Fox News reports that Durham D.A. Mike Nifong is considering a
gag order for the Duke lacrosse case. The request would have more
credibility had the district attorney not made 70 public statements,
many of them so inflammatory
that an on-line forum archived them , in the weeks before the Democratic primary for county district attorney.
Having captured the nomination, Nifong has no continued political need
to speak out; he is also confronting increasingly troubling revelations
about his peculiar investigation. It turns out that when he “hinted” to Newsweek
that the police file would show the accuser was given a date rape drug,
it appears that he either (a) hadn’t read the file, which contains no
toxicology report; or (b) deliberately misled the reporter. Thursday, defense lawyers filed a motion
stating that the only mention of the accuser describing her alleged
attackers came in the following note by a police investigator: “I asked
her questions trying to follow up on a better description of the
suspects, she was unable to remember anything further about the
suspects.” So, Nifong either (a) didn’t turn over all case material to
the defense, despite informing the court he had done so; or (b) dealt
with an accuser who couldn’t give even a basic description of her
alleged attackers, but then had no trouble doing so three weeks after
the incident at a photo ID that blatantly violated state guidelines.
And yesterday, another defense motion revealed that a previously
unreported photo ID session (which also ignored state guidelines, in
that it consisted solely of photos downloaded from the Duke lacrosse
website) occurred on March 21, and police records from that session
revealed that the accuser did not identify at least one of the arrested
players, Dave Evans, as among her alleged attackers. As Ralph Luker
reminds us, the latter two items come from the defense alone—though in
the form not of leaks but of formal court motions, subject to sanctions
if they contain demonstrably false statements.
Nifong’s
desire for a gag order is unsurprising, given that he’s also under
investigation by the state bar’s ethics committee and surely wants to
avoid any further bad publicity while that process moves forward. The
recent action of the North Carolina NAACP,
however, is more troubling. Al McSurely, chair of the NAACP’s Legal
Redress Committee, has said that the organization will ask for a gag
order, which he euphemistically termed a"quiet zone/let's let justice
work" motion. His justification, according to the Durham Herald-Sun,
is that “media coverage of the alleged rape may deprive the alleged
victim of her legal rights to a fair trial.” Leaving aside the question
of why the NAACP didn’t desire a “quiet zone” when Nifong dominated the
airwaves, the Constitution contains no mention of an accuser’s “legal
rights to a fair trial”: the accuser has the power of the state on his
or her side. Nor can an accuser’s legal rights somehow trump the very
real constitutional protections possessed by defendants. The NAACP’s
action, though unlikely to be approved, typifies the bizarre inversion
of constitutional theory that has permeated this case, what defense
attorney Alex Charns has termed Durham’s “Alice-in-Wonderland” style of justice. Jason Whitlock’s admonition
is worth recalling: “If the Duke lacrosse players were black and the
accuser were white, everyone would easily see the similarities between
this case and the alleged crimes that often left black men hanging from
trees in the early 1900s.”
At least the NAACP isn’t in the classroom. This week’s Chronicle contains a memoir of one spring term class
that should shame the Duke administration. Author Elizabeth Chin spent
the spring 2006 term as a visiting professor in Duke’s
cultural-anthropology department, where she taught a course called “Girl
Culture/Power.” The class, she reports, enrolled a good number of
“well-off white women who were in the most elite sororities at Duke,”
balanced against three men, “several heterosexual women of color [Chin
doesn’t explain how she knew they were heterosexual or why this fact is
relevant], and a handful of what I affectionately thought of as my
radical feminists.”
While critical of the Duke administration—which hardly went out of its
way to defend the lacrosse players’ rights—for not creating a “town
meeting, teach-ins, and coordinated efforts in residence halls” to
address the allegations against the players, Chin committed herself “to
keep the classroom a safe space for all the students, while allowing
people on both sides of the issue to hear and understand each other.”
