The Volokh Conspiracy

It's about TIME!

i'd love to see this level of outrage every time a poor guy is wrongfully charged or convicted. o wait, that never happens. people are only wrongfully accused when they're rich and can afford expemsive lawyers.

if it was possible for project chest-thumping vindication to be half as lame as the indictment was to begin with, they've achieved that level of lame-ness.

jeff,

we don't care about the justice system generally, we only care about it when it provide a convenient attack on political correctness.

don't get me wrong. i feel horrible for the duke players, and i wish the worst for nifong. i just find the righteous indignation a little overwrought in light of the general indifference generally shown towards egregious failures of the criminal justice system.

Kovarsky, the DCU ad goes after the Duke faculty who made those remarkably inflammatory remarks, not the criminal justice system's treatment of the Duke lacrosse players or anyone else. You think the ad amounts to a display of "righteous indignation," that "overwrought," and opportunistic "(convenient) attack on political correctness"? You would give those faculty members (and those who hired them) a pass, or you would treat them more forgivingly than the DCU has by re-publishing what they previously went on record with?

Ummm, why does DCU deserve an apology? Perhaps the Duke players are owed an apology, but DCU?

I mean, I'm glad they're willing to stand up and admit that they represent the privileged white male, its a more honest form of conservativism. But an apology?

Justin, did you read it all? DCU is not calling for an apology for itself, it's calling for an apology from 88 professors who jumped to conclusions, fanned flames, and tossed aside the presumption of innocence until guilt is proven in favor of self-aggrandizement, and they ask for that apology to be given to the students of Duke University.

Maureen001:

Be that as it may, G88 ought to apologize for their hasty judgments regarding the Duke Lax 3. However, they should also apologize for how they deviated from academic standards. It is accepted that one must base his/her decisions in proportion to the evidence. When professors conduct research, they make sure to back their claims with evidence. G88 had very little evidence, but made bold statements. If they are going to apologize for anything, this is a start.

It's just a stunt -- it's astonishing that serious people would take this seriously. The initial ad did not rush to judgment of the accused -- rather, it took the position that the alleged assault was a symptom of a greater problem at Duke, as articulated by many Duke students. It turns out that whether or not that larger problem exists, it was surely misguided to use this allegation as an example. But an apology? Why? to whom?
Well: The DCU's blog speaks for itself (excerpt below). All these students want is (1) to intimidate "radical" professors, and (2) for the DCU to "enter a new era of influence." What a righteous cause!

Why did the DCU decide to run such an advertisement? We are not under the illusion that any, much less all, of these faculty members will admit to any wrongdoing on their part. However, this is a clear message to the Duke faculty that some students will not tolerate their brand of pernicious radicalism any longer. Over four years at a place that I love dearly, I have seen example after example of professors using their position to further their Leftist agendas. Unfortunately, few students publicly and authoritatively held them accountable for their efforts. With the petition signed by over a thousand students (found here) and today's advertisement, the tide is changing on Duke's campus.

Finally, our effort is a call to Duke alumni and to those around the world who love our university. We have heard the scathing criticism directed at Duke, and much of it is justified. However, there is a group of students on campus who are working to combat faculty radicalism. The going is not always easy. In last year's Duke Student Government budget allocations (found here), the DCU received about $1,200. By comparison, the Duke Chess Club received almost three times more funding. Bringing in speakers and hosting other programming is nearly impossible on that budget, but thanks to the generosity of outside donors, we were able to have a very successful year. However, next year offers no guarantees. If you would like to join the fight for conservatism at Duke in any way you can, please see the directions found on our front page, or get in contact with me through my profile. The Duke Conservative Union is entering a new era of influence, and we would love for you to be a part of it.

It's just a stunt -- it's astonishing that serious people would take this seriously. The initial ad did not rush to judgment of the accused -- rather, it took the position that the alleged assault was a symptom of a greater problem at Duke, as articulated by many Duke students. It turns out that whether or not that larger problem exists, it was surely misguided to use this allegation as an example. But an apology? Why? to whom?
Well: The DCU's blog speaks for itself (excerpt below). All these students want is (1) to intimidate "radical" professors, and (2) for the DCU to "enter a new era of influence." What a righteous cause!

