps lacrosse players at UNC or Virginia; or wrestlers at Columbia; or even baseball players at Duke. This requirement explains why even the first photo lineup (March 16/21) was procedurally suspect: it should have consisted of the six suspects at the time (lacrosse players named Adam, Brett, or Matt, plus Dave Evans and Dan Flannery) plus thirty non-Duke lacrosse players. Ironically, this procedural error is a boon for the defense, since it opened the door to the accuser saying, two days after the event, that she was only 70% certain that she even saw Reade Seligmann at the party, only to be 100% certain 19 days later that he looked like a person who allegedly assaulted her. As an expert in lineup ID processes, Iowa State University professor Gary Wells, noted, ¢¢¬…œMemory doesn¢¢¬¢ž¢t get better with time. That¢¢¬¢ž¢s one of the things we know. How does she get more positive with time?¢¢¬‚
If the accuser had chosen, say, Brad Ross¢¢¬¢‚¬the only player she twice stated she was 100% sure of seeing at the party, who in fact wasn¢¢¬¢ž¢t even in Durham that night¢¢¬¢‚¬there¢¢¬¢ž¢s no reason to believe Nifong wouldn¢¢¬¢ž¢t have sought and maintained an indictment against Ross despite this evidence. After all, he didn¢¢¬¢ž¢t consider Seligmann on videotape someplace else at the time of the alleged attack to be grounds for dismissing the allegations against Seligmann.
One final point on this issue: the policy mandates a specific number of fillers¢¢¬¢‚¬five per suspect. So even interpreting this issue in a light wholly favorable to Nifong and listing as fillers the three players who could prove they didn¢¢¬¢ž¢t attend the party at any point when the accuser was present, the ratio would not be the required 5:1 but instead .07:1.


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Q: If Nifong has such a strong case, why doesn¢¢¬¢ž¢t he turn it over to a special prosecutor? That way, he and the community get their trial, and the lax supporters get their wish to see the ¢¢¬…œevidence¢¢¬‚ independently reviewed.

A: An excellent question. We know, of course, why the ¢¢¬…œminister of justice¢¢¬‚ has refused this option: a special prosecutor would obtain access to his entire case file, and would be ethically bound to file a complaint against Nifong to the state bar if the file¢¢¬¢‚¬as is very likely¢¢¬¢‚¬revealed procedural violations. Moreover, a special prosecutor would have the right to recommend criminal charges against Nifong or Sgt. Mark Gottlieb.

Nifong enablers, on the other hand, have never provided a convincing answer to this question. Over the last several months, Nifong has shown himself to be a figure of dubious competence. That 51% of Durham voters cast ballots to recall him earlier this month suggests a majority of the potential jury pool they doesn¢¢¬¢ž¢t believe a word he says about the case.

Those who fashion themselves as advocates for the accuser, therefore, should be eager for a special prosecutor to be appointed, allowing someone more competent and less personally polarizing to handle the case.

That, to my knowledge, none have advocated this proposal suggests that, whatever motivates the NAACP, or Nifong¢¢¬¢ž¢s allies in the media, or a segment of the Duke faculty, or people like Harris Johnson, Greg Childress, and Chan Hall, seeking ¢¢¬…œjustice¢¢¬‚ for the accuser isn¢¢¬¢ž¢t high on their lists.

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Q: Do you seriously believe that Brodhead has the power to stop Nifong from pursuing his case against the LAX players?

A: I do not so believe. I do believe that Brodhead did¢¢¬¢‚¬and does¢¢¬¢‚¬have the obligation, as president of Duke University, to publicly demand that Durham authorities treat Duke students according to the same procedures granted to every other resident of Durham. To date, Brodhead has refused to take such a stance, suggesting that he accepts the city¢¢¬¢ž¢s ¢¢¬…œseparate-but-equal¢¢¬‚ policy toward his own institution¢¢¬¢ž¢s students.

In the long term, it seems to me this passivity will be extraordinarily damaging to Duke¢¢¬¢ž¢s ability to recruit top-flight students. I would imagine that parents considering sending their sons or daughters to Duke (especially sons) would have to think long and hard about whether they are willing to risk their children to an academic environment dominated by the Group of 88 and a legal environment characterized by the ¢¢¬…œseparate-but-equal¢¢¬‚ system constructed by Nifong.

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Q: Did some of the Group of 88¢¢¬¢ž¢s ads and statements venture from fair criticism into slander and/or libel of the three indicted and the 40-odd unindicted?

A: The Group of 88¢¢¬¢ž¢s statement and subsequent actions, coupled with the Brodhead administration¢¢¬¢ž¢s refusal to challenge (to borrow a phrase) the faculty¢¢¬¢ž¢s ¢¢¬…œhighly unacceptable behavior,¢¢¬‚ should give any parent great pause about sending their child to Duke under current conditions.

As to the question of legal liability: the Group of 88¢¢¬¢ž¢s statement betrayed the signatories¢¢¬¢ž¢ responsibilities as faculty members and was one of the most disreputable acts that I have witnessed in my 13 years as a college professor. While academic freedom gives faculty members a right to operate in a contemptible fashion if they so choose, the question is whether any or all of the Group¢¢¬¢ž¢s actions crossed the line from contemptible to something actionable.

The clearest case is Peter Wood, who appears to have slandered Reade Seligmann and also made highly negative public comments about other lacrosse players for which the Coleman Committee found no corroboration. That Duke would have nonetheless installed Wood as chair of the athletics subgroup of the Campus Culture Initiative is nothing short of astonishing.

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Q: KC, I have a question. During the time you have been operating this web site, have you ever received any financial support either directly or indirectly from any current or former Duke LAX player, any member of the family or other relative of any LAX player, any other person who you have reason to believe is a supporter of the LAX players, or any attorney or law firm representing any of the indicted or unindicted LAX players? Also, have you received any nonfinancial assistance or advice or have you discussed strategy or worked in a coordinated manner with Bob Bennett or his law firm, or any other lawyer, law firm, or public relations consultant working on behalf of the LAX players or their families? Just curious.

A: These questions have a tone somewhat resembling, ¢¢¬…œAre you now or have you ever been a member of the Communist Party?¢¢¬‚ I am, however, happy to answer them.

Question Set One: I have received no financial support of any form, from any source, for my work on this case. The site is hosted on a free service (blogger.com), using my personal internet connection and computer. All work is, and has been, done by me. All time spent has been my own. All incidental expenses related to my posts, totaling several hundred dollars since the case began, have come from my personal checking account.

Question Set Two: My interest began when the Group of 88 issued its statement on April 6. As of that date, I had no connections to Duke and knew no members of the team or their families. At the time, I considered the statement a betrayal of the signatories¢¢¬¢ž¢ duties as professors; I feel even more strongly on the issue now. Of course, as the extent of Nifong¢¢¬¢ž¢s misconduct became apparent, my interest and involvement expanded as well.

As someone who has followed this case extremely closely, I have detected no role at all by Bob Bennett or his law firm; I have never spoken with him or with anyone representing his firm. I have never spoken with any public relations consultant working on behalf of anyone. Like everyone else seriously covering the case, I would have been derelict not to have asked questions both of defense lawyers and of Nifong¢¢¬¢ž¢s office, and I have done so; since July, however, attorneys on both sides have operated under the restrictions imposed by the gag order.

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Q (via e-mail): This link describes the role of Mike Nifong¢¢¬¢ž¢s staff members. As you can see, Linwood Wilson is listed as a ¢¢¬…œWorthless Check Program Coordinator.¢¢¬‚ If his role is to track down people who write bad checks, why is he the lead investigator in a high profile rape case?

(Here is a definition of the Worthless Check Program I found online: ¢¢¬…œThe Worthless Check Program is a service of the District Attorney¢¢¬¢ž¢s office in some counties. It allows people who have written checks that have been returned with insufficient funds to pay off those checks and any other fees that go along with them before anyone files a criminal process.¢¢¬‚)

A: I have heard that Wilson has been promoted, to ¢¢¬…œchief investigator,¢¢¬‚ a position apparently unfilled in the D.A.¢¢¬¢ž¢s office for several years.

It¢¢¬¢ž¢s hard to imagine what he has done in this case to merit promotion: Wilson doesn¢¢¬¢ž¢t exactly project an image of competence. His highest profile moment in the case came when he shouted down defense attorney Joseph Cheshire on the courthouse steps, claiming that he had read the discovery file and that, contrary to defense suggestions, the accuser had never changed her story.

