Thank you for summarizing succinctly the behaviors of the academy that have made this case so scary. Ultimately, the statements of the 88 faculty members and the complete lack of backbone and leadership exhibited by President Brodhead are the important story at Duke. Unfortunately, they have conveyed the impression that Duke is a cesspool of political correctness. Why would any parent send a child into that environment?

Mommy, at 8:05 am EST on December 28, 2006

Wonderful analysis although it could have been asked why in a purported multicultural world the only culture that can be vilified with impunity is that of white males. The next question is what to do about it. Major universities in the U.S. exist primarily to generate donations. The only penalty that would hurt Duke would be the interruption of those donations. Donors turn off the tap, partularly if you are a member of a group that Duke was so eager to smear in its rush to judgement. Make racism, sexism, and classism hurt.

Thanks, at 9:16 am EST on December 28, 2006

Duke’s Behavior

KC Johnson argues that the Duke lacrosse case is an example of “McCarthyism.” I think that’s a misuse of the term. McCarthyism refers to punishing people for their free speech. Violating the due process rights of accused criminals is bad, but it’s not McCarthyism. The people who denounced the accused students were simply following a common view: anyone arrested for a serious crime is probably guilty. Most of us don’t expect prosecutors to be incompetent, and until more proof of innocence came out, it would be rare to find anyone speaking out for the rights of people who might be guilty. (How often do we see this much attention to prosecutorial misconduct when the accused are poor and black?)

The key campus issue here is the misconduct of Duke University administrators. Suspending an entire team because of the alleged extracurricular misdeeds of some members of it is never right, and it should be condemned as such. Yes, the students should be given a stern finger-wagging for their sexist and racist and just plain stupid actions. And if some kind of criminal activity can be proven, perhaps (but only perhaps) those guilty students, after due process, should be suspended from the team. But collective punishment for individual actions is never right. I think KC Johnson should be primarily criticizing the Duke administration, not blaming Duke professors for failing to crusade against a prosecutor.

John K. Wilson, at 9:35 am EST on December 28, 2006

The Real Story of the Duke Lacrosse Case

C’mon, IHE, you can do better than this. If I wanted my news refracted through the lens of the never-ending “culture wars", there are hundreds of web sites to which I could turn. Instead, I come to IHE for a more nuanced and balanced analysis of events on campus.

Anyhow, the real story of the Duke lacrosse case has little to do with the Group of 88 or political correctness or any of the other bogeymen that cause the hearts of right wing culture warriors to skip a beat. Most of the activity that took place on the Duke campus in the wake of the rape charge was little more than a sideshow.

The real story is, unfortunately, far more common and much more damaging. The real story in Durham is one of prosecutorial ambition and overreach. We know that prosecutors sometimes develop a theory of a case and cleave to it with a single-minded devotion, even when both evidence and common sense should tell them not to (the McMartin pre-school case in L.A. is just one of the more notorious examples of this practice). We also know that ambitious politicians can sometimes let their aspirations get ahead of their better judgment, particularly when they are handed a once-in-a-lifetime shot in the national spotlight.

It is, on the other hand, far more difficult to believe that a veteran prosecutor, with a quarter century of experience and hundreds of cases under his belt, would suddenly decide to base his actions on the protests and appeals of a handful of campus leftists.

If there is a “man bites dog” angle to this story, it is, of course, the fact that this apparent prosecutorial overreach worked against the interests of privileged white male students at an elite private university. Fortunately, such individuals have the resources to defend themselves vigorously and successfully (and without the help of the right-wing noise machine). I just wish that the culture warriors of the right would generate the same sense of outrage about the fact that this sort of thing occurs far more often in the case of indigent defendants (not to mention the blatant denials of basic civil liberties that are taking place right this moment in the so-called “War of Terror").

(By the way, since the issue has been raised, it seems to me that as long as privileged white males at an elite university have no problem with the practice—yes, the legal practice—of hiring struggling young African American women to disrobe for their pleasure, we might want to hold onto the race/class/gender paradigm for just a little while longer.)

Unapologetically Tenured, at 10:45 am EST on December 28, 2006

bigger problems

This article is interesting, but misguided.

First of all, unlike decisions made by legislatures, people facing criminal penalties have direct access to the process via their attorneys, and the courts. No amount of public condemnation, petition-writing, or whatever is likely to alter procedures. In fact, just as we condemn “trial by media” one could also condemn “pardon by media.”

