Archived documents 1
Some publications keep articles, comments, or letters published on their website for a short period. Then, they remove them and fill that space with newer contents. Here, we capture selected pieces relating to the Duke lacrosse case before they expire and preserve them. The name and the date of the original publication are stated for each preserved article.
posted by FODU @ 5/26/2006 10:14:00 AM
72 comments
72 Comments:
Published in National Review on May 20, 2006 by Stuart Taylor Jr.
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Opening Argument - In Duke Case, a Rogues' Gallery
My rogues' gallery does not (in all probability) include any Duke University lacrosse player. That's because the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie. (Some evidence was in my April 29 column; some is below.)
The gallery does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties.
The gallery also includes former Princeton University President William Bowen and civil-rights lawyer Julius Chambers. They went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal -- a report that is a parody of race-obsessed political correctness.
Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.
Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.
Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.
Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.
But when a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed evidence, and when academics and journalists have joined in smearing presumptively innocent young men as racist, sexist brutes -- in the face of much contrary evidence -- it's not too early to offer tentative judgments.
I'll start with Houston Baker, a Duke professor of English and of African and African-American studies. In a public letter dated March 29, he assailed "white ... male athletes, veritably given license to rape, maraud, deploy hate speech" and "sport their disgraced jerseys on campus, safe under the cover of silent whiteness." He all but pronounced them guilty of "abhorrent sexual assault, verbal racial violence, and drunken white, male privilege loosed amongst us" against a "black woman who their violence and raucous witness injured for life." And on he raved, oozing that brand of racism which consists of falsely smearing decent people as racists.
Baker was hardly alone. Three academic departments, 13 programs, and 88 professors at Duke took out a full-page ad in the campus newspaper on April 7. Treating the truth of the rape charge almost as a given, and applauding protesters who had put lacrosse players' photos on "wanted" posters, the ad associated "what happened to this young woman" with "racism and sexism," implausibly complained of "racist classmates," and falsely suggested that white lacrosse players were getting privileged treatment.
Bowen and Chambers were equally race-obsessed. A curiously unbalanced team to evaluate the handling of this case, both have spent much of their careers peddling preferential treatment of racial minorities and women at the expense of white males. Not to mention Bowen's two books blasting college athletic programs.
So what remedy did they prescribe in their May 4 report for wounds caused by what they had ample reason to know was a probably-false rape charge victimizing innocent white males? You guessed it: more "diversity"! More racial and gender preferences in doling out top administrative jobs!
The report unsurprisingly commended Duke President Richard Brodhead, who had appointed Bowen and Chambers. They especially liked Brodhead's "eloquent" statements implicitly associating the lacrosse players with rape and "dehumanization," with "memories of ... systematic racial oppression," with "inequalities of wealth, privilege, and opportunity ... and the attitudes of superiority those inequalities breed."
The two did criticize some Brodhead subordinates -- for inadequate "sensitivities" toward minorities, of course. These sins included giving credence to the Duke campus police report that the accuser was not very credible because she had initially said she had been raped by 20 men and then revised it to three.
By the time of the Bowen-Chambers report, her credibility had been further battered by the revelations -- all unmentioned in the report -- that in 1996 she accused three other men of gang rape but did not pursue charges; in 1998, she told police that her ex-husband had tried to kill her; in 2002, she stole a taxicab and tried to run over a police officer after a high-speed chase; and this year, she told her father that the Duke rapists had used a broom, contradicting her story to police that they had used penises.
Bowen and Chambers were not asked to evaluate the lacrosse team. That did not stop them from implying that its members did not show "respect for other people." Or from criticizing Duke's athletic director for having called them "wonderful young men." Or from uncritically parroting unnamed "community" members' views that the lacrosse team is "a manifestation of a white, elitist, arrogant subculture that was both indulged and self-indulgent."
This last quotation might be an apt description of, say, William Bowen. As applied to the lacrosse players, it was an ignorant smear. Indeed, it flew in the face of the carefully researched May 1 report of the seven-member faculty committee that Brodhead had appointed to investigate the behavior of lacrosse players over the five years preceding the alleged rape.
To be sure, you would hardly know of the May 1 report's generally positive depiction of the lacrosse players from the coverage in The New York Times, The Washington Post, and most other major news organizations. They highlighted criticisms of many team members' "deplorable" alcohol-related disciplinary records. The committee found the lacrosse team to be worse than other Duke teams in this regard -- but no "different in character than the conduct of the typical Duke student who abuses alcohol."
Alcohol aside, this report's findings are a stunning vindication of the characters of a group of kids who have been smeared from coast to coast as racist, sexist, thuggish louts. Here are some conclusions of the committee-- chaired by James Coleman, a liberal, African-American law professor at Duke -- that the national media have largely ignored:
"None of the misconduct involved fighting, sexual assault or harassment, or racist slurs." There was no evidence "that the cohesiveness of this group is either racist or sexist." The "current as well as former African-American members of the team have been extremely positive about the support the team provided them." The lacrosse players' "behavior on trips is described as exemplary." They are "respectful of people who serve the team, including bus drivers, airline personnel, trainers, the equipment manager, the team manager, and the groundskeeper." They are polite, nondisruptive students who have "performed well academically."
By the way, notes the Coleman report, most come from "middle-class, suburban families," with a few "from both very wealthy and from working-class settings."
Adds Kerstin Kimel, coach of the Duke women's lacrosse team, in an interview: "They made a very bad decision in hosting the party and hiring strippers. But I will tell you they are great kids. There is a strong camaraderie between our teams, and my players -- being smart, savvy young women -- would not associate with them if they felt on the whole, there was an issue of character."
Speaking of character, how likely is it that the more than 40 kids described by Kimel and the Coleman report could have maintained an airtight cover-up since March 14 of a gang rape in a small, crowded house, with not one heeding pleas by parents and lawyers to protect himself by fingering any guilty parties?
And what of various team members' handing over evidence sought by police three long days after the alleged rape, such as the accuser's fake fingernails? And of offers to take polygraph tests (which Nifong spurned)?
And of other conduct inconsistent with any cover-up?
"Being at an elite university," adds Kimel, "where every side of every issue is debated, my kids were shocked, disillusioned, and disappointed that their professors and the university community were so one-sided in their condemnation of the lacrosse players."
Something is rotten at Duke, as at many universities. I don't think it has much to do with lacrosse.
Published in Herald Sun on May 27, 2006
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Embarrassing LAX case
This simply cannot go on any longer. The greatest frauds have been brought down by whistle blowers. Think Watergate. Think Enron. Think Russell Crow in "The Insider."
When allegations were made against the Duke lacrosse team, District Attorney Mike Nifong called on members of the team to come forward and tell what they knew. That charge is now directed at every single person who has worked for Nifong directly or indirectly on this case. The point has passed where these people will be forgiven for just following instructions. It is clear that this travesty could not have occurred without co-conspirators.
To the media, you will not become the next Woodward or Bernstein by making fun of Cousin Jakki. Find the person who still wants a career in law enforcement when this house of cards falls down. Now that would be an exclusive interview worth watching.
NANCY KIDDER
Alexandria, Virginia
May 27, 2006
Published in Herald Sun on June 27
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Despite K's comment, race relations need work
I am currently serving as chair of Duke University's sub-committee of the Campus Cultures Initiative on Race. This committee has been working hard all summer, fully informed by many documents, including those from the President's Council on Black Affairs, the Duke University Black Alumni, as well as students, administrators and faculty members. All have brought their own measured experiences and judgment to help address the problematic issues of race, respect, and equity that have been historically evident on this campus. Although I am not surprised, I am certainly disappointed at Mike Krzyzewski's protestations that we "have amazing race relations." The coach's perspective may be governed by the view from the athletic spaces of Duke where it has become painfully clear that for some, the rules of the game are different. Our committee has dedicated itself to address the issues informed with real data and with respect for our colleagues' notice and iteration of the problems attached to race. It seems we have, with Coach K's determinations of the state of race relations, more evidence of the work we have before us to educate some in the white community to notice and to respect the experiences of others at Duke and in Durham. It is certainly easier to imagine no problem at all. But it is also easy to distinguish this response from the ethical leadership exhibited by those courageous and caring enough to engage, with integrity, the complications of race matters at Duke and in Durham.
KARLA FC HOLLOWAY
Durham
June 27, 2006
Published in Herald Sun on June 17
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Brodhead can't handle it
Duke University President Brodhead has made the most unfortunate error of his life by reinstating the lacrosse team and as a consequence should resign his office. Don't misunderstand. I think Brodhead is a wonderful individual -- talented, sensitive and understanding -- but his decision on lacrosse reveals he is not able to lead a great university out of the serious quagmire in which it now finds itself.
For months he said we should await the outcome of the judicial process before determining what should be the next step, and here he suddenly chooses to ignore the forthcoming jury trial. In other words, it no longer matters whether the team will be found guilty or innocent. Presidents must be made of sterner stuff.
He ignored the sound advice of his own Bowen-Chambers committee, which called for wider opinions at the top, another look at the role of athletics in the university culture and a demonstration that he understood the deep-seated racial divisions between Duke and Durham. His action clearly shows his inability to understand where Duke is and where it needs to go. Is this rally what we can expect in leadership? I think not. The question I would put to President Brodhead is, Why are you still clinging to a job you obviously cannot handle?
JOE DIBONA
Durham
June 17, 2006
Published in Herald Sun on June 25
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Let's have a prompt lacrosse trial
"If at first you don't succeed, try, try, again!" In a prior guest column, I suggested that District Attorney Mike Nifong have a lie detector test administered to the accuser/exotic dancer in the lacrosse rape case. That suggestion not having been accepted, let me now come up with a different proposal. I urge Nifong to schedule the rape trial for August or early September, rather than wait until 2007. He has a great discretion in scheduling criminal cases; and in my view, having a prompt trial would be an appropriate and desirable exercise of his discretion. Indeed, I suspect the Administration Office of the State Courts would be willing to cooperate in every way to facilitate an early trial of this highly publicized case.
Admittedly, my suggested scheduling would leapfrog the trial of the lacrosse players over various other cases, some of which might have to be rescheduled. However, if the three lacrosse players are all tried at the same time -- as seems the most appropriate way to proceed -- three cases will be disposed of simultaneously. Moreover, the public interest in getting this matter dealt with in the near future justifies any inconvenience caused for the defendants whose trials might be delayed.
Secondly, in light of the recent indications that there may be one or more write-in candidates in the general election in November, I believe it is imperative to have the trial before that election occurs. In my opinion, the voters will have a hard time considering the merits of candidates for the position of district attorney if the controversial trial of the lacrosse players has not yet taken place and speculation continues as to what the evidence will show.
The Sixth Amendment grants all Americans the right to a speedy trial; and although sometimes a defendant may seek a continuance so that emotions generated by pretrial press coverage will subside before a trial, in this case I can see no reason why any of the defense counsel would seek delay. Any harm done to their clients' interest by the vast publicity in this case has been countered by more recent publicity indicating holes in the prosecution case. Of course, if Nifong scheduled the three defendants of an early trial and they moved for a continuance, some of their contentions would seem hypocritical. Likewise, it is hard to imagine that in this instance any of the three defendants would want his trial severed from trial of the other two defendants; and, likewise, it would be amazing if the judge granted such a severance.
I certainly hope that the District Attorney will accept my suggestion; but, if this does not occur, perhaps the defendants will move for a prompt trial and further move that if the prompt trial is denied, the charges be dismissed on Sixth Amendment grounds. Admittedly, there are many cases where very extensive preparation and discovery are necessary before a trial can take place; but, in this instance, that seems to have already occurred.
In closing, let me emphasize that in my view, it is important for the interest of our community and for the proper administration of justice that in one way or another, a trial of the three Duke lacrosse players takes place in the near future and, in any event, several months before the November election.
Robinson O. Everett
(The writer is a professor of law at Duke University)
Published in Herald Sun on July 8
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If Nifong had evidence, we would know by now
Your editorial, "Put the lacrosse case on a faster track," would be good advice for a district attorney who puts the people's best interest above his own. Unfortunately, our present DA does not. The lacrosse players are demonstrably innocent, so there should be no trial. For them. This is now about Mike Nifong. If he had taken Professor Robinson Everett's earlier advice, he would have administered a lie detector test to the accuser. By failing to administer a lie detector, the DA leaves himself open to the suspicion that if she claimed rape, she would fail the test. That would mean he had reason to believe the lacrosse players were innocent but he indicted them anyway. Somewhat easier are Nifong's serial contraventions of protocols of the N.C. Bar Association in its laudable efforts to avoid poisoning a jury pool. Those nasty pre-indictment press interviews. Unless Nifong is a glutton for punishment, your assertion that "this 25-year veteran of the prosecutor's office must have some evidence or he would have dropped the case long ago" doesn't hold. Legal analysts, including judges, fellow prosecutors, attorneys, and academics from coast to coast have made Nifong the poster boy for prosecutorial errors and omissions. Night after night on cable news and blogs, he is the human pinata in this on-going drama of the rape that never was. If he had an ace up his sleeve, he would have played it long ago.
GRAHAM MARLETTE
Durham
July 8, 2006
Published in New York Times (New York Region only) on July 16, 2006. Many of our readers do not have access to "New York Times - New York Region Only". So, we are reproducing the article here. We hope NYT - New York Region will be okay with this.
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As Accusation at Duke Festers, Disbelief Gnaws at Suspect’s Supporters
By PETER APPLEBOME
Morristown, N.J.
PATRICIA CRAPO has been teaching religion and writing college recommendations for a quarter century, but only once did she allow herself to put so much of her heart on the page.
“If I had a son, I would hope he could be like Reade,” Mrs. Crapo wrote three years ago on behalf of a student applying to Duke . “I have been teaching at the high school level for 24 years, and I have never said or written that about another student.”
The letter, written about a student, Reade Seligmann, whom she taught for four years at the Roman Catholic Delbarton School here, still rings completely true to her.
But that letter can sum up the jarring disparity that characterizes Reade Seligmann’s life now. On the one hand is the person his acquaintances know. On the other is his role as one of three white Duke lacrosse players accused of raping a black woman hired to dance at an off-campus party. The case has inspired endless jeremiads on race, gender and class despite growing questions about whether the accusations are true.
On the surface, the most obvious disparity is that records, photographs and eyewitnesses’ accounts from his cellphone, a taxi driver, an A.T.M. and his electronic dorm entry card seem to show that he was either on the phone or far from the party virtually the entire time the attack is to have occurred. (Lawyers for both the other accused players say they have compelling alibis and have passed polygraph tests claiming their innocence.)
But to teachers, coaches and monks at Delbarton, to his neighbors in Essex Fells, N.J., and to his friends at Duke, the disparity between the indictment and these circumstances is not the biggest absurdity. Instead, it’s that he is part of this story at all.