The next day, Cheshire faxed a report to local news sources, with a copy of a police report handed over to the defense the previous day showing that the accuser had told one of the first police officers to interview her that five, not three, people raped her.

Wilson also had some other memorable actions in the case: he discovered Elmostafa¢¢¬¢ž¢s 2.5-year old misdemeanor warrant, but never discovered the accuser¢¢¬¢ž¢s previous filing of a three-man gang rape¢¢¬¢‚¬a combination that provided a sense of his priorities. But I suppose that¢¢¬¢ž¢s what we should expect when a district attorney hands over a criminal investigation to someone who was hired to track down bounced checks.

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Q: Is there any consequence for the attorney general of North Carolina for failing to exercise his duties in this case?

A: In a word, no. North Carolina law, ignoring the recommendations of the American Bar Association, contains no provision for a state attorney general (or governor) to act in the interests of justice and remove a rogue district attorney. Only the district attorney himself or herself can request appointment of a special prosecutor: obviously, that would never occur in this case, since a special prosecutor would obtain access to Nifong¢¢¬¢ž¢s files, opening up the possibility of charges being filed against Nifong himself.

That said, nothing has prevented Roy Cooper¢¢¬¢‚¬or Governor Mike Easley¢¢¬¢‚¬from publicly disassociating themselves from the Nifong Rules. As they have elected not to do so means, I think it¢¢¬¢ž¢s not unreasonable for observers to conclude that the two men are satisfied with Mike Nifong providing the image to the nation of how justice in North Carolina operates.

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Q: KC-Going way off the subject here, but sometimes we need to be lightened up, so here is my question. Are you an everyday bow-tie guy or is that just in the picture? Just curious. Paul Simon would be proud! /smile.gif" style="vertical-align:middle" emoid=":)" border="0" alt="smile.gif" />

A: Although the two issues are unrelated (except perhaps subliminally?), I was a strong supporter of Paul Simon¢¢¬¢ž¢s 1988 presidential campaign; and yes, I¢¢¬¢ž¢m an everyday bow-tie guy . . .

Thank you for the questions; I will do another Q+A post as appropriate. In the meantime, the bow-tied staff of this blog extends warm holiday greetings.

A Curiously Mixed Message

On April 4, Rev. Dr. William J. Barber II, President of the North Carolina NAACP State Conference, issued a statement outlining the organization¢¢¬¢ž¢s recommendations for addressing the rape allegations by the community. This statement and the accompanying ten point plan included the following declarations:
How we maintain community and do justice requires tenacity to seek the truth and willingness to face the truth.

We in the NAACP historically have fought for the protection of all people¢¢¬¢ž¢s civil rights.

We bring to this crisis the perspective of these historical experiences and wisdom.

We must ensure that the D.A.¢¢¬¢ž¢s investigation be completed thoroughly.

We do not want a rush to judgment.

We must monitor the legal process to insure justice is carried out in this investigation without special privilege or treatment to anyone is shown, and the procedures for charges, arrest, and DNA---all are followed in a consistent pattern.

Our position as an organization whose mission is civil rights and community justice is that the investigation of the allegations are fair, meticulous, comprehensive, aggressive, and thorough.

Those who want to ensure justice must insist there be no short cuts to justice and we must demand that the alleged perpetrators have rights to be protected.

We must face this investigation when all of the facts are in.

We must face the truth and the justice that the truth demands.

We must recognize that in a moment like this moment we need the guidance of God and a moral compass, which keeps us focused, that only the truth can set us free.

While many within and outside the community have taken Rev. Barber¢¢¬¢ž¢s words as a source of guidance and patience, it appears that at least one prominent representative of the local NAACP missed the memo. No, we are not talking about our frequent troll who threatened race riots if DA Mike Nifong was not elected, or the same if the trial court orders a change of venue. Rather, it appears that Alan McSurely, chair of the NAACP¢¢¬¢ž¢s Legal Redress Committee, either misunderstood or intentionally disregarded Rev. Barber¢¢¬¢ž¢s wise call to face the truth, his prudent encouragement to avoid a rush to judgment, and his clear insistence that the accused young men¢¢¬¢ž¢s rights be protected.

Within two weeks of Rev. Barber¢¢¬¢ž¢s thoughtful proclamation, Mr. McSurely updated his outrageously entitled essay, ¢¢¬…œA Study in Arrogance, Violence and Silence¢¢¬‚ on the NC NAACP State Conference website. McSurely¢¢¬¢ž¢s self described ¢¢¬…œrunning account of credible evidence¢¢¬‚ appeared, and remains to this day, directly below this inflammatory description of lacrosse:

¢¢¬…œSince there was only one ball, early players concentrated on first injuring their opponents with their sticks, and then moving easily to the goal. Sometimes games lasted for days, and often players were gravely injured or even killed.¢¢¬‚

With the venomous tone set by this forward, Mr. McSurely appears to abandon the principles of fairness and truth championed by Rev. Barber while rushing rapidly to judgment. Among other distortions and departures from truth contained with his "Study", the chairman of the NAACP¢¢¬¢ž¢s legal redress committee, misinforms the community by stating definitively,

¢¢¬…œThe Sexual Assault Nurse Examiner (SANE) at Duke Hospital confirmed that her injuries matched these reports¢¢¬‚ of the accuser being ¢¢¬…œheld against her will in the bathroom, beaten, chocked, robbed, and vaginally and anally raped.¢¢¬‚

It has been frequently noted that the findings of the in-training SANE nurse, Tara Levicy, actually contradict the claim that the accuser was beaten, chocked and raped, yet McSurely chooses to relate that her findings confirm rather than refute.

¢¢¬…œAmong other things, Nurse Levicy and Dr. Manly made the following medical findings and visual observations about [the accuser]:

Asked to "Describe all signs of physical trauma," Dr. Manly's complete response was: "Pt. has right extremity marks to right lateral knee scratch, non bleeding. Mark is approx. 7 cm in length. Laceration to anterior patella approx. 3 cm in length, non bleeding. Laceration to medial right heel, approx. 2 cm in length, non bleeding."
Thus, after a thorough sexual assault physical examination, the only physical trauma noted by Dr. Manly was three small scratches on [the accuser's] right knee and right ankle.
In a "Systems Examination" portion of the report, Nurse Levicy noted that [the accuser's] head, back, neck, chest, breast, nose, throat, mouth, abdomen, and upper and lower extremities were all "normal."
In a "Pelvic Examination" portion of the report, Nurse Levicy noted only "diffuse edema of the vaginal walls" and recorded nothing notable in the rectal examination.¢¢¬‚ TJN
Bizarrely, McSurely also presents the misleading conclusion that Seligmann¢¢¬¢ž¢s alibi ¢¢¬…œmeans that one of his team mates must have done it.¢¢¬‚

¢¢¬…œThere are only three defenses for rape charge: (1) it did not happen and the accuser fantasized it and is putting herself through perfect hell to play out some fantasy; (2) it happened, but it was consensual and the accuser really wanted to "make love," and later, because the woman is nuts, she decided to charge the man with a rape; (3) it happened, but they got the wrong man¢¢¬‚¦Some of lawyers are whispering to the press they have some ATM and other documentary evidence that they say make it impossible for one of the two arrested students to have been in the bathroom raping the woman, because he was riding in a taxi, or going to a bank. The problem with this defense, is it means that one of his team mates must have done it.¢¢¬‚

Mr. McSurely concludes his essay with apparently crossed fingers as he states,

¢¢¬…œThe NAACP¢¢¬¢ž¢s aim is to follow the evidence as it unfolds, reporting it accurately and fairly, always seeking justice and rebuilding community¢¢¬‚ and ¢¢¬…œinsist the onstitutional rights of the young men accused of rape are honored.¢¢¬‚
Considering the tone McSurley sets with his ¢¢¬…œStudy in Arrogance, Violence and Silence,¢¢¬‚ and further considering the distortions presented within, it is difficult to understand how his conclusion matches the preface and the body of his presentation.

