The Volokh Conspiracy

For those who believed the lacrosse case was over, the past two weeks brought news on two fronts. First, Brendan Sullivan and Barry Scheck, on behalf of the three falsely accused players and their families, presented representatives of the City of Durham with the outlines of a devastating potential lawsuit against the city, former DA Mike Nifong, several police officers, and other individual defendants. The initial demands: $30 million, plus a wide array of procedural reforms, unless the city caves in and settles.

Second, after acting DA Jim Hardin urged a state criminal investigation of Nifong and others, reports surfaced that Justice Department investigators had arrived in the Triangle to look into the case.

Meanwhile, we have learned, Duke, its administrators, and its extremist professors are not out of the legal woods yet either. The University settled months ago with the three falsely accused players. But now a high-powered legal team representing most of the other 44 members of the 2006 lacrosse team is exploring a possible lawsuit. The grounds would include mistreating the entire team, including misleading smears of the players by Duke President Richard Brodhead and dozens of professors.

The first two moves are a reminder that the law enforcement misconduct in the lacrosse case extended well beyond Mike Nifong. Stuart (who co-authored this post) and I thought we would wind up our week of guest-blogging by reviewing the performance of Nifong’s criminal justice enablers.

Two people were vital in sustaining a case with no evidence and a complaining witness utterly lacking in credibility for Nifong to exploit. After the DA took over the case, the duo did everything possible to help him keep the charges alive.

The first was Tara Levicy, the sexual assault (SANE) nurse who wrote up Mangum’s Duke Hospital report. A women’s studies major in college, Levicy worked for several years for a Maine company that ran nature tours. She then changed careers, got a nursing degree through an accelerated program for liberal arts majors, and moved to Durham. Eight months later, she was a SANE trainee.

Levicy later told a defense attorney that she had never encountered a woman who lied about rape. She came across as an ideologue. And she applied her women-don’t-lie ideology to the lacrosse case regardless of the evidence.

Since Levicy was still a trainee at the time, Dr. Julie Manly, a resident physician, conducted the physical exam of Mangum on the morning of March 14, 2006. Yet Levicy, essentially a note-taker, told a police investigator two days later that the exam showed signs consistent with a sexual assault even though the medical records said nothing of the kind. (Neither the Durham Police nor Nifong ever interviewed Dr. Manly.) By March 21, Levicy was saying that Mangum had experienced “blunt force trauma,” even though nothing in Levicy’s own official report suggested such a diagnosis.

Over the next nine months, Levicy consistently changed her story to fit new prosecution theories of the “crime.” At the beginning, she had written that Mangum said her attackers were named Matt, Adam, and Brett and that they hadn’t used condoms. But when Nifong later claimed that the players used aliases and suggested that condoms might explain the lack of DNA evidence, Levicy adjusted her story to fit Nifong’s theory.

In a January 2007 statement, Levicy contradicted her initial report by saying that the “victim” had been uncertain if her “attackers” had used condoms and had been aware that they had used aliases. When asked by a defense attorney why, if Mangum were uncertain, Levicy had thrice written in her rape report that Mangum said “no” when asked if the assailants used condoms, the SANE nurse had no reply.

She also explained away the lack of DNA evidence with an unscientific feminist slogan: “rape is a crime of power, not passion.” As the interview continued, it became clear that Levicy didn’t understand that DNA could be obtained from items other than sperm. Skin cells, for example.

Most SANE nurses, it should be noted, are professionals. But a minority (how large is unclear) are, like Levicy, ideologues determined to use their medical authority to uphold an ultra-feminist view of rape. Asserted defense attorney Joe Cheshire: “There’s a Tara Levicy in every hospital.”

A second Nifong accomplice – or at least enabler – was Mark Gottlieb, the Durham police sergeant who supervised the case. Gottlieb was already notorious before the stripper party for arresting ten times as many Duke students (all for trivial offenses) as the other three Durham officers of comparable rank and assignment combined. Several students leveled credible allegations that he violated their rights in these arrests and lied in court to cover his tracks.

Gottlieb muscled his way into case after the initial responders had concluded that Mangum was lying. The sergeant, on the other hand, seemed interested not in finding out what happened but in proving Mangum’s allegations and settling scores with Duke students.

When Nifong ordered him to violate Police Department procedures and run a third photo-ID process confined to lacrosse players, Gottlieb did so unhesitatingly. By his own admission, in a March deposition for the State Bar, the sergeant gave at best misleading and at worst outright false testimony to the grand jury that voted indictments against Reade Seligmann and Collin Finnerty.

