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posted by FODU @ 5/27/2006 10:15:00 AM
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This letter was originally published in Herald Sun on September 27, 2006.
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Outraged by Nifong
I was surprised by Mary Portwood Artley's letter of Sept. 21. Artley previously contacted me and in a most pleasant conversation I explained that our research had shown most citizens did not mind, and even expected flyers on their cars during an election season. I admitted we did not know District Attorney Mike Nifong attended the church in question and in return she admitted he was not in attendance. I promised to avoid her church in the future and believed the matter to be settled in a cordial way.
However, after Artley's vehement letter, I feel I must answer with the following observations.
Despite her statement that other members of that church were outraged, curiously, we received only one other complaint. Elections are a private matter and even Artley cannot gauge how much "outrage" there may be at seeing a flyer on one's car versus seeing Nifong's outrageous behavior as DA.
Recall Nifong-Vote Cheek is a grassroots campaign made up of people campaigning -- not in their own private interest, not for power, or increased pensions, or the pursuit of an unbridled ego. We are proud to be Durhamites and are dismayed at the way Nifong has disgraced our community nationally and divided this diverse community of families locally.
Sometimes, we will make mistakes. But please remember: There is nothing in this campaign for ourselves, except a better Durham for all of us.
BETH BREWER
Durham
September 27, 2006
This letter was originally pubsihed in Herald Sun on September 30, 2006
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Nifong is the one who has shown disrespect
I must respond to Kim Brummell's letter of Sept. 23. She said, "some lacrosse supporters have the nerve to say DA Mike Nifong is dividing the community."
I am not a lacrosse supporter, but I support fairness. If Brummell believes District Attorney Mike Nifong is not dividing Durham, then obviously, she doesn't get out much. She also referred to the players' "disrespectful behavior."
Why is it wrong for the young men to show disrespect, but it's all right for Nifong?
Most of the times I have seen him on TV, he is laughing. It's no joke or laughing matter to ruin young men's lives in the manner he has, apparently for his political gain. It would serve him well, to conduct himself with dignity, as his predecessor Jim Hardin did.
When Hardin was prosecuting Michael Peterson, he treated him and his attorneys with respect. He may have laughed behind the scenes, I have no way of knowing if he did or did not, but he didn't when the cameras were on him. The crimes these young men are charged with in no way meet the sadistic murder of Michael Peterson's wife. Yet, Peterson was treated respectfully.
The sad part about this is, unless either Lewis Cheek or Steve Monks change their Election Day plans, the votes of people like me will be divided between the two men, thus keeping Nifong as DA.
LOUISE RIGSBEE
Durham
September 30, 2006
Originally published in Herald Sun on September 28
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Envy at center of attack on Duke athletics
I had to chuckle when I saw Orin Starn’s column of Sep. 20 with the headline “A Grand show of arrogance by Duke athletics.” Forty some years ago, I participated in college athletics in a “Rudy-esque” role on a national championship football team. (So you know it wasn’t Duke.)
While I was there I also read John Henry Newman’s “The idea of a university” so I am not all together unfamiliar with the impulse to preserve the “purity” of our educational institutions.
In all those years, the issue of college athletics reform has never gone away and it probably never will. Professor Starn seems to admit that he’s tilting at a windmill but he doesn’t demonstrate why “reform” is “the right to do”, either. Attacks on big time college athletics, even when they are occasionally justified, have always smacked the envy and hypocrisy. For example, Professor Orin Starn brings up Coach Mike Krzyzewski’s earnings as an example of how out-of-balance things are.
First of all, even cultural anthropologists, have the right to negotiate the best deal they can get from their employer or go somewhere else for a better deal. Second, there is no cap on what the more traditional academics can earn and may earn a great deal beyond their salaries for consultation or participation in spin-off ventures base don academic research.
The real envy is not of the big bucks. It’s the influence and impact beyond their discipline that really rankles. Who among the academic elite has built a community center in Durham or carries enough credibility with the masses to star in an American Express ad?
Anybody who has been around college students knows that loutish behavior is not limited to athletes. Rather than a show of arrogance, it would be solid bet to say that the purpose of Duke athletes and coaches meeting was to remind them that they will always be under the microscope and they are the ambassadors of the university every time they step out on the field or into the community.
Doesn’t it seem a little odd for the good professor to target Coach K and the basketball team, which has not only won a lot of basketball games but has helped shape some unquestionably good citizens – think Grant Hill and Shane Battier. And there are many others, including several who sit with him on the bench as part of his coaching staff.
If you want to really reform college athletics, treat each sport as an academic discipline and treat the athletes like other students who don’t have to answer to NCAA. When you see criticism of an athletic team, substitute “dance” for “football” or “music” for “baseball” and see if it makes sense. Would you deny a music major a chance to pay for his books by playing for a local symphony? Would you deny the dance major a chance to get paid dancing at parties? Or how about engineering majors in a co-op program alternating semesters on campus and working in the industry getting practical experience? But an athlete who accepts a chicken wing from a booster at a tailgate party is violating the rules.
What is the problem? Are the athletes that “major” in football less successful in life? Do they approach their chosen major with less passion and discipline than cultural anthropologists do? Will they be any more likely in the 21st century to stay in the field of their major all their lives? Will they learn some valuable lessons from their college experience even if their “semester abroad” is playing exhibition basketball in Europe?
This, of course, is no more likely than the reform Professor Starn has in mind. The fact is that America’s university system is the envy of the world and athletics is a small, albeit very visible, part of it. If Harvard and Yale don’t want to compete on a level with Duke in basketball or Florida State in football, God bless them and who can blame them.
But for the men and women of who pull on their sweats and challenge themselves physically and mentally every day to achieve some measure of excellence, in spite of all the stupid NCAA restrictions, God bless them too. Thank them for the inspiration and joy they bring to “has-beens” like me.
by Jay Zenner
September 28, Herald Sun
Jay Zenner, a local Realtor, was member of the “prep-squad” for Notre Dame’s 1966 national football championship team.
Originally published in Herald Sun, on October 2, 2006
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Duke encourages drinking
The harmful effects of campus binge drinking is one of a parent's greatest fears. Ninety-five percent all violent crime on college campuses and 90 percent of acquaintance rapes involve the use of alcohol by the assailant, victim or both according to Rethinking Rites of Passage: Substance Abuse on America's Campuses.
The price of university-sponsored kegs at Duke will drop by more than 50 percent this year, likely spurring an increase in the number of on-campus kegs, according to officials and student leaders as reported by Rob Copeland in the August 30th Duke Chronicle. The article also states that the undergraduate alcohol policy has not been changed.
Will cheaper kegs lead to more drinking by students under the age of 21? Many students use alcohol as a way to deal with the pressures that accompany the competitive environment on our campuses. Consider this quote: "There are always students who manage to get a beer or two," said, Jim Wulforst, Duke's director of dining services. "I can't just hire more people and have them walk around with coats on that say 'beer police.' "
Iza Wojciechowska reported in the Sept. 26 Duke Chronicle that Alcohol Law Enforcement officials cited at least 13 students during a compliance check Sept. 21-Sept. 22. Parents need to feel confident that their children are safe and healthy. Students need to learn the harmful effects of underage drinking.
The bottom line remains this: It is against the law.
The writer is founder of Durham Together for Resilient Youth.
WANDA BOONE
Durham
October 2, 2006
We preserve this article from National Review, in case it expires. Link to original:
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Forget the Facts
National Review Online, by Michael Rubin
June 6, 2006
An exotic dancer’s accusation that Duke University lacrosse players raped her at a March 14 off-campus party continues to polarize Durham, Raleigh, and the Duke community. Those accused were white; the victim was black. Citing the racial overtones, both Jesse Jackson and Al Sharpton joined the fray. For several days, protests rocked the Durham campus. On March 25, Duke University President Richard Brodhead issued a statement declaring, “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke.” Of course, he issued the caveat, “People are presumed innocent until proven guilty,” but on campuses today, such presumption is secondary. On April 5, Brodhead canceled the lacrosse team’s season and promised an investigation of the culture of college athletes as well as Duke’s own response. The lacrosse coach resigned.
Months later, more is known about the incident. While District Attorney Mike Nifong is pressing on with charges of rape and related accusations against three lacrosse players, his case is unraveling. Photos, witnesses, alibis, inconclusive DNA evidence, and even passed polygraphs make his case increasingly tenuous.
Unfortunately, it is not the first time that Brodhead has allowed public relations to trump principle. Prior to assuming the presidency of Duke, Brodhead was dean of Yale College. He was a popular teacher and, at least for the first half of his tenure as dean, a well-liked administrator as well. Then tragedy struck. On December 4, 1998, senior Suzanne Jovin was found stabbed to death and left at an intersection in a neighborhood adjacent to the Yale campus which housed many Yale professors and graduate students.
Many universities are shy about adverse publicity. At Yale, it’s an obsession. My freshman year, lacrosse player Christian Prince was shot and killed on the steps of a church, a couple dozen yards from a student dormitory. He was white; his alleged assailant was black. It was Yale’s worst nightmare. Parents and applicants peppered admissions officers and tour guides with questions about New Haven safety. The Damocles’ sword of incitement and town-gown racial tension hung over Yale’s administrators.
When Jovin was murdered, justice took a backseat to damage control. Within days New Haven police and Yale officials publicly fingered political scientist James Van de Velde, Jovin’s senior essay adviser. He was a star lecturer and had been a residential college dean. He was also a former White House appointee under George H. W. Bush and a member of the U.S. Naval Intelligence Reserves. Most Yale professors lean to the left of the student body; few in the political-science and international-relations departments have real-world experience. Van de Velde was the subject of personal jealousy and political animosity. Many faculty members—including Brodhead—looked askance at his desire to emphasize practical policymaking over theory. Some questioned, for example, his willingness to help Jovin write—in 1998—about the threat posed by Osama bin Laden to the U.S. to be unscholarly. From an academic point-of-view, Van de Velde was a black sheep.
Yale administrators did not care that there was neither evidence nor motive linking Van de Velde to Jovin. Her body had been found a half-mile from his house. Just as at Duke, Brodhead spoke eloquently about the principles of due process, but moved to subvert it. Citing the New Haven Police Department’s naming of Van de Velde among “a pool of suspects,” Brodhead cancelled Van de Velde’s spring-term lecture, explaining that “the cancellation of the course doesn’t follow from a judgment or a prejudgment of his hypothetical involvement in the Jovin case.” As at Duke, Brodhead insisted that due process would prevail. Despite Van de Velde’s stellar student reviews and distinguished record, Brodhead then let his contract lapse. Van de Velde left New Haven, his career in shambles.
Brodhead’s willingness to offer up a sacrificial lamb undercut justice in other ways. Three days after the murder, New Haven police spoke to Van de Velde, but declined his offers to let them search his home, take a DNA sample, or take a polygraph exam (they did dust his car for fingerprints; their findings provided no link).