It appears that Mr. McSurely may not be the only member of the NAACP who has chosen to oppose Rev. Barber¢¢¬¢ž¢s wisdom. In August, an eighty-two count blanket ¢¢¬…œindictment¢¢¬‚ of the accused young men and their teammates was posted on the same website¢¢¬¢ž¢s publicity page, where it remains today. Entitled ¢¢¬…œDuke Lacrosse Update: Crimes and Torts committed by Duke Lacrosse Team Players on 3/13 and 3/14 as Reported in the press, mainly from the Three Players¢¢¬¢ž¢ Defense Attorneys,¢¢¬‚ the accusations made range from blatantly false to absurdly irrelevant.

The ¢¢¬…œCrimes and Torts¢¢¬‚ include the following oddities:

On information and belief, when trying to hire the dancers, the Captains said it was a party for the Duke Track or Baseball team, which have more African American athletes on them.
On information and belief, around 12:20, some men who saw the vulnerable Ms. M returning to the house called their friends who had taken cabs and gone to get some cast from an ATM. Some returned.
Mr. Cheshire has given out digital camera photos that have 12:37 a.m. and 12:41 a.m. on them. The first shows Ms. M in a coma on the back porch.
Theresa Arico, the SANE coordinator at Duke Hospital said "there was a certain amount of blunt force trauma present to create injury" and that the injuries the victim suffered were "consistent with the story she told." (Please note: Ms. Arico¢¢¬¢ž¢s comments are taken from a Herald Sun article where she describes the standard process of the SANE exam in general terms, yet the NAACP applies her quote as if it was spoken in reference to the Hoax accuser¢¢¬¢ž¢s examination. )
During the week of the party and the charges of rape made within three hours, Duke¢¢¬¢ž¢s nationally ranked basketball team had moved into the quarterfinals of the NCAA men¢¢¬¢ž¢s basketball tournament. Its coach was seen several times a night giving a commercial based partly on the reputation of Duke and its athletics.
The list of ¢¢¬…œcrimes and torts¢¢¬‚ concludes, incredibly, with a not so subtle accusation that appears to deviate not only from Rev. Barber¢¢¬¢ž¢s mandate, but also from the organization¢¢¬¢ž¢s historic efforts as a champion of civil rights, due process and equality in the criminal justice system. In an apparent attempt to cast aspersions on the investigative reporting of Joseph Neff and the multiple bombshells he has dropped on the hoax, the final charge seemingly questions the exoneration of Alan Gell, the victim of heinous prosecutorial misconduct.

¢¢¬…œMr. Evans consulted with his father, a Washington, D. C. lawyer, who in turn, hired one of the best criminal lawyers in North Carolina and a man with good skills at working the media, Joseph Cheshire. Cheshire had close working relationships with one of the best investigative reporters in North Carolina, Joe Neff. Cheshire and Neff together had pieced together enough evidence to help get Cheshire¢¢¬¢ž¢s client, Alan Gell, exonerated for a crime that a jury had convicted him of, and sentenced him to the death penalty.¢¢¬‚

Rev. Barber¢¢¬¢ž¢s words calling for calm, fairness, justice and a willingness to face the truth initially offered hope, as did his rejection of the New Black Panthers and their messages of hatred. It is difficult, however, to understand how promotion of the Hoax, through inflammatory and deceptive statements (as noted above) by prominent members of the local NAACP, coincides with Rev. Barber¢¢¬¢ž¢s declarations. It is also a struggle to comprehend how calling for the investigation of the allegations to be ¢¢¬…œfair, meticulous, comprehensive, aggressive, and thorough¢¢¬‚ justifies remaining silent when the investigation appears to have, with the exception of aggressive, been anything but what Rev. Barber called for.

In a recent article, North Carolina native, Dr. Thomas Sowell expressed similar disappointment with the local NAACP.

"It is especially painful to see the local NAACP joining the stampede to convict the Duke players, not only without evidence but in defiance of a growing body of evidence that points in the opposite direction." Sowell

Adding to the appearance that certain members of the local NAACP did stray from Rev. Barber¢¢¬¢ž¢s mandate by joining the stampede to convict, rather than working to insure that there was no rush to judgment while fairness and a true determination of the facts was sought, is the following account of statements by Al McSurely:

¢¢¬…œMcSurely said the players' defense attorneys would be quick to roll out complex, ¢¢¬‹Å“minute-by-minute¢¢¬¢ž¢ accounts of the night of March 13-14, verified by ATM receipts and testimonies of cab drivers in an attempt to obscure what really happened -- a crime that, in his estimation, probably took only 10 minutes.

¢¢¬‹Å“That's all it takes. ... I won't say anymore on that,¢¢¬¢ž¢ McSurely said.¢¢¬‚

At September¢¢¬¢ž¢s Duke Hoax Hearing, ¢¢¬…œDoctor¢¢¬‚ Nifong revealed that his Theory of the Hoax imagined a five to ten minute duration as opposed to the accuser¢¢¬¢ž¢s stated thirty minute account. His explanation for the change from the description given in multiple affidavits sworn to by Inv. Benjamin Himan on April 18 was the following diagnosis:

"When something happens to you that is really awful, it can seem like it takes place longer than it actually takes."

News of this change in Nifong¢¢¬¢ž¢s Theory of the Hoax spread quickly as the media grabbed on to the newest version of the non-event. Headlines on September 22 shouted about the change.

The Tragedy at Duke: Part I



A KC Johnson post today provides a detailed, gripping account of how key Duke University administrators acted when confronted with what was on its face a wildly improbable story involving the gang-rape of a black exotic dancer by a group of white Duke students during a party at a University owned house.

Johnson¢¢¬¢ž¢s account is based ¢¢¬…œon e-mail or personal discussions with more than two dozen participants in the campus events" he describes.

Today¢¢¬¢ž¢s post is the first of a two-post series. The second will appear tomorrow. Johnson posts here, usually just after midnight.

Most of Johnson's post is a day-by-day account with probing commentary concerning what key Duke administrators knew, did and didn¢¢¬¢ž¢t do beginning on March 16, when police first searched the house, and the three Lacrosse captains living there provided them with extraordinary cooperation, including signed statements and voluntary submission to DNA testing.

Johnson's day-by-day account takes readers up to March 26, one day after the Raleigh News & Observer published it's grossly biased, inflammatory and now thoroughly discredited ¢¢¬…œanonymous interview¢¢¬‚ story.

Johnson reports new information concerning events and individuals, including a March 25 meeting attended by some Duke administrators and a large group of lacrosse parents. We also learn more about Dean of Students Sue Wasiolek's role in ¢¢¬…œarranging¢¢¬‚ for at least some players to be represented by an attorney of her choosing. What she did seems very questionable.

I hope Wasiolek speaks publicly concerning what Johnson reports. The parents of current Duke students should have been informed months ago of just what it was she did concerning the players. The parents of future Duke students and the public that¢¢¬¢ž¢s followed the Hoax Case will also be interested to know what Wasiolek did.

For me, the post¢¢¬¢ž¢s ¢¢¬…œbiggest bombshell¢¢¬‚ was the report that at least some Duke administrators told some of the players not to tell their parents what was going on.

I hope when I finish this post and go to Duke University¢¢¬¢ž¢s website there¢¢¬¢ž¢s already a news release there at least responding to Johnson¢¢¬¢ž¢s ¢¢¬…œdon¢¢¬¢ž¢t tell parents¢¢¬‚ report. If not, I plan to contact Duke News and ask for a statement.

Some of what Johnson¢¢¬¢ž¢s sources provided is ¢¢¬…œold news.¢¢¬‚ For example, President Brodhead refused on March 25 to meet with the players¢¢¬¢ž¢ parents. But that news still shocks.

What¢¢¬¢ž¢s more, it raises a very important question Brodhead and the PR people Duke¢¢¬¢ž¢s retained to ¢¢¬…œhelp us get past this¢¢¬‚ won¢¢¬¢ž¢t answer: Just why did Brodhead refuse to meet with the parents?

While Johnson's is a ¢¢¬…œcan¢¢¬¢ž¢t stop reading¢¢¬‚ post, it¢¢¬¢ž¢s also almost physically painful to learn that top Duke administrators ¢¢¬¢‚¬Å“ President Brodhead, Executive Vice president Tallman Trask III, Dean of Students Sue Wasiolek, Athletic Director Joe Alleva, and others - initially recognized the hoax for what it was, but nevertheless, over the course of many days and for reasons they¢¢¬¢ž¢ve never explained, frequently acted in ways that at the least enabled the witch hunt and its monumental injustices.