Secondly, Duke has always been, and always will be a party school. Frat boys and jocks will always enjoy special status. Of course, people expect them to behave worse. This is their culture, and for the most part it is respected. Duke is far from a cesspool are political correctness.

Third, none of the faculty, or students really have access to all of the facts. Even at this late date where there was some testimony subject to cross-examination, it is simply a portion of the known facts and underlying procedure. Faculty always rush to judgment. They talk about legal matters outside their expertise without reading them. They rely on newspaper reports. This, unfortunately, is the norm.

Fourth, for better or worse, most schools like to maintain good relations with local police and prosecutors.

Fifth, It is ridiculous for the author to say that it is a first for a motion for a change of venue to be based on pre-trial publicity or public accusations. This is the norm.

Sixth, I agree that the DA has likely behaved improperly (based on what I have heard), but, quite frankly, withholding exculpatory evidence, while condemned by the Supreme Court, is fairly common. It is unethical (in the “professional responsibility,” sense of the word) but there are many ways that a prosecutor can morally and legally justify such behavior, leaving the defense to rebut such justifications after the fact (or after a convictions.) Strangely, there is no public outcry about this practice in most cases.

Larry, at 11:45 am EST on December 28, 2006

UT, Is this a legal website?

Thanks for the insight UT.

As you pointed out, IHE is about campus life and events. Therefore, it seems to me that having a column on the reaction of faculty members to certain events on campus is actually of more relevance here than the actions or misdeeds of a District Attorney or of the justice system. A column of the type you mentioned (and I suspect there have been many), would be suited for a Bar or other legal website. The fact that you disagree with K.C.’s opinions does not make the subject matter (again, the reaction of faculty to campus events) in après po (yeah, probably mispelt this).

In this narrow area that KC writes about, do you have any comments? Do you think the 88 professors acted correctly or professionally? Do professors have a duty to speak out in these cases and if so should they do so to all perceived injustices or just to selected ones?

Two minor observations:

1)Could you elaborate on how these students were privileged? What privileges did they receive? Did they have the privilege of not having to study? Of having grades handed to them? Of not having to practice? Were they admitted to Duke based solely on their social status and not on their high grades? For my part, I try not to confuse effort plus advantage with privilege. There is a big difference.

2) On a very small point, as I understand it, the “privileged white students” did not order “a struggling young African American woman” to disrobe for them. This is what was sent. I’m no fan at all of their behavior in ordering strippers but don’t make this more then it was, read the facts of the case please.

Stm60, UConn, at 12:05 pm EST on December 28, 2006

KC Johnson’s coverage of the Duke fiasco has outdone the journalists and put to shame the academics at Duke who used this case to amplify their trigger-happy anger. Just one more public embarrassment for the academy, and more retrenchment by the faculty within a cocoon of righteous resentment.

mark, at 2:55 pm EST on December 28, 2006

different planets

Stm, Quite frankly, most lawyers don’t really care about these things until there is an appellate opinion or something that would bind others. However, this case is notable because the District Attorney has done a lot more than just make arguments in court, and he has drawn national attention in both the legal and lay press. So, IHE is just another voice in the cacophony, and since the events revolve around a campus and the administration’s efforts to deal with it, it is fair game. There really are not too many legal websites where disinterested people with a comprehensive knowledge of both the substantive law, and local practice and procedure will opine at loud. But there are many people with general views on rape, prosecution, justice, prosecutors, and jocks are willing to opine.

HJ, I don’t know how long you have been in practice, but photo identifications are often defective. Sometimes the defect is fatal to the evidence. Sometimes it isn’t. Whether this photo ID was defective might not even matter, depending on whether the DA chooses to introduce it or not. You don’t really have the knowledge to know exactly what evidence everyone has. Unfortunately, as criminal matters are now largely resolved via pre-trial procedure, people do not really have the same access to evidence that the parties do. The academic “lynch” mob will likely just repeat what they hear on TV. But so will most Americans.

Larry, at 2:55 pm EST on December 28, 2006

cacambo....

Take another look at Lubiano’s article. You’ll note that she does indeed refer to the accused as ‘Perfect Offenders’ right at the top — in a subtitle.

KC talks a bit more about this Lubiano’s writings and actions on his website DurhamWonderland. It is obvious that he, too, actually read the whole article and appears to have understood her every word.