They did find Jovin’s fingerprints on a plastic soda bottle found at the crime scene. The soda bottle also had someone else’s fingerprints—not Van de Velde’s. But, having a suspect, why process evidence? The Fresca bottle was crucial. She did not have the bottle when last seen alive on the main campus by a fellow student. That was a half hour before she was found dying almost two miles away. That particular brand of soda was sold in only one store on campus. By the time the police visited it—months later—that store’s surveillance tape had been erased. Nevertheless, her likely presence there turned the half-hour timeline upside-down, and raised the probability that her attacker(s) had forced her into a vehicle, attacked her, and then dumped her—not the type of news Yale parents want to hear. Jovin may also have fought off her attacker. Subsequent tests of material taken from beneath her fingernails revealed DNA that did not match Van de Velde’s, that of her boyfriend, any other friend or acquaintance, or any emergency worker who tried to save her. Neither Yale nor the New Haven police have explained why it took two years to test the scrapings. Nor have they explained why they ignored eyewitness accounts of a tan or brown van seen parked at the crime scene at the time of the crime. Van de Velde drove a red Jeep Wrangler. Brodhead has never apologized. In March 2000, a Yale spokesman dismissed press inquiries saying that more attention to the case “can only hurt Yale” (he would later deny he said it). Public relations trumps justice. Today, Jovin’s murder remains unsolved.
Leadership is not always easy, but it is incumbent upon university presidents to set an example. When university presidents act on principle, they can be subject to withering criticism and attack. The right path is not always easy. If Brodhead recognizes his error in the Jovin case, he should apologize to Van de Velde, its other victim. That he repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice. Although just yesterday he agreed to allow a “probationary” reinstatement of the lacrosse team, at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation.
Michael Rubin is a resident scholar at the American Enterprise Institute.
Originally published in the Forum section of Herald Sun, on October 4, 2006.
There are many reasons for Dukies to stay proud
Last April, I attended Duke’s annual alumni reunion with extra trepidation. The university had been in the news almost constantly for a month, nearly 4000 alumni were expected – as were reporters and camera crews – and the forecast was called for nothing but rain. The 2006 reunion was to be Bill Miller’s last as president of the Duke Alumni Association (DAA) and its 120000 members. I was scheduled to be the next president.
All of it happened – the difficult news continued, the alumni and reporters showed up, it poured and Bill Miller was a hard act to follow.
Alumni were curious and concerned about the lacrosse situation. They were particularly concerned about these people who might have been hurt by it. They talked about it a great deal, but even then they didn’t talk as much about lacrosse as they did about the university – a place for which they felt both pride and sympathy. Duke’s president spoke to a full Page Auditorium, as is tradition. At the end of his talk, in response to the only question about the situation, specifically about how alumni could challenge the bad news about the place they loved, Disk Brodhead said (it is still posted on Duke’s website):
“You’ve just got to turn that around. You’ve got to walk up and say some true things about this place that is a place of pride and, Lord knows, there are many. And you know what? At the end of the day, this place will be known for what it is. And I hope this will be a better place after this episode. But it won’t be an altogether different place. It will be known for the excellence that characterizes us now. And that’s all of our work, to bring that day about.”
I became the DAA’s president in July. Before then, especially since, I have heard from a lot alumni. Like those April reunion days most of what I hear is not about lacrosse, but true things that are sources of pride:
• Duke occupies a top position in university research – with Columbia, it leads the nation in federally funded international and area studies centers.
• Nineteen Duke graduates and grad students won Fullbrights last year and four undergraduates won Goldwater scholarships for academic excellence in mathematics, science and engineering.
• Two Duke grads won MacArthur “genius” Fellowships just a couple of weeks ago.
• Duke Hospital was named a Magnet Hospital by American Nurses association.
• A Duke associate professor of neurobiology was named to Popular Science magazine’s annual “Brilliant 10” list of young scientists.
• Duke was named one of the top 20 institutions in the Advocate College Guide for lesbian, gay, bisexual, and transgender (LGBT) students.
• Duke is the 14th best school in the nation for Africa-American students, according to rankings from Black Enterprise magazine.
• Duke led all Division 1A schools in the National Collegiate Scouts Association’s Collegiate Power Rankings, which rank the nations top colleges and universities of all divisions based on academics, athletics, and student athlete graduation rate.
• Two Duke researchers developed the first genomic test to predict which patients with early-stage lung cancer will need chemotherapy to live and which patients can avoid the toxic regimen of drugs.
• Three Duke professors traveled to the White House to receive Presidential Early Career Awards for scientists and engineers, matching the University of Illinois to lead all universities.
• Duke is the site for the center of HIV/AIDS Vaccine Immunology, and international consortium of universities and academic medical centers aimed at solving major problems in HIV vaccine development.
Have I heard only great things about Duke? Of course not – Duke alumni are not uniformly anything, including perfectly happy with their alma mater or, for that matter, the world in general.
But most of my correspondence is thoughtful and encouraging, whether it is about what has been accomplished at the university or how we have conducted ourselves in the light of national scrutiny.
I was especially curious to look people in the eye at the first major gathering of the alumni gathering since last spring’s reunion. Duke’s Homecoming was last weekend and there were lots of alumni, very few reporters, and the weather was nothing but great.
President Brodhead, DAA Distinguished Alumni Awards winners Russell and Sally Robinson, and DAA Distinguished Undergraduate Teaching award winner Seymour “Sy” Mauskopf were there. There were educational panels and talks by faculty members; the football, soccer and field hokey teams played; on Saturday night there was a truly multigenerational dance for students and alumni at Cameroon Indoor Stadium (with arrange of dancing that should have brought reporters and camera crews).
The weekend was stimulating, thought-provoking, exhausting, fun and memorable – in short, it was a real homecoming for this Dukie.
The participants looked forward. This is not to say they ignored the past or what may come. It is to say that most Duke alumni remain convinced that their university’s best days are ahead of it.
by Tom Clark
The writer, class of ’69, is president of the Duke Alumni Association.
Originally published on the print version of Herald Sun, on October 10, 2006
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Friends not endorsing any of 3 DA candidates
The Friends of Durham is not endorsing any of three contenders for Durham District Attorney in the November 7 election, the chairman of the political action committee says.
David Smith says he and his fellow questioners couldn’t reach a decision after approximately 30-minute interviews with District Attorney Mike Nifong, County Commissioner Lewis Cheek and lawyer Steve Monks.
“I think it’s …. that we’re as conflicted as the public in general is, that we have a lot of strong feelings lots of different ways and we didn’t feel comfortable making a selection of the three men,” Smith said in an interview.
Meanwhile, another of Durham’s main political action groups, the Peoples Alliance, endorsed Nifong earlier and will not hold interviews.
The Bill City’s third main political group, the Durham Committee on the Affairs of Black People, plan to interview candidates nest week.
Though Nifong won the Democratic primary in May, he came under a lot of criticism when he indicted three Duke 2005-06 players for the alleged sexual assault of a stripper at a mid-March party at a house across from Duke East Campus.
Smith said the subject came up during the interviews, which he said happened Thursday at University Tower.
“And we asked Mike Nifong, and on of his comments was that he’s the only one that’s interviewed the victim,” Smith said. “And he feels confident in his case.”
What the panel heard from Cheek and Monks was that “it’s not just about the lacrosse case” and they could do a better job than Nifong in office, Smith said.
“Our feeling was, ‘Why didn’t they file to run before, if there was more to it than just the lacrosse case?’ ” Smith said.
Cheek, a democrat, for weeks considered an 11th hour run against Nifong. But in late July, citing the impact of his law firm, Cheek decided to withdraw his name from consideration after enough residents had gotten signatures from voters to put his name on the ballot.
Because of the timing of the timing of the decision, his name remains on the ballot as an unaffiliated candidate.
Monks, chairman of the Republican executive committee in Durham County, is campaigning as a write-in candidate.
Nifong couldn’t be reached for comments on Monday.
Cheek said he’s sure the Friends of Durham considered what was heard and “made a decision that they felt, under the circumstances, was the proper decision to make…..
“But I know the people who were there are serious people who are interested in seeing Durham the best that it can be – and I know that they would not have made a decision like that lightly.”
Monks said while he’s “naturally” disappointed, he said he also understands people are conflicted.
“It’s unfortunate that I wasn’t able to better impart, I suppose my vision for the office and why I was running.” he said.
While Monks maintains he’s the best qualified candidate, he acknowledges that, absent the lacrosse case, he wouldn’t be running.
“Mike has taken such a big hit from a personal stance in terms of credibility in the community that we have a difficult problem with criminal justice – or the perception of the criminal justice system – in our community.” Monks said.
“And frankly, given for a lack of better term, the hole that Mike has dug himself, I don’t know that he can ever reasonably dig his way out and get us to where we need to be.” Monks said.
Meanwhile, a political action committee named “Recall Nifong-Vote Cheek” has been urging voters to replace Nifong with Cheek. If the committee is successful, given Cheek’s decision, Governor Mike Easley would have to name a prosecutor.
Smith said Friends of Durham did endorse two district court judge candidates – Nancy Gordon over Anita Smith and Ann McKown over Tracy Hicks Barley.
Originally published in the Letters section of Herald Sun, on October 20.
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Editorial made rape case about race, class
Your editorial about the recent "60 Minutes" report mischaracterizes both what the district attorney's role has been in the Duke lacrosse rape case and why some of us have criticized him. Like much of the media hype that has surrounded the case, your editorial turns the case into an ugly caricature by suggesting that the decision to prosecute the Duke students was made by a valiant prosecutor on a white horse who is defending a helpless black woman who "ranks near the bottom of society." That is what the prosecutor also suggested when he told a largely African-American audience that he personally would protect "this black girl" from the hooligans at Duke. I find that characterization of the case offensive and patronizing. Why do you say the accuser is "near the bottom of society?" She is an apparently talented student and mother who dances to support herself and her child. She is a woman, not a "black girl." Trying to make this case about race and class has done a great disservice to Durham. From the start, it should have been handled as just an alleged rape that had to be investigated and prosecuted if the evidence warranted it. As someone who has criticized Nifong's handling of the case, I have not called for him to dismiss it; rather, I have suggested only that a special prosecutor be appointed who can make the kind of disinterested decisions about the case that Nifong has shown himself incapable of making. If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.
JAMES E. COLEMAN
Durham
October 20, 2006
The writer is a law professor at Duke University who was interviewed on the “60 Minutes” broadcast. The length rule for letters was waived.
Originally published in Herald Sun on October 29, 2006
Secret racism underlying lacrosse case
by Grant Farred
The pervasive sense of unease about the Duke lacrosse affair remains. If only initially, the players and the university’s administration wanted the entire event to remain a secret That was impossible because it is the very nature of secrets to reveal themselves.
And the lacrosse affair came burdened with a public history. A history that includes the sexual past of the alleged victim as well as the criminal record of the Duke players – from the arrest and prosecution of lacrosse players from Washington D.C., to Durham to the lacrosse team’s reputed tendency toward arrogant sexual prowess. These proclivities are complicated by the neglected issue, that of ongoing racism in the not-so-New South.