Based on the information Johnson¢¢¬¢ž¢s sources have provided, it¢¢¬¢ž¢s even reasonable to ask whether Brodhead¢¢¬¢ž¢s and other administrators¢¢¬¢ž¢ actions didn¢¢¬¢ž¢t, in fact, help make the witch hunt and its injustices inevitable.

Brodhead now tells everyone they shouldn't look back at events at Duke last March and thereafter. He wants us all to ¢¢¬…œlook to the future.¢¢¬‚

Johnson¢¢¬¢ž¢s post makes it easy to understand why Brodhead doesn¢¢¬¢ž¢t want us looking back. It also helps us understand why Duke¢¢¬¢ž¢s trustees, top administrators and alumni association officers and directors are so reluctant to talk about what the University did and didn't do in response to the Hoax.

The events that have flowed from the initial false witness have rightly been described as a tragedy for the forty-six victimized students and their families.

Brodhead acknowledges there's been a tragedy at Duke. He¢¢¬¢ž¢s even assigned himself a role: the well-intentioned but befuddled ditherer new to tragedy and all its complexities.

But Johnson doesn¢¢¬¢ž¢t let Brodhead walk away with that role.

In the tragedy Johnson describes Brodhead is Cassius, the students and their families are the assassinated Caesar, and the rest of ¢¢¬…œthe Brodhead team¢¢¬‚ are the other senators,not one of whom evidences any of Brutus¢¢¬¢ž¢ redeeming qualities.

Back on September 9 I put up a post that included the following:

Brodhead likes to tell alumni groups and others he's been "very fair" to the lacrosse players.

Really?

How was Brodhead's withholding important information concerning the players¢¢¬¢ž¢ cooperation fair to them?

How was it fair to any of us seeking to learn as much truth as possible about the situation?

How was it fair to Duke University or the community?

Whose interests were served by Brodhead's and his top administrators' withholding of that information from the public on Mar. 25?
Johnson¢¢¬¢ž¢s post revives those questions. More importantly, it takes us closer to the answers.

Advice to Duke: Duck, cover and silence isn¢¢¬¢ž¢t going to get you ¢¢¬…œpast this.¢¢¬‚ Start answering the questions. Begin making things as right as you can.

Endorse Professor Coleman¢¢¬¢ž¢s proposal that Nifong step aside and let a special prosecutor take over the case. Condemn the racists who threatened Reade Seligmann on May 18. Apologize to Seligmann and his family for not doing that when he was first threatened.

There¢¢¬¢ž¢s much more you need to do but those actions will be important initial steps. They¢¢¬¢ž¢ll be welcomed by people who love Duke and value fairness.

Words to KC Johnson: You¢¢¬¢ž¢ve rendered another extraordinary service to those falsely accused; to those who seek as much justice as it¢¢¬¢ž¢s possible to obtain now; and to those who want Duke to get ¢¢¬…œpast this¢¢¬‚ with the openness, truth and courage that befit a great university.

Final word to readers: You're right. I plan to post tomorrow on Johnson's second post. I can't wait to read it.

Green Light for Nifong




In last week¢¢¬¢ž¢s New York Post, columnist Abby Wisse Schacter penned a piece on ¢¢¬…œpresidential spinelessness.¢¢¬‚ She focused on events at Columbia, where the president tepidly defended free speech after leftist students shouted down on-campus speakers whose message they opposed. Needing another example to sustain her thesis, Schacter cited what has emerged as the conventional wisdom in media circles:

Duke President Richard Brodhead didn¢¢¬¢ž¢t have the guts to demand some proof - or even to wait for charges to be filed: Faced with an outside community that was rushing to judgment, he canceled the entire lacrosse season and demanded the coach¢¢¬¢ž¢s resignation. Months later, it¢¢¬¢ž¢s now obvious that the rape/assault never happened. University presidents are supposed to uphold the highest standards of reason, discipline, leadership and moral clarity. But this bunch is too weak to lead.

Schacter¢¢¬¢ž¢s column provides a glimpse of the task confronting Brodhead as he tries to deflect widespread criticism of how he handled the lacrosse case. After Duke hired a public relations firm, the president started touring, speaking to alumni groups and defending his actions. I heard from a few people who attended one such Brodhead gathering, and have read notes from another Brodhead talk.


The storyline from these gatherings goes something like this:

Neither Brodhead personally nor the administration as a whole rushed to judgment or did anything to fuel the media firestorm against the team. Instead, the president was one of the few people in the beginning to emphasize presumption of innocence. And if he did rush to judgment (which he didn¢¢¬¢ž¢t), Durham authorities were to blame for this rush to judgment (which, to reiterate, didn¢¢¬¢ž¢t occur). As Brodhead explained to the late Ed Bradley in a 60 Minutes interview, ¢¢¬…œWe had public officials speaking as if it was almost certain that this thing had happened,¢¢¬‚ and it was unrealistic to expect the head of a prestigious academic institution to doubt the word of a government official.

Accepting the image of Brodhead as a latter-day defender of due process, of course, requires overlooking his silence about Nifong¢¢¬¢ž¢s establishment of a ¢¢¬…œseparate-but-equal¢¢¬‚ system of justice for Duke students. In the Nifong-orchestrated system, Duke students are treated according to procedures different than those used for other Durham residents, while they are meted out disproportionate punishment based solely on their identification as Duke students.

In the event, a close examination of the events between March 16 and April 3 shows that Brodhead¢¢¬¢ž¢s actions signaled a belief that team members, more likely than not, were guilty. As the president¢¢¬¢ž¢s defenders have pointed out, each and every one of his statements contained a for-the-record reminder that, legally, his students deserved presumption of innocence¢¢¬¢‚¬comments that were buried amidst much more passionate denunciations of the team and its alleged or actual behavior. Moreover, Brodhead took no actions that suggested he believed the players were innocent, even though members of his own administration had told team captains and lacrosse team parents that, based on interviews they had done and information they had received from Duke police, they did not think that a rape had occurred.

This approach made clear that Duke would offer no institutional resistance to whatever steps the ¢¢¬…œminister of justice¢¢¬‚ might take in going after the University¢¢¬¢ž¢s students.

---------

March 16 through March 23

Over the course of this week, Duke officials learned from Duke police that the accuser had given dramatically conflicting reports about what had happened¢¢¬¢‚¬and what had not happened¢¢¬¢‚¬the night of the party. They knew that the police were rightly skeptical of the accuser¢¢¬¢ž¢s myriad, mutually contradictory, allegations.

Perhaps most important, however, Duke officials learned that the captains had behaved like people confident in their innocence. The students who lived in the house had cooperated fully with the investigation: they each spent several hours giving detailed statements to the Durham Police. Each also offered to take polygraph tests (an offer that the Durham Police, for reasons that remain unclear, spurned) and to submit DNA samples (which the Durham Police accepted). That they gave this evidence voluntarily, without even requesting lawyers, suggested that the captains had nothing to hide¢¢¬¢‚¬a point raised by Susannah Meadows of Newsweek in a recent media forum.

The administration, for wholly understandable reasons, seemed to hope the allegations would go away. At the same time, Duke officials took at least two actions that would have had explosive legal ramifications against the University had a rape actually occurred:

Apparently acting under orders from above, Coach Mike Pressler instructed all other players on the team to keep quiet about the incident¢¢¬¢‚¬including not telling their parents. The entire team not being represented by lawyers from the start denied them a much-needed week to prepare, with counsel, how they would respond to the investigation.
The Dean of Students office¢¢¬¢‚¬the same office that would assemble the disciplinary ¢¢¬…œstatistics¢¢¬‚ against the students later last spring¢¢¬¢‚¬arranged for a local attorney, Wes Covington, to act as a ¢¢¬…œfacilitator¢¢¬‚ of events between the players and police. This structure left it at best unclear if conversations between him and members of the team were privileged. In the end, Covington championed a dubious solution of having six more lacrosse players join the three captains in speaking to police without presence of an attorney. This advice is so peculiar as to suggest that whoever he was attempting to represent, it was not the players.
According to the Bowen/Chambers report, lower-level administrators were responsible for both of these actions, and Brodhead does not appear to have become personally involved before the 24th. Yet neither action could be characterized as that of an administration faithful to due process.

March 24

On March 23, Nifong secured a procedurally fraudulent non-testimonial order mandating that the 46 white players give DNA samples. Police tipped off the media, which was waiting to film and photograph the lacrosse players as they entered the police station.

