Disgrace in Durham
K.C. Johnson, Brooklyn College—CUNY


On 3 May 2006, the late local news on Raleigh’s television stations broadcast a video of Duke lacrosse player Reade Seligmann at a Wachovia ATM terminal—at the same time he allegedly was committing a crime more than a mile away. The next day, Durham County’s racially divided electorate narrowly renominated the district attorney who had brought charges against Seligmann, Democrat Mike Nifong. Ironically, Nifong and television viewers first saw the video at the same time; for reasons that remain unexplained, the district attorney had spurned defense offers to provide him the tape and other exculpatory evidence.

The Seligmann video represented the most spectacular example of the peculiar method in which Nifong has handled allegations that three Duke lacrosse players raped an African-American exotic dancer on the early morning of March 14. Although virtually all recently revealed evidence has cast strong doubts on the accuser’s claims, the exact series of events remains murky. Two things, however, are now perfectly clear. Nifong’s inquiry has disregarded basic legal and procedural norms, while exposing shortcomings in feminist-inspired elements of rape law. And Duke’s faculty has abandoned their own institution’s students to the mercies of a power-hungry local prosecutor.

The central figure in the story has been Nifong, who gave more than 70 interviews, often highly prejudicial in tone and content, in the days following the alleged attack. Stuart Taylor, columnist and senior writer for National Journal, bluntly accused the district attorney of “gross prosecutorial misconduct.” To the Kansas City Star’s Jason Whitlock, Nifong’s actions provided “an updated re-enactment of To Kill a Mockingbird,” with the race of the defendants reversed.

That Nifong considers himself unrestrained by clear North Carolina guidelines became evident early in the case. Ignoring the state bar’s Rules of Professional Conduct, which strictly limit the type of public statements a district attorney can make during an investigation, Nifong publicly compared the severity of the dancer’s allegations to a recent triple murder in Durham, personally demonstrated how the attack allegedly occurred, and cited concerns that “Duke students’ daddies could buy them expensive lawyers” so they would be “treated differently by the court system.” Having prejudged the case, the district attorney then bypassed common practice and personally oversaw the police inquiry. He even obtained a court order for all 46 white players on the team to give DNA samples, which he claimed would “immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” When the results implicated not the players but instead the accuser’s boyfriend, Nifong said he no longer needed DNA to try the case.

These early irregularities paled in comparison to the photo identification session used by authorities. Despite state recommendations that the police supplement photos of each suspect with at least seven “fillers” to discourage false identifications, the array contained only members of the lacrosse team. In what one legal commentator termed “a multiple-choice test with no wrong answers,” the accuser identified Seligmann, along with teammates Collin Finnerty and Dave Evans. Though state guidelines forbid prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused,” Nifong refused to meet with defense attorneys, who claimed to possess cellphone records, receipts, photographs, and witness testimony showing that Seligmann was not present at the time of the alleged rape and that Evans, contrary to the accuser’s claim, did not have a mustache. A Newsweek reporter noted that the material “would seem to indicate it was virtually impossible that Seligmann committed the crime.” The process nonetheless lurched forward; the players were suspended from school and forced to post $400,000 bonds.

North Carolina law allows the state attorney general to assume jurisdiction over a criminal case when local authorities ignore or violate their ethical responsibilities. But despite Nifong’s troubling pattern, Democrat Roy Cooper has failed to act against a prosecutor whose re-nomination enjoyed strong support from state party leaders. (Given political realities for North Carolina Democrats, it’s hard to imagine that Cooper would have stood idly by had Nifong targeted local African-Americans rather than out-of-state white males.) So, barring the unlikely—a thorough investigation by his colleagues in the state bar—the public probably will never learn exactly what accounted for the district attorney’s conduct.

Ideology, however, clearly played some role in Nifong’s actions. Unusually for someone who becomes a high-level prosecutor, Nifong has a background as a social worker, and his handling of the Duke case reflects assumptions common to that left-leaning profession. Like extreme feminists who have theorized that women never lie about rape, he has appeared emotionally attached to the accuser’s version of truth, even as contradictory evidence proliferated. The district attorney has also creatively employed a key product of feminist legal theory, rape shield statutes. Though ten years ago police in a neighboring town dropped charges filed by the accuser that she was gang-raped, and the accuser’s father has publicly stated that no rape occurred, North Carolina’s rape shield law requires that the defense prove the earlier rape did not occur—an almost impossible task, given the passage of time—before bringing up the incident.

In the weeks before the primary, Nifong encountered heavy pressure to secure indictments from two constituencies vital to his renomination—African-Americans and local residents distressed by Duke’s prevalent alcohol culture. (Higher-than-expected backing from Durham blacks allowed Nifong to slip past his main primary challenger by just over 800 votes.) Under normal circumstances, Duke’s faculty might have countered this public rush to judgment. After all, Nifong’s behavior has contradicted many of the values that the academy supposedly cherishes—such as respecting established procedures; supporting a spirit of fair play; and seeking to analyze all available evidence dispassionately. But in a faculty dominated by the analytic triumvirate of race, class, and gender, Duke professors declined to defend the due process rights of a group of white males who played a sport associated with the elite. A vocal minority even seemed to assume the worst about their students.

English professor Houston Baker publicly demanded the “immediate dismissals” of “the team itself and its players,” repositories of “violent, white, male, athletic privilege” who claimed a “license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain.” History professor Peter Wood complained about the players’ “lack of engagement in classroom activities and discussions” in his course, which emphasized such themes as “Red Power” in Native American history. Hinting that players might have withheld evidence implicating guilty teammates, Wood darkly wondered, “At what point does team loyalty become blind obedience?” His teaching assistant described the players as exhibiting “aggressive body language,” a charge convenient for its vagueness and utter subjectivity.