The racist taunts by the lacrosse players on that infamous March night were nothing historically new. The vulnerability of black bodies now assumes a different guise, but its political realities remain unchanged, especially in this instance, as it applies to black and minority women. That is only a public secret, but an ongoing shame.
Why have the racial slurs and a player’s e-mail “promise” about killing and skinning “strippers b—s” been forgotten, and transgressions against Durhamites made victim to the relentless commitment to exonerating the three players? In casting the players as the aggrieved “victims,” as CBS’ “60 Minutes” did and the players, their attorneys and the PR machines continue to insist, what has been eliminated from discussion is a more serious issue. How is the lacrosse affair symptomatic of the political culture at Duke?
Why is there not a more urgent sense on the university campus about March 200^? Why has it not precipitated a more profound educational, political, and intellectual crisis? If the gravity of the situation did register, how is it possible that the team could be reinstated despite its criminal history? How could an athletic director’s response to the affair suggest that this was simply a matter of “boys being boys,” by which he really means that historic white privilege should go unimpeded, and perhaps even punished?
This tendency is made all the more troubling by a recent political campaign on the Duke campus. Mobilized through the proliferation of Blue Devil blue armbands, too visible on campus early in the fall semester, inscribed with the numbers of the three indicted players and the defiant proclamation, “Innocent” (in bold white), Duke University students are now said to be registering to vote in Durham in unprecedented numbers.
By transferring their registration from other places, by enfranchising themselves in Durham, these students’ only intention is to oust District Attorney Mike Nifong. This selective intervention amounts to nothing so much as the deliberate act of closing ranks against Durham. What Duke students becoming Durham citizens does is displace the problem of racism from the lacrosse team and the university to Durham’s political system.
This is a historically ironic move, this drive to register “locally,” because Duke students are notorious in their disconnect from the “black” city of Durham. They ate here exercising their right to the franchise without any other sense of civic responsibility. The plan here is to not act in Durham or for the general good of Durham, but to act against the non-Duke Durham community. Can this intervention be motivated by anything other than naked self-interest?
The goal of these new, expedient and transient members of Durham’s political community is to repair the damage done to historic white male privilege by voting against a DA vigorous, perhaps even questionable, in his efforts to prosecute the “innocent.”
The “Innocent” campaign may be motivated by a keenly felt opposition to Nifong’s handling of the case, but it does little more than obscure what is really at stake. Why is the effort to remove Nifong from office not accompanied by a similar vigorous interrogation of those who spewed racial epithets? Why not a “No Racism” or “No Violence Against Women” armband?
All of which, of course, begs the crucial question: What is it precisely that that these three players, and the lacrosse team in general, are “innocent” of? Racism? Underage drinking? Hiring sex workers under a false name? Homophobia? The abdication of a collective team – what happened was not a “mistake” but part of an older and widely known pattern of lacrosse behavior – and larger institutional responsibility for declaring public what precisely it is that Duke University represents?
The question needs to be answered. What does Duke stand against? At this moment, Duke university’s precise mission as a renowned institution of higher learning, one that touts its elevated international rankings, is the best kept secret in town.
The write is an associate professor of literature at Duke University.
Originally published in Herald Sun on October 29, 2006.
What happens next in the lacrosse case?
by Robinson O. Everett
What is going to happen next in the Duke lacrosse rape case? Here is my summary of some of the possible events.
Until recently when I saw the “60 Minutes” program, I thought the least probably alternative would be for District Attorney Mike Nifong to dismiss the charges against the three defendants before trial. However, the information presented by CBS – especially the comments of the second dancer – certainly makes the case against the players seem shaky. With that in mind, Nifong might choose to rethink the suggestion I made several months ago [Herald Sun, May 25], that he ask the claimed victim to take a lie detector test and, if she refused or took the test and flunked, then drop the case. Admittedly, to dismiss the charges at this point late date would seem like an admission of error on Nifong’s part, but that might be better than a long trial and a likely acquittal or hung jury.
Perhaps, the accuser – especially if she saw “60 Minutes” – might decide that a trial would be unduly stressful for her and she might request Nifong to dismiss the charges. Admittedly, gag orders and rape shield laws are intended to reduce the possibility that a woman who has been raped will choose not to file a complaint or will ask that charges be dismissed; but even so, in some instances a rape victim might choose not to undergo the ordeal of a trial.
If the accuser were to request Nifong to dismiss the charges, he would face a dilemma. He would not wish to inflict additional trauma on a female whom he believes has been victimized; but he might feel that there is a strong public interest in assuring that allegedly rapists are brought to trial.
Moreover, if Nifong dismissed the charges at this stage, he would undoubtedly be criticized, for not having done so months ago. Thus, unless he can explain that new information has recently come to him (such as lie detectors results raising questions as t the accuser’s credibility or new information revealed on the “60 Minutes” program that contradicts what the accuser told herself), he will probably conclude that it would be better to go ahead with the trial. If Nifong were to be defeated in the November 7 election, his successor might choose to dismiss the indictments; but he would probably be deterred from doing so by the likelihood of criticism for “being insensitive to the right of women and African-Americans.”
I have heard comments that Nifong should request appointment of a special prosecutor. That he would do so at this point seems implausible because this decision would be construed by many as an evasion of responsibility. Also, there would be additional delay in getting the special prosecutor up to speed. Likewise, if Nifong were defeated in November, his successor would probably hesitate to request a special prosecutor and would feel a responsibility to handle the charges.
If the case proceeds to trial, where and when will that occur? All the alleges crimes occurred only in Durham County, where the grand jury indicted the three defendants. The district attorney has no discretion to move the trial away from Durham. On the other hand, the defendants may choose to seek a “change in venue” – a transfer of the trial to another North Carolina county. Apparently defense counsel jointly contracted for a recent survey to help determine whether a jury selected from Durham County would be biased against the lacrosse players. (Amazingly, Nifong’s wife was among those polled). In view of the national media coverage, it is likely that whatever the results of the survey, Judge Osmond Smith – the trial judge – would be skeptical that transferring the trial to a different county would enhance its fairness.
In guest column in mid-summer I urged that District Attorney Nifong bring the case to trial promptly – preferably before November 7 election. Although I still believe that my suggestion was not unrealistic, I recognize that the extensive pretrial discovery process made some delay necessary. If trial occurs in Durham, it probably could not start until January 2007. In the unlikely event that the venue was changed to another county, March or April, 2007 would probably be the earliest start time; and if a new district attorney takes over, some additional time might be necessary to prepare for trial.
A trial jury selection will present problems wherever or whenever the case is tried. In view of the massive media coverage, it is unlikely that here on Durham a prospective juror can truthfully say that he or she has nor formed an opinion as to the guilt or innocence of the defendants. Nonetheless, with suitable “coaching” from the judge and counsel, many of the prospective jurors will probably say that they can put aside any opinions that they have formed and, if selected as jurors, will decide the case solely on the evidence. In that event they are likely to survive the challenges for cause.
The prosecutor and the defense counsel will also have a number of peremptory challenges – challenges for which reason or explanation is required. However, the Supreme Court has ruled that a peremptory challenge cannot be motivated by race or gender. In this case, if defense counsel peremptorily challenge some African-American jurors, the prosecutor may raise an issue as to the presence of an improper racial motive; and vice versa, if the prosecutor challenges white jurors on the basis of race. However, in either event, the attorney making the peremptory challenge will persuade Judge Smith that no racial motive exists to the challenge.
We already know what most of the evidence will be at trial. No one can predict with certainty what a jury will decide on such evidence; but I must admit that if all – or any – of the defendants are convicted, I shall be surprised.
The writer is a professor of law at Duke University.
The very fact that SOME professors are still on their soap box trying to insist that these lacrosse players are a bunch of racial , violent bunch of boys is a travesty. READ the information that is out there. Witnesses and the second dancer herself have said that these so-called racial slurs, except...Your Daddy...which by the way is a quote from a Chris Rock Show, NEVER happened. THe using false names...NEVER happened. Violence against women...where has it ever been stated that these boys have committed ANY aggression toward women...NEVER happened.
Did they hire a stripper...yes...The 22nd documented time a stripper had been hired for the Duke students during the 2005-2006 school year. Underage drinking..yes..OK..come on...public urination...wrong yes...criminal NO.
These Duke professors need to keep this in perspective. They were being completly normal college boys that have been railroaded by a politically motivated DA and a cowardice university.
THe only people that have been raped here are the three..CLEARLY...innocent students!!
Grant Farred should be fired by Duke immediately. He is a disgrace to the university. Those who protect him and his types in Duke will get their punishment too and they will regret protecting these miserable characters that are full of hatred towards other races. Racism is not a one-way street. Blacks hating whites is just as bad as whites hating blacks. What Farred is doing in this article is spilling out his hatred towards whites. He is a racist! There should not be any room for racists at Duke. Someone needs to kick him out of there.
Sorry Dukies but Duke is going to have a bad rep for being a racist university. Only thing is it is some of the professors that are giving it that reputation.
And, Brodhead and Steel are sitting on their backside doing nothing about it blaming the huge hit Duke is taking on these kids instead of the real guilty parties (Group of 88).
Shame on both! Questions will be asked soon enough...
Can it possibly be true that Grant Farred is a professor of literature at a top rank university? How can this be? From the evidence in the column presented here, he lacks the skill to compose a simple declarative sentence. He cannot present his ideas with even a semblance of clarity. His phrases are opaque and muddled, his thinking confused and incomprehensible. He can't write!
How did this man get a job as a professor of literature? Astounding.
This letter was published in Herald Sun Novemeber 8, 2006.
Pay off lacrosse case?
A great deal of senseless and bombastic rhetoric about the Duke lacrosse scandal seems to be going nowhere. Finger-pointing and hate mail are not contributing to progress in the case or to a resolution of the issues. Very recently, some ideas have been bruited about that seem worthy of bringing the various factions into alignment.
We begin with the notion that a trial is unnecessary because it's not in the interest of any parties concerned. If all charges are dropped, the prosecution, the indicted students at Duke and the Durham community would all heave a sigh of relief. Is that outcome worth $3 million? Half would go to the complainant and half to the attorneys. Obviously, it would take some effort to raise the money, but given the benefits, it is a small price to pay for the solution of this painful affair.
Joe Dibona
November 8, 2006>
The author is a professor at Duke University.
This column was published in Herald Sun on November 14, 2006.
(http://www.heraldsun.com/opinion/columnists/guests/68-788633.html)
Don't be too quick to toss lacrosse case
by Thomas Crowley
I am surprised at the number of letter writers to your paper who, although they have no legal qualifications, seem to assume they have sufficient knowledge about the Duke lacrosse case to conclude that the case should be thrown out before it even goes to trial. I don't know what happened that night with respect to those students and that woman, but I do know the following items about the case that would lead one to hesitate before throwing out the case.