Given their belief that no crime occurred, it was not surprising that Duke officials initially made measured comments to local journalists. Athletic Director Joe Alleva told the N&O that Duke would ¢¢¬…œlet the legal process work out . . . you¢¢¬¢ž¢ve got to let the facts play out.¢¢¬‚ Duke spokesman John Burness informed the Duke Chronicle that the team would continue to play their games as scheduled. He said the university would await a report from the police department before taking any action, and that Duke ¢¢¬…œwas monitoring the situation and cooperating with officials, as are the students.¢¢¬‚

That afternoon, meanwhile, the team captains met with a group that included Duke executive vice president Tallman Trask, III (the number two person at the school), Alleva, and Pressler. They were assured that they could be completely candid with the administrators, since the conversation would be protected by ¢¢¬…œfaculty-student privilege¢¢¬‚ (a privilege that does not exist). Alleva grilled them on what happened; the captains, from all reports, held back nothing. Upon hearing their unequivocal denials of the allegations, both he and Trask told the players that they believed the players were innocent.

(The captains had been represented by counsel from the start. That Duke officials nonetheless wanted to obtain from them detailed descriptions of the evening¢¢¬¢ž¢s events outside the presence of their lawyers is not a policy normally associated with support for ¢¢¬…œdue process.¢¢¬‚)


Later that day, Pressler relayed the meeting¢¢¬¢ž¢s results to the team. Trask said the University would take some disciplinary action for the party after the legal investigation was completed, suggesting that an appropriate punishment might have the players spending a day cleaning up the Trinity Park neighborhood. He added if no charges were filed, no further steps would be taken against the team, and that there was no doubt that the game against Georgetown, scheduled for the next day, would be played.

That afternoon, a faculty meeting took place to discuss the incident; the N&O reported that the sentiment was ¢¢¬…œthis is sad, and it¢¢¬¢ž¢s terrible.¢¢¬‚ This meeting was the first sign of the faculty witch-hunt that would intensify in subsequent days, eventually leading to calls for the abolition of the team as a symbol of white, male privilege. Shortly after the meeting¢¢¬¢ž¢s conclusion, a visiting professor of English, Faulkner Fox, who played a key role in rallying the community to brand the players guilty, sent out a list-serv request that ¢¢¬…œactivists¢¢¬‚ organize what came to be known as the ¢¢¬…œpot-banging¢¢¬‚ protests.

March 25

The day opened with the N&O¢¢¬¢ž¢s front-page story on the incident, featuring an interview with the ¢¢¬…œvictim.¢¢¬‚ The article has been widely, and properly, discredited, but at the time it had enormous impact.

From the Duke angle, the article contained a stunning item. The piece concluded with remarks from Paul Haagen, chairman of Duke¢¢¬¢ž¢s Academic Council, who said that violence against women was more prevalent among males who play ¢¢¬…œhelmet¢¢¬‚ sports, such as football, hockey, and lacrosse. ¢¢¬…œThese are sports of violence,¢¢¬‚ he said. ¢¢¬…œThis is clearly a concern.¢¢¬‚

As John in Carolina has pointed out, Haagen¢¢¬¢ž¢s words, whether he intended them to do so or not, explained ¢¢¬…œto readers why the Duke students might have committed the violent acts of which they are accused in the story.¢¢¬‚

Brodhead convened a meeting with faculty and administration officials to review the latest media accounts. They surely noticed protestors gathering for the game, holding signs that read ¢¢¬…œDon¢¢¬¢ž¢t Be a Fan of Rapists.¢¢¬‚ Out of this meeting, it appears, came the administration¢¢¬¢ž¢s decision to change course from the day before and forfeit that day¢¢¬¢ž¢s game and one the following week.

Lacrosse parents had arrived in Durham fully expecting the scheduled game against Georgetown to take place. Instead, they were informed of the decision to cancel the game. That several first learned of this information from Georgetown parents, who already had been told about Duke¢¢¬¢ž¢s decision, raised questions about the integrity of Duke¢¢¬¢ž¢s motives.

What changed between March 24, when Duke officials assured the players that the game would proceed as scheduled, and March 25, when the Brodhead administration decided to cancel the game? The Bowen/Chambers committee, which investigated Duke¢¢¬¢ž¢s initial response to the affair, does not appear to have received access to administrators¢¢¬¢ž¢ contemporaneous e-mails, which might have shed more light on the rationale for the decision. The only plausible explanation: the cancellation resulted from a fear of protests fanned by the potbangers¢¢¬¢ž¢ reaction to the N&O story.

Lacrosse parents, correctly, anticipated that the last-minute cancellation of the game would send a signal to the community that Duke thought the team was guilty. Several parents noted that Duke seemed willfully na‚¯ve about the public relations effect of its actions.

At a tumultuous meeting, the parents urged the assembled Duke officials (Trask, Alleva, Dean of Student Life Sue Wasiolek, and Vice President for Student Affairs Larry Moneta) to say publicly what all already had told them privately: that they believed the team was innocent. When the quartet refused to do so, the parents asked to meet with Brodhead. That request also was denied.

Administrators present at the meeting struggled to avoid contradictory stories. When asked why, given the seriousness of the charges, Duke officials hadn¢¢¬¢ž¢t contacted the parents, Wasiolek cited FERPA regulations. Moneta, on the other hand, pointed to practicality concerns, reportedly remarking, ¢¢¬…œDo you know how many calls we get from the Durham police about our students? If we called a parent for every complaint we get we would be calling parents every weekend.¢¢¬‚ Responding to a question on why she would advise anyone to speak to the police without benefit of counsel given the allegations of a gang rape, Wasiolek predicted that everything would go away, because the Durham police told her the witness was not credible. That such legal advice came from a J.D. (from North Carolina Central Law School) is amazing.

According to recollections from many participants, the meeting ended with parents frustrated and upset at Duke¢¢¬¢ž¢s handling of events. But in an interview published two days later in the Duke Chronicle, Moneta presented a radically different picture of the meeting¢¢¬¢ž¢s tone. The Chronicle summarized his remarks in the following way: ¢¢¬…œthe parents were frightened and nervous for their children.¢¢¬‚ Any fair-minded outsider would have interpreted this kind of reaction from parents as consistent with a belief in guilt.

Moneta, meanwhile, soon repudiated the position on innocence he had taken at the meeting, writing, ¢¢¬…œNot sure what I blurted in the heat of the conversation. What I¢¢¬¢ž¢ve consistently said to parents is that I hope that all the players are exonerated but until the facts are finally determined, I take no position on the matter.¢¢¬‚

March 26

Brodhead, it turned out, had no need to hear from the lacrosse parents, because he had already decided on his course of action. He would accompany the last-minute cancellation of the Georgetown game with a statement that sent a strong signal that he and Duke thought a rape probably occurred and implied that team members had not cooperated with authorities. That statement, along with the cancellation of the Georgetown game, received enormous media attention on March 26.

Brodhead defenders have pointed out, correctly, that the statement included a for-the-record passage on the importance of presuming innocence. But no news outlet, for unsurprising reasons, focused on this section of Brodhead¢¢¬¢ž¢s remarks¢¢¬¢‚¬since his actions and other portions of the statement suggested his true beliefs were otherwise.

Accordingly, WRAL, the Herald-Sun, and the N&O each highlighted Brodhead¢¢¬¢ž¢s two most newsworthy clauses: ¢¢¬…œPhysical coercion and sexual assault are unacceptable in any setting and have no place at Duke¢¢¬‚ and ¢¢¬…œThe criminal allegations against three members of the men¢¢¬¢ž¢s lacrosse team, if verified, will warrant very serious penalties.¢¢¬‚ The Herald-Sun article included a third, also highly negative, quote from Brodhead: ¢¢¬…œWhatever that inquiry may show, it is already clear that many students acted in a manner inappropriate to a Duke team member in participating in the March 13 party.¢¢¬‚

Did Brodhead intend for the media to emphasize the ¢¢¬…œphysical coercion and sexual assault¢¢¬‚ clause, thereby leaving the impression that he believed a rape occurred even if he didn¢¢¬¢ž¢t know the identity of the criminals? It¢¢¬¢ž¢s hard to believe otherwise: holder of a Ph.D. in English, he obviously possesses the ability to craft a statement to mean what he intends. Moreover, the almost unprecedented last-minute cancellation of the game suggested an act based on panic, not a presumption of innocence. Or, perhaps, Brodhead did intend to stress the presumption of innocence, but was singularly incompetent in doing so. Without access to contemporaneous e-mails between administrators, it¢¢¬¢ž¢s impossible to know for sure what motivated Brodhead to say what he did.