Father Luke Travers, the Benedictine monk who is Delbarton’s headmaster, and Katie Fisher, a recent Duke graduate, have little in common except for making the same point in similar words. When they heard he had been identified as one of the suspects, the whole story began to lose any credibility.
“Before anyone was charged, rumors were flying all over campus, but no one ever guessed for one second she could name Reade,” said Ms. Fisher, referring to the accuser. “And when I heard it was Reade, I knew 100 percent in my heart this was a completely false allegation.”
Full disclosure: I graduated from Duke long ago and have a son there now. And I’m slightly involved in alumni affairs through a board, composed mostly of journalists who are Duke graduates, which meets twice a year to advise the alumni magazine.
But you don’t need ties to Duke to look at details that have emerged about the case — the accuser’s history of past accusations and differing accounts of the crime, a lack of DNA evidence, a police lineup of only Duke lacrosse players, a second dancer’s original statement saying no rape could have occurred — and come away queasy.
Maybe he and the others are the monstrous incarnation of white, male privilege, or maybe this has become a cautionary tale of a rush to judgment before facts were known, of a toxic brew of politics and race in the middle of an election for district attorney.
Reade Seligmann, a barrel-chested high school All-American and top student, was recruited by nearly every top university in the country, including all the Ivies, to play lacrosse or football.
His nickname on the team at Duke was “Frazzle” because he worried so much about getting anything wrong: a dropped pass, any kind of misbehavior. He was viewed as the team’s resident Nervous Nellie. The family joke is that he worries for two weeks if he feels he didn’t give someone a good enough handshake. “He was a person of definite goals, but especially of values,” said Abbot Giles Hayes, the monk who oversees Delbarton. “Sixteen- and 17-year-olds aren’t finished yet, but Reade acted finished. He acted like he was 37 or 47.”
HE was an honor student at Duke and a member of the Atlantic Coast Conference academic honors team. He chose to live in a separate part of his dorm from most of his teammates, not because he disapproved of them (he doesn’t), but because he didn’t want social pressures to impinge on academic ones. He told friends that he attended the infamous party reluctantly and mostly because he thought it would seem rude not to be there.
There’s not enough space for all his character references, but at Duke you could start with Yani Newton, the only black member of the women’s lacrosse team, who had a regular breakfast date with Mr. Seligmann before an 8:30 class, and who knew he was the only white student in his African-American studies class. Asked if he had ever given indications of being racist, she said: “Oh my God, absolutely no, a resounding no. The idea is just laughable.”
Is Reade Seligmann a saint? Not many of us are. Did some kids on that team behave like complete jackasses? Absolutely. And there are certainly cases where good kids do unspeakably stupid things — particularly when alcohol is involved.
But it’s easier to spin the narrative of race, class and privilege when it’s not attached to a real person. So Mrs. Crapo has dug out an old picture she took of her former student in class and put it on her dresser at home to blot out the pictures from mug shots and courtrooms, the sickening images that look to her like a good kid caught in a bad movie he can’t escape.
This has become a nightmare that can be compared to a 21st century remake of "To Kill a Mockingbird"
I hold a Ph.D. in sociology and a J.D., and if there is one thing that I have learned it is that the last thing that students at universities such as Duke are receiving is a good education in social science and humanities. Why waste your money even sending your son to a place like that? Pretension doesn't even begin to describe the atmosphere. Academia has become a cesspool to a great extent, where losers go to spout left-wing B.S. for a permanent job. Unfortunately, these kids are paying for the decision to spend time around such people.
quote: This case is like a 21st century case of "To Kill a Mocking Bird" You must not FORGET it was a lying trashy WHITE woman that lied on the poor defenseless BLACK man.
This letter was originally published in Durham Herald Sun "Letters" section, on August 4.
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Nifong Courageous?
In an August 1 editorial, you found District Attorney Mike Nifong "courageous" and "contrite" in his discussion of the Duke lacrosse case at a recent press conference. Unfortunately, there is little courage to be found in a desperate appeal to sympathy by an embattled politician. And Nifong was hardly contrite as he continued to obfuscate the relevant legal standards for his conduct.
You also stated that Nifong "still believes he has a good case" and find that significant for some reason. Yet, Nifong apparently lacks the courage of those convictions. After ramrodding evidence through a hopelessly backlogged SBI crime lab and racing to get indictments before the election, Nifong is now trying to postpone the day of reckoning until next spring.
Nifong refused to even look at any of the exculpatory evidence proffered to him by the defense. This action violated North Carolina Rule of Professional Conduct 3.8 which prohibits a prosecutor from avoiding "pursuit of evidence merely because he or she believes it will damage the prosecutor's case."
In hiding his eyes from that evidence, Nifong abdicated the responsibilities of the office to which he was appointed and should have no further claim to it.
While, ideally, the voters of Durham County should elect the person who will be their district attorney, at least they have the opportunity to choose who they do not want for that office. The writer is a member of Friends of Duke University.
JASON TRUMPBOUR
Parkton, Md.
August 4, 2006
Decision not to run for office was a professional one
By Lewis Cheek
Published in News and Observer on August 19, 2006
Some Durham residents approached me in early June and asked me to consider running for district attorney. They had concerns about how Mike Nifong had been performing in the position; some of the concerns were connected to the handling of the Duke lacrosse case and others were not.
I had followed the media coverage of the case. I disagreed with Mr. Nifong’s philosophy in dealing with the media, the lawyers, and the people involved. I was concerned about whether his philosophy and actions would be the same in handling all other cases. I did some soul-searching and then agreed to seriously consider becoming a candidate for district attorney.
I made it clear that my first concern was, and had to be, my law firm. It’s small. It’s not well established yet. We have a lease bank loans, service contracts and other obligations. My departure would create an economic hole. I was requested to allow time to investigate ways the economic of my departure could be handled. I agreed to that. I always told the public through the media that the welfare of the people in my law firm took precedence over all else.
In early June, I met with Mr. Nifong to talk about my concerns. By then, his ability to be objective about the Duke lacrosse case had been questioned. I was convinced the attorney general should be requested to assign a special prosecutor to handle the case. The case focus would be off Mr. Nifong and objectivity would not be an issue. Mr. Nifong dismissed all my concerns. I strongly disagreed with his apparent general philosophy. I decided to continue to consider running. It wasn’t a personal; it was professional.
Mr. Nifong, in his press conference on July 28, suggested that I was not truly motivated by professional concern. Rather, he suggested that I, Roland Leary and Ed Pope were motivated by “concern over the concept of [the District Attorney’s Office] being owned by someone other than them.” That suggestion is bizarre. There is absolutely nothing for me to gain by “owning” the district attorney’s office.
About the middle of June, I was advised that a petition signed about 6,400 registered voters, filed with the Durham County Board of Elections by no later than June 30, would place my name on the ballot. I was asked to approve an immediate petition initiative. I wasn’t close to making a final decision about running. But having my name on the ballot presented the best opportunity to win, if I was able to run.
I consented but required that it be indicated only that I was seriously considering running for the office and try to make it clear that I had not committed to run. Approximately 10,000 signatures were returned within a 10-day period. It was clear that my concernes were widespread.
Efforts to find a way to protect my law firm from economic harm caused by my departure continued after that successful petition effort. No workable solution was found. Therefore, I couldn’t run and wouldn’t be able to serve as district attorney. I cannot and will not turn my back on the very people who have been my biggest supporters and my best friends.
My decision has generated all sorts off reactions by the public and the media. I understand, but I hope that you now understand what happened and why.
Some people have said that the petition effort was a waste of time. The success of that effort has created a unique and, perhaps, historic opportunity for the voters in November. My name will be on the ballot. You will be able to vote for Lewis Cheek. Therefore, if the most votes are cast for Mr. Nifong then his is your district attorney for the next four years. On the other hand, if the most votes are cast for Lewis Cheek then, because I cannot serve, the position will be open. It then becomes the governor’s responsibility to appoint someone to serve as district attorney.
Mike Nifong or change? It’s now your decision, not a forgone conclusion. Cast your vote in November and be heard.
This letter was published in Herald Sun on Septemer 2, 2006
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Let's rally for Cheek
Kim Brummell in her letter of August 28 asks voters not to focus attention just on the Duke lacrosse case. However, a search of Durham County court calendars for the past 12-plus months indicates that this is the only case District Attorney Mike Nifong has handled since being appointed DA. Prior to being appointed DA, Nifong spent many years in traffic court, also not trying criminal cases. Therefore, the Duke lacrosse case provides many voters their only view of Nifong and, what an ugly view it is.
True, in the beginning most citizens were outraged at those "hooligans" and that "blue wall of silence." Outraged that anyone would treat anyone the way Nifong so publicly alleged, Durham citizens rallied together.
However, then the DNA evidence came back and many began to question. Since then, most of the claims Nifong made to the media during those first two months proved false. In his words, "I would say there were some things we hoped we would have in terms of evidence we ended up not having."
Shouldn't we expect the DA to have evidence in a case before seeking indictments?
The N.C. Bar Ethics Rules: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."
Durham voters rally once again. Vote for Lewis Cheek. Recall Mike Nifong.
WHITNEY CAMPBELL
Durham
This letter was published in Herald Sun on September 8.
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They didn't do it
Allow me to answer the question posed by Jimmy D. Haynes in his letter of Sept. 2: At the risk of belaboring the obvious, I can assure Haynes that I, or anyone else, would be quite disturbed if a family member or friend were "beaten, gang raped and sodomized."
That is why a no-nonsense, justice-driven and ethical district attorney would be needed to go after the real perpetrator. True victims of a horrific crime should want true justice. However, in the Duke lacrosse case the only provable rape that has taken place is the one perpetrated by an unethical district attorney on three Duke athletes.
We will be expecting the same zeal from the district attorney's office when this episode is shown for the hoax that it is. True justice should be waiting for one who would fake such a scenario, tearing apart lives and an entire community.
Haynes and others may wallow in melodramatic what-ifs all day long, but the reality is this: If a "beating, gang rape and sodomy" took place that infamous night, the lacrosse players possess a fantastic ability to be in several different locations at once and most certainly showed up at the party wearing rubber suits.
DEBRAH CORRELL
Chapel Hill
September 7, 2006
A grand show of arrogance by Duke athletics
A university that prides itself on innovation would become a bold leader in much needed college athletics reform.
By Orin Starn
Published on Friday September 15, The Herald Sun
It wasn’t a sellout at Cameroon Indoor Stadium Monday night.
Instead the legendary basketball arena hosted a more intimate, private event for Duke’s 850 varsity athletics, coaches, and athletics department staff.
Men’s basketball coach Mike Krzyzewski was a featured speaker at this combination pep rally and revival meeting. He urged Duke athletes to feel good about themselves in the wake of the bad lacrosse controversy publicity. “What this situation this spring did was that people wanted to put a cloud over all athletics and specifically lacrosse.” Coach K explained later to Herald Sun reporter. “I don’t think that’s fair, quite frankly because we have so many great kids. If somebody did something wrong, then hold them accountable, but don’t indict everyone.”
I’ve taught many Duke athletes over the years, and very much agree that most are great kids. Although most Durhamites want to hear all the evidence before passing judgment, there’s also plenty of reason to doubt District Attorney Mike Nifong’s fairness with the lacrosse charges. I was one of thousands of city residents to sign the petition putting Lewis Cheek on the November ballot out of concern that Nifong may no longer be trusted with his job.
This said, the private Monday rally suggests that coach K, Athletics Director Joe Alleva, and their powerful supporters have stubbornly refused to learn the lessons of these last months. An arrogant sense of victimization and entitlement seems to have replaced any semblance of clear-thinking or self-reflection in Duke sports circles.
Consider what we know now. Quite apart from the alleged sexual attack, it was revealed this spring that almost one-third of the lacrosse team had been arrested on public drunkenness and on other charges. Good evidence suggests that a team captain gave a false name to hire strippers; that at least one player made a racial slur at a spring-break party; that another wrote a subsequent e-mail joking, parody or not, about killing and skinning stripper “b-es.” Another player was convicted in Washington D.C., of assault charges and reportedly yelled homophobic epithets. Still another was charged in June driving drunk and running a red light just days before Duke President Richard Brodhead announced the reinstatement of the lacrosse program.
Nor has Alleva inspired confidence with his leadership through it all. Many Duke insiders felt that Alleva as much or more than lacrosse coach Mike Pressler bore responsibility for failure to monitor the lacrosse team’s mounting trail of loutish behavior and arrest record. Then this summer, Alleva was with his son Joe “JD” Alleva – a former Duke baseball player – when JD crashes their speed boat against a bank at a local reservoir. Alleva escaped with stitches, but JD was booked for operating the boat while impaired after refusing law enforcement requests to take a sobriety test. If not the most awful thing ever, the incident did not encourage trust in Alleva’s judgment, especially given the timing. The news reports of the alleged drunken crash were the last thing Duke needed in the tidal wave of bad lacrosse publicity.
None of this, of course, means that the three indicted lacrosse players are guilty. We must be vigilant in ensuring that both they and their accuser receive fair treatment from the justice system. But it does show an astonishing lack of perspective for coach K and others to suggest that Duke sports has somehow been innocent victim of groundless smears by “very narrow-minded” and “ridiculously wrong” critics, as he labeled them in a summer press conference. This should be a time for openness, reflection and dialog instead of circling the sports wagon with the veiled implication that any negative words about Duke sports are the fault of pointy-headed professors, scandal-mongering journalists, and weak-kneed administrators who fail to understand the noble role of athletics at Duke.
An exclusive rally for athletes sends completely the wrong message. It suggests they have interests separate and apart from other Duke students at a time when President Brodhead and other top administrators have, very rightly, sought to bridge the gap between the athletics department and the rest of the university. Holding this event on September 11th also seems oddly inappropriate as if the woes of Duke sports had anything to do with the deaths of thousands of people at Ground Zero.
Here is my proposal: Duke should honor existing athletics scholarships, then withdraw from Division I competition with their horrifyingly large time, training and travel demands on student-athletes and their crass, television-driven over-commercialization. The university ought to maintain lower-key club teams where students will learn the virtues of leadership, teamwork and competition just as well as they do on varsity squads now. New money should be invested in academic merit scholars for deserving African-American and other applicants from underrepresented groups to strengthen Duke diversity and excellence. Coach K and other coaches would have the option of remaining on Duke payroll coaching the new club teams (even if Coach K might perhaps be asked to take a small pay cut from his current salary of well over a million dollars a year).
A university that prides itself on innovation would become a bold leader in much needed college athletics reform.
Likely to happen?
Of course not
The right thing to do?
I think so
Orin Starn is a professor of cultural anthropology at Duke University.
Reading commnents like this from a "professor cultural anthropology" remind me that at least in some departments, there still is no intelligent life.