-- The Duke lacrosse players were not angels -- they had a previously established history of rowdiness tarnished with racial comments, and one of the accused had previously been arrested for anti-gay comments while drunk; n Why are photographs available before and after the alleged event, but not during it? Is it possible that the photographer did not want to document what was happening during that time?
-- Why was the woman sober when she arrived and staggering to the point of passing out a mere 30 minutes later? Was she possibly drugged by someone when they encouraged her to have a drink? If so, what were the motives? The accuser has in turn been accused of misleading statements about what happened and how long it took. Of course, some of this could be intentional deception, but it could also reflect the alcohol (and drugs?) and the stress and distortion that come with anxiety and terror. It is very common for people to distort time when they are being traumatized, whether they have had a drink or not.
District Attorney Mike Nifong has also been roundly criticized. I agree his statements at NCCU were inappropriate, but his statements to the media at the beginning of the case are open to interpretation about motives. I think many people might have felt totally off guard and swept away by the tidal wave of media attention that so quickly came down after the event was publicized. I am hesitant to be totally critical of Nifong's response because I could not say for sure if I too might have been swept away by all that was happening.
But Nifong learned his lesson and has kept mum since then. By contrast, the defense lawyers continue to make inappropriate public comments about the accuser to the point of blackening her name to the set of potential jurors. These lawyers are continuing to manipulate the law and the public, yet they are being criticized by virtually no one.
And there is a well-oiled PR machine by some Duke advocates that is contributing to this confusion and sullying the name of the university by assuming they too know what the final answer is. As stated before, I do not know what happened that night. I have no preconditioned preference for whether the accused were guilty or not.
If not, so be it. If so, so be that too. But I most certainly do not think the case should be thrown out just because of some half-baked and half-true legal opinions by people who don't know what they are talking about, and by a group of lawyers and advocates who seem to be doing their best to confuse the public.
The author is a professor at Duke University.
This letter was originally published in Herald Sun on October 20.
Paper backs injustice
I can't say that I was surprised by the editorial in the Oct. 17 Herald-Sun describing the "60 Minutes" coverage of the Duke lacrosse case as "slanted" in favor of the indicted students. After all, The Herald-Sun has consistently, uncritically, and blindly supported District Attorney Mike Nifong's mishandling of this case. If there was a perceptible slant in the broadcast, it was toward truth and based on a reading of the entire case file. It is unfortunate that The Herald-Sun has chosen to promote injustice rather than to fight it.
CHRIS KENNEDY
Durham
October 20, 2006
The writer is senior associate athletics director at Duke Univesity.
This article was published in Herald Sun on November 20, 2006.
Lacrosse players far from innocent
Very rarely are the Duke lacrosse players not drinking or partying
(by Shadee Malaklou) (guest columnist)
Joseph B. Cheshire’s Nov. 11 angry words did not go unnoticed. For every smug remark by a smug, white attorney representing a smug, white lacrosse player, there is a woman cringing. This time, that woman was me.
Not only was Cheshire’s guest column unprofessional, but it was also completely insensitive to the multitudes of women who have been victim, in one way or another, to the lacrosse players’ actions.
By now, most members of the Duke, Durham, and (thanks to CNN, Newsweek, and 60 Minutes) national community are acutely aware of the inaccuracies of District Attorney Mike Nifong’s investigation of the Duke lacrosse case. Cheshire’s guest column only acted as a reminder, albeit an unneeded one. After all, how could we forget the desperate situation of these young men? Indeed, although we have been allowed to – encouraged to – forget their racism and misogyny, we have not been allowed to forget their innocence.
Much of the emphasis on this “innocence” has ignored the gender and racial prejudice of the March 13 party. If nothing else, Nifong is holding the lacrosse players accountable for that; and as a woman at Duke who knows just how much these men get away with, I’m thankful.
Perhaps that’s Cheshire’s problem – he’s not a woman, and he doesn’t know the fear of rape. A rape may not have occurred on March 13, but as a woman on Duke’s campus, as a women’s studies major and as an activist for survivors of sexual assault, I assure Mr. Cheshire that these men are not innocent, nor are they upstanding citizens of Duke or Durham law.
As unethical as it is for Nifong to “take over the role of lead investigator from the police and then refuse to view exculpatory evidence,” it is just as unethical for Cheshire to present his defendant, David Evans, or his lacrosse friends as innocent victims.
If things went the “right” and “just” way, as Cheshire argues they should have, the lacrosse players would be quickly excused of their actions. Nifong might not be in the right, legally, but that doesn’t mean he’s not doing the right thing.
And, here’s why: Very rarely are the Duke lacrosse players not drinking or partying, and true to Duke’s motto of “Work hard, play hard,” it is understood and accepted at Duke that what happens under a drunken stupor is excusable, and forgivable the next morning.
But the March 13 strippers were not Duke students, and (at least one of them) was not going to excuse the lacrosse players’ actions with the trusty understanding, “boys will be boys,” boys will get drunk, and boys will be horny. Unfortunately, in spite of all our education and opportunities, Duke women are not so strong…or smart. We’ll giggle it off, and sometimes even find a man more endearing for his drunken slip-ups. Even if one of those slip-ups rapes us.
The writer is a senior with a double major in woman’s studies and cultural anthropology at Duke. Her home is in Orange County, California.
This letter was published in Herald Sun October 20, 2006.
CBS had new news
Somehow I felt that the news on "60 Minutes" that Reade Seligmann never talked with the police was new information. I thought that the information that the accuser was dancing in a strip club two weeks after the alleged incident was the first I had heard of that. Instead, I was told in your Oct. 17 editorial that the program was "clearly slanted" -- not to anybody who has read the published accounts -- and that the players maintained their "sweet innocence."' I believe if you asked them, you would discover they are very bitter over a stubborn district attorney choosing to ruin their lives and that of their families. And what documentation would you offer that "loud, alcohol-fueled revels were common at the lacrosse house"' other than from Trinity Park residents who don't live close to 610 North Buchanan? How often is common? We learned that the TV show tried to portray the players as "choirboys,"' something I missed in my viewing. You insist we haven't heard any "compelling" evidence of their innocence. Unless I've missed something, there is positively no evidence offered of their guilt.
Frankly, The Herald-Sun would be better served to have written an editorial lambasting the police in general and Sgt. Mark Gottlieb in particular for cuffing students and taking them to jail for what are at most misdemeanors. This case is full of more holes than Swiss cheese, including the obvious, that the photo lineup was ill-conceived and illegal by somebody who clearly (to me) desperately seeks a conviction.
BILL BRILL
Durham
October 20, 2006
Click here to see more on Brill Bill
This letter was published in the Letters section of Herald Sun on November 27, 2006.
Civics lesson needed
In a Nov. 19 column, a Duke co-ed named Shadee Malaklou writes, "I assure Mr. Cheshire that these men are not innocent..." and "... it is just as unethical for Cheshire to present his defendant, David Evans, or his lacrosse friends as innocent victims..."
If Shadee Malaklou, a student at Duke who teaches workshops titled "Vagina" and "Dating and Mating: Hook-up Culture at Duke," knows Evans is guilty of rape, then by all means, she should step forward. If she also knows for a fact that Collin Finnerty and Reade Seligmann are also guilty of rape/sodomy, beating and strangulation, she needs to present her evidence to the authorities.
Malaklou doesn't abide athletes who drink and party. Therefore, Malaklou should resurrect the Temperance Movement on campus since she is worried about the morals of the men on campus. What Malaklou should not do is slander these three young men. Either these three students committed the crime or they didn't; that is the only question before the district attorney.
These three young men in particular are accused of a heinous crime; no one else. It is prejudicial and slanderous on Malaklou's part to paint them with a broad brush as drunken predators. She is guilty of odious stereotyping.
John Mark Kerr injected himself into the Jon Benet story to garner some sick attention; is that what Malaklou is doing here? Is Malaklou a rabble-rouser agitating a mob? What is the point of Malaklou's column?
She writes, "Nifong might not be in the right, legally, but that doesn't mean he's not doing the right thing." Huh? Malaklou, didn't they teach you basic civics in high school in California? The district attorney has to do the right thing. Legally, that is his job!
I pray Malaklou's parents are the only ones paying for her education, and I pray they have lots of money to waste.
E.V. Hoffman
November 27, 2006
Above: Great letter E.V. Hoffman! I wish I knew how to get your letter to Shadee and her parents. They need to read it. Also, I like to know if Shadee is on some kind of scholarship at Duke? I truly hope not.
If you missed this "past gem" from Shadee, or do not fully understand her, here is help. Once you read this, all should become cystal clear.
Shady, Sexy, and Squirrely
is shadee on scholarship?
what do u think affirmative action is? it's a free ride for stupid people
This letter was published in Herald Sun on December 1, 2006.
Lacrosse retraction
On Nov. 13, The Herald-Sun published an "Other Voices" piece by me concerning the Duke lacrosse case. I have subsequently been informed of errors in that letter. In particular my blanket statement about behavior of the lacrosse team was neither fair in general nor applicable to the particular case now in dispute. I apologize for this and any other errors.
The response to my letter has made me more aware of the intense emotions that are associated with this case. These tensions can only be bad for campus-community relations, and I strongly support any efforts to reduce them. Finally, I sincerely hope that lessons learned from the lacrosse case will be applied to future cases in order to lift the standards of justice for all in Durham County.
The writer is a professor at Duke University.
THOMAS J. CROWLEY
Durham
December 1, 2006
so, professor, which prison do you want to send precious to?
Thank you professor Crowley!
You did something which was probably not easy to do. I congratulate you on your wise decision to retract. This short letter tells us a lot about your personal integrity and wisdom. Now, let us hope Holloway, Wood, Starn, Farred etc. all follow in your footsteps.
This letter was published in Herald Sun on December 3.
What happens after the verdict in lacrosse case?
It's time we started talking about the lacrosse case in a different, more important way. District Attorney Mike Nifong was elected, his initial handling of the case is in the past and the case will now head to trial. Therefore, there's no need to continue this heated debate about things that won't change. Instead, we need a productive discussion about what happens after the verdict comes out.
Unfortunately, I think there's so little faith in our legal system that whatever happens in court, a substantial portion of our community will leave angry. If a guilty verdict is handed down, wearers of "Innocent" wristbands will be up in arms about the bias of members of the Durham community against Duke. If the court finds them innocent, cries that they bought their way out of trouble will follow from others.
As a Duke student who has had the privilege of discussing this matter with my classmates, students from NCCU and Durham residents, I've found that most people have made up their minds about whether or not a rape occurred. Most do not see a verdict changing their minds either. So once this decision comes down, in the face of the inflammatory media, our community will still have serious healing and reconciling left to do.
We need to start talking about this now, figuring out how to continue to work and make progress once the trial and the hordes of media have come and gone. Because a verdict is not going to solve anything.
DAN BAUM
Durham
December 3, 2006
The author is a senior student at Duke University.
This article was sent to us by Professor John F. Banzhaf III, on December 30, 2006.