If you’d care to read more try searching on Lubiano at:

http://durhamwonderland.blogspot.com/2006_07_01_archive.html

http://durhamwonderland.blogspot.com/2006_08_01_archive.html

http://durhamwonderland.blogspot.com/2006_11_01_archive.html

jmoo, at 8:10 pm EST on December 28, 2006

Prosecutorial misconduct Duke case

On January 8 I will report for jury duty at my county court house. I will take with me my thoughts regarding the prosecutorial misconduct I’ve seen in this case. I will no longer consider that the defendant must have done something to get arrested and to trial.Thanks to this case, prosecutors will no longer be considered by me to be on the high road.

Rolf Sabye, at 8:15 pm EST on December 28, 2006

Comments

Many thanks to those who read the piece and took the time to comment.

A couple of quick responses:

To Larry: “Faculty always rush to judgment. They talk about legal matters outside their expertise without reading them. They rely on newspaper reports. This, unfortunately, is the norm.”

I agree. It is not, however, the norm for 88 faculty to issue a public statement denouncing their own students’ behavior. In fact, I can’t recall a single instance of comparable behavior in recent years. Of the 88, not one has retracted his or her signature as revelations have come out calling into questions their assumptions.

“Fifth, It is ridiculous for the author to say that it is a first for a motion for a change of venue to be based on pre-trial publicity or public accusations. This is the norm.”

I didn’t say that. I said that this is the first case (to my knowledge) in recent history in which accused students cited the behavior and statements of their own professors as grounds for a change of venue. We’re nearing the deadline for admissions for the class of 2011. That’s quite an advertisement for Duke.

To U.T.:

If you want to read about legal analysis relating to the case, I invite you to visit my blog:http://durhamwonderland.blogspot.com/

I’m not sure how long you’ve been a professor, but it’s been my experience that during spring break, students (black, Hispanic, Asian, and white; male and female) often do tasteless and sexually coarse things. This isn’t behavior that I find commendable. But between a group of college students hiring strippers and a group of professors publicly denouncing their own students at a time of political and legal fluidity locally, I have no hesitation in condemning the latter as guilty of worse behavior.

Also, the article never claims that Nifong based his actions on the statements of college professors. The article analyzes what the response to these events says about Duke.

KC Johnson, Professor of History at Brooklyn College, at 8:30 pm EST on December 28, 2006

I disagree with cacambo’s criticism of KC and with his reading of the turgid Libiano article. Her central point seems to be that ALL acts of racism and sexism — most of which, she says, are “banal and routine” — should nonetheless be treated with the utmost gravity and societal outrage, even if they (unlike the Duke case) don’t feature “perfect offenders” (i.e. white, male, well-off athletes), or a “perfect victim” (poor but upstanding, black, single mother, honor student, as the accuser was initially represented as being), or a “perfect crime” (a violent gang-rape accompanied by racist abuse.) Libiano isn’t deploring the use of the concept of the “perfect offender;” she’s advocating it. And she clearly (to me)is placing the Duke lacrosse players in the calegory of “perfect offenders,” which is just what KC said. Now, Libiano’s prose, syntax and argument are so abysmal that I may have misunderstood her; but I think I haven’t, and that the criticism of KC as “sloppy” is unwarranted.

Duke J.D., at 5:25 am EST on December 29, 2006

substance, ethics, and authority

STM, Look, I have been in practice for well over a decade now (which I realize is less than your two decades). While, of course, the goings-on at a trial court are of some interest to people who like to watch trials, but they don’t effect day-to-day practice, because

1) It unclear what the ultimate result in this trial be;

2) we do not have access to the full record so we don’t even know what the actual positions of any actors are, i.e. it is difficult to say if the media is accurately repeating a policy of the DA (no statute or regulations or anything approaching a “law” of sorts has been adopted); and

3) no binding authority has been generated yet.

This story is of only passing interest so far, because it is good fodder for CourtTV or a newspaper. It is easy to condemn the prosecutor, alleged victim, or defendants, but until more facts come out, and until legal issues are resolved, none of this really matters. Maybe, some commentators are right, “Nobody is too sympathetic.”

On a side note, there is a body of law related to dealing with prosecutorial misconduct, but none of it seems to be of interest to most of the commentators. This law is made both in the context of criminal proceedings, where the remedy is exclusion of evidence, dismissal, or monetary sanctions, or in the context of administrative proceedings where the sactions include reprimand, or disbarment.

On a side note, there is a body of law related to dealing with prosecutorial misconduct, but none of it seems to be of interest to most of the commentators. This law is made both in the context of criminal proceedings, where the remedy is exclusion of evidence, dismissal, or monetary sanctions, or in the context of administrative proceedings where the sanctions include reprimand, or disbarment. As you may be aware, there is a bit of a controversy regarding whether rules of professional responsibility may be “backdoor” rules of criminal procedure. This dispute is quite rich, and I think it will probably gain some attention at the national level in the next few years. Unfortunately, whenever I talk about outside the context of people who devote their lives to it, it bores others.