Why did the DCU decide to run such an advertisement? We are not under the illusion that any, much less all, of these faculty members will admit to any wrongdoing on their part. However, this is a clear message to the Duke faculty that some students will not tolerate their brand of pernicious radicalism any longer. Over four years at a place that I love dearly, I have seen example after example of professors using their position to further their Leftist agendas. Unfortunately, few students publicly and authoritatively held them accountable for their efforts. With the petition signed by over a thousand students (found here) and today's advertisement, the tide is changing on Duke's campus.

Finally, our effort is a call to Duke alumni and to those around the world who love our university. We have heard the scathing criticism directed at Duke, and much of it is justified. However, there is a group of students on campus who are working to combat faculty radicalism. The going is not always easy. In last year's Duke Student Government budget allocations (found here), the DCU received about $1,200. By comparison, the Duke Chess Club received almost three times more funding. Bringing in speakers and hosting other programming is nearly impossible on that budget, but thanks to the generosity of outside donors, we were able to have a very successful year. However, next year offers no guarantees. If you would like to join the fight for conservatism at Duke in any way you can, please see the directions found on our front page, or get in contact with me through my profile. The Duke Conservative Union is entering a new era of influence, and we would love for you to be a part of it.

>>The initial ad did not rush to judgment of the accused

No, of course not...it just publicly thanked the potbangers who were holding up a "Castrate" sign, calling their own students rapists and demanding that they get out of town, and putting up vigilante posters of the (white) lacrosse players all over the Duke campus for "making noise" and "not waiting" (not waiting for what?), and also vowing to "turn up the volume." Just the type of responsible behavior that you would expect from professors at an elite university.

For what it's worth, I have closely read the Statement of 88 several times, with an eye toward what I could make its authors concede under oath and have concluded that it very, very carefully avoided making factual claims. In light of the emotionally heated atmosphere it is less like a bill of particulars and more like a Rorschach test into which readers pour their own interpretations. I say this as one who is quite critical of the authors and who is practiced in the art of civil depositions that make use of the deponents prior written statements.

If you took various buzz words from far-left victim-speak, turned them into those refrigerator magnets and hurled two handfuls of them onto a metal surface, you would generate a statement with as much internal consistency and clear meaning at the Statement of 88. God forbid their scholarship is as sloppy as their Statement. Even worse, god forbid they would ever serve on a jury.

courtwatcher: The initial ad did not rush to judgment of the accused -- rather, it took the position that the alleged assault was a symptom of a greater problem at Duke, as articulated by many Duke students.

Something is "alleged" to have happened, but later is proven never to have happened. How could such a something, in reality a nothing, be either the cause or result of anything? In particular, how could the imagined "assault" on the stripper be "a symptom of a greater problem at Duke"? That doesn't logically parse, that is unless you believe there was an assault notwithstanding the lack of supporting evidence and evidence to the contrary. Or is the "greater problem at Duke" of which the imagined "assault" is a "symptom" that many there are using hallucinogens? Or is it that you, like the "'Gang of 88' (now 87)" who began, "Regardless of the results of the police investigation...," think that whether there was an assault or not is of little materiality?

In your view, it is not those who sponsored the original ad (Gang of 88, now 87) who deserve to be reproached, rather it is those (DCU) you say are only trying to "intimidate 'radical' professors" like Baker, Farred, Holloway, and Chafe? And now that Baker, who called for the "immediate dismissal" of the lacrosse team coaches, the team, and the players, has moved elsewhere, Duke is poorer for the "loss"?

Why do I find you so very unpersuasive?

Maureen001, you are quite right in your characterization of the original "Listening" ad. I trust, though, that you also looked at the ad the DCU ran this week, which singled out 4 of the original 88 who had very inflammatory things to say on their own. To my knowledge, none of those 4 have recanted, apologized, or done anything of the sort, and it is unlikely they ever will. For them, it seems to matter little whether there was any assault, since they can imagine an assault and that is sufficient for their tendentious purposes.

Maureen001, please see my reaction to courtwatcher at 10:32 and consider the possibility that for some it doesn't matter that much in the end whether the "assault" did in fact happen, since it was not an impossibility and that is quite sufficient for their purposes.