That the space was a whole lot safer for one side than the other became
clear when an anti-lacrosse player rally coincided with one class
session. Chin stopped class and instructed the students to go outside
and listen. (There’s a good strategy for an easy prep.) “After a while,”
she relates, “I noticed that, one by one, the sorority girls were going
back inside.” (Many of the sorority “girls” knew members of the
lacrosse team.) Chin continues: “When I went after them, their pain and
frustration were obvious. ‘It's just not fair being targeted as a
group,’ wailed one woman.” Wailed? Imagine the appropriate condemnation
from faculty members like Chin if a male professor had used this verb to
describe an upset “girl” in his class.
Chin’s response to the demonstration and its aftermath effectively
assumed that the players were guilty, her view of the scandal was
undeniably correct, and teaching diversity is the only conceivable
approach in the classroom. Her view of an in-class “olive branch” over
the lacrosse issue consisted of a “radical woman” admitting that she
could have a common experience with a sorority “girl”: the “radical
woman” stated that she, too, knew a man who “had raped someone.” (No
rush to judgment about the lacrosse players there.) Leaving aside the
question of whether it was an appropriate use of class time to peruse a
demonstration with whose message the instructor sympathized (Chin gives
no suggestion that she also cancelled class to observe the “innocent”
demonstrations that occurred later in the term), Chin might have
explored with her “radical feminists” why so many on campus, including
the demonstrators, seemed to presume guilt—even at an early stage of the
investigation, when the lacrosse players had all denied criminal
wrongdoing, their captains had told the authorities they would take lie
detector tests, and the procedural irregularities that have come to
characterize Nifong’s inquiry already were becoming apparent. This
question appears not to have occurred to Chin, who describes herself as a
“good liberal.” Apparently she doesn’t see promoting civil liberties as
the kind of activity in which a “good liberal” would engage.
Chin would be proud, however, of how the Washington Post and New York Times
have addressed Durham matters; as Stuart Taylor noted, “Many members of
the national media have published grossly one-sided accounts of the
case.” A Postcolumn
by Lynne Duke relies on “facts” that are not only, at best,
assumptions, but also contradict much of what is now known about the
case. It’s absurd to say, based on the evidence that now exists, that
the case is “some ways reminiscent of a black woman's vulnerability to a
white man during the days of slavery, reconstruction and Jim Crow, when
sex was used as a tool of racial domination.” Commentator Julianne
Malveaux even more oddly added that as"African American women are not
systematically valued in our society,” the accuser is getting"no benefit
of any doubt." If nothing else can be said about this case, it’s that
the accuser has received the benefit of the doubt. Indeed, the state
went so far in giving the accuser the benefit of the doubt that one
prominent legal analyst, Andrew Napolitano, has predicted that the case could end with Nifong’s losing his license to practice law.
And in a piece behind the Times firewall, Harvey Araton cited
plans by the women’s lacrosse team to wear armbands expressing sympathy
with the accused men’s players at this year’s Final Four (held on May
26) and a request by the Duke athletic staff that the women’s basketball
players not comment in interviews about the lacrosse case at this
year’s women’s Final Four (held on April 2) to claim that “a basketball
team with a majority of African-American women was in effect censored
while the lacrosse gals, 30 of 31 of whom are white, are apparently free
to martyr their male lax mates.” This seems like a compelling
argument—if only it were factually correct. Actually, as Newsday reports today, the Duke athletic staff made the exact same request
(not to comment publicly on the case in interviews with the media) of
the women’s lacrosse “gals” (funny how Araton describes them as “gals”
and the basketball players as “women”), and they honored the request.
Araton produces no evidence that the basketball team wanted to wear
armbands sympathizing with either the lacrosse players or the accuser,
or were “censored” in any other way beyond receiving the same request
that was given to the lacrosse team about not speaking publicly.