As one lacrosse parent told me, ¢¢¬…œThis nightmare never would have happened if we had proper legal representation earlier or if Duke had let it be known to Durham officials they believed their students were innocent and expected them to be treated fairly with due process. But Brodhead panicked and gave Nifong the green light to go after his own students.¢¢¬‚

The Stubbornness of Facts


Yesterday¢¢¬¢ž¢s post traced events between March 16 and March 26, when the Duke administration possessed considerable freedom of action.

The post made three major points:

While the issue was fast-moving, Duke administrators had learned a considerable amount about the evening¢¢¬¢ž¢s events, both from their reported discussions with local law enforcement and through their meeting with the captains. All this information pointed to the dubious nature of the accuser¢¢¬¢ž¢s claims.
The last-minute cancellation of the March 25 game, after assurances the previous day that the game would be played, only intensified the public pressure it was meant to temper. The very act of cancellation implied guilt, as did Brodhead¢¢¬¢ž¢s statement highlighting the assertion that ¢¢¬…œphysical coercion and sexual assault are unacceptable in any setting and have no place at Duke.¢¢¬‚
Judged by Brodhead¢¢¬¢ž¢s own recently stated standards¢¢¬¢‚¬a commitment to due process and the presumption of innocence¢¢¬¢‚¬the administration¢¢¬¢ž¢s conduct in this 11-day period fell short.
In his March 25 statement, Brodhead made clear that the last-minute cancellation did not imply a conviction in the players¢¢¬¢ž¢ guilt. But the move certainly implied that Duke would do little or nothing to defend team members, despite administrators consistently (if privately) expressing their belief in the players¢¢¬¢ž¢ innocence.

March 27

As the workweek started, Durham County¢¢¬¢ž¢s ¢¢¬…œminister of justice¢¢¬‚ made clear that he had gotten the message. With his cash-starved campaign being kept afloat through personal loans, Nifong decided to exploit the case for all it was worth. Ignoring Rule 3.8(f) of the state bar¢¢¬¢ž¢s ethics code, which requires prosecutors to ¢¢¬…œrefrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,¢¢¬‚ the ¢¢¬…œminister of justice¢¢¬‚ added a fourth task (de facto Police Department spokesperson) to his previous three¢¢¬¢‚¬district attorney, supervising investigator, and candidate for public office.

¢¢¬…œIn this case,¢¢¬‚ said Nifong (covering all his political bases), ¢¢¬…œwhere you have the act of rape¢¢¬¢‚¬essentially a gang rape¢¢¬¢‚¬is bad enough in and of itself, but when it¢¢¬¢ž¢s made with racial with racial epithets against the victim, I mean, it¢¢¬¢ž¢s just absolutely unconscionable . . . My guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out.¢¢¬‚

To this day, the leadership of Duke has not commented on Nifong¢¢¬¢ž¢s habitual disregard for the bar¢¢¬¢ž¢s ethical canons in dealing with Duke students.


March 28

The Herald-Sun published an editorial remarkable in both its factual errors and its conviction that a rape occurred: ¢¢¬…œWhen police officers arrived at the house with a search warrant on March 16, none of the players would cooperate with the investigation [sic]. Later, under threat of further penalty [sic], 46 members of the team were DNA-tested by police . . . the allegations of rape bring the students¢¢¬¢ž¢ arrogant frat-boy culture to a whole new, sickening level . . . We agree that the alleged crime isn¢¢¬¢ž¢t the only outrage. It¢¢¬¢ž¢s also outrageous that not a single person who was in the house felt compelled to step forward and tell the truth about what happened [sic].¢¢¬‚ Duke, which knew the first and last statements were false, remained silent.

Facing Nifong¢¢¬¢ž¢s verbal assault and the Herald-Sun¢¢¬¢ž¢s defamatory writings, Duke folded almost immediately. Brodhead announced that the team would be suspended from competition until Nifong completed his work. In effect, this decision canceled the season. The move also contradicted assurances that lacrosse parents had received at the March 25 meeting that, until the legal process was completed, the team would resume play after the two canceled games.

The statement the president read at a press conference doesn¢¢¬¢ž¢t appear on the Duke archive of Brodhead statements; but according to the N&O, the president said, ¢¢¬…œSports have their time and place, but when issues of this gravity are in question, it is not the time to be playing games.¢¢¬‚

The very same ¢¢¬…œissues of gravity,¢¢¬‚ of course, had been in question four days when the captains met with Duke administrators and had received word that the Georgetown game would proceed as planned. And these very same ¢¢¬…œissues of gravity¢¢¬‚ had been in question three days before, when administrators had assured parents that the suspension would last for two games, not the entire season.

The Herald-Sun editorial page, which had already deemed the players guilty, celebrated Brodhead¢¢¬¢ž¢s remarks. The editors commended the president for ¢¢¬…œdoing the right thing,¢¢¬‚ adding that the players ¢¢¬…œhave themselves to blame for the current trouble.¢¢¬‚

Public relations, not a presumption of innocence, dictated the administration¢¢¬¢ž¢s reversal of course. As Bob Steel, chairman of the Board of Trustees and Brodhead¢¢¬¢ž¢s most vehement supporter, informed the New Yorker, ¢¢¬…œWe had to stop those pictures [of the players practicing]. It doesn¢¢¬¢ž¢t mean that it¢¢¬¢ž¢s fair, but we had to stop it. It doesn¢¢¬¢ž¢t necessarily mean I think it was right¢¢¬¢‚¬it just had to be done.¢¢¬‚


Steel¢¢¬¢ž¢s comments, perhaps unintentionally, offered the most powerful evidence yet to appear that public relations concerns, not a presumption of innocence, motivated Duke¢¢¬¢ž¢s response throughout. There certainly seem few other credible explanations for the reversal, within 24 hours, of the March 24 assurances that the Georgetown game would occur as scheduled.

March 29

On campus, Brodhead¢¢¬¢ž¢s decision to suspend the season only emboldened faculty ideologues. Indeed, Duke¢¢¬¢ž¢s arts and sciences faculty was revealed to possess an unusually large bloc of professors for whom advancing their personal, curricular, or ideological agendas appeared to have more importance than upholding the the well-being of Duke students.

A public letter from English and African-American Studies professor Houston Baker opened the floodgates. Lamenting the ¢¢¬…œcollege and university blind-eying of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain,¢¢¬‚ Baker denounced the ¢¢¬…œabhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us.¢¢¬‚ To act against ¢¢¬…œviolent, white, male, athletic privilege,¢¢¬‚ he urged the ¢¢¬…œimmediate dismissals¢¢¬‚ of ¢¢¬…œthe team itself and its players.¢¢¬‚

That evening, the African-American Studies Department transformed a forum on black masculinity into a discussion of the case. ESPN reported that ¢¢¬…œthere were two white women in the room, [Wahneema] Lubiano remembered, a few Latino and Asian students and a couple of white faculty members. Everyone else was black.¢¢¬‚ Anonymous student remarks allegedly made at this meeting would appear eight days later, framing the Group of 88¢¢¬¢ž¢s statement denouncing the players.

Meanwhile, Faulkner Fox continued to facilitate linkages between extremist voices among the faculty and in the community. Her pot-banging protests attracted considerable media attention, and she used the opportunity to pronounce the players guilty. ¢¢¬…œThe arrogance and bravado that they were above the law or they could think this woman is below the respect of the human community really outrages a lot of people,¢¢¬‚ Fox told WRAL. Displaying the kind of logic that would manifest itself in the coming Group of 88 statement, she declared, ¢¢¬…œThe students need to realize they live in a community, and people are going to talk back if they do something, or potentially do something, that is disrespectful to women.¢¢¬‚ [emphasis added]

Events of the day, alas, demonstrated to Brodhead a basic lesson from history: appeasing irresponsible ideologues rarely yields positive results.