The Real Story at Duke is not that some athletes being arrested on charges against which half the town of Durham could be charged. No, the Real Story is that three young men are being railroaded by a "justice" (sic) system that is out of control. Moreover, this transparent injustice is being encouraged by the likes of our "cultural anthropology" professor who is giving us the "Yes, the charges most likely are false, but...." drivel that many of us in academe have come to expect from these kind of hypocrites.
Keep putting the heat on these people. That is all I can say. They are a disgrace to higher education -- even though louts like Houston Baker, Peter Wood, and Richard Broadhead are the face of higher ed these days.
William L. Anderson
Cumberland, Maryland
Orin Starn might just be one of the most insipid, envious, and superfluous little morons to ever be allowed to indoctrinate unsuspecting students on any campus of higher learning in this country.
And that's saying something.
If he and most of his colleagues could ever do anything in the real world, they wouldn't have to resign themselves to a classroom.......waiting for the leftovers from Coach K and other people who produce the "golden eggs".
The contributions of people like Coach K produce the revenue for Starn and his recalcitrant colleagues to have their extra Happy Meals......while dissing their betters.
Unfortunately, having a rotten and corrupt district attorney in Durham has resulted in a nonstop "Schadenfreude Party" for lots of little frustrated professors.
Tsk ! Tsk!
Debrah Correll
This article was originally published on ESPN Magazine on September 7, 2006.
Months later, unanswered questions haunt Duke
September 7, ESPN Magazine
By Jon Pessah
There are no trucks in the visitors' parking lot of Cameron Indoor Stadium, no reporters shoving to get near the students as they head to summer school classes. In the Hall of Fame Room, where Duke is about to introduce its new lacrosse coach, John Danowski, on this late-July afternoon, there are no network camera crews readying feeds, no national newsmen eager to take notes.
Three men walk in and sit at a table that faces maybe a dozen local reporters and a handful of coaches, officials and players who stand in the back. Art Chase, the tall, balding sports information director, lays out the plan: a statement by athletic director Joe Alleva, one by Danowski, then a question-and-answer session. "And a gentle reminder," he says. "We are here today to discuss the appointment of Coach Danowski and nothing else."
Alleva is next. "Today is all about moving forward," he says, "not looking backward." He has more reasons than most to put the last year at Duke, his eighth as AD, in the rearview. The scandal that led to the forced resignation of the lacrosse coach and the indictment of three of his players last spring left Alleva badly scarred. More recently, a boating accident, in which his son, a former Duke baseball player, ran the family's speedboat into a jetty while allegedly under the influence, left the AD with 42 stitches in his forehead and his future even more in doubt.
Alleva thanks the search committee for finding the right man, thanks Duke's president, Dick Brodhead, for his support and thanks the lacrosse players for staying with the program. "Not one player decided to transfer," he says. "I think that says it all." Not exactly. Left unsaid is the unwillingness of other schools to welcome Duke players who may have wanted to leave. And how many of those players and their parents still blame Duke for abandoning them and turning a bad situation into a disaster.
Finally, it's the new coach's turn. "I am humbled and honored," says Danowski, sitting bolt upright between Chase and Alleva. "The first time I stepped on the campus, in 1999, I felt the sense of excellence and pride everywhere you turned. That has not changed."
Danowski is a big man with a big voice, his manner more how-ya-doing than in-your-face. He fills a room, something the eight members of the search committee had noticed right away. He convinced them that he understood that the job was more about winning hearts and minds than games and titles. And he told them that in 21 years at Hofstra, he'd learned that kids this age can't always tell right from wrong and that it was his responsibility to teach them the difference.
The committee didn't have to ask if he realized what he was up against. As the parent of a Duke student, Danowski had watched the media carve up a university he'd loved since the day it had first recruited his son, Matt, now a rising senior. The national spotlight had laid bare an undergrad lifestyle that shocked baby boomer parents and infuriated professors. And it characterized a sense of entitlement ingrained in the student body, which many of the school's African-American faculty and 600-plus black students call insensitive at best, racist at worst.
As the parent of a Duke athlete, Danowski knew what had been lost on the night of March 13 and how hard it would be to get it back. Once -- was it only four months ago? -- being an athlete at Duke brought respect, celebrity and job offers at graduation. Now it meant having to answer for whatever had happened at 610 N. Buchanan.
And as the parent of a Duke lacrosse player, he worried that the team was being held accountable for all that was wrong about the school, imagined or real. This could be the toughest hurdle of all.
Now he had just been introduced as the guy who could turn it all around. At 52, Danowski was stepping into a dream job, but not quite out of a nightmare. An old friend had been forced out of the position he'd just taken. Two of his players and a graduated senior he'd known for years stood accused of crimes that could put them in jail for 50 years. Thirty-three players on his new team could be called to testify at their trials. No, this was no normal job. "If it were," admits Danowski, "it wouldn't have been open."
So he talks about healing old wounds, learning from mistakes and providing counseling. It's going to be tough, but it's going to be fun, too, and it's time to go to work. Duke is the place where they did it right, and would again soon.
Then again, whether Duke has ever done it right depends on who's talking -- and what they're talking about.
-----------------------------
We're in the kid business, and sometimes kids make bad decisions.
Isn't that what Duke women's lacrosse coach Kerstin Kimel was always telling her assistants? Isn't that what she heard growing up outside of Philadelphia, where her father, Mike Manning, had coached high school basketball for 25 years? It was surely what she learned the night her father walked in the door and looked right through her, having come from a hospital where his star player lay near death. The teen, who'd been drinking and drag racing, had crashed into a light pole. He'd be paralyzed for life.
Sometimes kids make bad decisions.
Kimel starred on the lacrosse field at Maryland and knew she wanted to coach when she graduated in 1993. She came to Duke in January 1995, to start a program from scratch. It didn't take long for her to build a contender and decide she never wanted to leave. Eleven years later, as she sat alone in her kitchen just before midnight in late March, her two young children asleep upstairs and her husband away on business, her dad's lesson resonated more than ever. Over the previous two tumultuous weeks, she'd come to terms with the fact that the men's lacrosse players had made some bad decisions -- underage drinking, hiring strippers. Very bad decisions.
It was Sexual Assault Awareness Week on campus. Activist students made speeches on the quad. Departments organized sit-ins and marches. Several of the lacrosse players had been surrounded by schoolmates who shouted, "Tell the truth!" On March 28, Brodhead suspended the team's season.
"Sports have their time and place," he told the press, "but when an issue of this gravity is in question, it is not the time to be playing games." Angry students confronted him after the press conference, and one asked how he intended to keep her "safe from the lacrosse team."
Kimel understood the town/gown friction that framed the administration's response. She'd seen the resentment locals had for the drunken student parties held in their neighborhoods, and heard the students talk of fearing the crime that sometimes spilled from Durham onto East or Central Campus. One of her players once had to chase off a burglar with a lacrosse stick.
No one had to tell her why it was mostly women who were speaking out in those first few days. You don't teach and travel with 31 girls for years without learning about their world. The 35-year-old coach knew this generation had come to see date rape as an all-too-frequent consequence of binge drinking and a hookup culture. She knew young women, even young women athletes, were reluctant to step forward when something happened to them. The events of March 13, she felt, would just make it all worse.
But that night in her kitchen, she wondered why no one at Duke was looking out for the players. This was not a Duke that Kimel recognized, not the one she fell in love with more than a decade ago, not the one that gave coaches the resources to build elite programs. Certainly not the one she told parents about while she sat in their living rooms. "You're not joining a team," she'd say. "You're joining the Duke family."
The two lacrosse teams played, ate and hung together. One of Kimel's former players had recently married a men's lacrosse player; another pair of Devils is engaged. What was happening on campus wasn't just about the men's team, it was about hers, too. Hell, it was about every athlete at Duke.
She'd been troubled by some of the e-mails she'd received from her players. She called one up on her laptop: "One of my teachers knows there are six male lacrosse players in the class and said some things that were very out of line this morning. The boys ended up leaving, which made me rather emotional. It just makes me so sad. I feel like the boys are going to feel unsafe in this class from here on out."
Kimel decided to reach out to Bob Thompson, the dean of undergraduates, a longtime Duke administrator who she felt would share her concern. She pasted in her player's complaint and mentioned another e-mail in which a player told of a professor calling lacrosse players "animals." The accused, their friends, girlfriends, etc., are being harassed and fear for their safety -- and no one seems to care about their well-being, Kimel wrote, then closed with a plea for support. For the sake of the young men who have been accused and for the entire student population so they learn that in life it is wrong to rush to judgment -- especially in a case where the stakes are so high.
After she hit the send button, she went back to work. Her team, ranked No. 2 in the country, had a game against No. 4 Virginia to worry about.
------------------------------
Orin Starn had never met lacrosse coach Mike Pressler. In fact, he'd never met any coach in the 15 years he'd taught anthropology at Duke. But suddenly, his field of study had come to life on his campus. And eastern North Carolina's largest newspaper wanted him to put it in perspective.
Starn had been at the vigil at 610 N. Buchanan the night the story broke about three men's lacrosse players allegedly having raped an exotic dancer at a party. He'd held a candle and wondered what had happened inside. He hadn't been convinced the boys had done it, despite the DA's pronouncements, but the drinking, the strippers and the racial slurs he was hearing about -- especially the slurs -- spoke to something.
But what? That was the question Starn had offered to address for The News & Observer in early April. Sitting at his laptop in his bedroom, Starn was certain it wasn't about lacrosse. If he wanted to address the issue, he'd have to aim higher.
Is it time for Duke and Coach K to -- gasp -- part ways?
Starn knew people would think him the pointy-headed prof who hated sports for writing that, and the thought made him smile. His wife complained that he watched too much "SportsCenter" and spent too much time studying box scores. He played golf at Haverford and soccer at Chicago, and he hit Duke's championship-caliber course as often as his creaky, 44-year-old back allowed.
His courses, particularly Anthropology of Sports, were popular with Duke athletes, and he enjoyed having them in class, especially the football players, whom he usually found to be energetic if not always as prepared as other, often more affluent, students. He knew that many athletes took his 8:30 a.m. classes because they had practice from 3 to 6 p.m., and it amazed him when football players told him that they got up at 5:30 a.m. to lift for an hour before class. It concerned him, too.
Sports have assumed a grotesquely gigantic, high-stakes, big-business role in university life. Competing at the Division I level drains so much time and energy that athletes cannot do their best in the classroom 'Even "minor" sports require three hours a day or more of practice, film study and conditioning.'
Like most everyone at Duke, Starn loved going to Cameron to watch the Blue Devils play basketball. Wasn't winning a big part of what Duke stood for? The games were far more enjoyable than fretting about the entitlement and isolation that can afflict a college athlete who travels the country while peers back home celebrate his success and bemoan his failures.
But the lacrosse scandal was a wake-up call for everyone, including professors who discovered that they were out of touch with the lives led by their students. If there was ever a time for reevaluation at Duke, this was it.
As heretical as it may sound, I think the cult of basketball at Duke is a major liability. A university should not be attracting students by virtue of their interest in spending long hours camping out for tickets and screaming regimented game rally chants.
Starn knew the e-mails would fly when his column ran six days later. Duke without basketball? Are you crazy? He was fully aware of how much money Mike Krzyzewski brought in, how many students enrolled because of the basketball culture, how Coach K's profile as Olympic coach just added to the allure. And he got why the coach had kept silent amid the firestorm, even as it had some questioning his leadership. Coach K, as he said himself three months later, was just a basketball coach.
But if you were going to address the role of big-time athletics in this crisis, you couldn't ignore the elephant in the room. So Starn wrote of the dangers of placing basketball-like demands on student-athletes in sports such as lacrosse. He wrote about the need to mainstream athletes into campus life. He questioned the spending of millions for "shiny, high-tech facilities." And he talked about priorities.
Duke without great basketball?
It's worth thinking about.
------------------------------
Wahneema Lubiano leaned forward in her office chair and pored over the copy for the full-page ad one more time. What Does a Social Disaster Sound Like? the headline read.
It was just minutes before the copy deadline for the April 6 issue of The Chronicle, Duke's daily student newspaper. Lubiano had taught literature and African and African-American studies for 10 years, and her campus activism on race and gender issues cast her in a comforting light for many of her students. She'd heard them describe a campus culture dominated by a small but powerful class of rich, white students who led a privileged life many white kids at Duke took for granted. She'd heard accounts of a few brutal rapes on campus and about the far more pervasive trend of date rape.
As March turned to April, Lubiano felt her students' frustration rising again, fueled by the feeling that in the wake of the scandal, no one was listening to them. The head of her department had charged her with giving African-American students a voice. Theirs were the dozen quotes that appeared on the page she was getting ready to submit.
"We want the absence of terror. But we don't really know what that means ‘That's why we're so silent."
"I was talking to a white woman student who was asking me, 'Why do people' -- and she meant black people -- 'make race such a big issue?' They just don't see it."
Lubiano thought back to the last week of March, to the night she'd first heard those words. About 75 students had crowded into a second-floor conference room at the John Hope Franklin Center, named for one of the most prominent African-American professors in school history. They were there for a forum on black masculinity, but the focus had changed to reflect the sordid drama playing out on campus. Tensions were high as the space filled. There were two white women in the room, Lubiano remembered, a few Latino and Asian students and a couple of white faculty members. Everyone else was black.
One professor thundered about having no confidence in an administration that considered canceling games a proper response to sexual assault and racial slurs. He called for the players to be expelled and the program to be shut down. Lubiano was taken aback by the level of her colleague's anger, which put him out of step with the rest of her peers. Yes, the lacrosse team had sparked the crisis. But there was more to it, much more. One by one, the students spoke of their unhappiness with their life at Duke.
"This is not a different experience for us here at Duke University. We go to class with racist classmates, we go to gym with people who are racists ‘It's part of the experience."
Devon Sherwood, the lone African-American on the lacrosse team, was in attendance, completing a class assignment. So, too, were a handful of black football players. They sat quietly, though one did say that the situation would be playing out differently if the accused were black and the accuser white. He spoke not with anger but resignation -- and some confusion. As on every college campus, Duke athletes belonged to the dominant social class. But now, being a black athlete meant juggling competing allegiances.
Like many of the black faculty, Lubiano had heard for years about the poor reputation of the lacrosse team, heard some of her students call them racists. A Facebook photo of a male student in blackface, believed to be a lacrosse player, had been e-mailed around before and after the alleged rape. Two weeks after the incident, Lubiano had attended a meeting of about 200 agitated faculty members. A senior professor stood and berated the team, saying the school needed to flush it down the drain and start over.
Lubiano knew what it was like to be verbally attacked. Just before the lacrosse case exploded on campus, conservative commentator David Horowitz had spoken there. He told students that some of their departments and professors did not belong at the elite college, mentioning Lubiano, among others, by name. Duke administrators responded with silence then, and Lubiano believed they were far too quiet about the lacrosse incident as well. So she read for one final time the words she wrote to express what her students, and the 88 Duke professors who'd signed the ad, wanted to say.