But Gottlieb’s most remarkable contribution to the case came in July 2006, when he submitted an undated, unsigned typewritten memorandum that purported to memorialize events from months before. (When asked why he had no contemporaneous notes, Gottlieb claimed that he had kept them on a “dry-erase board,” from which they had been accidentally erased.) Among other dubious items, Gottlieb’s memo claimed that in a March 16 conversation, Mangum had given dead-on descriptions of the three players ultimately indicted — even though his partner’s contemporaneous handwritten notes showed that her descriptions had been radically different.

With people like Levicy and Gottlieb helping him out, Nifong was able to keep a non-existent case alive. A post later today will look at other aspects of the troublesome legal culture that figured in Durham’s persecution of innocent lacrosse players.

As a high-profile case of prosecutorial misconduct affected his own institution’s students, how is it possible to explain Duke president Richard Brodhead’s passive response?

A few explanations can be eliminated. Duke officials did not - - at least privately - - initially believe Crystal Mangum’s fantastic lies. Duke cops told their superiors the case would go away quickly, because Mangum wasn’t credible. The lacrosse captains met with four senior administrators, including Brodhead, and not only denied the allegations but laid out the scope of their cooperation with police. The president, the executive vice president, the AD, and the dean of student affairs all expressed confidence the captains were telling the truth. (Brodhead has subsequently denied saying this.)

Nor were Brodhead’s actions consistent with his own publicly stated justifications. In an interview with Stuart Taylor for our book, the president explained that he remained silent in face of Nifong’s dubious procedural behavior because “I do not believe the day ever comes when private individuals have the right to take public judgment back into their hands.” Yet between 2000 and 2005, Brodhead twice had spoken out on behalf of his own students in legal matters (both times at the urging of leftists on campus). And, indeed, in the lacrosse case, he ultimately did “take public judgment back into [his] hands.” After Nifong dropped rape charges on December 22, the president publicly called for appointment of a special prosecutor. Sexual assault charges were still on the books.

So what did explain Brodhead’s actions? First, the president appears to have reacted with a deep, visceral disgust at the captains’ decision to hire strippers. In June 2006, when he met with the lacrosse team, he told them that all needed to accept responsibility for the party (the captains, who had hired the strippers, had already apologized), even though he knew that some players hadn’t even attended the party. In his October 2006 interview with 60 Minutes, he described the evening as one of “highly unacceptable behavior.” Brodhead, it’s worth noting, did not have a record of strongly denouncing other spring break parties. It was as if he had spent a lifetime on college campuses and only realized in March 2006 that college students drank and had wild parties during spring break.

Second, and more important, Brodhead appears to have been cowed by extremists within his faculty. (It’s worth remembering that this case began just over a year after Larry Summers lost a vote of no-confidence in Harvard’s Faculty Council.) A turning point event came in an emergency meeting of the Academic Council on March 30, 2006. The president urged caution and asked faculty to wait for the facts to come in. But the assembled professors, around 10% of the arts and sciences faculty, responded with vitriolic attacks against the team. One speaker claimed that Duke, as an institution, tolerated drinking and rape, and the lacrosse incident reflected a University problem from the top down. Another suggested punishing the team by suspending lacrosse for three years and then making it a club sport. A third asserted that the team embodied the “assertion of class privilege” by all Duke students. A fourth called on the University to do something to help the “victim.”

Three professors overpowered the meeting: Houston Baker stated as a fact that African-American women had been “harmed” by the lacrosse players and claimed that students in his mostly white, female class were terrified of the lack of an administration response. Wahneema Lubiano alleged favoritism by Duke toward the team and demanded a counter-statement from Duke denouncing the players. And Peter Wood asserted that two years previously, the team was out of control, and demanded a hard line against the athletic director, coach, and team. These remarks, according to several people who attended the meeting, received robust applause.

One week later, when Brodhead cancelled the lacrosse season, he appointed a “Campus Culture Initiative” to explore issues raised by the case. Wood chaired one of the CCI’s four subcommittees. Two other subcommittees (race and gender) were chaired by Group of 88 members Karla Holloway and Anne Allison. And one of the four student members was Chauncey Nartey, an African-American student who had sent an e-mail to the Presslers that the former coach’s wife considered a threat against their daughter. The Presslers filed a police report and told the administration what Nartey had done; the appointment went ahead anyway.