Do you think that Reverend Al really believed Tawana Brawley's incredible story, even as more and more facts emerged? However dishonorable the Reverend may be, and he is plenty so, he ain't that stupid/credulous. But he has never admitted error or apologized, has he?

Much to its credit, the legal profession disciplined Nifong. When will the larger academic community of Duke, North Carolina, or the nation act against its own public fools?

As Hume said, "A wise man proportions his belief to the evidence." The professors in this case didn't bother to reason with the available evidence. They put their social agendas ahead. And, even if we suppose that they were right in their hasty conclusions...it still would be wrong. They did not react responsibly to the available evidence. They sort of relied solely on the testimony of a questionable "victim". Which I think erroneous whichever the conclusion might be.

With that, ought we to allow them to educate our students if they lack the better judgment to wait for evidence before forming their beliefs? This is an indication of sloppy belief formation (which is critical to scholarship), and it may point to a larger issue regarding professors. As one post already mentioned, they should be held accountable for their errors. It is unfair that they can make egregious errors, and yet walk away with no punishment. This is not democracy; it's lunacy. The DCU was correct in holding the professors accountable, and it should be done more often (especially for professors, who seem to get a free pass to say whatever they feel even if they lack proper evidence).

Son of Sam-

If your dog is still talking to you I hope you have the good sense not to follow his advice or instructions this time.

Was it an ad hominem attack or an ad caninem one? And note, we never did hear the dog's side of things.

(BTW, Son of Sam, that is David Berkowitz, has reportedly found Jesus in prison and is preaching the Gospel to others.)

As for our Son of Sam's point about the professors and what evidence was available to them at the time - some of those professors are/were indifferent to evidence. For them, this was an opportunity to rage and they weren't going to pass it up. To understand how that could be, forget for the moment that they are Duke professors and just recall how Reverend Al made use of Tawana Brawley for his purposes.

Punishment?

My cousin just became a judge. He handles lower level criminal cases. One of his first comments on his job was that people don't have enough shame for what they do.

Maybe some of these faculty members will show a little shame and apologize. It's a risk, I know, and for some, a highwire act. Setting an example of contrition and good faith is way out there.

Psikhushka-

I was focusing on what had already transpired at the time the Gang of 88's statement was published. However, it is the Gang of 88's actions (or inaction) to the events after the statement was published, such as the death threats that you mention, that is really the most despicable and incomprehensible part of this whole sorry episode. Even if you give the Gang of 88 every benefit of doubt and read their statement in the light most favorable to them, how do you explain their silence (in most cases) or their George Wallace-esque defiance and belligerence (in the case of a few) in the many months after the statement was released? Wouldn't the dangerous level of hatred and vitriol directed at their own students, the growing evidence of prosecutorial misconduct, and the glaring weaknesses and inconsistencies in the case against the players cause most rational people to reconsider the wisdom of having poured gasoline on the fire? Or, at the very least, compelled them to publicly denounce the threats against their students and affirm their presumption of innocence?

Kovarsky, separate and apart from issues of "prosecutorial indiscretion" or "prosecutorial misjudgment," do you think those Duke professors, especially the ones singled out for special mention by the DCU (Baker, Farred, Holloway, and Chafe), deserve the harsh criticism? Because you have questioned the motives of those doing the criticizing ("we only care about it when it provide [sic] a convenient attack on political correctness"), while saying nothing about the professors, some have concluded that you don't think the harsh criticism warranted, or you don't much care about that aspect of this matter.

The Duke professors can't be blamed for the failed prosecution, which they had no control over.

Nifong was, in equal measure, overzealous and ineffective, contaminating the case.

Too bad there wasn't a federal hate crimes law in place. Then a more competent federal prosecutor could have picked up the pieces, after the state prosecutors dropped the case.

A federal hate crimes law would allow federal prosecutors, who are often of better quality than their state counterparts, to salvage a hate-crimes prosecution after state prosecutors sabotage their case to the point that it has to be dropped or an acquittal results.

It would also help redress the structural racism of state justice systems, which are often permeated by institutional racism.