The students know this disaster didn't begin on March 13 and won't end with what the police say or the court decides. Like all disasters, this one has a history. And what lies beneath what we're hearing from our students are questions about the future.
Lubiano knew some would see the ad as a stake through the collective heart of the lacrosse team. But if the black faculty couldn't speak for black students now, could it ever?
--------------------------
Yani Newton always knew she'd play sports at Duke, from the time she came to the Gothic-style campus for a summer camp after ninth grade. And for most of her first two years, it had been everything she could have wanted. But this spring, the only African-American on the women's lacrosse team had other choices to make.
That had been made clear by the black students she knew on campus. She was wearing her blue-and-white No. 8 one day when a black student passed by. "Just been bitched out by the little white girl in the red T-shirt," the woman said, not knowing that the white girl, a vocal supporter of the lacrosse team, was one of Newton's friends. Newton was friends with a lot of white girls, many in the Core Four sororities, the ones Rolling Stone would soon hold up to ridicule.
In early April, she sat on the cold floor of the lacrosse team's meeting room, listening to her coach after all hell had broken loose again. An e-mail written by a lacrosse player and sent to many of his teammates a few hours after their party in March had made it into the newspapers. "Tomorrow night, after tonight's show, I've decided to have some strippers over to Edens 2C," it read in part. "All are welcome, however, there will be no nudity. I plan on killing the bitches as soon as they walk in and proceed to cut their skin off ‘All in, please respond."
Newton caught the reference to the cult film "American Psycho" and recognized the often-twisted sense of humor of her friend and classmate Ryan McFadyen. What she couldn't understand was the school's response: forcing Coach Pressler's resignation, suspending McFadyen, canceling the rest of the men's lacrosse season. Guilty before proven innocent. That's what she was thinking as she sat in front of her coach. That's what a lot of athletes were thinking.
Newton saw Kimel was clearly upset. The coach told her players to think back to last fall, when she'd instructed them to take down any pictures they'd uploaded to Facebook and Webshots. "You never know how things can be twisted and come back to haunt you," she'd said. The girls took the photos down, but they weren't happy about it.
"Now do you get it?" Kimel asked. "You do not want to do something that could get me fired. What the boys did was stupid and wrong. Now they feel responsible for getting their coach fired. But as bad as they feel, they'll feel a lot worse when they have jobs and families. Then they'll really know what this all means."
Newton hadn't posted any pictures, but she heard what her coach was saying. And she wondered if every coach at Duke was feeling that what had happened to Pressler could happen to them. When Kimel shifted gears and told them there was a game to prepare for, a big game, Newton was relieved. Lacrosse was something they could all feel good about. "We can be the bright spot," Kimel told them. "It's the best thing we can do for the boys and the school."
Newton and her teammates came out flying against top-ranked Northwestern the next night, funneling all that emotion and anger at the Wildcats, blowing them away. The field was one place -- maybe the only place -- to forget about what was going on, to reclaim what life had been like before March 13.
But many of Newton's friends didn't have that release, or a coach to lean on. Whenever she returned to her room after another three-hour practice, she'd find her dormmates in front of TVs, or scanning the Web, or reading the local papers. They were all stunned when the boys lost their season and rocked when the DA said he was convinced that a rape had occurred even after the DNA tests were negative. They often stayed up late to talk about the events that had changed everything.
Newton had grown tight with midfielder Reade Seligmann during freshman year, eating wings late at night at Rick's on West Campus. He was big and funny, a guy who'd give her a hug when she'd had a bad day. All semester, they'd been meeting for breakfast before an 8:30 class they shared.
On April 17, news came that the grand jury had handed down sealed indictments for two players. If only because they'd rented the house, two of the three senior captains who lived at 610 figured to be the accused. But the next day on TV, Newton saw a police car door open and a large figure emerge. She recognized Reade instantly, his hands pinned behind his body. Soon, mug shots of Seligmann and another sophomore, Collin Finnerty, appeared. Her two friends, one 20 like her, the other 19, stood accused of pulling a woman into a bathroom, holding her down, beating her and penetrating her vaginally, anally and orally for 30 minutes.
There would be no more breakfasts with Reade, only more problems. Newton's father, Lloyd, called Duke police from Baltimore, demanding they keep his daughter safe amid the protests. A local newspaper story appeared before the women's lacrosse team's trip to Boston for the Final Four in late May, turning the team's preliminary plan to wear wristbands in support of the accused into another national feeding frenzy.
Their season ended two days later in a thrilling overtime loss to Northwestern. Newton spent the first month of summer at home with a boot on her right foot to protect a stress fracture she'd played with all spring. She got word that she was one of nine Duke women's lacrosse players to make the All-ACC Academic team. But mostly she answered questions from childhood friends about what had gone wrong at the school that always did it right.
She returned to Duke in late July to be a counselor at Kimel's camp. Although summers in Durham are hot and humid, the job was a chance to keep sharp. Camps like this exist at many schools, but Duke being Duke, this one means a bit more. Just not this year. A young camper told Newton that when she informed friends about where she was headed, they said, "Oh, you're going to be one of those people."
Newton heard about a meeting being planned by the athletic department, a big rally on Sept. 11 designed to make athletes proud again to wear the blue-and-white. She also heard there'd be a new code of conduct. She realized that once school started, everyone would be dissecting everything they did again.
One afternoon toward the end of camp, she watched the girls during drills, thinking that some of them might play at Duke one day. At least, Newton thought, they won't know what they missed.
-----------------------------
On the first day of August, Matt Zash stands on an elementary school field on the east end of Long Island, schooling 30 or so 6-year-old lacrosse players on how they used to do it at Duke. "Take your lane, read the defense and react," he says as he cuts to the goal. Most of the kids appear to be listening despite the day's near-100° heat.
Zash used to think he knew all about how they did things at Duke. For almost four years, he was a stellar midfielder who got good grades and still found time to enjoy himself. Then one of his roommates at 610 N. Buchanan, Dan Flannery, made a call to an escort service, and the other one, David Evans, wound up under indictment for crimes they all swear never took place. In between, he felt, the school he once adored had left him and his 'mates to fend for themselves.
He'd told his story to the national media in early June: about being rousted from bed two days after the party to find half a dozen policemen yelling for him to get his hands up, about having his cheek swabbed for DNA and his reputation ripped to shreds.
He'd been following orders from the defense team that, from the beginning, had spent much energy countering the bad press. And for the most part, the strategy had worked. As President Brodhead wrote in an open letter on July 25: After many weeks of media stories that made it seem almost self-evidently true that a rape had occurred, recent stories have offered extensive evidence exonerating the indicted students and questioning the legitimacy of the case.
But real damage had been done. And just as Brodhead surely understands that he and the school remain at risk from situations he can't control, so too does the 22-year-old Zash. That was one of the lessons of the spring. Hadn't the DA taken Zash's statement, then accused the entire team of not cooperating? Didn't the media pick apart their lives, then turn their legal problems into entertainment for the entire nation?
Zash still can't grasp how it got so out of hand. Did he and his teammates party hard? Yes. Did they drink before they were 21? Yes, like so many others did before football games and at the big drinkfest on the last day of spring classes. Did they make stupid mistakes? Yes. Does that make them capable of gang rape? How, he wonders every day, can anyone at Duke think the answer to that is yes?
Now he lives at home with his parents on Long Island and wonders what will happen next. This isn't over for any of them. On Aug. 25, just days before classes were to start, The New York Times published a front-page story based on a review of the prosecution's previously undisclosed case file. The piece added some new elements and rehashed many others, including some embarrassing details about Zash that seemed gratuitous because they didn't connect him to any wrongdoing. A trial, with all the attendant sensationalism, could start as soon as late fall.
"No one can know what we've gone through," Zash's mother, Nina, says. "No one should ever know."
Zash used to think he'd follow many of his former teammates to Wall Street, but now he's decided to become a college coach. He's talked about a job with Pressler, who recently signed on at Bryant University, a Division II school in Rhode Island, but doesn't know if the timing is right. Bryant doesn't offer a graduate degree in education, and Zash wants to get a master's. Still, if Pressler can't find anyone else, Zash will go.
Loyalty. He used to think that was what Duke was about. Now he thinks about all the coaches, and wonders how secure they feel. He thinks about all the athletes, and how they'll cope with the revised rules. He thinks most about his former teammates, the ones who'll be returning to campus, and wonders how they'll be treated.
All of which saddens Zash. He wants to remember Duke for what he thought it was, not for what he and the others feel it's become. He wants things to return to normal, but he's no longer sure what normal is. "I never thought anything like this could ever happen at Duke," he says. "I never thought we could be treated this way. How can I look at Duke the same way?"
How can anyone?
Jon Pessah is a deputy editor at ESPN The Magazine. He can be reached at jon.pessah@espn3.com
Originally published in Herald-Sun on September 18.
Thanks, Durham police
I hope that the Durham police officers who arrested Duke students for noise and alcohol violations in the autumn of 2005 realize how grateful most of us in Trinity Park are to them.
Their actions gave us the hope that we might once again have a peaceful, family neighborhood in which to live.
And we hope that these officers or their successors will also remember that every September brings a new crop of students who want to live off-campus and who appear never to learn from the experiences of their predecessors.
Please, Durham Police Department, continue to defend our neighborhood.
ELGIN W. MELLOWN
Durham
September 18, 2006
The author is an associate professor of English at Duke University.
Yeah, Mr. Mellown. Nice of you to pile on once again. It's petty idiots like you who make Durham a laughingstock of the entire country.
Does a petty fool like you enjoy piling onto the already gross injustice against the three lacrosse players by the rabid racists in your little backward town?
Do you sleep better at night now that you have piled on? Perhaps you need to move on over to the mean streets next to NCCU. Then you can receive a dose of some real partying "hooligans".
Only one thing, though. The Durham Police Department will not help you with your plaintive calls for help in that neighborhood. The "brothers" have their free ride in Durham, don't you know.
Mr. Mellown, you need a "diversity" education. Mike Nifong can help you with that.
From Herald Sun:
Reinstatement of players doesn't square Duke
Duke has not covered itself in glory on the lacrosse allegations. Last spring, when the three lacrosse players were indicted, they were, of course, presumed innocent until proven guilty [wink, wink]. But Duke wanted to get ahead of the story and decided to kick the two returning players out of school.
Today, the same two are still indicted and, of course, still presumed innocent until proven guilty. So Duke, wanting to stay ahead of the story, has magnanimously offered to reinstate them. In a letter to one of the students, Larry Moneta, vice president for student affairs at Duke, writes, "We believe that circumstances warrant that we strike this balance differently."
That's indefensibly weak and borders on being disingenuous. What changed? If the two players were deemed too bad to be allowed to return in the fall of 2006, are they less bad now that the rape charges have been dismissed but the sexual assault and kidnapping charges retained? Duke did the wrong thing last year by caving in to public outrage fomented more by District Attorney Mike Nifong's comments, magnified by the press, than by any other factor. (And Duke took the opportunity to clean out the stables by firing the coach, too.)
Now, even though Duke has taken the right corrective step, the university still seems to be reacting to public pressure by reinstating them when very little has changed except the widespread perception of the DA's damaged credibility and integrity rather than the students' ostensible innocence.
Michael Brady
Hillsborough
January 7, 2007
From Herald Sun:
The real Nifong
I find it entirely fitting with what we, the public, have learned of District Attorney Michael Nifong's personality and conduct that he arranged his swearing-in as a public officer of North Carolina to occur in private.
He forced the entire lacrosse team to present themselves for DNA sampling in a way that amounted to a public "perp" walk. Didn't bother him.
He had the accused arrested and brought to the station in handcuffs in front of national TV cameras. Didn't think twice.
But face the public and press himself after the revelations about his own misconduct and the subsequent condemnations from his peers, the media and regular citizens far and wide? Not a chance.
Instead he ensured that the public would literally be locked out of the ceremony by which he accepted the office they granted him. Was he too afraid that there would be laughter in the courtroom as he reaffirmed his pledge to faithfully discharge the duties of his office at the same time as he faces a State Bar complaint resulting from his failure to honor that very pledge?
Peter Bove
New York, New York
January 7, 2007
From Herald Sun:
A stained reputation
The Duke lacrosse case has left serious stains on the reputations of Duke University and Durham County. Duke's administration, faculty and students almost immediately abandoned any semblance of a belief in innocent until proven guilty and threw their own to the wolves.
Durham has approved, through an election, what may well prove to be one of the most egregiously flawed, malicious prosecutions in history. How sad that it has taken the State Bar, the Association of North Carolina District Attorneys and the scrutiny and condemnation of the national press to begin the process of correcting this travesty.
Much of the world now has the image of Durham as a lawless backwater where citizens can, for political expediency, be railroaded by haphazard investigations, ignoring of evidence and incredibly weak charges.
These stains will not soon fade.
Robert Miller
Durham
January 7, 2007
From Herald Sun:
Defending a tyrant
"Some have seemed to imply that if you insist on the students' innocence, then you must not care about the underlying issues. Others have seemed to suggest that if you insist on the underlying issues, then you must not care about fair treatment for the students." This statement, quoted from Duke President Richard Brodhead, may have been an attempt to mollify both sides by clarifying his view of the lacrosse case, and thus heal the wounds related to it, but he achieved quite the opposite.
Brodhead reopened wounds by, I assume inadvertently, elucidating the gross misunderstanding of American civil culture upon which the case continues to exist. Brodhead did not ask "justice" to listen only to the facts, nor has he ever demanded that justice act blindly. Instead, he again perpetuated the belief that opinions, emotions, and perception trump facts.
District Attorney Mike Nifong inflicted a terrible injustice. Nowhere has that been more clearly demonstrated than in the poignant interview, published by Newsweek, with Reade Seligmann. What did Reade, Collin Finnerty, and Dave Evans do to provoke Nifong to deprive them of liberty and happiness -- civil rights -- and inflict upon them the pain they and their families have endured? Nothing.
The "issues" about which Brodhead opines pale in comparison to the injustice that he is guilty of prolonging. This case wouldn't exist if Nifong had acted judiciously. Why is Brodhead defending a tyrant?
KAREN SWANSON HUMENIUK
Greenville, S.C.
January 11, 2007
From Herald Sun:
Prosecutor, persecutor?
Webster defines prosecutor as "one who institutes an official prosecution before a court." He also defines persecutor as "one who harasses in a manner designed to injure, grieve,or afflict, to cause to suffer because of belief." My personal belief of which definition defines Mike Nifong has been slow in coming. Some have been very supportive of him attesting to his character and integrity. These qualities are mandatory for a man who very well might be instrumental in taking away one's freedom.