March 30

Less than 10 percent of Duke¢¢¬¢ž¢s full-time faculty members attended an emergency meeting of the Academic Council, allowing the lacrosse team¢¢¬¢ž¢s most extreme critics¢¢¬¢‚¬who appeared in full force¢¢¬¢‚¬to dominate the affair. To give a sense of the meeting¢¢¬¢ž¢s tone, Paul Haagen (¢¢¬…œhelmet sports¢¢¬‚) was among the gathering¢¢¬¢ž¢s most moderate faculty voices. And, in fairness to Brodhead, administrators, especially Executive Vice President Tallman Trask, cautioned against precipitous action at the meeting. No administrator, however, proved willing to confront the faculty extremists.

From administration members came three announcements that would foreshadow events to come.

1.) At Brodhead¢¢¬¢ž¢s request, Trask replied to faculty assertions that the lacrosse players had an excessive amount of problems. The executive vice president said that, based on inquiries into the matter he had conducted the previous summer, he had not seen anything in the lacrosse team¢¢¬¢ž¢s university discipline records that didn¢¢¬¢ž¢t seem to have been dealt with appropriately or that required further intervention on the administration¢¢¬¢ž¢s part. (He reportedly prefaced his remarks by saying that he reached this conclusion ¢¢¬…œas much as I would have liked to have found something,¢¢¬‚ suggesting that Trask was not a figure who would sugarcoat data in the lacrosse players¢¢¬¢ž¢ favor.) Since the players tended to do things in a group, he explained, if one was found with an open container, several others would be cited for the same offense.

Trask¢¢¬¢ž¢s remarks previewed the conclusions of the Coleman Committee report, which revealed that the team as a whole consisted of good students with good records of on-campus behavior who had a disproportionately high number of minor alcohol-related offenses, joining hundreds of other Duke students in such offenses.

2.) Brodhead warned that the institution needed to be wary of disciplining the lacrosse team in a way that was consistent with Duke¢¢¬¢ž¢s past performance regarding underage drinking parties, the hiring of strippers, or even a student using a racial slurs. The president noted the danger of creating a new policy and making an example of the players.

The administration, however, had already contradicted these admirable sentiments five days before; Brodhead¢¢¬¢ž¢s canceling the Georgetown game differed from the traditional Duke approach to underage drinking parties or the hiring of exotic dancers. It also doesn¢¢¬¢ž¢t appear that, in the past, Duke has meted out punishment to a group because one student in the group used a racial slur.

3.) Brodhead suggested that saying Duke could fix its cultural problems by hammering the lacrosse team would admit to the world that Duke¢¢¬¢ž¢s problems were somehow more serious than what is normally reflected in society.

Exactly one week later, 88 of his faculty members did exactly what the president had cautioned them to avoid. Brodhead would say nothing.

Meanwhile, most assembled professors leveled vitriolic attacks against the team. One speaker claimed that Duke, as an institution, practiced 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 ¢¢¬…œassertion of class privilege¢¢¬‚ by all Duke students. A fourth called on the University to do something to help the ¢¢¬…œvictim.¢¢¬‚

Three professors overpowered the meeting:

Houston Baker stated as a fact that African-American women had been ¢¢¬…œharmed¢¢¬‚ by the lacrosse players and claimed that students in his mostly white, female class were terrified of the lack of an administration response. In an e-mail to me, Baker denied that he was suggesting that the accuser had, in any way, experienced physical harm (he had, of course, implied otherwise in his public letter). Rather, he said, his use of the verb ¢¢¬…œharmed¢¢¬‚ referred to the situation at the house eventually revealed in ¢¢¬…œthe disgusting Ed Bradley 60 Minutes piece with those disgusting photos that looked like white privilege meets exotic dancers in a horrible circle of degrading (yes, of course, legal) labor.¢¢¬‚ It¢¢¬¢ž¢s not clear how the situation in these photos would have terrified a class of white female Duke undergraduates.
Wahneema Lubiano alleged favoritism by Duke toward the team and demanded a counter-statement from Duke denouncing the players. Lubiano would later edit the final version of the Group of 88¢¢¬¢ž¢s statement. I e-mailed Lubiano to ask what evidence she possessed for the claims she made to the Academic Council. She refused to supply any, and replied, ¢¢¬…œDo not email me again. I am putting your name and email address in my filter.¢¢¬‚
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. Wood has refused to respond to repeated e-mails requesting substantiation for his allegations against team members.
Wood¢¢¬¢ž¢s remarks, according to several people who attended the meeting, received robust applause.

March 31

Perhaps emboldened by the adulation from his colleagues, Wood granted an interview to the New York Times; in an April 1 article, Wood described the lacrosse players as ¢¢¬…œsurly,¢¢¬‚ ¢¢¬…œhostile,¢¢¬‚ and ¢¢¬…œaggressive.¢¢¬‚ The Coleman Committee investigation found no evidence, even from his former teaching assistant, to substantiate Wood¢¢¬¢ž¢s claims. (To my knowledge, despite the provisions of Chapter Six in the Faculty Handbook, the administration has not disciplined Wood for making unsubstantiated public statements about Duke students.) It would be interesting to know how many of the speakers at the March 30 meeting had taught lacrosse players, and what grades those supposedly immoral players received in the professors¢¢¬¢ž¢ classes.

April 3

Duke Provost Peter Lange has been the only figure in the administration whose acts suggested a recognition that promoting due process and the presumption of innocence in what amounted to a witch-hunt environment required going beyond for-the-record rhetorical formulations. Lange issued a public statement terming Houston Baker¢¢¬¢ž¢s diatribe ¢¢¬…œa form of prejudice,¢¢¬‚ the ¢¢¬…œact of prejudgment: to presume that one knows something ¢¢¬‹Å“must¢¢¬¢ž¢ have been done by or done to someone because of his or her race, religion or other characteristic.¢¢¬‚

Brodhead, meanwhile, met with an unspecified number of professors from the African-American Studies department. Participants in that meeting have refused requests from me to divulge contents of their discussion, but it seems inconceivable that the professors did not mention the pending release of the Group of 88¢¢¬¢ž¢s statement. That document would appear on April 6.

By this point, the story had exploded. The suspiciously timed release of the McFadyen e-mail led Brodhead to demand Coach Mike Pressler¢¢¬¢ž¢s resignation. The latter act, of course, could not be seen as consistent with an administration devoted to upholding the presumption of innocence for its students.


Later Chances for Brodhead to Defend Due Process


April 6: The Group of 88 issued its statement, thanking protesters who had branded the players rapists and asserting definitively that something ¢¢¬…œhappened¢¢¬‚ to the accuser at the party. In sharp contrast to Lange¢¢¬¢ž¢s willingness to confront publicly Houston Baker, Brodhead remained silent amidst the Group of 88¢¢¬¢ž¢s assault on the presumption of innocence. Even six months later, he couldn¢¢¬¢ž¢t bring himself to question his faculty¢¢¬¢ž¢s rush to judgment. Instead, he rationalized the Group of 88¢¢¬¢ž¢s actions on the grounds that ¢¢¬…œthese charges engaged people¢¢¬¢ž¢s deepest fears, deepest anxieties, and dreads.¢¢¬‚

Membership in the Group of 88 disproportionately included Brodhead¢¢¬¢ž¢s closest academic colleagues, perhaps reinforcing his disinclination to challenge the Group. Brodhead is a professor of English and an affiliate of the Women¢¢¬¢ž¢s Studies program (whose core faculty is overwhelmingly female); as a scholar, the president has written that he devoted his career toward ¢¢¬…œworking in a more socially-oriented fashion, looking at the historical context that produced the texts we study while also seeking out the then-absent voices of women, African Americans, Native Americans, Asian Americans and others.¢¢¬‚

Only the African-American Studies program produced a higher percentage of faculty who signed the Group of 88¢¢¬¢ž¢s statement than did Women¢¢¬¢ž¢s Studies, where 72.2 percent of the professors joined the Group. English, meanwhile, had the sixth highest percentage (32.2 percent) of faculty members who signed the statement.

The Group of 88, in short, consisted of the professors with whom the president shared the greatest intellectual bonds of any on campus: upholding the presumption of innocence for his own school¢¢¬¢ž¢s students against this group of faculty members¢¢¬¢ž¢ actions would have required him to go against his own pedagogical and academic values.


April 14: Acting under the direction of supervising investigator Nifong, the Durham police arrived on the Duke campus and surreptitiously entered Duke dormitories, seeking to question players represented by counsel. Brodhead, when approached by media during an appearance at North Carolina Central, said that he didn¢¢¬¢ž¢t know enough about the issue to protest, even though the action violated the state bar¢¢¬¢ž¢s ethics code.