Larry, at 9:50 am EST on December 29, 2006

Economic profile

“The rush to judgement on the basis of the boys’ skin color and/or economic profile ..”

Something the academic lynch mob managed to forget about the accused —

Two of the three accused are from working upper-middle-class families. Comfortable — but by no means wealthy or super-wealthy.

This prosecutorial farce is probably bankrupting their families. As if anyone cared — a life’s work, wiped out the Stalinist thought-police of academia and a bumbling managing prosector.

H.J., at 10:00 am EST on December 29, 2006

That an ambitious prosecutor viciously mis-managed the court case for his own gain is undeniable — as is the unfortunate reticence of the university administration and faculty to object to the travesty of justice perpetrated by the legal sytem. But to paint the lacrosse team as innocent victims of campus political correctness is absurd. Students (of any color) who engage in binge drinking, hiring strippers, shouting racial epithets, and so on are worthy of suspension regardless of the behavior (and lies) of their apparent victim.

E.H., at 12:30 pm EST on December 29, 2006

Administrators alone?

JK Wilson argues that the administration should receive criticism in the Duke case. Yes, of course they should.

But that was not the goal or point of Johnson’s article. If Wilson had read the title of the article (which he apparently skipped), he would have seen “The ACADEMY and the Duke Case.” Not “The Administration and the Duke Case” or even “All Campus Employees — Administration and Faculty — and the Duke Case.” The point of the article is to highlight faculty responses to the case, specifically the actions of legal authorities. No where in the article does Johnson assert or even imply that the administration are entirely blameless, as claimed by Wilson. Wilson should have done two things when reading and responding to this article: 1) not let his own biases about administrations cloud how he interprets this article and 2) focused on the point of the article.

Criticizing this article for not focusing on the administration is like criticizing a freezer for not heating your food or a car for not flying. If you want to criticize the administration, then write an article about it or ask Johnson to focus on it in another article.

PS, at 4:50 pm EST on December 29, 2006

To E H

Your incredible bias, bile, and hypocrisy is showing! Please share with us your source of evidence for claiming that the accused students in this case, each personally, are, in fact, binge drinkers, had any part whatsoever in hiring the stripper, or used racial epithets, “and so on” and so are, therefore, “worthy of suspension.” I have seen nothing in print or otherwise to confirm such allegations and doubt you have any proof whatsoever for any of your allegations with respect to these particular boys. But, it obviously does not matter to you because, like the 88 faculty members to whom KC Johnson refers, these boys are clearly guilty simply on account of the fact that they are white males.

Let me also second B.D.’s comment – Although I do not approve of the drinking and debauchery that is far too prevalent of today’s campuses, the facts are what they are, and these activities are not limited to the white male portion of the academic community. So your claim that the accused are worthy of suspension for what you assume or presume are their “other” offenses, even if true, is disingenuous and ridiculous, as I am quite sure you would not call for the suspension of members of other non-white-male groups on campus who are routinely guilty of the same “other” offenses you have imputed to the accused in this case.

BobDoyle, Adjunct Professor of Finance at St. Joseph’s University, at 4:55 pm EST on December 29, 2006

Where Is Judith Butler When You Need Her?

http://www.petitiononline.com/tosexton/

If she changes a few nouns here and there, Judith Butler would have herself the perfect petition through which to object to the grievious abuses suffered by these three Duke students.

Consider this sentence:

“The recent actions of your office, now widely publicized, defy all protocols of civility and fairness and herald a bellicose approach to [the treatment of the accused undergraduates] and [their] demands for [due process, decent support from school administrators, and provisional assumption of innocence until proven guilty.”

Where is Butler and her entourage of emotional luminaries when you really need these people? Why doesn’t she stick her nose into

Student, at 6:30 pm EST on December 29, 2006

I was going to add: “Why doesn’t she stick her nose into institutions that actually demonstrate endemic persecution and deliberate black-listing of students?”

It’s so much easier to go after those presidents who actually give a crap about their students, isn’t it?