I can't help but wonder which hat he wore on those days immediately following the accusation made against the lacrosse players. In retrospect, his remarks sounded more like those of a persecutor than prosecutor. I don't know what occurred that night last year. Likely, none of us who weren't involved do. Unfortunately, Nifong has created an environment which may very well make it impossible to ever know the truth. However, some things are abundantly clear. Nifong did not, in my opinion, do those things necessary and required of his position as district attorney to seek truth and justice for the accuser as well as the accused. Regardless of the outcome, there will always be at least some shadow of doubt.
I would ask Nifong, did he abdicate his responsibility as an officer of the court and willfully made statements prejudicial to the accused, or withhold or manipulate evidence beneficial to their defense? If his honest response is anything but a resounding no, then he should do the honorable thing and resign.
CURTIS CASEY
Durham
January 11, 2007
This article was sent to FODU by Professor Banzhaf on January 11, 2007.
Nifong Faces Third Ethics Complaint
As Well As Additional Ground For Removal
Durham County DA Michael Nifong faces a third disciplinary complaint from the state bar authorities over the revelation today that he refused to dismiss charges against one of the accused Duke lacrosse players -- Reade Seligmann -- even after learning that the complaining (and apparently only) witness about the alleged crimes now "admits that Reade Seligmann did not commit any sex acts on her."
Unfortunately, says public interest law professor John Banzhaf, this failure may be grounds for his disbarment and/or removal from the case, but it probably could not form the basis for legal liability because -- as to this act -- he enjoys absolute prosecutorial immunity.
However, notes Banzhaf, Nifong does not enjoy absolute immunity for two of the other allegations that he ordered a "stacked" lineup in violation of written standards, and counseling the director of a DNA testing laboratory to conceal important exculpatory evidence in violation of the Constitution and state law.
So far it is known that Nifong is the subject of one formal ethics complaint over his out-of-court statements about the alleged incident and the defendants, and it is widely believed that he has or is about to be the subject of a second complaint about his concealment of the exculpatory DNA evidence.
A third complaint based upon his continuation of charges against Seligmann which have now been refuted by the complainant is also now very likely, suggests Banzhaf. However, it cannot be filed right away because Nifong must first be given an opportunity to respond before this third formal complaint is issued.
"With so many conflicts of interest, inconsistencies and contradictions in the prosecutor's case, and the dubious nature of the evidence from the stacked lineup, it's hard to see how this proceeding could possibly be continued beyond the scheduled February 5th hearing," says Banzhaf. "The only question is whether or not it will continue up until that date, or whether Nifong or the complainant will take steps to have it withdrawn before the court is able to act."
"Nifong appears to have a tiger by the tail, and is looking for a way to let go and suffer the least harm. His search for an exit strategy under which he can blame the dismissal of the case on other people -- a complainant who refuses to face a grueling cross examination on February 5th concerning her identification of the accused, or a judge who dismisses the charges and/or removes Nifong from the case -- may be all that is keeping this case alive. In either situation Nifong could assure his constituents that he did everything that he could, but that others caused the downfall of the proceeding,"
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This article was sent to FODU by Professor Banzhaf on January 12, 2007.
Nifong to be Sued by Lacrosse Players
Mother Confirms Families' Intent to Sue DA
The mother of Dave Evans, one of the three lacrosse players accused of sex crimes, has confirmed the earlier-reported intent of the three defendants to sue Durham County DA Michael Nifong for the harm he has caused by violating the students' civil rights. Asked what she would say to Nifong if she met him today, her answer was: "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families … and you will pay every day for the rest of your life.'" Expert Admits "Big Error" In Duke Case.
An earlier announcement of the same threat was made in a statement released by the Seligmann family -- presumably not without the blessing of the other families -- in which 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." Statement of the Seligmann Family.
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. Opinion: 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 make false statements of fact in an affidavit supporting an application for an arrest warrant, enjoy only qualified immunity -- and thus can 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 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
This article was sent to FODU by Professor John F. Banzhaf III on January 12.
Duke Case Prosecutor Forced to Step Down
Civil Liability, Bar Complaint, and Case Disintegration Too Much for Him
Durham District Attorney Mike Nifong has been forced to step down from the criminal cases against three former Duke lacrosse players originally accursed of rape. According to a spokeswoman for NC Attorney General Roy Cooper, Nifong has requested a special prosecutor to take over the criminal prosecutions. Duke DA Nifong Asks Off Case.
The move comes only two weeks after the State Ban filed an ethics complaint which could lead to Nifong's disbarment, and after Law Professor John Banzhaf's suggestions that Nifong could be held civilly liable for violating the constitutional rights of the players despite his status as prosecutor were first published.
Indeed, it was just revealed that the mother of David Evans, one of the accused players, has confirmed the earlier-reported intent of the three defendants to sue Nifong for the harm he has caused by violating the students' civil rights. Asked what she would say to Nifong if she met him today, her answer was: "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families … and you will pay every day for the rest of your life.' Expert Admits "Big Error" In Duke Case.
An earlier announcement of the same threat was made in a statement released by the Seligmann family -- presumably not without the blessing of the other families -- in which 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. Statement of the Seligmann Family.
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 make false statements
of fact in an affidavit supporting an application for an arrest warrant, enjoy only qualified immunity -- and thus can 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 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
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
Website
This article was sent to FODU by Professor Banzhaf on January 14, 2007.
Duke Case Special Prosecutors Might Hurt Nifong
Could Uncover More Ethics Violations or Even Crimes
Although today's decision by North Carolina Attorney General Roy Cooper, agreeing to relieve Michael Nifong of responsibility for prosecuting sexual assault cases against three former Duke lacrosse players, would seem to let the Durham County DA off the hook at least prospectively, special prosecutors Jim Coman and Mary D. Winstead may well uncover evidence of more ethical wrongdoings or even crimes by Nifong or his staff, noted public interest law professor John Banzhaf.
"They will soon have access to all of the files in these cases, including any legal research, strategy notes, other evidence, etc. Seasoned prosecutors could well find indications of additional ethical violations including premature decisions to charge the defendants, refusal to consider exculpatory evidence, deliberately ignoring leads which might refute his theory of the crime, suppression of evidence in addition to the DNA test results, more misleading statements in legal filings and to the court, and other serious and perhaps even criminal wrongdoing," says Banzhaf, who helped direct attention to Nifong's potential civil legal liability.
Although their primary job will be to examine the files to determine what should be done with the criminal case, the special prosecutors are officers of the court with a clear obligation to bring to state bar authorities and/or the judge and Attorney General any indications they find that Nifong, investigator Linwood Wilson, and others involved in the proceedings to date may have committed crimes, violation of rules, or ethical wrongdoing, suggests Banzhaf.
Nifong has already been charged with ethical violations over his pre-trial public statements, and testimony under oath about his orders that exculpatory DNA evidence not be revealed to defense counsel -- even after he repeatedly assured the court that all such evidence had been turned over -- strongly suggests that he may also be guilty of perjury, false swearing and related crimes, as well as additional ethical violations which are grounds for disbarment.
The new special prosecutors could also easily conclude that there was no basis for Nifong not to immediately drop the sexual assault charge against Reade Seligmann once the complainant recanted her earlier story and conceded that Seligmann did not commit a sex act.
The files in the three criminal cases, which Nifong must now turn over the Attorney General's office, are likely to contain material which has not previously been turned over to the defense counsel, and to which they may not be entitled, which could prove to be very damaging to Nifong. Unlike Nifong and those with whom he worked, they would have no incentive to conceal it, and might even be required to disclose it if it incriminates Nifong or others.
Indeed, noted Banzhaf, if material in the files implicates other staffers in potential criminal violations, that evidence might be used by the Attorney General to pressure them to provide more information -- not contained in the files -- to further incriminate Nifong.
"Although it seems that Nifong has now found a way -- by relying upon a clear conflict of interest -- to let go of a tiger he had by the tail, the tiger may still turn around and bite him. The special prosecutors are not his friends, have no incentive to keep incriminating material secret, and are under great pressure to bend over backwards to act ethically and in such a way as to try to remove much of the cloud which now hangs over the North Carolina prosecutorial system."
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
From Herald Sun:
Insight into LAX case
Although some letters from Durham residents express resentment that many critical letters about the Duke/Nifong activity come from outsiders, I have just received a response from a respected friend in a major city to whom I sent The Herald-Sun editorial of Jan. 11 ("Duke hopefuls see beyond lacrosse").
His comments bring a broader insight about the affair:
"All towns and cities have their problems that go along with their many advantages. But I think that the smaller the locale, the greater the focus and emphasis on what purported illegal activity occurs there and how it's handled. (And how it affects a major university there, like Duke.) If, for example, three Duke students had raped a woman and there was clear evidence to this effect, it probably would have made the national news one day and then disappeared. A crime had been committed, and crimes are committed everywhere, so its being properly handled would have been the end of the story.
"But what makes this case stand out and why it continues to stay in the news is how this case has been mishandled from the beginning, how students have been charged without evidence, and how the DA has acted poorly at every turn (obviously to help his election).
"As such, Durham's DA, Mike Nifong and Duke President Richard Brodhead are to blame for Durham's extensive negative publicity. Durham should learn from Pogo who said, 'We have met the enemy, and he is us.' "
J.A. Davis
Chapel Hill
January 15, 2007
From Herald Sun:
Grand jury reform>
The accuser in the Duke lacrosse case used sex to assault the members of the team. Everybody knows the extensive damage that she has caused. However, other than the minor crime of filing a false police report, she has done nothing wrong. She is free to assault another victim. If she had not been caught by very expensive attorneys, she would have received millions in civil suits. She could use her children to attack a victim and it would be legal. If they attacked a teacher and instituted a lawsuit against the school, the taxpayers would have to pay it. The laws should be changed from no crime at all to a felony. If this is difficult to believe call your representative with the North Carolina State Legislature.
The Jan. 10 column by Beth Brewer about reforming the grand jury was on the right track. Leaders in Durham should form a committee or task force to examine what should be done to prevent other lacrosse cases. This will make Durham a respected leader because we did something about it.
Reforming the grand jury, admitting lie detectors in court in "he says/she says" cases, and making verbal sexual assaults a felony, are some of the things they should consider. The community and victim advocates can help with more recommendations.
Winston Hall
Durham
January 15, 2007
From Herald Sun:
Durham's a joke
I'll be the first to admit, this is completely from an outsider's point of view because I live in Charlotte. But come on Durham, wake up. The Duke rape case has been an embarrassment to North Carolina as a whole. You've dropped the ball.
I expect better from a district attorney in North Carolina and I expect better from the black community in Durham. It seems that so many of you were so quick to judge (and even hope) that these men were guilty.
Where are the marches now from the NAACP and Black Panthers? How about we get those attention-hungry hate groups to return to the streets to atone for their absurd behavior several months ago as things were just heating up.
And, how about the stripper? I want her punished for the lies she's told, and not just some flimsy charge of filing a false police report. I want women like her to fear even considering doing what she did.
Most of all, I expect better from the City of Durham. You let a DA and one segment of the community hijack your entire city and make it a laughingstock in the public eye. It's time to purge, and I don't just mean Nifong!
Jon Edge
Charlotte
January 16, 2007
From Herald Sun:
Durham's morality play
There are several actors in the morality play about rape produced and directed by District Attorney Mike Nifong. The first is Nifong, who used the incident to create a criminal sex scandal enhanced by racial overtones to further his political aspirations. His choice for supporting actress billed as victim could not tell the same story twice and DNA studies of her clothing revealed semen from several males, none matching that of the three accused lacrosse players.
The university's administrators jumped on the bandwagon to distance themselves from the accused. And, predictably, an ideologically driven academic staff self-righteously castigated the lacrosse team, forgetting that lacrosse is a politically correct sport originated by North American Indians.
And then there was the news media that is only obligated to report the "news" as it occurs -- uncritically. Finally, there were the three accused male athletes who were given little sympathy by the others.
Who are the bad actors? Who are the criminals? What rating does the play deserve?
M. Michael Dorr
Kildeer, Ill.
January 16, 2007
From Herald Sun:
Not choosing Duke
Having watched the lacrosse case and having two college-age children, I know the nation is wondering exactly what is happening in Durham. I know co-workers who, a year ago, were seriously considering Duke for their children. Not any more. This entire event has simply highlighted for the nation the high ethics and standards of the Durham police, the district attorney's office, and Duke University itself.
Yet, despite the serious questions raised about whether the alleged crime ever took place at all, we all know that some people will be convinced that these students' parents "got them off" somehow. Clearly, the entire process was marked by bureaucrats, police officers and university administrators "only doing their job."
Which one of you would be satisfied with that attitude if you were the one accused?
Gregory Day
Huntsville, Ala.
January 16, 2007
From Herald Sun:
Duke, Durham should be ashamed of conduct
Like many people in the area, I watched the report on "60 Minutes" on Sunday about the lacrosse case. I am a Duke graduate and this fiasco has caused me to be embarrassed by my school.
President Richard Brodhead should resign or the board of trustees should fire him. The administration inserted itself into this case by its decisions, and by doing so, added to the injustice that the accused suffered.
Durham residents should be ashamed that in the midst of this case, they elected District Attorney Mike Nifong. I hope, and have full confidence, that Nifong will be disbarred after his hearing on his misconduct.
I also hope that a civil suit will be brought by the players against Nifong, the City of Durham, the Durham police, the escort-victim (having four separate DNA samples in her the night of the incident) and DNA Security labs. Regarding the accuser-- let's get real -- an escort is not just a stripper or someone who accompanies men on dates, so I'm going out on a limb and guessing that her job is the reason for four separate DNA samples. I hope that the players receive millions in compensation to make up for the unjust sullying of their reputations. I hope the boys never have to work a day in their lives and I hope that Durham and Duke can assuage their guilt one day.
Kelly Bowling
Raleigh
January 16, 2007
From Herald Sun:
Fire Brodhead, Nifong
I hope the residents of Durham and the alumni of Duke finally do the honorable thing and force the firing/resignation of District Attorney Mike Nifong and the esteemed university president, Richard Brodhead.
What a black eye for your city and your university. Get rid of them and go about getting your good name back.
Jackie Holfelder
Port St. Lucie, Fla.
January 17, 2007
From Herald Sun:
Nifong embarrasses
After following the Duke rape case, I have arrived at only one conclusion: District Attorney Mike Nifong is an incompetent liar who has embarrassed the North Carolina legal system.
Nifong deserves disbarment and jail time for his misadventure in this matter. He has withheld known information, while reporting speculation. His future should lie outside the legal system, perhaps selling bogus diet programs to the gullible.
Robert Weber
Columbus, Ohio
January 17, 2007
This was published in Herald Sun’s Forum section on January 17, 2007.
Fast, loose, and mean in the blogosphere
by Orin Stran, Guest Columnist
I don’t think “Jezebella” likes me. “Starn is a consummate a-hole” is the exact assessment of this anonymous message-board poster.