Specifically targeting the women’s lacrosse players, Araton wonders how
“cross-team friendship and university pride [could] negate common sense
at a college as difficult to gain admission to as Duke,” with the
women’s players “staking their own reputations” on the case’s outcome.
By making such a claim, of course, it could be said that Araton is
staking his own reputation on his critique. It might be that the women’s
lacrosse players have been paying attention to events in Durham that
have occurred since the basketball Final Four; it’s unclear if Araton
has done so. Perhaps they noticed that even though Nifong promised that
DNA evidence would positively identify the guilty, the tests for 45 of
the men’s team came back negative and the test for the 46th was
inconclusive. Perhaps they noticed that, after being arrested with a
warrant alleging he committed a 30-minute crime on March 14
(i.e., after 12.00am), Reade Seligmann produced electronic and video
evidence showing that starting at 12.06am, he was either text-messaging
his girlfriend, in a cab, or at an ATM machine a mile away. Or perhaps
they noticed that the accuser identified another arrested player, Dave
Evans, as having a mustache, which he did not, and, apparently,
initially didn’t identify him at all. Maybe their willingness to
evaluate new evidence and respond accordingly explains how those
“lacrosse gals” were selected for “a college as difficult to gain
admission to as Duke.”
Araton concludes his column by noting, “When behavioral codes intersect
with the vexing subjects of sex, race and class on campuses like Duke’s,
there are still many more questions than answers. Today, if I could ask
just one, it would be directed at the Duke basketball women. What do
they think of those sweatbands the women’s lacrosse team was planning to
wear?” New York Times columnists have access to the internet (on which the women’s basketball team roster is easily found)
and the ability to use e-mail and the telephone. If Araton considered
this question so important, why didn’t he simply ask the women’s
basketball players? Could it be that he feared the answers he received
might contradict the Times’ take on the issue, which even as milquetoast a public editor as Bryon Calame has faulted for making decisions where sometimes “fairness suffered a bit,”
referring “to an application for a search warrant as if it were somehow
a court finding of fact,” and inexplicably downplaying Nifong’s
possible political motivations? Since I too have internet access, I
e-mailed Araton to ask him.
Professor Chin, no doubt, would share Araton’s outrage at the conduct of
the women’s lacrosse team at last night’s Final Four. Coach Kerstin
Kimel has emerged as one of the few heroes of this affair, breaking what
could be termed the university’s “blue wall of silence” to become the
first Duke administrator, professor, or coach to publicly say anything
positive, in his or her own voice, about the men’s lacrosse players’
academic, athletic, or personal qualities. Her team seems to share her
sentiments. To show solidarity with the three men’s players targeted by
Nifong, women’s team members wore sweatbands with the players’ numbers,
or with the men’s team slogan, in their semifinal game against
Northwestern. (Despite outshooting Northwestern by double digits, Duke
lost in overtime, 11-10.) After the game, Kimel said
that any attention the team received for the wristbands paled in
comparison to “watching your friends be arrested; watching your fellow
students not support fellow students; watching professors not support
students.”
My sister was a three-year starter for the Columbia women’s basketball
team, and I got to know many of the players quite well; I also taught a
good number of women’s swimmers at Harvard and women’s soccer players at
Williams. Despite Araton's insinuation, female college athletes have
never struck me as a group likely to go out of their way to stand up for
males that they believed were sexist. I suspect Professor Chin would
have a different view: when a sorority “girl” suggested in class that
the players “might” be innocent, Chin believed that those
“affectionately thought of as my radical feminists” could only interpret
the remark as saying that the student protected “white privilege
uncritically.” But in a jurisdiction whose district attorney appears to
believe that basic state procedures don’t apply to him, and on a campus
that in the past 75 days has experienced the effects of faculty
“groupthink” at its most pernicious, another phrase from Chin’s
ideological arsenal seems appropriate to characterize the lacrosse
players’ course of action. At the Final Four, it might be said that the
women’s team displayed the courage to speak truth to power.
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