Student, at 7:10 pm EST on December 29, 2006

Stm, Now that you defined your terms I agree with the bulk of what you are saying. As a social observation, I should note that when lawyers discuss high-profile trial-level cases it is usually as a matter of personal, rather than professional curiosity. (Granted, for some these things obviously will blend.) Connecticut lawyers (of which I am one) really don’t have the background to understand exactly what is going on, and don’t swim in NC’s rule of procedure (or ethics) in the way that NC lawyers do. Indeed, in some key areas they are quite different. Instead the conversations that you are privy to are probably attributable to 1) a bizarre need of professors to be quoted in public; or 2) a tendency to read newspapers and try and guess what is going on. I, of course, am probably guilty of both of these things, as I frequently read about ongoing cases and try analyze them for myself, and share my views with others. For us, it is like talking about sports.

Anyway, if the ethics charges are amended to include the alleged exculpatory-evidence-witholding, and if they are ultimately successful (the likelihood of which I can’t even begin to speculate upon), this case will take on a lot more substantive import.

Larry, at 11:20 pm EST on December 29, 2006

“For us, it is like talking about sports.”

Well, that may be, but for lawyers, the matter is nothing whatsoever like talking about sports. It is a vastly more serious matter than a sports chat, as the extensive discussion in legal circles and disciplinary proceedings prove.

JBM, at 7:55 am EST on December 30, 2006

the good to come out of this

JBM, No. For lawyers, it is like talking about sports. Even after the disciplinary proceedings commenced, there still are very few lawyers involved. Right now none of the proceedings binds anyone, and apart from the participants the law is no different than it was a few years back.

Perhaps, at some later date, the disciplinary proceedings may result in binding authority in North Carolina. Even then, an application of Rules and Regulations of the North Carolina State Bar, which track (but do not mimic) the ABA’s model rules of professional responsibility will be only persuasive authority.

Quite frankly, the problems that I see with this prosecution are not unique. Statements by lawyers to the press are often unduly inflammatory, and I have speculated are unethical. But, they are usually not in the context of such a celebrated case where people might sympathize with the defendants. Likewise, in some (but not all) jurisdictions Brady violations (not included in the Ethics complaints) are a constant complaint of the criminal defense bar.

Unfortunately, JBM, when lawyers talk about things in public to non-lawyers, their conversation is often dumbed down. Indeed, while the actual practice of law is extremely nerdy and often boring to all but a select group of people (myself included) , when making public statements, people tend to make it seem as fun as watch TV.

Let me give you a handy guide: If a lawyer is speaking of an issue, and there is no substantive effect to his comments (i.e. it is not in a brief, or legal argument before a someone who can effect his client’s interests don’t depend on it), it is likely not for consumption by other lawyers. This is why I encourage everyone to cite: so that non-lawyers don’t rely on broad statements by lawyers that are not subject to any scrutiny by an truly adverse and educated party.

Lawyers making public statements are not required to adhere to any conventions that guide the practice of law. Instead, even well-meaning lawyers will simply try and relate a legal issue to the limited experience of non-lawyers. Ironically, in this case, Mr. NiFong has done a pretty good job of expanding the experience of said non-lawyers. So, perhaps, maybe some good might come out of this. Perhaps there will be a common understanding of the reasons not to rush to judgment. Perhaps people will see that Brady v. Maryland, 373 U.S. 83 (1963) is not simply an overtechnical analysis by the Supreme Court, but as fundamental to all Americans as apple pie.

Larry, at 11:35 am EST on December 30, 2006

Still With Ya, B.D.

You’re right, B.D., RWH must be beaming in from some strange place. He agrees with you completely – and then some – and still incurs your criticism.

You earthlings are one weird bunch!

RWH

RWH, at 4:25 pm EST on December 30, 2006

Larry—

Why don’t you let lawyers, like me and at least one poster here, speak for ourselves. There’s more to the problem of prosecutorial misconduct than some sports dispute. Reviewing the debate about Nifong would be a good place for you to start familiarizing yourself with how lawyers understand the need to address prosecutorial corruption.

It’s not an academic chat for us, so you should not mistake the way you understand the matter with anything thought by attorneys who deal with these problems on a practical basis. We just don’t think the same way you do.

JBM, at 5:05 pm EST on December 30, 2006

encouraging debate

JBM, If your opinion differs from mine, go ahead and say it. I am quite familiar with the “debate” about discipline of prosecutors. Unfortunately, I think that it is obscured by honest differences regarding the “substance” of underlying prosecutions. While, of course, I understand we are talking about what is common known as “Model Rule 3.8(f)” a good example is the fact that many think that 3.8(e) is really a rule of criminal procedure. After all, if a target of such a subpoena invokes this rule to quash a subpoena (even under 3.8(e)(3)) it would stand to reason that the prosecutor should be professionally disciplined, even though a court might just have viewed certain facts differently.