Welcome to Blog World!
The Duke lacrosse saga has played itself out as much on the internet as in the courtroom, newspapers, or university halls.
I like youtubing Ronaldinho’s greatest goals and e-mailing to my friends as much as the next guy. But the lacrosse mess has put on display the more squalid, sometimes vicious side of the Internet. Only a click away lies a whole ugly galaxy of insults misinterpretations, and, at worst, sick racist hate.
The virtual lacrosse world is Mad Max’s Thunderdome in Gigabytes and bandwidth: no rules apply, or at least not involving those horse-and-buggy or oh-so-yesterday ink age civility, accuracy, or accountability.
The Duke lacrosse accuser?
A “whore.” A “trump.” A “slut.” And those are only the printable names you’ll find for her in the message boards.
At least the board rage is spread around.
Duke President Richard Brodhead may not have always pleased everyone in his extremely unenviable task of responding to the crisis.
Does that make him a “coward,” “bitch” and “shill POS?”
Those “stupid clowns” who signed a controversial faculty ad expressing concern about Duke’s campus climate have “blood all over (their) hands,” according to DaveLaw@aol.com.”
The greatest, most adolescent intoxication of the Internet is, of course, anonymity. You can be nasty, spiteful, and crude with the delicious, untouchable impunity of a high school crank caller.
One “djones” has been flooding the mailboxes of everyone at Duke from Brodhead and Provost Peter Lange to the cafeteria clerk with his outraged, sometimes would-be-funny or clever lacrosse hate messages.
Memo to “djones.” Master Po says it’s bad for your chi to make an obsessive habit of sending anonymous poison e-mails.
Another quaint newspaper custom is the requirement of accuracy. But, Bill Gates be praised, you don’t have to worry about pesky fact-checkers or editors in the wonderful, self published world of the blogs.
The most prolific lacrosse blogger is K.C. Johnson, a Brooklyn College history professor with plenty of spare time and a worshipful following among those who think Mike Nifong will go down as one world history’s most evil man.
Johnson is a good storyteller who emplots the lacrosse controversy as a great moral parable of reason and civilization threatened by the dark horses of racial pandering, blind ambition, and the sinister machinations of tenured radicals and university political correctness run amok.
But Johnson’s Edward Gibbon-length postings are shot through with factual errors
Just one of many examples: Duke’s African and African American studies program has five full-time faculty. Johnson reports that 15, a number better than serves his Tolkienesque yarn-spinner’s desire to paint the program as a menacing Orthanc of grim radical power of intolerance.
The magic of the blogs is tapping into what historian Richard Hofstadter famously called the “paranoid style” of American politics. Blog readers find the promise of revealed truth supposedly censored by the liberal mainstream media and other jack-booted forces.
In truth, the newspapers – and every TV news programs from “60 Minutes” to your Cousin Ed’s cable show – have extensively chronicled Nifong’s apparent prosecutorial incompetence and misconduct, not to mention the accuser’s seemly ever-changing stories about what happened that miserable night.
Now that Nifong has stepped aside, we can hope for a speedy resolution to the case. The Durham district attorney may soon find himself facing disbarment proceedings and lacrosse supporter law suits and, if the charges prove false as what we know about the evidence suggests, the whole prosecution will go down as a sorry misadventure of the justice system gone awry.
And the blog rage?
Those sending vile messages like ones received by prominent English professor Karla Holloway show just how far we have to go towards ending racial hatred and encouraging common human decency in this society.
As for the rest, it’s a free country. I’m glad K.C Johnson and his Sunshine Band of Duke lacrosse bloggers have found a way to keep busy over the long winter.
When the books close here in Durham, they’ll doubtless find some new cause to embrace with the same strident, self-righteous, and loose-with-facts crusading fervor.
Blog on dudes.
The real beauty of the blogs, after all, is that you don’t have to read them.
My New Year’s resolution was to stop following the Duke lacrosse blogs, a pleasure to keep.
And those e-mails from “djones?”
Our computers come with a delete button for that reason.
Orin Starn is a Sally Dalton Robinson Professor of Cultural Anthropology at Duke.
From Herald Sun:
Racism at Duke
I write to urge your newspaper to take a deep look at the racism that has come to the surface regarding the Duke lacrosse case, in particular threats being directed toward many of the African-American professors at the university. The lacrosse case has been a very divisive issue, but it seems it has also given the opportunity for hate to rise to the surface in the form of nasty racially driven threats. This is a very serious situation that has led many highly respected and extremely intelligent African-American professors feeling attacked and threatened. It has pushed us back to places from where we thought we had evolved long ago.
Larry Smith
Durham
January 19, 2007
From Herald Sun:
Nifong is dangerous
As a retired New York state police officer, I am troubled by the Duke lacrosse case. It makes me wonder what made the police and prosecutor think they could get away with such conduct. My opinion is that they have probably gotten away with such conduct in previous matters.
It makes me wonder how many people have been wrongfully arrested and prosecuted in the past. How many people have been so poor that they had no resources to fight wrongful charges? This case has me and others fearful of even considering Duke for their children's education. Parents would be crazy to send their children into District Attorney Mike Nifong's jurisdiction.
J. Troy
Ronkonkoma, N.Y.
January 19, 2007
From Herald Sun:
Brodhead, Nifong must go
To the previous letters calling for the resignations of District Attorney Mike Nifong and Duke University President Richard Brodhead, I would enthusiastically agree, and add a call for discipline against the 88 faculty members at Duke who, in their muddled political correctness, joined Nifong and his lynch mob in declaring the three young men guilty before even the facts of the case were known.
I too am an academician and a liberal, and I consider it unconscionable that a group with such influence in their setting would abandon the fundamental concepts of law. Also I read Editor Bob Ashley's comments on your editorial fairness in "Editor and Publisher," and I would ask the editorial staff to be held accountable as well. Not assessing Nifong's prosecutorial abuses with a critical eye (from the standpoint of accepted human decency, that is) is equivalent to commenting that the Abu Ghraib abuses "could be problematical, and result in some investigation activity."
Editorials have to take a stand, not just rehash the reporting!
Lawrence McKamy
Topeka, Ks.
January 19, 2007
From Herald Sun:
Accuser, Nifong should apologize to LAX players
It is apparent to me that the accuser in the Duke LAX case is a compulsive liar. She has no idea what happened to her. She has changed her story so many times. All of us have lost count of how many times she has changed her story. I just cannot see how you can build a case on a victim who keeps changing her story.
In the meantime, she has ruined the lives of three young men. I hope she plans on publicly apologizing to these young men. They certainly deserve it. I urge District Attorney Mike Nifong to drop all the charges against these three young men. I am not a lawyer, but he has lost this case already. There is no jury in the country that would believe this woman.
Cindy Wrenn
Yorktown, Va.
January 19, 2007
From Herald Sun:
Impeach Nifong
Golly. What a concept. After dragging the Duke lacrosse players through the mud for months, District Attorney Mike Nifong finally decided to stop dragging his feet and interview the person who accused them. (At least I think she accused them -- she changed her story so many times that I'm not quite certain.)
How do we get this guy impeached?
Sue Roth
Durham
January 19, 2007
From Herald Sun:
LAX coverage unfair
What hypocrisy! Nowhere in your Jan. 11 editorial do you admit culpability for the rift between town and gown, black and white, rich and poor, private and public education.
You, along with Duke's administration, were the very first to join with District Attorney Mike Nifong in his vainglorious pursuit of a higher profile by leading a figurative lynching party against three lacrosse players. When this is all over, if there is any justice, Nifong will be disbarred, disgraced and both unemployed and unemployable.
Duke's administrators will probably reach a settlement with the families of the accused and should, but probably won't, lose their jobs. The paper will remain whole, and that will be a grave injustice.
Perhaps the next time, the paper will at least pretend to be objective and report events as they unfold, rather than play apologist for some incompetent bureaucrat simply because he shares your leftist philosophy.
David Highlands
St. Petersburg, Fla.
January 20, 2007
From Herald Sun:
More media exploitation
There was yet more media exploitation of Durham's lacrosse tragedy Tuesday night. Paula Zahn of CNN swooped into town for another round of hit-and-run "television journalism." Zahn hosted a televised forum on race.
Those of us who work and live in Durham know this wonderful city and its wonderful people -- who come in all colors, shapes and sizes. Out-of-town media shills like Zahn know and care nothing about Durham, its history or its people. They've proven it innumerable times in the last months. Their only interest in Durham is to play on this city's tragedy to whip up their ratings and their paychecks.
It would have been great if Paula Zahn gave her "forum" and nobody showed up.
John Madden
Durham
January 20, 2007
Grom Herald Sun:
Nifong's fumble
I am appalled at District Attorney Mike Nifong's handling of the Duke lacrosse case. It seems Nifong has been trying to make a name for himself at these young men's expense. The whole dirty episode has backfired on him and now he wants to turn the heat over to someone else.
After all that has come out in the news, it seems to me the girl should be put on the hot seat. No, actually, Nifong should drop the case and let all concerned get on with their lives. It's about time our prosecutors start trying to get to the bottom of cases and quit trying to make a name for themselves.
Well, this one has made a name for himself, but you can't print it in a family newspaper.
A.D. George
Hot Springs, Ark.
January 20, 2007
From Herald Sun:
Tired of LAX case
The first thing Roy Cooper, North Carolina's attorney general, does after receiving Mike Nifong's request to take on the Duke rape case is to go on CNN and hold a press conference. All he had to do was issue a one sentence press release but it seems that politicians cannot resist the opportunity to grab their one minute of fame.
Sadly, this is all at the expense of the three young men who are accused. I hope this fiasco ends soon.
John Garand
Durham
January 20, 2007
From Herald Sun:
No excuse for Nifong
Three years ago, I had the opportunity to travel to the Durham/Chapel Hill area a couple of times to visit a friend who was doing her residency at Duke. I found the area to be a great place to dine, shop and visit historic sites. After the Jan. 14 story on "60 Minutes", I was appalled at the way the Duke boys in the rape case have been treated by law enforcement in Durham.
I hope District Attorney Mike Nifong gets his day in court. There is no excuse for this kind of behavior.
Denis Crivello
Alton, Ill.
January 20, 2007
From Herald Sun:
Not visiting Durham
As a Tennessee transplant in Ohio and a Democrat to boot, I am totally embarrassed by the prosecutor in the Duke rape case. Durham and Duke University are the laughing stock of America and the southern justice system. Anyone who would send their child to your county to attend Duke would have to be crazy!
Anyone guilty of the things the Duke students are accused of should be made an example of, but to not even investigate the charges or the credibility of the alleged victim and drag it out for 10 months is criminal.
Who is going to pay the legal bills for the accused? Who is going to wipe this rape charge from the memory of all the people these accused Duke students come in contact with for the rest of their lives?
It certainly appears District Attorney Mike Nifong was playing politics at the expense of three boys who only wish to obtain a degree from Duke.
The people of North Carolina should be embarrassed and most especially the citizens that elected Nifong. The university should be ashamed for their actions as well.
The common, decent people of Durham should be protesting and marching in front of the prosecutor's office demanding the state take action against him. How many other cases has Nifong railroaded?
Not only will my children not be attending Duke, I certainly won't be visiting your county anytime soon.
Monte Scott
Centerville, Ohio
January 20, 2007
From Herald Sun:
Not fit to lead
Richard Brodhead, president of Duke University, must think all of us are so stupid we are buying into his assertions now, that he believes all involved in the LAX debacle should be presumed innocent until proven guilty. That's a far cry from his public view when the so called rape occurred. He jumped on District Attorney Mike Nifong's corrupt bandwagon and fed the players to the wolves. Now he has even invited the two undergraduates back to Duke.
Brodhead chose to condemn the players before the evidence was in. Now that all of us have found Nifong to be less than honest and honorable, it appears Brodhead is attempting to change horses in the middle of the stream. He has done a terrible injustice to the three victims -- yes the three young men are the victims, not the accuser.
It appears she saw a ripe money tree and decided to harvest her crop. Nifong and Brodhead were right there to hold the money bags.
Could Brodhead now fear that he and Duke will be sued? Could his job be in jeopardy? I hope so, because he has not shown the objectivity, wisdom and loyalty to hold the position of president at Duke University.
Louise Rigsbee
Durham
January 21, 2007
From Herald Sun:
Where's the compassion for the least among us?
I find the letters about the Duke lacrosse case very disturbing.
The enraged outcry about judicial misconduct in this case was noticeably absent for Alan Gell, who faced a death penalty as a result of prosecutorial skullduggery. Alan was poor, unconnected, and without a prestigious legal team.
What strikes me about the lacrosse case is how so many are outraged about three privileged young men experiencing unfairness, and the level of hateful vitriol directed at those who suggest this case is about more than legal culpability.
I notice that these young men (and their parents) insist on innocence without taking responsibility for their behavior on the night in question. Apparently hiring dancers, monstrous drunkenness, racist, degrading name-calling and harassment are not grounds for moral outrage. Forget the team's culture of long-standing irresponsible and unaccountable behavior. Forget the prevalent elitist, racist, sexist behavior on campus exposed by this case. Forget the larger context of violence against women.
Instead, decry with wrath and resentment any threat to assumed privilege while remaining silent about insidious injustice that happens to nameless people every day. My hope is that we might instead hold equivalent compassion and concern for everyone in this community.
Tema Okun (visiting lecturer at Duke)
Durham
January 21, 2007
This article was sent to FODU by Professor John F. Banzhaf III on January 24, 2007.
2nd Nifong Complaint Charges Constitutional Violations
Gospel Investigator -- Sounds Like Mayberry and Barney Fife
The second just-filed State Bar ethics complaint against Durham County DA Michael Nifong specifically alleges that his actions violated the U.S. Constitution. This is telling, says public interest law professor John Banzhaf, because it provides the basis for a law suit in federal court against Nifong under 42 U.S.C. 1983 for violating the constitutional rights of the three Duke lacrosse players in actions where he does not have the absolute immunity frequently accorded to prosecutors. FOR A COPY OF THE AMENDED COMPLAINT, SEE: New Ethics Charges For Nifong.
Another revelation that Nifong's relied on a chief investigator -- his only full-time investigator -- who was a "gospel singer with limited experience working criminal cases," and "was investigated on suspicion of making false statements on the witness stand and setting up an illegal telephone tap, according to his file at the state agency that licenses private investigators," makes the criminal justice system in Durham NC sound like the system in Mayberry NC lampooned for years on the Andy Griffith Show with bumbling deputy Barney Fife, says Banzhaf. Ethics of Nifong's detective at issue.