April 20: After the arrest of Reade Seligmann and Collin Finnerty, Brodhead addressed the Durham Chamber of Commerce. His take on the allegations against the two players? ¢¢¬…œIf they didn¢¢¬¢ž¢t do it, whatever they did is bad enough.¢¢¬‚ (Like his March 28 statement suspending the season, these remarks do not appear on the Duke archive of Brodhead statements.)


---------

A few weeks ago, in an e-mail sent to a parent of a former lacrosse player, Brodhead asserted that ¢¢¬…œthe right role for the university is to speak forcefully for due process.¢¢¬‚ But his administration has failed to perform this commendable role, unless he mistakenly believes that ¢¢¬…œdue process¢¢¬‚ constitutes demanding that even the most procedurally tainted cases go to trial.

Having committed himself to speaking ¢¢¬…œforcefully for due process,¢¢¬‚ moreover, Brodhead indicated that he would not join Professor James Coleman in demanding a special prosecutor. ¢¢¬…œIt is my understanding,¢¢¬‚ relayed the president, ¢¢¬…œthat in North Carolina the District Attorney himself would have to request such an appointment in these circumstances.¢¢¬‚

Brodhead¢¢¬¢ž¢s conception of due process thus appears to be limited to asking for things that an ethically challenged prosecutor might accept. (Imagine if, during the Civil Rights Era, university leaders had adopted this position, and spoken up for due process only on matters that they believed racist Southern sheriffs would endorse.) Since Nifong himself created the ¢¢¬…œseparate-but-equal¢¢¬‚ system of justice for Duke students in Durham, Brodhead seems to believe that Duke¢¢¬¢ž¢s role is to ¢¢¬…œspeak forcefully for due process¢¢¬‚ by not challenging Nifong¢¢¬¢ž¢s policies.

This conception of due process is Orwellian. In the Wonderland that is contemporary Durham, forcefully supporting ¢¢¬…œdue process¢¢¬‚ means remaining silent about prosecutorial misconduct.


---------

In all fairness to Brodhead, in late March and early April, he faced a poisonous combination:

a ¢¢¬…œminister of justice¢¢¬‚ who viewed himself as above the law, and seemed determined to arrest someone¢¢¬¢‚¬anyone¢¢¬¢‚¬before the primary;
a group of professors whose intellectual interests overlapped with his own; and who appeared determined to exploit their students¢¢¬¢ž¢ plight to advance their own personal, pedagogical, and ideological agendas.

It would have taken a strong leader to have withstood these combined pressures.

Although he has refused to admit so publicly, I¢¢¬¢ž¢m sure that Brodhead would do many things differently if he knew how events would develop. Nonetheless, the administration cannot erase the record of what it did and did not do in late March and early April. Moreover, whatever excuses existed for Brodhead¢¢¬¢ž¢s behavior then, his subsequent refusal to demand that local authorities treat all Duke students according to the same procedures as all other Durham residents¢¢¬¢‚¬including students of North Carolina Central¢¢¬¢‚¬is inexplicable.

¢¢¬…œFacts,¢¢¬‚ John Adams once said, ¢¢¬…œare stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.¢¢¬‚ The facts in this case stubbornly prevent an interpretation that Brodhead acted to defend either due process or the presumption of innocence. The record of his actions, and that of how his actions were interpreted by key players at the time, suggests a radically different thesis.

We are listening to our District Attorney. We¢¢¬¢ž¢re also listening to the self-righteous drivel of 88 opportunists, to the evolving tales of a false accuser,
and to our collective conscience. Regardless of the results of this absurd persecution, what is apparent every day now is the anger and fear of many
citizens and students who know themselves to be objects of manipulation and corruption, who see illuminated in this moment¢¢¬¢ž¢s extraordinary
spotlight what they live with every day. They know that it isn¢¢¬¢ž¢t just Durham, it isn¢¢¬¢ž¢t everybody, but it is just individuals making this disaster.

But it is a disaster nonetheless.

Concerned citizens are shouting and whispering about what happened to these young men and to ourselves.

¢¢¬…œ...Either he knew what the facts were and misstated them, or he was making them up¢¢¬‚¦Whether he acted
knowing they were false, or if he was reckless, it doesn¢¢¬¢ž¢t matter in the long run. This is the kind of stuff that causes
the public to lose confidence in the justice system.¢¢¬‚ [Professor James Coleman, News & Observer,15June 2006]

¢¢¬…œI am innocent. Reade Seligmann is innocent. Collin Finnerty is innocent. Every member of
the Duke lacrosse team is innocent. You have all been told some fantastic lies, and I look
forward to watching them unravel in the weeks to come.¢¢¬‚ [David Evans, 16 May 2006]


If it turns out that this prosecutor is guilty, I want him expelled by the State Bar. But his expulsion will only bring resolution to his
case and not the bigger problem. This is much bigger than a breach of ethics and throwing him out of the Bar will not solve the
problem. I want the attorney general to investigate what is going on in Durham and how criminal it is.

¢¢¬…œResults of DNA testing exclude the defendant as the perpetrator
of this crime¢¢¬‚ - [Mike Nifong, News & Observer, 15 June 2000]

Everything seems up for grabs--I am only comfortable talking about this event
in my room or with my attorney. I am actually afraid to even bring it up in public.
But worse, I wonder now about everything. . .If something like this happens to
me . . . What would be used against me--The DA¢¢¬¢ž¢s lies? Contrived lineups?

I was talking to my professor who told me ¢¢¬…œWell if you people --
and she meant the whole lacrosse team -- were really innocent
I¢¢¬¢ž¢d have sympathy for you.¢¢¬‚ I never wan¢¢¬¢ž¢t to see her again


What Does Injustice Sound Like?

If you¢¢¬¢ž¢re innocent then the justice system should be your friend, and I don¢¢¬¢ž¢t know, I
just don¢¢¬¢ž¢t really feel like that¢¢¬¢ž¢s been the case. (The Chronicle 19 July 2006)

All we heard was ¢¢¬…œYou know what happened that night. Why aren¢¢¬¢ž¢t you saying anything.¢¢¬‚ If nobody¢¢¬¢ž¢s guilty,
then you can¢¢¬¢ž¢t tell them who¢¢¬¢ž¢s guilty. It¢¢¬¢ž¢s awful because you want people to know the truth, you want people to
know what really happened, but they don¢¢¬¢ž¢t want to hear that,¢¢¬‚ (The Chronicle 19 July 2006)

¢¢¬…œBut when a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed
evidence, and when academics and journalists have joined in smearing presumptively innocent young men ... in the face
of much contrary evidence ¢¢¬¢‚¬ it¢¢¬¢ž¢s not too early to offer tentative judgments.¢¢¬‚ [Stuart Taylor, National Journal, 20 May 2006]

I can¢¢¬¢ž¢t help but think about the different attention given to what has happened from what it
would have been if Mr. Nifong had been not just campaigning but participating in a different
sport, like seeking justice, something that¢¢¬¢ž¢s not so self serving.

And this is what I¢¢¬¢ž¢m thinking right now ¢¢¬¢‚¬Å“ The media isn¢¢¬¢ž¢t really responding to this. Duke isn¢¢¬¢ž¢t really responding to this. Durham
isn¢¢¬¢ž¢t really responding to this. Not really. And this, what has happened, is an injustice. This is an absolute injustice.

We know that the disaster didn¢¢¬¢ž¢t begin on March 13th and won¢¢¬¢ž¢t end with what the State Bar says or the court decides. Like all
disasters, this one has a history.And what lies beneath what we¢¢¬¢ž¢re hearing from our collective conscience are questions about the
future.


This satire, printed in the most easily seen venue, online, is just one way for us to say that we¢¢¬¢ž¢re hearing what the media,
the victims of these false accusations, and those charged with serving justice and education are saying.


Of these things said here by a mixed (in every way possible) group of citizens on Wednesday, July 25th in offices and homesacross the nation, some were taken from an issue of The Chronicle that came out this same month, and some were found
elsewhere in print and on air. (Some statements we just made up, but we think they are important anyway.)

We¢¢¬¢ž¢re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down by
Mike Nifong, Bob Ashley and Andrew Cohen while we wait. To the citizens speaking individually and to the bloggers
making collective noise, thank you for not waiting and for making yourself heard.


THIS MESSAGE HAS BEEN BROUGHT TO YOU BY: LIESTOPPERS.