I agree that stimulating debate on these issues is good. I don’t think, however, that Nifong is behaving corruptly. Perhaps he has shown bad judgment, and a lack or prudence, but there is no indication that he is behaving corruptly. Then again, maybe I missed a story on the news.

HJ, Personally, I agree, he went “over the top” but as to how far he deviated from the norm, I am not quite sure. Happy new year right back at you.

Larry, at 9:25 pm EST on December 30, 2006

Much Less Than Meets the Eye

I very much doubt that being in the south had much to do with Duke’s reaction to the lacrosse case, nor do I believe that “political correctness [whatever that hoary cliche means] is the price that Duke University pays to receive a high ranking in the various forums that rate colleges". But we can debate that some other time.

The portion of Professor Cohen’s comment that *really* floored me was the following: “In our rush to separate ourselves from our racial past we have kept race alive as a determining lens through which to view events.” We??? WE?!?!? Is Professor Cohen truly suggesting that it is the professoriate that is “keep[ing] race alive” as a social issue in the United States? Do he actually think that if we’d all just shut up about race, class, and gender, America would become a perfectly (or even remotely) egalitarian society?

I think the professor tips his hand somewhat by referring to our country’s “racial past". True, the past was often terrible, much worse than today, but it is naive at best to suggest that serious problems with racial inequality are only of the past. Debates about income disparities, unequal educational opportunities, discrimination in law enforcement, attacks against affirmative action, and all the other things that are so glibly dismissed as PC involve not only our racial past, but our racial *present* and (as long as we pretend the issue doesn’t exist) our racial future.

Further, I think Professor Cohen overstates things badly by saying that the Duke lacrosse case “is such a clear example of how we make awful judgments when we continue to judge people by their race or gender instead of judging them as individuals". In this penchant for overstatement, he is not alone, as the original article and so many of the comments above demonstrate. Indeed, if we look at what actually happened at Duke, we see that there is much less here than meets the eye.

First, the original statement by the “Group of 88″. (By the way, you can still find it at http://johnsville.blogspot.com/20.../duke-case-listening-statement.html). I wouldn’t have written it and I wouldn’t have signed it, but nowhere in the statement does it even suggest that the lacrosse players are guilty of rape or any other crime. The statement does say that “students are shouting and whispering about what happened to this young woman and to themselves". Still, however much Professor Johnson wants to blow this sentence up into some sort of smoking gun, it is obviously far from accusatory.

In fact, the statement goes out of its way to quote one student as saying, “IF it turns out that these students are guilty, I want them expelled” (emphasis added). One could, therefore, as easily suggest that the “Group of 88″ definitively acknowledges the possibility that the players might be innocent. Regardless, if you read the complete statement, you will see that the authors’ purpose was to use the rape accusation as a starting point for a discussion of the racial climate at Duke and in Durham, not to pass legal judgment on the lacrosse players.

So that leaves us with Professor Lubiano’s statement about “perfect offenders", which was, as we have seen above, badly mischaracterized by Professor Johnson, as well as the comments of four individual professors who, in Professor Johnson’s view, crossed the line (although it should be noted that one of them, Peter Wood, merely reported that some of the lacrosse players acted like jerks in his classroom). So really, in the end, we have three “courageous” professors who spoke out on the players’ behalf, and maybe four “villains". Meanwhile, 99% of the faculty reasonably decided to let justice run its course.

(As for the suspensions, they were obviously unfortunate, but, unless I’m mistaken, it isn’t unusual for a school to suspend students who have been indicted for heinous and violent crimes.)

So again (and sorry for being so long-winded), the main villain here is Nifong, who let his ambition get ahead of his judgment. If there is a lesson to be learned from this case, it is not the one that Professor Johnson presents. Rather, the lesson is that indictment is not proof of guilt, prosecutors (and cops) sometimes misbehave, and due process must be preserved, whether we are dealing with a small-time North Carolina prosecutor telling us that he’s sure a rape has occurred or a U.S. Attorney General promising us that our secret prison camps only hold “the worst of the worst".

Unapologetically Tenured, at 10:30 am EST on December 31, 2006

Response to UT; context of “listening statement”

You’re trying to play down the “listening statement” by ignoring its context and selectively quoting from it.