2 NC Docs Could Cinch Nifong's Personal Liability
(Why He Can't Hide Behind Prosecutorial Immunity)
Two important documents just filed in Durham County DA Michael Nifong's home state -- a formal disciplinary complaint filed by the North Carolina State Bar, and a demand by the North Carolina Conference of District Attorneys that Nifong recuse himself -- not only further decrease the chances that the remaining sexual assault charges will ever be tried, but also dramatically increase the chances that Nifong will be found personally liable for prosecutorial misconduct, says public interest law professor John Banzhaf.
"Although prosecutors generally enjoy absolute immunity from civil liability for prosecutorial misconduct, there are instances -- and this appears to be one of them -- where that immunity doesn't apply," says Banzhaf, who helped to bring successful legal actions against wrongdoing by several different governmental officials, including an unusual case in which former Vice President Spiro Agnew was forced to disgorge the money he took in bribes, with interest.
"Generally, district attorneys -- acting within their narrow role before the court as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held personally liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known. Since both the North Carolina State Bar and the North Carolina Conference of District Attorneys have both publicly condemned Nifong's conduct in the Duke case, both tend to show that his actions did in fact violate clearly established legal standards of which a reasonable prosecutor in the state would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and conducting and cooperating in investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity -- and thus be held liable.
In the Duke case, the three main allegation that Nifong engaged in prosecutorial misconduct -- directing the police to use a stacked lineup in violation of established written procedures, ordering a private laboratory to withhold from defendants important DNA evidence in violation of state law, and making prejudicial statements about the defendants which are prohibited by the ethical code and allegedly involved "dishonesty, fraud, deceit and misrepresentation" -- all apparently occurred before probable causes was established, and in any event are much more "investigative" rather than "prosecutorial" in function.
"It is often possible to pierce the veil of prosecutorial immunity and hold them personally liable, but this rarely occurs because most victims are black and too poor to hire top lawyers able to do it, and often they do not make very sympathetic plaintiffs. Here the irony is that three rich white Duke students may well bring such law suits, and, when successful, help to deter prosecutorial misconduct against the more typical victims, suggests Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
From Herald Sun:
Where's the Durham outcry on lacrosse case?
You are right, Mike Silver. I am also tired of hearing from so many people across this great nation about the lacrosse crime. I ask you, where is the local outcry of the crime committed in Durham? All crimes should have proper punishment, regardless of race, financial or political status.
Yes, a serious crime was committed here, but, not by three Duke lacrosse players. Far too quick judgment brought shame and much undue anguish on them, their families, their teammates, their coach, Duke University and the entire community of Durham. Shame on Mike Nifong and shame on all those who elected him to office. Shame on Duke for not giving more support from the beginning. Shame on The Herald-Sun for jumping in too early with judgment.
Allowing these remaining serious charges to go on and on continues to hurt all of us in Durham and beyond who care about honesty and justice. Unfortunately, the new dropped rape charge has done lasting damage to all actual rape victims for years to come. I ask again … where is the Durham outcry and sense of honor?
BARBARA G. COLLIE
Durham
December 31, 2006
From Herald Sun:
Nifong turns to Times
I had to laugh when I read that Mike Nifong gave a three-hour interview to The New York Times. Putting aside his numerous previous statements that he would save all commentary for the courtroom, let's focus on who he turned to when he decided to deviate from his self-imposed strategy.
Will breaking his silence by turning to a big New York publication cost him the support of this paper's editorial staff? After all, they have printed sympathetic story after sympathetic story on Nifong's behalf and he doesn't even repay them with the scoop of his first comments in months?
And what about all the letter writers angry that citizens outside of Durham have voiced opinions in this case? Now Nifong has himself encouraged further meddling from outsiders in a case that he had previously stated requires "a Durham solution."
PETER BOVE
New York
December 31, 2006
From Herald Sun:
Resign and apologize
I stated a while back that regardless of any upcoming situations, Mike Nifong would eventually drop this insane case, after of course he secured his vote in November. Now that he has secured his position, along with some serious national heat he's drawn upon himself, he's decided to drop the charges. Now he claims it's only because the woman has now stated she cannot say with certainty that she was raped.
If that was his true reasoning, then why wasn't it dropped long ago when the former accuser had eight different stories? Point blank, Nifong used the race card among blacks to get his votes. The only real winner in this situation, despite being a single mom bearing yet another child, is the deranged individual herself, who will be receiving free education from no other than Jesse Jackson.
Dropping the case isn't enough. Nifong should be forced to resign and apologize to the families he's hurt. I cannot imagine how this man shows his face in public, without feeling like crawling under a rock.
Oh and if he's reading, he might also want to drop those ridiculous kidnapping and sexual misconduct charges. Lord knows, it's only going to cause him more embarrassment.
MIKE LANEER
Durham
December 31, 2006
Statement by Alan Dershowitz (authorized to be published by the author).
Alan Dershowitz on Lacrosse Case
I believe in the assumption of innocence before trial. I believe in the right of every defendant to a fair and impartial trial. I believe in the duty of every prosecutor to seek justice, and not merely victory in the courtroom.
I believe these principles have been violated in the actions of Durham District Attorney Michael Nifong. Elected prosecutors must be held accountable for their misconduct and the prosecutor in the Duke case appears to have withheld exculpatory evidence, failed to interview the complaining witness in a timely fashion and refused to consider obvious evidence of innocence. His entire course of conduct in this case should be scrupulously investigated.
Alan Dershowitz
December 31, 2006
Professor Dershowitz succinctly and fairly states the problem in the Duke case from day one, and one of the most important remedies necessary.
From Herald Sun:
Duke lacked courage
I have to agree with Gordon Grunte's comments [Letters, Dec. 20] regarding how Duke University's leadership handled the initial phase of the lacrosse story. My wife and I were upset with the lack of reason and courage exhibited by Duke's leadership during that period and how they turned on and punished the entire team.
The only words of reason and support for these young men (the true victims) came from some of their fellow students. It was clear that many team members were guilty of bad judgment and poor behavior and that they probably violated team rules and Duke policies.
But regarding the rape charge -- to anyone with an open mind and an understanding of our legal system, it should have been obvious that this case lacked merit and smacked of political opportunism. As one who loved the university even before I was fortunate enough to attend it (MBA,1981), I had always admired the tradition of Duke's leadership and vision, as exhibited by leaders such as the late Terry Sanford.
This great university, its students, faculty, alumni, the Durham community and the great state of North Carolina need better leadership at Duke.
STEPHEN RICHARDS
Clemens
January 1, 2007
from Herald Sun:
Was Price afraid?
Kudos to U.S. Rep. Walter Jones for stepping up in calling for a federal civil rights investigation of District Attorney Mike Nifong's handling of the Duke lacrosse case.
The question is why did Rep. Jones, who is not in this congressional district, have to step forward while our U.S. District Representative, David Price, remained mute on the sidelines.
It appears Price didn't have the guts to approach this for fear of losing his black constituency base.
C. B. Bagley
Durham
January 3, 2007
From Herald Sun:
Nifong must pay
I can not believe that District Attorney Mike Nifong is continuing to pursue the case against the Duke lacrosse players. Does he not realize yet that he has no case against them? This woman apparently lied and has been lying since the beginning. To those of us who are on the outside looking in, this case never had any merits. This woman has changed her story so many times. I don't think she even knows what she believes.
I applaud the citizens of Durham for demanding the firing of Mike Nifong. Maybe he should voluntarily step down. He should pray that he can find another job that pays well because he will most certainly be sued. He has ruined the lives of these young men and the former coach of the Duke lacrosse team.
I can tell you that being the mother of a 19-year-old son, I would sue him and the supposed victim for all they are worth and more. He and the supposed victim would pay dearly if they ruined my son's reputation.
Cindy Wrenn
Yorktown, Va.
January 3, 2007
From Herald Sun:
Why we're interested
I don't live in North Carolina, but I've been keeping up with how the LAX3 have been portrayed in Durham. I've heard locals ask, "Why do outsiders find it so interesting?" "Why can't they leave us alone?"
As an outsider, I'd like to offer a few bits of insight: We don't know District Attorney Mike Nifong, but really don't trust him. We believe he was playing to the home crowd against the visiting undergrads and thought he could win an easy one. We see Duke University President Richard Brodhead in the same light as former Harvard University president Lawrence H. Summers who was let go a few years ago.
How so? Brodhead couldn't defend the LAX3 without offending the entrenched liberal feminists at Duke. And I'm sure my last statement raised the heckles of a number of the Duke faculty. If it did, then they need to work out their latent hostility instead of taking it out on a couple of lacrosse players.
M. Dunn
Palmyra, NY
January 3, 2007
This was sent ot us by Professor John F. Banzhaf III.
Duke Players to Sue Nifong and Accuser for Damages
(DA Not Shielded by Prosecutorial Immunity)
The Duke lacrosse players accused of rape indicated today that they plan to sue Durham DA Michael Nifong, and the stripper who accused them, for monetary damages. In a statement released today by the Seligmann family -- and presumably not without the blessing of the other families -- the parents and student said "we are not going to rest until Reade's good name has been cleared and those who have been responsible for this injustice have been held fully accountable. Seligmann Family Statement.
Public interest law professor John Banzhaf, whose public discussion of suing Nifong may have helped pressure him into dropping the rape charges, explained why Nifong would be subject to a legal action despite the often-repeated claim in the media that he enjoys prosecutorial immunity. Duke Rape Case Could Create Major Civil Liability Not Only For DA Nifong, But Also For Durham County.
"Although prosecutors generally enjoy absolute immunity from civil liability for prosecutorial misconduct, there are instances -- and this appears to be one of them -- where that immunity doesn't apply," says Banzhaf, who helped to bring successful legal actions against wrongdoing by several different governmental officials, including an unusual case in which former Vice President Spiro Agnew was forced to disgorge the money he took in bribes, with interest.
"Generally, district attorneys -- acting within their narrow role before the court as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held personally liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known. Since both the North Carolina State Bar and the North Carolina Conference of District Attorneys have both publicly condemned Nifong's conduct in the Duke case, both tend to show that his actions did in fact violate clearly established legal standards of which a reasonable prosecutor in the state would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and conducting and cooperating in investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity -- and thus be held liable.
In the Duke case, the three main allegation that Nifong engaged in prosecutorial misconduct -- directing the police to use a stacked lineup in violation of established written procedures, ordering a private laboratory to withhold from defendants important DNA evidence in violation of state law, and making prejudicial statements about the defendants which are prohibited by the ethical code and allegedly involved "dishonesty, fraud, deceit and misrepresentation" -- all apparently occurred before probable causes was established, and in any event are much more "investigative" rather than "prosecutorial" in function.
"It is often possible to pierce the veil of prosecutorial immunity and hold them personally liable, but this rarely occurs because most victims are black and too poor to hire top lawyers able to do it, and often they do not make very sympathetic plaintiffs. Here the irony is that three rich white Duke students may well bring such law suits, and, when successful, help to deter prosecutorial misconduct against the more typical victims, suggests Banzhaf.