Anyway, those of us who are lawyers shouldn't expect humanities professors to know every nuance of the law and weigh every particle of evidence about a particular case before speaking out on general themes of race, class, and gender.

Meanwhile, the team that was at the center of all this hullabaloo just one (half) season ago just advanced to the NCAA lacrosse national championship game.

What was that old bit of advice about tugging on Superman's cape again?

markm-

It was a JOKE. My comment wasn't a serious attack on Mr. Son, his dog, or any advice or communications provided by his dog.

I believe he's putitng them in quotes because describing it that way is like describing 9/11 as "bad piloting." There was not "indiscretion" or "overreach."

O. That's strange. I definitely wasn't trying to soft-pedal the malfeasance. Although this is hardly one of the more egregious cases of misconduct, just a very highly publicized one. I'd also argue that the "bad piloting" analogy misstates the "badness" by orders of magnitude.

Freedom of speech is wonderful, both the original statement and this ad, although one does tire of fund raising appeals. However, IEHO, Mike Wise in yesterday's Washington Post had the best summing up

It's not right what Durham District Attorney Mike Nifong did to those kids, and it's not right former and future players have to bear that burden. Their names should have never been sullied like that. It's hard to imagine being the parent of a son wrongly accused of a heinous crime such as rape, the hurt they had to endure. And every letterman affiliated with Duke lacrosse the past few years, whether or not he attended that fateful party, is going to have an indelible stain on his résumé.

At the same time, it's hard to embrace everyone as a victim. With all due respect to those "INNOCENT" bracelets worn around Durham this year, this isn't "To Kill a Mockingbird II."

Pressler presided over a less-than-model program of student-athletes. Fifty-six players were involved in 36 on-campus incidents, many alcohol-related, since 2003. Some of those kids are presumably playing today. Of all the facts that came about the night of March 13, 2006, these aren't disputed: Team members spent $800 to hire a pair of exotic dancers; they requested one white and one Hispanic dancer, but instead were sent two black women; one player thanked one dancer's "grandpa for my fine cotton shirt."

It's still disturbing to look up on the Internet and read a sophomore player's e-mail describing how he would kill and skin a stripper at the next party. He also mentioned he planned to pleasure himself in his "Duke issue spandex."

Irrespective of where you went to school, racial epithets and hate-speech are not part of the curriculum. Somehow, some way, the definition of the "Duke experience" went awry.

Kovarsky:

...I'm somehow being divisive? I said this is a horrible thing, and it's a shame that people don't exhibit the same interest in prosecutorial indiscretion when it doesn't dovetail with rich white kids at Duke. I think that's a perfectly fair, rather unremarkable observation.

Because the media idiotically convicted before evidence, the response turned the event into a vehicle to attack the media, rather than into a vehicle to examine the problems of prosecutorial misjudgment.

...doubtlessly many have good motives, but many have also turned an invitation to examine prosecutorial indiscretion ... into a vehicle to yammer predictably about the mainstream media and liberal academia. those are important issues, to be sure, but the fact that they have received exhaustive treatment in the relevant commentary and the broader problem of prosecutorial overreach has received almost none poses - at least for me - some pretty serious questions about the motives of some of the more vocal critics.

You're tired of hearing it, therefore it is suspect?

Prosecutorial indiscretion? That's what you call it? There are a lot of generalizations in your comments: people don't have the same amount of concern if the victims aren't wealthy, people have focused on condemning media and liberal professors, the media convicted ahead of evidence. As a matter of fact, it was the attention of the media that raised the entire incident to the consciousness of the national public and caused a gread deal of the public to question the propriety of the prosecutor and his methods. While the incident garnered local attention in the beginning, it was the prosecutor's move to take DNA from almost the entire lacrosse team that brought the incident to national attention, thanks to the media. The focus on the Duke 88/now 87 has been on their use of the situation to further their own gains and on their disregard of our judicial procedure that calls for a presumption of innocence until there is proof of guilt. Some, many, believe an explanation for why the professors did these things is their stated liberal political views, but that attempt to explain why does not detract from primary rejection by the public of their behavior. You're missing the sequence, and therefore, missing the importance.