On March 26 2006 a loud and angry mob — the potbangers —demonstrated outside the house rented by David Evans. They raised several banners urging lacrosse players to “Confess", and one bearing the single-word exhortation “Castrate!!” They chanted “Who must be the rapists? — They must be the rapists!” and worse. (The video’s still on Youtube; KC’s article above links to a photo of the “Castrate!!” banner.) The protest was extensively reported by television and newspapers. Those of the 88 who didn’t organize or attend it must have been well aware of it all.

On April 6, by which time everyone in Durham or at Duke had seen the images and had a chance to reflect on the situation, 88 Duke teachers published their statement. This is what they wrote about the lynch mob:

“We’re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait. To the students speaking individually and to the protestors making noise, thank you for not waiting and for making yourselves heard.”

The 88 Duke teachers THANKED the protestors. They didn’t urge restraint, or suggest that castrating Duke students was a bad idea. They thanked them, and thus endorsed their conduct. They specifically thanked the mob for “not waiting” — presumably for “not waiting” to see whether the rape allegations stood up under scrutiny but instead acting reflexively on the assumption that the allegations must be true and the students must be rapists and accessories to rape. Rather than restraint, they advocated “turning up the volume.”

According to the last paragraph of the statement, 88 Duke faculty members and 14 Duke departments and programs “signed on in support” of it. Not one signatory has yet had the honesty to say that, in retrospect, perhaps the protestors’ conduct merited something less than thanks. The Duke administration has never disowned the statement; rather, it upgraded the African American Studies program (the prime promoters of the statement) to Department status.

“Much less than meets the eye"? Don’t think so.

Duke JD, at 8:35 pm EST on December 31, 2006

Further Comments

The ad endorsed by the group of 88 faculty members at Duke has the concluding sentence:

“We’re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait. To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard".

The entire ad can be linked to from KC Johnson’s blog “Durham in Wonderland". The ad consists mostly of statements of students, many of which indicate that the experience of the accuser is somehow similar to what they are experiencing at Duke. The “collective noise” referred to in the ad appears to be a reference to the loud demonstrations outside the house where the rape was alleged to have taken place.

The ad clearly congratulates the students for condemning the lacrosse players before the facts have been explored. Granted that if the evidence available seemed to confirm the accuser’s story, then strong reaction would be appropriate. But when the DNA evidence exonerates the accused, there is an ATM photo of one of accused at an automatic teller machine at the time he was alleged to have committed the rape and the accuser has now dropped the claim that she was raped, it seems extremely unlikely that a crime was even committed let alone committed by the players accused.

In the light of the preponderous evidence so far is it right to be congratulating a group of students for parading by the students home and condemning them for a crime they didn’t commit.

If I had signed the ad initially, I would now want to retract it and apologize. KC Johnson has simply reminded us that to date not one of the 88 has recsinded their signature.

If you read the student quotes in the ad they are clearly talking about gender and race and seeing the incident from that point of view. Furthermore, had the racial identity of the accuser and accused been reversed, I don’t think the students who are quoted would have said the same thing and I doubt that a single one of the 88 professors would have signed the ad.

The term political correctness does not refer to arguments supporting affirmative action or income redistribution to reduce income disparities. But supporting the continued attempt to send three Duke students to jail for thirty years for a crime that in all likelihood never happened because the accuser is a single black mother and the accused are privileged white males is a pretty good definition of political correctness run amok.

The south has a racial past that is different from the north’s. Southern universities were segregated until forty years ago. That is not something to be proud of and it makes them more vulnerable to charges of racial insensitivity.

I don’t think anyone believes that ignoring discussions of race, gender and class will produce a fairer society. On the other hand I don’t think that the current discussions of race, gender and class are moving us to a more egalitarian society either. I could go on at some length why I am dubious about the value of such discussions but I leave that for another day.

Jonathan Cohen, at 8:35 pm EST on December 31, 2006

Metaphorical Speech

I won’t even comment on the rest of Mr. Rivette’s rant. However, I urge Mr. Rivette to reconsider the metaphors he uses in describing what the university allegedly did to “these innocent boys.” They were not raped. The coach was not raped. The city was not raped.

“Your university has raped these innocent boys of their youth and future, the coach of his career and the city of its name, over the lies emanating from an unreliable source.”

Moreover, had these “innocent boys” not threatened to use a broomstick on the strippers, not sent emails to one another promising to kill strippers and skin them, and not hurled racist epiteths at the strippers as they were leaving the dorm house, I am fairly certain that no legal action would have been taken.

When you make threats to physically violate someone with a broomstick and that person is really intoxicated, one can see how that person might misremember such details upon sobering up, and assume that someone actually carried out the crime they’d threatened.