Banzhaf also noted that the accuser could be sued for defamation, malicious prosecution, and probably other torts if she wrongfully accused the students.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
well thought and versed.
From Herald Sun:
Think, next time
It has been reported that District Attorney Mike Nifong was more or less secretly sworn into office this week. I wonder how proud those who voted their anger rather than their rational assessment must feel. They certainly got what they wanted, which turns out, it would seem, to be a pig in a poke.
I can't think of anything positive about this outcome, except that it just might make voters in the future consider the merits of a candidate rather than the phony baloney many of them are selling these days.
Norton Rubenstein
Richmond, Va.
January 5, 2007
Letter to the Editor submitted to the News&Observer on January 6, 2007:
Response to Cathy Davidson
I am writing in response to Cathy Davidson's viewpoint on what constitutes a "social disaster". Since the first news reports I have been following the Duke Lacrosse case with great interest and have been deeply disturbed by the response of both President Brodhead and the 88 faculty members who put their names to an ad in the Chronicle which in essence depicted Duke as a place of prejudice and intolerance.
When you send your son or daughter to a university you expect them to be protected by the administration and the faculty. This has not happened at Duke University. Ms. Davidson states that "the lacrosse players were being elevated to the status of martyrs ". I think not. It is these young men who have had their names and faces splashed across the media, had their lives put on hold, lost careers that they had earned, not to mention the emotional and financial strain they and their families have been put through. Why doesn't this educator believe in the American justice system in which you are innocent until proven guilty. The social disaster is the one in which a university and a community allows three young men to be branded as rapists and have their lives torn apart before the facts are heard. The social disaster is that Cathy Davidson and other Duke faculty members who signed that ad still do not understand the harm they have done to the University itself and to society at large.
The administration and many of the faculty owe an apology to these young men and their families. As an American of conscience this lacrosse story makes me cringe but not for the same reasons as cited by Ms. Davidson. This story has nothing to do with poverty or women's rights as Ms. Davidson would like us to believe. It has to do with a district attorney who wanted to win an election and was willing to use the race card to do it. It has to do with a university president who was willing to believe the worst of his students even in the face of overwhelming evidence to the contrary. It has to do with a community who bought into the lies and elected him.
One of the happiest days of my life was the day that my son received his acceptance to Duke. He could have attended a number of other universities in the Northeast but his heart was set on going south and becoming one of the Cameron crazies. He spent four wonderful years at Duke and I believe his experiences there helped shape him into the fine young man that he is today. But sadly I do not believe that I would send him to Duke today. I believe that is why admissions are down at Duke. Mothers of young men look at Colin, Reade and David and think that it just as easily could be their sons.
Diane Goldstein Block
Chapel Hill
From Herald Sun:
Nifong's a sly fox
Why is everyone piling it on District Attorney Mike Nifong? He's covering himself well. He knows that when the courts throw the case out for various and sundry technical reasons -- the lack of a proper identification procedure, etc. -- it will all quickly be forgotten by the public and media and he will be able to tap dance around any remaining legal problems of his own with readily available, easy excuses provided by the complexity of the legal system.
The good people of Durham should be happy to have such a sly fox for a district attorney.
What fool really thought it was about justice anyhow?
STEVEN C. WILSON
Henderson, Nev.
January 6, 2007
This message was sent to FODU on January 4, 2007 by Professor Weintraub.
From: E. Roy Weintraub erw@econ.duke.edu
To: friendsofdukeuniversity@yahoo.com
Subject: Economics faculty letter to the Chronicle
FYI: The following letter was today submitted for publication in the Duke Chronicle. You may circulate it as you wish.
---------
To the Editor:
We, the undersigned Economics Department faculty members at Duke University , are cognizant of the fact that, to date, the only collective signed statement by faculty members concerning the events of last March was an advertisement in the Duke University Chronicle subsequent to protests and a forum on March 29, 2006. We are aware too that the advertisement was cited as prejudicial to the defendants in the defense motion to change the venue of the trial involving the three Duke lacrosse team members. We regret that the Duke faculty is now seen as prejudiced against certain of its own students.
1) In light of recent events detailed in court proceedings, it appears that there were a number of irregular acts committed by members of the Durham law enforcement agencies and District Attorney’s Office. We join with President Brodhead in calling for an investigation of those acts, inimical to students at our university.
2) We welcome all members of the lacrosse team, and all student athletes, as we do all our students as fellow members of the Duke community, to the classes we teach and the activities we sponsor.
Signed:
E. Roy Weintraub, Professor of Economics
Atila Abdulkadiroglu, Associate Professor of Economics
Charles M. Becker, Research Professor of Economics
Tim Bollerslev, Juanita & Clifton Kreps Professor of Economics
Vincent Conitzer, Assistant Professor of Computer Science and Economics
Neil B. DeMarchi, Professor of Economics
Bjorn Eraker, Assistant Professor of Economics
Henry G. Grabowski, Professor of Economics
Daniel A. Graham, Professor of Economics and Law
Kevin D. Hoover, Professor of Economics and Philosophy
Shakeeb Khan, Associate Professor of Economics
Bahar Leventoglu, Assistant Professor of Economics and Political Science
Thomas J. Nechyba, Fuchsberg-Levine Family Professor of Economics and Public Policy
Pietro Peretto, Associate Professor of Economics
Curtis R. Taylor, Professor of Economics
Edward Tower , Professor of Economics
Huseyin Yildirim, Assistant Professor of Economics
Arie Beresteanu, Assistant Professor of Economics
T. Dudley Wallace, James B. Duke Professor Emeritus of Economics
E. Roy Weintraub
Professor of Economics, Duke University
From Herald Sun:
Paper helped Nifong
How ironic that the editors quote approvingly those from the CNN forum who want to "move on" in the Duke lacrosse case. Mike Nifong, acting almost single-handedly, created this embarrassment for Durham, and The Herald-Sun became his co-conspirator, fanning the flames of the current unpleasantness.
By supporting him while he moved forward with these baseless charges, The Herald-Sun not only abdicated the duty of the press to speak truth to power, it helped Nifong give Durham its current reputation. Are you suggesting you are actually surprised that Durham now finds itself where it is? Will you make this mistake again?
DOUGLAS L. BROOKS
Atlanta
January 23, 2007
From Herald Sun:
Kudos to K.C. Johnson
I'm afraid Orrin Starn [Forum, Jan. 17] picked on the wrong blogger when he showed us one of "many" gaffes the bad K.C. Johnson supposedly published. The African-American Studies Web site lists 14 professors, assistant professors and associate professors. Let's get Starn to list a few more of Johnson's mistakes and one-sided "stories." Starn's example was silly and irrelevant. Loved the KC and the Sunshine Band reference, though.
Johnson has apparently exposed too many weaknesses involving the non-rape case. His common sense is a little too extraordinary for the Group of 88 to stomach as well. It is only natural that Starn would try to discredit Johnson. Starn should try separating the wheat from the chaff. I can do it with a high school education. But since you want to play silly with us, Johnson is the wheat. The chaff are the uneducated racists who email Group of 88 members with the uncalled-for or ugly diatribes. Or the almost-but-not-quite racist Group of 88.
CRAIG HUNTER
Greensboro
January 23, 2007
From Herald Sun:
The sensitive professor
How sad that Professor Orin Starn has been subjected to name-calling on the Internet [Herald-Sun, Forum, Jan. 17]. One blogger even referred to him as a terminal part of the anatomy. Ouch. Professor Starn is equally sensitive to others involved in the Duke lacrosse case who have been called names. The accuser, who was found to have the semen of four different men in her bodily cavities, was actually said to be a "whore" by one blogger.
Of course, it would be easier to engender Starn-style sympathy for the accuser if she had not tried to destroy the lives of three men she falsely accused of rape, kidnapping, and sodomy. Nor would bloggers and others who have followed this case be so inclined to denigrate Starn and his colleagues had they not so publicly assumed their own students to be guilty of a crime which anyone with a grade school education could tell never happened.
GRAHAM HAYES MARLETTE
Durham
January 23, 2007
From Herald Sun:
A question of leadership
After reading the Jan. 16 letters about the Duke lacrosse case, I was motivated to respond.
I am disturbed by the appearance of misconduct on the part of the district attorney's office. It is never appropriate to withhold information related to a criminal case regardless of the magnitude of the charges. It appears that perhaps the entire case was exaggerated.
With no evidence to convict on the rape charges, it is highly unlikely anything will come of this case except a lot of speculation on the public's part of what actually transpired the night of the alleged rape.
I am totally disappointed and discouraged that justice may not be served for either side of this case. I blame the alleged victim, the Duke lacrosse players, the Duke administration, the Police Department and the DA's office. They all failed the Durham community.
Unlike most of the letters to the editor, I do not wish that this case be dropped before the trial begins. That does not undo any wrongdoing on either side. I think that in order to bring closure to this case, the trial should be handled expeditiously with the evidence we have.
The LAX team could have prevented this situation by not sponsoring a party of this type with drinking and lewd conduct. This makes Duke look bad as well. The administration should have disciplined this team a lot sooner. From what I have been hearing, this is not the first time this team has done some inappropriate things.
The Police Department and the DA's office should follow procedures at all times.
Jay Jones
Durham
January 22, 2007
From Herald Sun:
Watch your words
Jon Edge of Charlotte [Letters, Jan. 16] wrote that the City of Durham needs to "purge, and [he] don't just mean [District Attorney Mike] Nifong!"
I want to know what else he means. His letter speaks of the African-American community's response to the case. Particularly, he is concerned that outsiders such as the New Black Panthers came to town to protest. He refers to the accused as the "stripper" and seems to think our city has in some way embarrassed him.
So, what does he want to purge, the African-American community, strippers, his embarrassment, or maybe all of the above? I know that this case has invoked many emotions. But it would be wise to choose words carefully and not let anger and frustration about this case lead one to make racist comments, which will cause more embarrassment and shame than any legal case ever could.
Mike Silver
Durham
January 22, 2007
This article was sent to FODU by Professor Banzhaf on January 24, 2007.
DA Nifong Charged in Second Bar Ethics Complaint
Move Increases his Risk of Civil and Criminal Liability
As predicted weeks ago by public interest law professor John Banzhaf, Durham County Prosecutor Michael Nifong has been named as a defendant in a second ethics complaint by the North Carolina State Bar, this one including allegations that he unlawfully withheld DNA evidence from the defense. Former Duke Prosecutor Faces New Ethics Charges.
"This new complaint multiplies the probability that Nifong can be held liable in a civil law suit for violating the constitutional rights of the Duke students, and increases the chances that he will also be charged criminally," says Banzhaf, who previously noted that, under several Supreme Court decisions, Nifong does not enjoy absolute immunity from civil liability when he is making public statements, advising the police, or coordinating the gathering and reporting of evidence.
Banzhaf, whose public discussion of suing Nifong may have helped pressure him into dropping the rape charges, explained why Nifong would be subject to a legal action despite the often-repeated claim in the media that he enjoys prosecutorial immunity.