"Here's a state where the only full-time investigator for the most widely-reported crime in years -- and where the defendants are represented by many of the finest attorneys with very deep pockets for investigators -- is a formerly-retired gospel singer with limited criminal experience and a checkered past; where the state -- unlike most others -- does not make transcripts of grand jury proceedings so judges can review them later for potential wrongdoing; and where the state apparently has no clear mechanism to deal with a runaway DA unless he asks for his own recusal. This makes the justice meted out by Andy Griffith and his deputy Barney Fife in fictional Mayberry County, NC, seem substantially more effective -- and certainly much fairer -- than
that in Durham Country, NC.," says Banzhaf.
"Indeed, when the word nifonged has become a verb for malicious and baseless prosecution, and the investigation is the subject of skits on SNL as well as monologues on all of the late night shows, it's clear that North Carolina's criminal justice system has become a national laughingstock."
The conclusion by the NC State Bar that Nifong repeatedly violated the constitution is vital because it 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:
Listen to the silence
Just another rape.
Just another party for Duke students.
Just another girl dragged into a bathroom and raped.
Ah! Does this remind us of anything?
It does, except this time, there's no crooked district attorney illegally jumping to press charges.
Nobody is hiding vital evidence to sway the case. There is no national media attention.
I promise you Oprah will never hear about his one and CNN won't bother to mention it.
Why? Seems to me the last time this happened everybody in the nation heard about it.
Oh, that's right. This time the victim is white and the alleged perpetrator was black.
This time the victim was an innocent white Duke student. Not a black stripper there to take off her clothing and dance around for money.
This time a small article in the local paper is enough news attention for "just another rape." And the article talks more about who owns the house than the rape itself.
This time the tables are turned because this poor young girl was white and not black.
The alleged rapist was black, not white.
I guess what is good for the goose is not always good for the gander.
David Leeds
Durham
February 17, 2007
Maybe, silence is good in a case like this and might have been good in the Duke Lacrosse case. Here, it appears that the police are conducting an investigation, with as little public commentary as possible, with a fair amount of silence. Maybe, this time, if an arrest is made, there will be some basis to it. I also don't think it helps victims to have their cases splashed all over the media. It would seem to me that it would just keep the wounds of the attack open and raw.
From Herald Sun:
Bring on Sowell
It has now become more evident than ever that the charges brought against the Duke lacrosse team were fraudulent and laced with class warfare, racism and a very deliberate political agenda. We have to ask ourselves who are the biggest losers in all this.
It would appear that many so willingly contributed to this farce, even Duke professors who were just a bit too quick to point an accusing finger and side with those loyal to their political agenda or brand of politics.
Thomas Sowell, a black writer and serious educator addressed this very sad issue with great balance and fairness in his Jan. 30 column that is posted on his Web site -- www.tsowell.com.
Sowell is a prolific writer and senior fellow at the Hoover Institute at Stanford University. I would like to encourage The Herald-Sun to return Sowell's column and make Durham a much wiser place. And Durham could use a taste of the truth and replace the denial of a senseless tragedy forced upon those who have sought justice in the American courts the right way, and not justice by a vigilante system which thrives for the sole purpose of enriching a power base and lining pockets! This case should wake up both blacks and liberals on how easy it is for their emotions to be manipulated and exploited by demagogues such as The Rev. Al Sharpton and The Rev. Jesse Jackson, both of whom have prospered greatly by leading other blacks down blind alleys of resentment along with other supporters with a less favorable agenda of American politics and America.
Margaret S. Hood
Durham
February 19, 2007
Ms.Hood criticizes the Duke faculty, 90 of 2000, for their prejudgement of the LaCrosse players righteously who should have known better, but then since they were liberals and/or blacks, they are lumped with Rev Sharpton and Jesse Jackson,. The black leaders also weigned in early on the case and evenofered the alleged vicitm some financial aid believing her tragic "story", but also saying let's hear the evidence in court. Ms. Hood, like those she prejudges, lumps all liberals and blacks in a convenient naive state of political corectness as unfortunately a number of other conservatives have done on this issue toching so many in ways we will continue to hear from in the future until the case is dismossed or some misdemeanor (under-age drinking), is established. The truth is, many liberals and minorities have seen through this charade and hoax and are as appalled as you self righteous conservatives who think you are the only ones committed to justice. Where were you when we raised the weapons of mass destruction hoax, the rendition of suspects, the torture of suspects, the relaxingof the Geneva accords, and the unilateral attack on Iraq when Bib laden and the Al Quaeda were not aligned with Saddam Hussein? Go ahead an join the swift boating of Kerry and now Hillary, that is the legacy of the defunct republican conservatives. Rail at the liberals whenevr you think the opportunity to rail arises. But the truth loses everytime someone like you prejudges any group. Yes, I know, there are liberal and moderate Republicans who didn't support everything W did to destroy our image and standing in the world, and I acknowledge that fact. Please don't simplify and claim to be so righteous. I see through you as any liberal with a brain does.
From LA Times (March 10, 2007):
Duke lacrosse bracing its way
The once-disbanded Blue Devils team is now No. 1, and rape charges have been dropped, but underlying resentment remains. McFadyen admits mistake, tells of 'American Psycho' reference.
By David Wharton, Times Staff Writer
March 10, 2007
SAN DIEGO — The Duke lacrosse players clamber off their bus, upbeat, joking, spilling into the chilly evening for a late practice.
Television crews record their arrival, cameras tracking each shoe that gets laced, each helmet strapped on. Only a few players notice — the constant scrutiny feels normal.
"As normal as it's going to get," senior Casey Carroll said. "There's always that extra aura surrounding our games."
Even in Southern California, where lacrosse seems as foreign as an ice storm, where four teams have come for a weekend tournament, Duke expects to be watched.
The players have been big news since last spring, when an exotic dancer they hired for a party claimed she was brutally raped.
With national media characterizing the incident as proof that college sports had spun out of control, the team was disbanded at midseason and the coach resigned. In Durham, N.C., tensions flared between the elite university and its le ss-affluent surrounding community.
"We had to stick together," senior Matt Danowski said. "It was tough."
Recent developments have eased the pressure, the alleged victim changing her story and the local district attorney removing himself amid allegations of unethical behavior. Rape charges against three team members have been dropped as state officials review the case.
But the players who got off the bus in San Diego, and their new coach, are still seeking solid ground.
"We're trying to be very pragmatic about it," said John Danowski — Matt's father — brought in from Hofstra to lead the program. "One day at a time."
Duke has started 4-0 and is ranked No. 1 for the first time in school history. The Blue Devils play Loyola (Md.) tonight in the First 4 Invitational at the University of San Diego.
Meanwhile, back home, the criminal case proceeds with more plot twists than a bad TV drama.
Soon after the alleged victim came forward, Durham County Dist. Atty. Mike Nifong went on the attack, referencing the team's previous legal brushes, branding the players as "hooligans."
Saying he was convinced a rape had occurred, Nifong charged Reade Seligmann, Collin Finnerty and David Evans with that crime as well as sexual offense and kidnapping.
But as months passed, the players maintaining innocence, numerous revelations cast doubt on the prosecution's case.
The alleged victim offered differing accounts of key events that night. Forty-six players submitted DNA samples but none matched genetic material found on her body and underwear.
In December, Nifong dropp ed the rape charges. The next month, he turned the case over to state prosecutors.
By that time, the North Carolina state bar had leveled charges against him for, among other things, making inflammatory statements and withholding key evidence from defense attorneys.
State prosecutors have yet to announce if they will proceed with the remaining criminal charges.
A year ago, John Danowski was like any other parent of a Duke lacrosse player, anguishing from afar.
"Listen, you can watch your child have a bad day; they can miss a shot or lose a game," he said. "For people to question their character, that was extremely painful."
When Duke reinstated the program in June, Danowski accepted the job because he believed it would be unlike anything in his 25 years of coaching.
To his surprise, every player — save for those charged — showed up, as did three of seven freshman recruits. The first team meeting was marked by excitement but also a palpable tension.
"The temptation is always there for us to try and prove ourselves on every play, in every game," Matt Danowski said.
So John Danowski has repeated a simple message: Just play. While his players made a pact — no parties, no drunken nights — the coach watched over them like a father.
"We kid around about hugging," Danowski recalled. "I'd say, 'Come over here. Gimme a hug.' "
Tall, with a straightforward manner, Ryan McFadyen does not come across as an emblem for the ills of college sports.
But shortly after the infamous party, he sent an e-mail to teammates suggesting they hire more strippers, kill them and skin them. Leaked to the national media, it was the final straw prompting coach Mike Pressler's resignation and the cancellation of the season.
"Obviously I made a mistake," McFadyen now says. "A juvenile thing to do."
Speaking publicly for the first time, the junior described the e-mail as a dark joke referencing a movie, "American Psycho," he and his teammates had seen.
It was also the worst thing to write at the worst possible moment.
"An experience I would not wish on anyone," he said. "It's something you look back on and say I hope it made me a better person, helped me mature at a time when I needed to."
The Duke players, who avoided interviews at first, have made a point of speaking to reporters the last few weeks. How else to show who they are?
But McFadyen has hung back, reticent.
"I'm a kid and obviously I had feelings of 'Why me?'" he said. "But you have to realize you made a mistake and take responsibility for your actions."
Last spring, City Councilman Eugene Brown spoke out about the so-called "lacrosse house," a tatty rental near school where the party took place. He described a neighborhood grown weary of loud parties and players urinating in adjacent yards.
Now, he says, public opinion has swung.
"I think most people are realizing that there's not much of a case," Brown said. "The focus has shifted more on the district attorney and how he screwed up."
An unusually large crowd of 6,485 attended Duke's season opener last month, evidence of growing support for the team, Brown and others said. Still, resentment persists.
Although few students believe the charges against the three players, "there are very divided opinions" on the campus, said Elliott Wolf, the student government president.
In the incident's aftermath, university President Richard H. Brodhead formed several committees, one of which recently submitted the "Campus Culture Initiative," calling for tougher admissions standards for athletes, an effort to curb drinking on campus and a mandatory course on racial and class differences in the United States.
"There are people who feel the underlying issues are just as pertinent now as they were a year ago," Wolf said.
Before the season, Sue Pressler — the former coach's wife — addressed the team, telling them it was time to get the monkey off their backs. The talk helped, but the past year is not so easily dismissed.
At a recent road game against Maryland, fans heckled the bench and flashed a sign: "No means no." With three teammates still facing prosecution, the players wear blue wristbands bearing the inscription: "Innocent!"
"We're always going to wonder how people see us," Matt Danowski said.
John Danowski refuses to think in terms of "always." The coach did not put credence in early, negative reports; nor does he believe the prosecution's recent stumbles have settled the matter.
"There was never any middle ground in this," he said. "Let's just wait and find out the facts."
For now, Danowski asks his players to focus on something more certain, something they can trust.
The simple act of lacing on shoes. Strapping on helmets. Playing a game they love.
david.wharton@latimes.com
From Herald Sun - Letters:
Duke is not your team
I've always admired the Cameron Crazies and felt Duke was a worthy ACC opponent. But I'm puzzled why some Durham and surrounding area residents support Duke or its teams. Duke is not your team!
Duke strives to be an Ivy League alternate to primarily the northeastern elite who are not rich, smart or connected enough for real Ivy League schools. What are the chances that you or your children can ever go to Duke? Even if you were academically qualified, how many Durham residents can afford $40,000 a year in tuition?
Or perhaps you think Duke is your team because you work there. Do you think that just because you empty their trash, cut their grass or fix their pipes, that makes Duke your team? Or is it because you think Duke's your city's team? Then why not cheer for N.C. Central University? At least most NCCU students are from North Carolina, not New Jersey, and you can cheer for your tax dollars at work.
What has Duke done for Durham besides wall itself off from the very community that supports it, use local residents as cheap labor, and then call them ugly names?
I was born in Durham, but my team is the real local team, the first public university in the nation, the university whose mission is to serve and teach the people of the great state of North Carolina, not New Jersey. Go Heels!
John Walker
Chapel Hill
John Walker is the reason why nfong is the da -- such hatred towards duke nad its students shows that these 3 fine young men never had a chance in this backwater hick town of angry white trash and angry black racists. Go Reade Colin and Dave! Despite these haters such as john walker you will be proven inncoent and welcomed back to the North !!!!
Yes, Mr. Walker is for UNC. He would have to be for the school that gave us J.R. Reid, Rasheed Wallace, Mr. McInnis, and Ty Lawson,who dunked on NC State Sunday with 1 second left and UNC up by 7, and uttered those words that Mr. Walker may have enjoyed:" F*** Yeah". Lots of class. We do know thar UNC does have a way to go academically as it is no better than the 5th best school academically in the ACC( Duke, a top 5 nationally, U VA 15th, Wake 24th, and then Georgia Tech , and ,of course, Ty Lawson's school. After Lawson signed with UNC his trashy web -site (displaying sex-trash) disappeared---like James-on Curry ,after caught dealing. Yes, UNC would be Mr. Walker's school and he probably could get a job over there as well.The truth and the facts have a stubborn way of coming out---that is why the Walkers and Nifongs ( Nifey is another UNC grad) are always acutely shamed in the end!! Bestest to all those who kept the faith during the Lax hoax!
"Bestest" being part of the trashy patois that Mr. Walker would understand. Count me as another whose alma mater is not Duke ,but who ,as everyone I know in Florida, has an amazing respect for Duke as a great university. By the way Duke's 1420 median SAT sure looks good compared to UNC's 1195 median. As I understand it, about 12% of Duke students come from the state of North Carolina and over 65% are receiving financial aid. Duke is incredibly generous to Durham and the state---and Duke did not take your tax dollars to be philanthropic!!
Dave Evans’ April 11, 2007 Speech. This statement was transcribed from video by FODU.
There was no ‘there’ there
by Dave Evans
Thank you all for being here. Just as this saga is ending I like to say that we all got stuck on the elevator on the way down and didn’t think we will make it here, but we finally have. I like to start up by thanking the Attorney General and the special prosecutors for their diligent and professional job of reviewing the case files. It has been 395 days since this nightmare began and finally today it has come to a closure.
From the very beginning, many of the men sitting at this table including myself, Reade and Collin said that we are innocent. And we are just as innocent today as we were back then. Nothing is changed. Facts don’t change and we’ve never wavered on our story. I would also like to thank all the attorneys at the table before I get into anything. They worked tirelessly. We have become family and we owe them our lives. And that’s the most I can say. I like to give them a hand, one more time. Applauds...
In addition, I‘ve got many other “thank you”s and I could never get to them all. My parents and sister, Lord knows, I put them through hell and back. Their support has let me remember and stay true to who I am in the face of tremendous scrutiny, speculation and outright fantastic lies. When things were being said about me by people who never have met me, and never cared to interview me, they kept me close. This could have separated us all, but we stayed close and became a stronger family because of it. I don’t take lightly the fact that their hard work, their success and their sacrifice allowed me to be represented by such fine lawyers. Many people across this country, across this state, would not have the opportunity that we did. This could have simply been brushed underneath the rug in another case and some innocent person would end up in jail for their entire life. It’s just not right and I thank God everyday that my parents have worked as hard as they have. Thank you! Hugs and kisses. I won’t do it now.