Brodhead’s disinclination to challenge faculty extremists extended to issues that nearly all academics would recognize as improper. For instance, on April 6, 2006, women’s lacrosse coach Kerstin Kimel told the president that multiple instances of in-class harassment of lacrosse players had occurred, with professors using class time to bully their own students. Yet neither Brodhead nor anyone in his administration ever investigated Kimel’s claim; in summer 2006, Duke spokesperson John Burness conceded that he had heard “rumors” of unprofessional behavior but suggested the problem had been handled by a dean sending out an e-mail reminding professors to treat all students fairly. The book documents several of these events.

Similarly, the Group of 88’s ad presented the administration with a ready-made opportunity to stand up to the worst of its faculty: after all, the ad claimed that five departments had officially endorsed its contents, even though none of the departments had actually voted on the question. Yet Brodhead not only remained silent in the face of this obvious breach of academic protocol, but he thrice, in early 2007, defended the Group of 88’s statement as a banal, even welcome, expression of the concerns of race/class/gender faculty on campus.

In the end, it's hard to imagine that his mishandling of the lacrosse case will not overshadow the other events in Brodhead's first term as president.

“Pandering” (New York Times). “Clearly terrified of the racial and gender activists on his own faculty” (Wall Street Journal). “Did little, if anything, to defend the lacrosse players or to criticise the faculty for its lynch-mob mentality” (Economist). “Weak-kneed” (Newsweek). “Seemingly terrified of the protestors and a radicalized faculty with the power to turn him into another Lawrence Summers” (Weekly Standard).

The reviews on Duke president Richard Brodhead’s performance in the lacrosse case are less than glowing. Such a poor performance hadn’t been expected in 2004, when Brodhead arrived in Durham after serving as dean of faculty at Yale. In New Haven, he distinguished himself for his urbane, witty charm; clear intelligence; and ability to accommodate the faculty’s demands. Yet Brodhead also lacked experience dealing with a top-flight athletic program or with elite college athletes. Duke’s national reputation came from its ability to combine first-class athletics with first-class academics.

Brodhead set the tone of his lacrosse response in his initial decisions on the case. On March 25, 2006, the same day the egregiously biased News & Observer “interview” with Crystal Mangum appeared, the Duke lacrosse team was scheduled to play Georgetown. In a virtually unprecedented move for a Division I athletics program, Brodhead canceled the game with Georgetown already on the field for its pre-game warm-ups. He described the move as punishment for the team’s party - - even though, as AD Joe Alleva later admitted, the party had violated no Duke rule and Duke never before had canceled a game because of moral distaste about team members’ behavior.

Lacrosse parents believed that Brodhead’s actions conveyed an impression of guilt. But he spurned repeated requests to meet with a group of them, either on March 25 or any time thereafter.

As the crisis intensified, Brodhead’s statements increasingly minimized any reference to a presumption of innocence. On April 5, reacting to the release of a vile e-mail that administrators knew or should have known was not a direct threat, the president cancelled the entire season. In a 2,377-word statement explaining the move, he didn’t mention a presumption of innocence or the players’ denial of all charges at all.

Instead, in a passage that perfectly captured the race/class/gender mindset that dominated Duke’s public response to the case, Brodhead declared, “The episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed.”

This was Brodhead’s final public statement before the first two indictments obtained by Mike Nifong.

The president took a similar approach in his first public appearance after the indictments of Reade Seligmann and Collin Finnerty. Speaking to the Durham Chamber of Commerce, he stated, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.” What, precisely, did Seligmann and Finnerty do? They attended a party they played no role in organizing, and they drank some beer.

A few months later, asked by an alumni group to speak out not on the players’ guilt or innocence but to demand that Nifong respect the rights of Duke students, Brodhead instead turned the American system of justice on its head. It would be improper, he suggested, to criticize Nifong in any way. Instead, he articulated Duke’s policy in the following way: “We are eager for our students to be proved innocent . . . which is all the more reason why we require the legal system to proceed in a fair-minded, even-handed, and speedy fashion.”

Between March and December 2006, Brodhead displayed a broad deference to the criminal justice process, implying that academic institutions should never criticize legal misconduct. He also compiled a pattern of actions that conveyed an impression that the administration believed that the lacrosse players were the kind of people who could commit the horrific crime that Nifong described. And, even as he was complaining that “the facts kept changing . . . every day we learned new things that no one knew the day before,” he spurned at least three offers from defense attorneys or the parents of indicted players to give the University Council unfet