Duke Rape Case Could Create Major Civil Liability Not Only For DA Nifong, But Also For Durham County.
"Although prosecutors generally enjoy absolute immunity from civil liability for prosecutorial misconduct, there are instances -- and this appears to be one of them -- where that immunity doesn't apply," says Banzhaf, who helped to bring successful legal actions against wrongdoing by several different governmental officials, including an unusual case in which former Vice President Spiro Agnew was forced to disgorge the
money he took in bribes, with interest.
"Generally, district attorneys -- acting within their narrow role before the court as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held personally liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known. Since both the North Carolina State Bar and the North Carolina Conference of District Attorneys have both publicly condemned Nifong's conduct in the Duke case, both tend to show that his actions did in fact violate clearly established legal standards of which a reasonable prosecutor in the state would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and conducting and cooperating in investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity -- and thus be held liable.
In the Duke case, the three main allegation that Nifong engaged in prosecutorial misconduct -- directing the police to use a stacked lineup in violation of established written procedures, ordering a private laboratory to withhold from defendants important DNA evidence in violation of state law, and making prejudicial statements about the defendants which are prohibited by the ethical code and allegedly involved "dishonesty, fraud, deceit and misrepresentation" -- all apparently occurred before probable causes was established, and in any event are much more "investigative" rather than "prosecutorial" in function.
"It is often possible to pierce the veil of prosecutorial immunity and hold them personally liable, but this rarely occurs because most victims are black and too poor to hire top lawyers able to do it, and often they do not make very sympathetic plaintiffs. Here the irony is that three rich white Duke students may well bring such law suits, and, when successful, help to deter prosecutorial misconduct against the more typical victims, suggests Banzhaf.
Banzhaf also noted that the accuser could be sued for defamation, malicious prosecution, and probably other torts if she wrongfully accused the students.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
From Herald Sun:
Nifong owes accuser, community an apology
How many people still have faith in the justice system? There are probably not too many, given all the major blows dealt to the Duke lacrosse case over the past several months. The ability of the people involved in making laws, carrying them out and imposing punishment, have many citizens leery.
The recent developments surrounding District Attorney Mike Nifong withholding DNA evidence have him in hot water. His decision to interview the accuser nine months later also raises questions about his re-election. Many supporters would expect one involved in such a pressured and complex case to interview their key witness as soon as possible.
And why would a district attorney with nearly 30 years of experience withhold DNA evidence? Is it worth losing a job, reputation and diminishing the state's chances and the alleged victim's right to present her story?
The chance that the alleged victim in the lacrosse case will be able to exercise her freedom of speech and tell her version of events in a courtroom, is very doubtful. If the State Attorney General's Office dismisses the case, vindication won't be decided in a court of law like it should.
Nifong owes the alleged victim, his supporters and all who voted for him a public apology for his missteps in this case. Chances are slim that will ever happen.
The attorney general gives some a little hope that both sides will be able to present their case. But how much can you really do with a case riddled with bullet holes? Usually it's dead.
Kim Brummell
Oxford
January 27, 2007
From Herald Sun:
Nifong's crimes
Do our State Bar Association and the Conference of District Attorneys have a double standard for judging attorneys and district attorneys and "just ordinary citizens" in dealing with ethics and what amounts to slander when a district attorney can deliberately destroy a citizen's reputation for life, and get by with a slap on the wrist as an ethical misstep?
District Attorney Mike Nifong's actions do not come under the category of ethical behavior; his action against three young men was criminal behavior and conspiracy. He should go to jail, as should the director of the private DNA laboratory for his conspiratorial action. Did you see his looks and sly remarks on "60 Minutes" the other night?
It has been reported that three young men involved in the lacrosse case and their families might file a civil lawsuit against Nifong. They should, and they will win if they do.
The citizens of North Carolina, and especially those good people of Durham who elected Nifong, will support them.
John Kincaid Sr.
Reidsville
January 27, 2007
From Herald Sun - Letters Section:
Law tips from 'CSI'
"Follow the evidence," Gil Grissom, the fictional investigator on "CSI Las Vegas," would bark at Professor Robinson Everett of Duke Law School if Grissom read his Feb. 8 article. "The evidence doesn't lie," Gil would say to Everett proposing to keep DNA evidence from being unveiled because it might tarnish the accuser's reputation.
Gil Grissom teaches his staff that DNA evidence will lead to the truth. No matter whom one likes for the crime, one should not ignore the objective evidence for subjective supposition. If Everett believes the accuser was assaulted, then by all means he should want to follow the DNA clues to learn the men's identity by the DNA they left within her.
Not to include the DNA matches from men found on and in the accuser is simply to ignore factual evidence. Everett is trying to make the evidence fit the suspect instead of following the evidence to see where it will lead. Gil deals in science and fact. He cautions his staff that one cannot pick and choose what evidence is pertinent.
Since Everett is concerned about the tarnishing of an exotic dancer's reputation by jurors learning that she had sex with multiple people around the time of her performance at the team get-together, he should understand the tarnishing of college boys' reputations when lies are told about them with no factual proof to back up the fantastic whoppers.
Should the law students in Everett's classes refrain from taking notes and start watching "CSI"?
ERIKA HOFFMAN
Chapel Hill
February 21, 2007
This letter was sent to News and Observer, but the paper declined to publish it.
For Nifong: let's see a punishment that fits the crimes
Given the enormity of Nifong's prosecutorial misconduct in this horrendous Hoax, as evidenced by the mounting legal tab running into the millions for the 3 falsely accused, once all is said and done, there needs to be a punishment that fits Nifong's crimes.
It has been said by a number of knowledgeable inside sources that one of Nifong's primary motivations for his ghastly, inexcusable actions in this case was the need to stay on as DA for two or so years in order to maximize his pension. His firing of Freda Black started the ball rolling, then along came the Duke rape allegations, and Nifong's re-election game plan was "off to the races" (pardon the pun!). Nifong, by his own admission, did 50 to 70 interviews with the local and national media (in this case, the "Electronic Lynch Mob"), without ever interviewing his Precious "victim" to see if any of her multiple, conflicting stories had some semblance of credibility or corroborating evidence.
For all but the "Rush to Judgment" crowd who have been steadfastly unswayed by the mountain of facts proving the cruel and utter fraudulence of this Hoax, reasonable, open-minded people of all persuasions are NOT persuaded by the "fantastic lies" that are the bedrock of this case. For all but the "intellectually blind", this case has gone on far too long, like a tired, old taxi cab to hell, sputtering on fumes while the meter is still running like a well-oiled machine.
At some point, hopefully sooner than later, this evil cartoon will be over. NC Governor Easley has recently made some telling, unflattering comments about his failed Durham DA appointment, Mr. Nifong, who agreed to take the reins of the Durham DA position, more or less until the clock wound down, "late in the 4th quarter", if you will. But alas, Nifong "speaks with forked tongue," much to Governor Easley's dismay. (Can you identify the biggest understatement here?).
Hopefully, there is a high level legal team at work that will seriously bring Nifong to task for his unprecedented indiscretions that have mooned Lady Justice, deprived 3 students of their constitutional rights to due process, slandering them before an international audience, causing their families to spend millions for their legal defense - not to mention the untold, ongoing heartache of the falsely accused and their family members that no one can put a price on, and cast Durham in a less than complimentary light, to say the least. For all of this, Mr. Nifong should be dealt a punishment that fits his crimes, including but not necessarily limited to:
1) Disbarment.
2) Termination as DA.
3) Loss of his precious pension for his complete and utter lack of "honorable service" as a public servant.
Recalling the infamous OJ case, although Simpson was found guilty in the wrongful deaths (a P.C. way of saying "murder") of Nicole Simpson and Ron Goldman, Mr. Simpson's pension is "off limits" in terms of the $33 million or so civil judgment rendered against him.
Governor Easley, in light of all that has taken place here, for the sake of justice, please do the right thing and get the process moving to take Nifong's pension away! Such a move has taken place in other states involving "dishonorable public servants" (not sure about NC), so there is precedence, and besides, no one has acted more dishonorably in a high profile case than your own Mr. Nifong!
Joe Sweet
From Herald Sun - Letters:
Nifong caused grief
We find it absolutely astounding that District Attorney Mike Nifong feels he didn't do anything wrong "on purpose," and that since the case has not gone to trial, no one has been hurt. What dream world is he living in? And the lacrosse team did cooperate fully -- some even offered to take a lie detector test and were refused.
Maybe Nifong would like to have his son under indictment for a serious felony for more than nine months. And maybe he'd like to pay the thousands, even hundreds of thousands of dollars in legal fees and not feel anyone has been hurt.
Since DA Nifong doesn't seem to understand the full ramifications of his actions, we hope and pray the disciplinary committee of the N.C. State Bar is not swayed by his protestations of purpose.
Whether he meant to or not, he did break the rules of conduct and maybe even the law, and caused grief to more people than we can ever name. Nifong has made a mockery of the judicial process. He no longer deserves to practice law
LANEY AND LOUIS FUNDERBURK
Durham
March 11, 2007
This article was sent to FODU on March 16, 2007 by Professor Banzhaff.
Duke "Rape" Case Could Be Emasculated
Accuser and Second Dancer Reportedly Not Cooperating
It appears that the already-weak former rape (now sexual assault) case against three Duke lacrosse players could become completely emasculated if the prosecutors cannot present the only evidence that a crime took place -- the testimony of the accuser. This is a very real possibility in view of reports that, as the new prosecutors seek to wind up their review of the case prior to a May 7th court date, both the accuser and the other exotic dancer are refusing to cooperate with them.
"The case doesn't just rise or fall on the accuser's testimony; her testimony appears to be the only evidence that any crime took place," says public interest law professor John Banzhaf, whose suggestion that former DA Michael Nifong might be civilly liable may have been a factor in his decision to withdraw from the controversial case.
"While there are several valid and understandable reasons why the accuser might be reluctant to cooperate, it is also quite possible that she is primarily concerned about the possible repercussions if she continues to cooperate and testifies falsely under oath, especially in view of her many apparently inconsistent prior statements about the events, and other evidence from photographs to DNA testing which casts grave doubt on the validity of her claims," says Banzhaf.
If she were to testify falsely under oath, she could face not only criminal charges, but also major civil liability in law suits brought by the three defendants. Either proceeding could also force her to provide information she may not wish to disclose.
The reasons for the other dancer's reported refusal to cooperate are less clear, speculates Banzhaf. It could be simply that she is concerned about "guilt by association" with the accuser, that she wants to avoid the further embarrassment and complications of testifying, or that she wishes to capitalize on her involvement through a book or movie deal and fears that this plan would be compromised if she tells her whole story while up on the witness stand.
Another possibility, notes Banzhaf, is that both women are far less comfortable with the new prosecutors than with Nifong and his associates, perhaps because the new prosecutors are more skeptical about whether a crime actually took place, and their attitudes can be sensed from their questions and demeanor.