Language is a powerful tool, which is why I ask you to reconsider your “rape” metaphor as a description of what happened to the community in Durham.

Language Patrol, at 11:00 am EST on January 1, 2007

Clueless Language Police

>>Moreover, had these “innocent boys” not threatened to use a broomstick on the strippers, not sent emails to one another promising to kill strippers and skin them, and not hurled racist epiteths at the strippers as they were leaving the dorm house, I am fairly certain that no legal action would have been taken.

You obviously have no idea what you are talking about. First, no one has alleged that any of the three accused players threatened the dancers with a broomstick, sent the ONE email (not “emails") in question, or yelled any racial epithets.

Second, the second dancer stated clearly that the broomstick comment was a joke by one of the players that, while clearly despicable, was certainly not a “threat.”

Third, your claim that the three players were indicted for rape and sexual assault because of an email sent by some other player, or a “joke” made by some other player is silly and belittles the seriousness of the allegations.

>>When you make threats to physically violate someone with a broomstick and that person is really intoxicated, one can see how that person might misremember such details upon sobering up, and assume that someone actually carried out the crime they’d threatened.

In addition to being nothing more than pure conjecture on your part, there is, again, no evidence that any of the three players made any such threat. More significantly, neither the accused nor the prosecution has claimed or presented any evidence that a broomstick was involved in the alleged assault (at least not yet). In fact, the police search warrant did not list, or even mention, a broomstick.

Al, at 2:15 pm EST on January 1, 2007

Past Precedents

It is a known fact that Colin Finnerty has a criminal record in the form of a misdeamenor for his role in the verbal and physical attack on a gay man. If he is capable (and obviously culpable) of threatening a gay man in effort to assure himself of his masculinity, then he is by logical conjecture capable of threatening a black female stripper with a broomstick, or capable of confining her in a bathroom and threatening her with rape.

Please let the courts decide what this “innocent” young man is capable of doing. To me, he is no angel and this is a useful wakeup call to him and the others involved.

Language Police, at 5:45 pm EST on January 1, 2007

UT’s War Against (Right Wing) Culture Warriors

UT,

I find it interesting, but not surprising, that you respond in depth to L.L.’s brief comment, but completely ignore the more substantive comments by Duke JD (not to mention Cohen) directly addressing your previous comment. Nevertheless, the more reasonable and measured tone of your recent post suggests that Duke JD’s comments at least made you think twice about some of your knee-jerk responses, which says alot.

In any event, in response to some of your comments:

>>For example: Castro is a monster, but Pinochet was a hero;

Contrary to your caricature, there are few, if any, conservatives who regard Pinochet as a hero. Unfortunately, the same cannot be said for the left and Castro or a long line of other assorted tyrants. Pointing out that Pinochet instituted some positive economic policies and VOLUNTARILY relinquished power is obviously not the same as regarding him as a hero.

>>televising American POWs is a war crime, but showing the world Saddam Hussein’s humiliating dental examination is a hoot;

Televising “confessions” of captured military personnel made through duress and torture is obviously different than showing footage of Saddam Hussein in custody.

>>lying about sex is an impeachable offense, but lying about war is patriotic;

Again, who ever said lying about war is “patriotic"? Also, what lies are you referring to? Bill Clinton’s “lies” about Iraq’s WMD programs? Al Gore’s? John Kerry’s? the Jordanians? the Russians? the British?

>>Reade Seligmann deserves due process, but Jose Padilla does not.

If Seligmann was involved in, or potentially had knowledge about the planning of, future attacks against civilians, it certainly would justify treating him differently than a common criminal who is arrested after the alleged commission of a crime. A legitimate debate can be had regarding the treatment of suspected terrorists (particularly American citizens captured in the US). However, you are comparing apples and oranges.

>>My point, which I assume is clear by now, is that this case has become a favorite of right-wing pundits and culture warriors at least in part because it allows them to hammer away at some of their favorite themes: “political correctness", nasty liberal college professors, the supposed left-wing prejudice against rich white males, etc., etc.

Given the outrageous conduct of the pot-bangers and their enablers, and the egregious, race and gender-based rush to judgment by the “Gang of 88″ and others, your focus upon, and hostility towards, “right-wing pundits and culture warriors” who reacted in response to this outrage seems to be, at the very least, misplaced.

>>I just look forward to the day when conservative columnists and bloggers seize on an injustice that doesn’t so snugly fit their world view.

I think a similar comment could be made about you, the Gang of 88, and others who have attempted, despite the evidence, common sens