I’d like to thank all the members of the Duke University lacrosse teams, men and women, who stuck together. We know who we are. A great disservice has been done to the sport of lacrosse through this whole thing. The stereotypes are just not true. They sell magazines, they sell newspapers, but they are not anything that represent us as a sport, as a school, as a university, or as a team. And, they are wrong. Along those lines I’d like to thank my coach Mike Pressler who has sacrificed everything, 16 years he spent building a team. He fell on the sword so that we could continue as a team at the university that he loved. We owe him everything. I know he is out there. Applauds…
I can say over the past year I have gotten to know Reade, Collin and their families very well. You couldn’t find two more incredible boys, men -- people don’t like us being refereed to as boys. We are men and we accept responsibility for that. I could never have imagined what they have gone through. I was indicted the day after my graduation. As difficult as that weekend was, finding out on Friday I was going to be indicted on Monday, I had reached a point in my life where I could take some time off and reflect. I still worked; I did not want to have idle hands. But these boys were ripped out of school. The team that they loved, their friends, everything that they ever worked for was taken away from them based on lies. Now, they will try to gain whatever they had before -- a university that supports them, their education most importantly. I can tell you they are exceptional students, exceptional athletes and exceptional young men who are mature vastly beyond their years. I hope that universities across this country realize that they are true assets. I hope you come to them and offer some kind of support and aid. All they want to do is to go school and graduate. I had that honor. Let’s just hope that they can as well. Applauds…
I’d like to say once again, I said it a long time ago. These allegations are false. These charges were false and should never have been brought against us. We fully cooperated. From the beginning there was never a “blue wall of silence!” Look at the facts of the case and you will see that. It’s painful to remember what we went through in those first days. It’s a testament to all our character that we never lashed out; we stood there strong. If you want to know what character is, walk around a campus and see a photo of yourself with “castrate” signs on it; and people in the media relating you to Hitler and other terrible people in history -- when you have done nothing wrong. That is character, to sit there and take that as the young men in the Duke University lacrosse team did.
I hope that something good can come from this past year that was robbed from our lives. All of the members of the Duke University lacrosse team have gone to hell and back! I hope, all of us here, sincerely hope that it was not in vein. First and foremost, I hope that people can realize innocent people can be charged with crimes and it is up to the justice system to determine guilt or innocence, not the news, not speculators, and not people with some other agenda. That’s why there is a legal system. Today, the legal system has prevailed.
Secondly, I hope that the state of North Carolina can address that arose from our case: most notably, the grand jury procedures. They are a check on the power of the prosecutor and in this state there are no records. What was used to secure indictments against the three of us? We have no idea. The evidence shows that exculpatory evidence was there but we cannot go back and understand why we were indicted. There was no ‘there’ there. There was no factual evidence. It was speculation. We do not know. How can we, as a country, in the legal system control the people who are suppose to enforce it? If they can simply say whatever they want to say, produce whatever they want to produce, and nobody else has an opportunity to see or ever question it? I hope that the state assembly can address that. I know they addressing some other issues as it relates to this.
In closing, I am excited to get on with my life. It has been a long year, longer than you could ever imagine. I hope these allegations don’t come to define me. I hope that the way I could be remembered is sticking up for my name, my family and my team against impossible odds. Impossible odds, the entire country against us! And we fought back for our names. You can never tell what life is going to give you, what curve balls! You can be judged on how you handled the situation that was brought to you. My family and I can sleep at night knowing that I did everything that I was told to do. I never lied. I fully cooperated, starting the day after the party. I can walk my head high and sleep at night knowing that I could not have done anything else to prove my innocence. This day has been coming for a long time.
Again, I like to thank professionalism of the Attorney General’s office for giving me back my life. I look forward to leading it. Thank you!
This article was sent to FODU by Professor Banzhaf on April 27, 2007.
AG Report Strengthens Case for Nifong Disbarrment and Liability
Duke Univ. Urged to Seek His Dismissal and Hold Him Liable
A report just issued by the North Caroline Attorney General and the North Carolina Justice Department greatly strengthens the case for both the disbarment of Durham County DA Michael Nifong, and for holding him personally civilly liable for violating the constitutional and other legal rights of the former Duke lacrosse players charged with rape, says public interest law professor John Banzhaf.
Banzhaf was one of the first to publicly point out that, contrary to the claims of many pundits, Nifong could be sued despite what is generally known as prosecutorial immunity -- a step which appears to be have been a factor in forcing Nifong the dismiss some of the charges and to step down from the case. See here AND and here.
"This new report greatly strengthens the civil case against Nifong, and the case for his disbarment," says Banzhaf, "because it further documents and analyzes additional ethical lapses and prosecutorial wrongdoing. This report, combined with the detailed charges brought by the North Carolina State Bar, as well as Nifong's continued insistence that many of the actions he now admits to weren't unethical, makes the clearest possible argument that he should be removed from power before he can harm others, especially other students at Duke against whom he may now have a strong grudge."
Indeed, Banzhaf has suggested that Duke itself might have a legal cause of action against Nifong, one which would also be greatly strengthened by this new report.
"Duke should consider bringing a legal action against Nifong for the injury his illegal acts caused the University and its students, and should also consider calling for his resignation or ouster to protect its students," says Banzhaf, noting that Nifong might be liable under a variety of legal theories including defamation, false light, prima facie tort, and other actions.
Nifong's numerous illegal and even unconstitutional actions damaged Duke University and its students, notes Banzhaf, and the law may provide a remedy where an action directed against a few individuals foreseeably resulted in harm to many. By clear implication Nifong charged that many of the students were "hooligans" and worse, that the University tolerated if not encouraged illegal and outrageous behavior, etc. Duke's reputation has been stained, and the reputation of its students sullied, suggests Banzhaf.
Duke should also consider publicly calling for the resignation of Nifong to protect its students, argues Banzhaf. Here we have a rogue prosecutor who, if he didn't have a clear animus against Duke students before, certainly has reason to have an even stronger one now. Since he argues
to this day in his disciplinary proceeding that many of his acts did not constitute either a violation of ethics or of law, he is even more likely to repeat this sorry performance if another complaint against one or more Duke students is received.
"A DA with a clear grudge against Duke, who probably would like nothing better than to try to vindicate himself in the eyes of many of the voters by bringing a successful criminal proceeding against one or more Duke students, and who has shown a willingness to violate their legal and constitutional rights if necessary to do so, is a clear and present danger to every student on the Duke campus, and a risk that Duke can ignore only at its peril," says Banzhaf.
"Many feel that Duke let its students down terribly in this situation, but its excuse is that they did not have the facts at the time to know how wrongful the charges and Nigong's conduct was. Now that they have the facts -- from both the North Carolina Attorney General and the North Carolina Bar Assocation -- it remains to be seen if they will refuse to stand behind their students again by not even attempting to both sue Nifong and remove him from office. Nifong hurt Duke and all its
students, and Duke is in a unique position to take effective action if it has the courage to do so."
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This column was published in the print edition of Herald Sun on May 1, 2007.
Bringing some good out of lacrosse case
We often decide prematurely that an accusation is true.
By Robinson O. Everett, Guest Columnist
The Bible records in Genesis how a bad deed – his brothers’ selling Joseph into slavery – later had some good results – his providing safe heaven in Egypt for his father and brothers when famine struck their homeland. Similarly our Durham and North Carolina communities should now look for ways to bring some good results out of the lacrosse rape case disaster.
Hopefully one such result will be an increased effort to throughout our community to heal divisiveness along lines of race and gender. N.C. Central University Chancellor James Ammons’ emphatic negative response to recent to a recent column in the Campus Echo is a noteworthy step in that direction. I trust his successor will follow this precedent. Likewise, the recent events should stimulate Duke community to reach out still more to those around it, and by the same token all of us in Durham need to be more appreciative of the immense contributions Duke makes to our lives in many ways.
The circumstances of the lacrosse case should cause State Legislature to review – and perhaps modify—the way in which our grand juries operate. Our forefathers intended that the grad jury should provide a shield for the innocent, but currently a grand jury indicts almost solely on the basis of police reports. Consequently, some 75 indictments may be returned in a single morning by a North Carolina grand jury, and the members of the grand jury have no real opportunity to use their broad experience to evaluate the credibility of someone like the exotic dancer. I am not advocating that grand juries become tools for prosecutors to use in building their cases, as is often true in federal system. But, I am suggesting that now is the time for legislators – with aid from the State Bar – to reexamine the role of grand juries.
I trust that the lacrosse case will have the good result of reinforcing our awareness that innocence is presumed and that we should not rush to judgment. The influence of the media now is so great that we often are led to decide prematurely that an accusation against someone is true and not wait for the evidence to be presented in a proper form.
Ironically, in some circles of the Bar and the general public, undue haste has been displayed in reaching the conclusions that Mike Nifong is a “rogue prosecutor” who has intentionally violated many rules and should be severely punished. Partly this is a reaction to some prior cases where prosecutors who knowingly concealed information have not received adequate censure, but in any event we need to delay in reaching conclusions about Nifong’s conduct until all the evidence has been presented in the hearing scheduled before the State Bar.
In the wake of the lacrosse case, our legislature and the State Bar should consider carefully what steps should be taken to prevent future overreaching by prosecutors. Our present system contemplates control by citizens of the district who vote for a prosecutor. This may need some change. However, the recent controversy at the federal level about the summary firing of eight United States Attorneys should make it clear that centralized control in Raleigh of local prosecutors might also create problems.
In any event, let us all work together to consider thoroughly how we can get some future good out of this evil of the lacrosse case.
The write is a law professor at the Duke University School of Law.
May 3, 2007
Professor Robinson O. Everett
A moral famine of biblical proportions swept across part of your campus during the spring of 2006.
Any future good from this mess should begin on the Campus of Duke where a sizeable percentage of gifted people in the USA work and study.
To whom much is given...much is expected.
Lawyer Williamson of the NC bar called Everett's prior artices giving excuses for Nifongs hiding excupaltory evidence preposterous. would like a comment from Everett on that - how come he was not pleading for all the evidence to come out when the guys were indicted.
DA Nifong Resigns Hoping to Cut Losses
Faces Huge Civil Law Suits - Was a Danger to Duke
DA Michael Nifong’s resignation is probably designed to try to cut his losses, and to give him some cover from disbarment and civil law suits by the students and their families, and possibly even by Duke University, says law professor John Banzhaf. "Disbarment and law suits against him now might seem like kicking a man when he's down."
While many commentators are now openly suggesting that the former Duke lacrosse players should sue Nifong -- a concept initially advanced and explained by public interest law professor John Banzhaf -- no one has yet suggested a possible law suit by Duke University against Nifong for the serious harm he has caused the University.
"Duke should consider bringing a legal action against Nifong for the injury his illegal and unconstitutional acts caused the University," says Banzhaf, noting that Nifong might be liable under a variety of legal theories including defamation, false light, prima facie tort, and other actions.
Nifong's numerous illegal and even unconstitutional actions damaged Duke University and its students, notes Banzhaf, and the law may provide a remedy where an action directed against a few individuals foreseeably resulted in harm to many. By clear implication Nifong charged that many of the Duke students were "hooligans" and worse, that the University tolerated if not encouraged illegal and outrageous behavior, etc. Duke's reputation has been stained, and the reputation of its students sullied, suggests Banzhaf.
Nifong’s resignation also provides long-overdue protection for Duke’s students, argues Banzhaf. Here we have a rogue prosecutor who, if he didn't have a clear animus against Duke students before, certainly had reason to have an even stronger one after he was forced to step down
from the rape case.
Since he argues to this day in his disciplinary proceeding that many of his acts did not constitute either a violation of ethics or of law, he was even more likely to repeat this sorry performance if another criminal complaint against one or more Duke students were to have been made.
"A DA with a clear grudge against Duke, who probably would have liked nothing better than to try to vindicate himself in the eyes of many of the voters by bringing a successful criminal proceeding against one or more Duke students, and who has shown a willingness to violate their legal and constitutional rights if necessary to do so, was a clear and present danger to every student on the Duke campus," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
Excellent article. Let's hope Duke administration has the willingness or the smarts to take action against Nifong as suggested by Professor Banzhaf.
Nifong Guilty Finding Bolsters Law Suits
Three Strikes Means He May Finally be Out
DA Michael Nifong’s crying and resignation from office didn't prevent the disciplinary committee from unanimously finding him guilty on all of the major ethics charges -- that his actions involved "dishonesty, fraud, deceit and misrepresentation" -- a determination which would greatly strengthen civil law suits by the students and their families, and possibly even by Duke University, says law professor John Banzhaf, whose early suggestion of a civil suit may have helped force Nifong to recuse himself.
"Now that the NC State Bar, its disciplinary committee , and the state's attorney general have all declared that Nifong's actions were illegal, it's time for the students and their families to seek real justice," says Banzhaf, noting that these independent determination are likely to sway any jury. "Nifong now has three strikes," he argues, and Nifong should be forced to repay the millions of dollars the players' families were forced to mount a defense, as well as compensate them for their
mental distress.
While many commentators are now openly suggesting that the former Duke lacrosse players should sue Nifong -- a concept initially advanced and explained by public interest law professor John Banzhaf -- no one has yet suggested a possible law suit by Duke University against Nifong for the serious harm he has caused the University.
"Duke should also consider bringing a legal action against Nifong for the injury his illegal and unconstitutional acts caused the University," says Banzhaf, noting that Nifong might be liable under a variety of legal theories including defamation, false light, prima facie tort, and other actions.
Nifong's numerous illegal and even unconstitutional actions damaged Duke University and its students, notes Banzhaf, and the law may provide a remedy where an action directed against a few individuals foreseeably resulted in harm to many. By clear implication Nifong charged that many Duke students were "hooligans" and worse, that the University tolerated if not encouraged illegal and outrageous behavior, etc. Duke's reputation has been stained, and the reputation of its students sullied, suggests Banzhaf.
Nifong’s resignation also provides long-overdue protection for Duke’s students, argues Banzhaf. Here we have a rogue prosecutor who, if he didn't have a clear animus against Duke students before, certainly had reason to have an even stronger one after he was forced to step down
from the rape case.
Since he argues to this day that many of his acts did not constitute either a violation of ethics or of law, he was even more likely to repeat this sorry performance if another criminal complaint against one or more Duke students were to have been lodged with his office.
"A DA with a clear grudge against Duke, who probably would have liked nothing better than to try to vindicate himself in the eyes of many of the voters by bringing a successful criminal proceeding against one or more Duke students, and who has shown a willingness to violate their legal and constitutional rights if necessary to do so, was a clear and present danger to every student on the Duke campus," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
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