These sentiments received their highest-profile display three weeks before Seligmann’s indictment, when 88 Duke faculty and administrators signed a public advertisement, which subsequently was posted on the website of Duke’s African-American Studies program. Affirming a commitment to “turning up the volume,” the Group of 88 thanked protesters who had distributed “wanted” posters containing photos of the team and had banged pots and pans outside the residence of lacrosse players while shouting, “Time to confess.” The professors’ minds were made up: “What the police say or the court decides,” the signatories declared, would not affect how they interpreted the “social disaster.” The group heralded an African-American student for commenting that “it is dangerous to wait for the conclusion of the criminal investigation because the community, in strong numbers, have raised their voices of what this means to the history of the University.” Facts, proper procedure, or fair play apparently have no role in the signatories’ single-minded pursuit of “justice.”

A university-commissioned report embarrassingly rationalized the position taken by the Group of 88. Duke, the report’s authors asserted, needed to balance a commitment to defending the due process rights of its (white, male) student-athletes against the fact that “in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn’t seem to ‘get it.’” In other words, professors wanted to use the alleged crime to bolster their critique of contemporary American society, even if doing so contributed to the rush-to-judgment mentality against their own students.

As the likes of Baker, Wood, and the Group of 88 dominated campus rhetoric, the majority of Duke’s faculty remained silent. To my knowledge, at this point not even one full-time professor at Duke has publicly questioned Nifong’s procedural irregularities. Indeed, the only faculty member who criticized the district attorney’s actions was a visiting (non-permanent) professor of political science, Chris Lawrence. Such is the result, it seems, of a faculty characterized by ideological and intellectual homogeneity. This is, after all, the same college whose former philosophy department chairman joked in 2004 that Duke employed few non-leftists because J.S. Mill held that conservatives aren’t very smart.

Given the faculty’s reaction to events, it’s little surprise that most outside of Durham probably accepted Nifong’s public characterization of the team as “hooligans”—or worse. The work of a Duke committee chaired by Law professor James Coleman, former (Democratic) chief counsel of the House Ethics Committee, was widely expected to confirm the faculty’s stereotypes. And the report did find the expected: in a campus known for excessive underage alcohol consumption, team members drink a lot of beer, especially at out-of-season team social functions.

Otherwise, however, the Coleman Committee uncovered virtually nothing bad about the lacrosse players. The committee found no sexist or racist behavior by the team, despite a structure that granted anonymity without cross-examination to any and all who wanted to level such allegations. (Even though their behavior was being investigated, the players were not invited to testify before the committee.) In fact, the committee report revealed copious examples of commendable conduct by the players, ranging from very high rates of community service to unfailing politeness toward athletic staff.

The Coleman Committee also revealed that far from being the slackers alleged by Wood or Baker, more than half the team made the ACC’s 2005 academic honor roll, a higher percentage than any other school in the conference. The committee interviewed 10 Duke professors who had taught significant numbers of lacrosse students. All but Wood offered positive comments. One professor observed that “the lacrosse players were willing to defend unpopular positions in class”—a potentially dangerous habit among an ideologically intolerant faculty.

While the Coleman Committee’s findings indicated that the reactions of figures such as Baker, Wood, and the Group of 88 came from little more than unthinking prejudice, little hope exists that Duke president Richard Brodhead will address this issue in his current exploration of “campus culture.” In fact, Brodhead’s administration has consistently shirked any obligation to defend the players’ due process rights. Shortly after Nifong launched his public crusade against the players’ character, Duke spokesperson John Burness criticized team members for hiring lawyers, and urged them instead to speak freely to the district attorney. The leaking of an obscene email from an (unindicted) lacrosse player, which played off a scene from the film American Psycho, led Brodhead to force the resignation of lacrosse coach Mike Pressler. A Duke report later conceded that many considered the move as a public abandonment of the team. Shortly thereafter, Nifong sent police to question students in their dorm rooms, outside the presence of their counsel, but Brodhead declined to protest this flagrant violation of normal legal procedures. And in mid-May, the university’s Office of Alumni Affairs published a feature article on the case that failed to mention the Coleman Committee’s findings about the team’s positive academic or social performance, but provided ample quotes from the team’s two most outspoken faculty critics, Peter Wood and Houston Baker.

When this crisis began, few could have foreseen that Nifong would discard all semblance of legal propriety in his investigation. But the reaction of Duke’s faculty was, sadly, all too predictable. Indeed, a striking subtext of the whole affair has been the open contempt in which faculty at elite colleges and universities, professors like the Group of 88, seem to hold many of their students, who are guilty of being upper-middle or upper class; joining fraternities and sororities; participating in intercollegiate athletics; concentrating on their careers rather than the life of the mind; drinking too much; and holding ideas deemed inappropriate on issues relating to race, class, and gender. There’s nothing new in academics grousing about students. But at a school like Duke, save for a few superstars, faculty members derive some of their prestige from teaching at an extremely “selective” school. How strange it must be for people like Baker, Wood, and other members of the Group of 88 to be surrounded by students many of whom they seem deeply to dislike, while depending on the “intake” of more of these students for institutional status.

While their actions might have been predictable, the professors’ indifference to their own students’ rights has had a devastating impact on this case. With no local balance against his worst tendencies, Nifong has proceeded to violate one state guideline after another. In this respect, the statement of the Group of 88 correctly asserted that a “social disaster” has occurred at Duke. That disaster, however, came in the behavior of Nifong and the Duke faculty, who, I fear, will look back on their response to this case with shame.

 

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