While prosecutors could subpoena either or both women to testify, this is very unlikely, suggests Banzhaf. They would not make effective witnesses, and it would be too easy for them to claim "I forget" or "I don't remember" when asked crucial questions.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
I agree with the fine professor John. I believe Kim wants to make money on this case so she is keeping quite till its over. But really now, the stripper has nothing to testify about. Who will even go near her now if they know she is the Duke false accuser and liar. She can yell rape anytime someone doesnt or even does pay her. Who would even chance being falsely accused with lies from this thing.
I hope we all know who Banzaf is. Not only is he the lawyer who successfully overturned the unconstitutional violations of "one man/less than one vote" using a remarkable game-theoretic argument that swayed the Supreme Court, but it was he who forced the tobacco companies to stop their fraudulent marketing, and produced the mega-court settlements against "Big Tobacco". That he has weighed in on the Durham hoax is really really important.
re above:
Actually, I did not know this information about Prof. Banzhaf. Thank you for sharing it.
This article was sent to FODU by Professor Banzhaf on March 19, 2007.
Nifong Ethics Defense Shredded by NC Bar Response
His Arguments Strengthen Case For His Disbarment
Durham County DA Michael Nifong's motion to dismiss the ethics charges filed against him by the North Carolina bar has brought forth written response which shreds his arguments and virtually turns his tortured hairsplitting legal logic against him, concludes public interest law professor John Banzhaf -- whose public suggestion of a civil law law suit against Nifong may have helped lead to his decision to step down as prosecutor in the Duke lacrosse "rape" (now assault) cases.
The Bar first points out that Nifong's strained argument -- that his failure to provide exculpatory evidence within a reasonable period did not violate the constitution -- is completely irrelevant to the ethics charges against him, since the ethical standard are both higher and clearer than those mandated by the Constitution, and virtually admits that his conduct did violate relevant ethical standards.
Moreover, Nifong's argument that the defendant's rights would not have been violated if the exculpatory materials were turned over to them at any time prior to the trial is both nonsensical and fallacious, argues Banzhaf, because, as the Bar also noted, that would mean that no refusal to provide these materials would never be wrongful until the day of trial. Prompt disclosure might also have helped the defense conduct an even stronger investigation with even more grounds to dismiss the case very early in the proceeding.
"If the defendant's attorneys had received this information in a timely manner as required by law, they might have been able to file a valid and effective motion to dismiss the criminal charges, rather than waiting for a trial -- a trial now even further delayed because new prosecutors had to be appointed to take over the tainted proceeding," says Banzhaf.
"The irony is that, if the law had been complied with, it probably would have been the defendants filing a meritorious motion to dismiss the criminal charges, rather than the prosecutor filing a frivolous motion to dismiss the ethics charges," argues Banzhaf.
Nifong's other major argument -- that providing the defendants with almost 2000 pages of raw medical DNA testing data is equivalent to giving them a "report of the results" as required by law -- would be grounds to flunk any of my law students who made it, suggests Banzhaf, especially when the report Nifong did provide contained only some of the DNA results, and those which were exclusory were deliberately omitted at Nifong's own request.
"Nifong's attempts to defend his clearly indefensible conduct shows that he has learned nothing from these events, and would probably commit the same violations if another suitable occasion arose. Thus his motion strengthens rather than weakens the State Bar's arguments that he should be disbarred,” concluded Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
http://banzhaf.net
Professor Banzhaf,
Thank you for your very timely comments. They are most helpful.
Duke Parent
From Herald Sun:
Where's the justice?
District Attorney Mike Nifong is partly culpable in railroading the Duke lacrosse players but where is the outrage that nothing is going to be done about the lies spread by the accuser? She isn't going to be charged for filing false police reports? She falsely accuses three white men of raping her and tears their worlds apart, and nothing is being done about it.
What is going to stop her or another woman from doing the same thing to other men? Where is the outrage from the NAACP that this miscarriage of justice is still occurring? Where is the outrage from the students of N.C. Central University and Duke University that the real criminal in this case is being let go without any punishment?
Where is the justice for these three men and their families?
Sheila Platt
Fayetteville
April 18, 2007
From Herald Sun:
Blame Jackson, Sharpton
At the same time that Don Imus was being fired for what he said, fueled by the efforts of the Rev. Al Sharpton, the Duke lacrosse players were being exonerated. These young men were also tried in the Sharpton and the Rev. Jesse Jackson court of public opinion. Now that the charges have been dropped, neither of these phonies have stepped forward and denounced the behaviors or offered to pay any of the young men's legal costs for the pain they help fuel.
If Imus is to be held accountable for his words, then Sharpton and Jackson need to be held responsible for their rush to judgment. Their behavior was the same thing as yelling fire in a full theater, and in this case, it was to help the prosecutor win election.
The president of Duke, MSNBC, CBS and various sponsors all overreacted to a pair of racist thugs who have used shameful events to raise money for their personal benefit. It would be interesting to follow the money and see what kind of donation Sharpton and Jackson generate after one of these performances.
Gene Engel
Branson, Mo.
April 18, 2007
From Herald Sun:
Hold Nifong accountable
I am not from North Carolina but I have been the victim of false allegations not unlike these students. I believe that they should be compensated for 100 percent of their costs in defending themselves against these charges by the appropriate governmental entity or better yet, let Nifong foot the bill for his behavior and the damages caused by it.
If more prosecutors were held accountable they would certainly be more prudent. Until that is done, the young men and their families will remain the injured parties in this. It is the only right thing to do. When are charges going to be filed against the accusers in this case? Hers is the greatest crime of all. It was a race-bating, hate crime if I ever saw one. Come on Durham, make the rest of America proud of you.
Don Pettygrove
Grand Junction, Colo.
April 18, 2007
From Herald Sun:
Apology owed
I have been following the Duke lacrosse case since its beginning and Attorney General Roy Cooper couldn't be more accurate: The three player have always been and are innocent.
Durham has much to answer for and to apologize for. Your district attorney, Mike Nifong, is a disgrace and your newspaper's contribution to this mess is obvious to all, it seems, except to you. Whether you admit it or not, Durham now has a reputation of being a racist city and those not in Durham see the city as filled with haters, especially of African-Americans to whites. What a shame.
I do believe that healing will only take place when the city and its major newspaper apologize and when Nifong can't practice law anymore. If, God forbid, this should happen again, be champions of justice and truth, not hate mongers. Good luck, because your city will need much of it to restore is reputation of hate and racism.
Donald Dalphonse
Laurel, Md.
April 18, 2007
Stand up, Durham
As a proud Duke graduate of more than half a century ago, I am happy to see that "Nifong's folly" has finally run its course. I am sure that you have had more than ample comment upon that tragedy. However, a further tragedy appears to me to be the depiction by the media of the relationship between Duke and Durham as "an island of privilege in a sea of poverty where ne'er the twain shall meet." This is absolutely wrong and detrimental to the amicable relationship between the institutions. The relationship as depicted by the media, in fact, just never existed.
Although I am sorry to say that Duke was still a segregated institution when I graduated, we at the Duke Players theater group maintained a very close relationship with our brothers and sisters at N.C. Central University and exchanged as many ideas and mutual help as we could under the circumstances. I, as president of Duke Players, had the privilege of working very closely with the late Jane Barry Hanes (whose late father was one of the editors of this newspaper) in the revival of the community theater movement in Durham.
I am sure that since Duke has now become racially, ethnically and geographically diverse in its student body, administration and faculty that the relationship between the university and the city has continued to be one of interaction, not isolation.
It is time for Durham itself to speak up and show that it is a modern and progressive city and that District Attorney Mike Nifong is not and never was a true representative of its community spirit.
Newport News, Va.
Duke, Trinity 1956; Law 1959
Alvin B. Fox
Newport News, Va
April 18, 2007
Nifong WILL Be Sued, Says Student Victim
One Reason - So He Can't Profit From Book Deal
Michael Nifong will be sued by the families of the boys whose lives he tarnished, one of the former students announced this morning. Ex-Duke lacrosse player doesn’t ‘feel’ for Nifong.
Meanwhile, while some wonder what will happen to Nifong and his family, given his apparent meager financial assets and his inability to work as a lawyer, one obvious prospect is a major publication deal for a book to explain to the world why he did what he did, says public interest law professor John Banzhaf.
"Nobody seems to understand why he did many of the things he did, why he continued the prosecution so long and in the face of growing problems, and even why he ultimately agreed not to fight the disbarrment," says Banzhaf, noting that many people would pay to read a book about what motivated him.
Since this would allow him to profit from his crimes, ethical violations, and other wrongdoings, this possibility provides still another reason why the families of the students should sue him. Once they obtain a large judgment against him, they can probably seize any assets from any book deal to prevent him from profiting.
Many states have so-called "son of sam" statutes which prevent criminals from profiting from book deals about their crimes, but it is unlikely that such statutes would reach a situation where most of Nifong's wrongs -- and the only wrongdoings proven to date -- consists of ethical violations and violations of constitutional rights.
Banzhaf seemingly was the first to publicly point out that, despite what is known as "prosecutorial immunity," Nifong could be sued and held civilly liable because many of his wrongful acts fell outside the very narrow scope of situations in which prosecutors have absolute immunity under law.
"Nifong will not truly receive justice until he is sued civil and faces sanctions for criminal contempt," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
http://banzhaf.net
Of course he should be sued, for every penny he has and ever will have.
Duke U Settles Potential Law Suit With Students
Decision Provides One More Reason to Sue Nifong
Duke University has just announced that it reached a financial settlement with the three former lacrosse players to avoid a potential law suit over the University's treatment of a students -- a step which could have wide-ranging ramifications throughout the entire academic community, says public interest law professor John Banzhaf, who first outlined how Nifong could be sued despite the barrier of prosecutorial immunity.
"Generally, universities thought they had no choice but to remove from classes and dormitories -- and often suspend -- any students charged with a serious crime of violence, since failure to do so could open them up for liability should a further incidence of violence occur," says Banzhaf.
Universities usually have no lawyers with expertise in criminal prosecution on their staffs, do not have access to the evidence in the prosecutor's hands or the defense attorney's hands, and are therefore not in a position to weigh and balance the evidence, and to decide on their own if the case is well founded, says Banzhaf. Thus they may little choice but to keep the students on suspension until the charges are resolved one way of the other by the criminal justice system.
"The fact that Duke would feel forced to make a major monetary settlement for conduct which is not at all uncommon suggests that many universities may now have to reconsider their policies with regard to students charged with crimes," suggests Banzhaf.
"The Duke case suggests that they could be damned if they do suspend accused students, as well as damned if they don't."
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
They may not have had alternative choice but suspending the students with criminal chages. But they did have choice not to isolate, distant, abandon and malign the students and their coach, not to wipe off their good deed in community service, not to let inadequate condemnation continue of Duke students and culture in general.
If Duke had listened to Professor James Coleman instead to the hotheads and PC crowd they would have had access to information and made a better informed - vs knee jerk - reaction and thus saved both money and this dilemma.
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