When you (or anyone else -- I don't mean to singularly select you) give the "yes, but" argument that outrage over one perversion of process under color of authority should also occur in another instance, you diminish the validity of the one without raising the validity of the other. Does that make sense? I'm finding it hard to put into words, but I believe it to the depths of my soul. The only way, IMO, we will achieve evenhanded application of justice is if no perversion is diminished. Again IMO, to do otherwise is divisive.

Does anyone get the idea that some folks dearly wish the Duke students had been guilty?

The Duke professors can't be blamed for the failed prosecution, which they had no control over.

No, but they can be blamed for their own comments, which the defense included in their change of venue motion.

Too bad there wasn't a federal hate crimes law in place. Then a more competent federal prosecutor could have picked up the pieces, after the state prosecutors dropped the case.

Wait, there was a hate crime here?

There was a racial slur issued by one of the players (but not one of three that were charged). It was in response to a similarly racially-charged comment directed at him. Is that the hate crime?

It's true that the resouces of the students' families were what let them mount a defense. But the students have acknowledged this.

It is scary how fanatical some people are about demonizing the Duke lacrosse team. They have ideological blinders that keep them from seeing the most obvious truths.

The North Carolina attorney general has recognized that the accused Duke lacrosse players are in fact innocent, and that the prosecution against them should never have occurred.

DNA evidence exonerated them. At least one Duke lacrosse player had an air-tight alibi.

Their accuser, Crystal Mangum, was a violent person who had tried to run over someone with her car, and had made false accusations against other innocent people. She had zero credibility.

If her race had been different, or the defendants' race had been different, no one would have believed her for an instant.

The prosecution was obviously baseless from the very beginning. And it was racist, to boot, a classic case of politically-correct racism.

But to fight Nifong's deeply unethical prosecution, which violated the rules of professional conduct, North Carolina state law, and the constitution, they and their families were forced to incur $80,000 a month in lawyers' fees, a devastating economic loss.

Yet people like Wise insist that the defendants don't deserve much sympathy, because they did bad things like hiring a stripper on a single occasion (although Wise sees little wrong with the accuser, Crystal Mangum, being a stripper -- a gender-based double-standard if ever there was one), and because a lacrosse player -- NOT one of the defendants -- responded to the stripper's race-based diatribe against them by making a racist comment in return.

Even worse are comments above that (1) claim that the vicious ad smearing the Duke lacrosse team signed by radical Duke faculty was a "wonderful" exercise of free speech, and (2) claim that the defendants should be subject to reprosecution under a federal hate crimes law.

Defamation is not an exercise of free speech. It is cause for discipline of each of the Gang of 88 radical faculty, for violating the law, and violating the provisions of Duke's faculty code of conduct.

The idea that the Duke lacrosse team should be reprosecuted for a hate crime under federal law is so absurd as to be almost self-parody.

The claim that the prosecution against them failed only because Nifong was "ineffective and overzealous" overlooks the admission by the state of North Carolina that the players were in fact innocent, and the DNA and alibi evidence conclusively absolving them.

The only thing this absurd claim does is to illustrate the dangers of hate crimes laws.

To some people, apparently, hate crimes are so heinous that not even innocence should be a defense.

Given that persistent attitude, and the unwillingness of many to accept the ironclad proof that the Duke lacrosse players are in fact innocent, it would be especially dangerous to pass a federal hate crimes law, as Congress is poised to do, since there is a loophole in constitutional double jeopardy protections that permits the federal government to reprosecute a defendant who has been found innocent in state court.

(This loophole is known as the dual-sovereignty doctrine, and it was created by the Supreme Court's 5-to-4 Bartkus decision).

While I doubt many federal prosecutors would be foolish enough to attempt to reprosecute a defendant who is patently innocent, as in the Duke lacrosse case (since an acquittal would likely result at the federal level if any such prosecution happened), I can imagine an innocent defendant whose innocence is less patently obvious being reprosecuted again at the federal level.

(Under federal discrimination-law precedents, rape is treated as sex discrimination per se, so it can be argued that every rape prosecuted in state court would also qualify as a gender-based hate crime in federal court. See Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) ("every rape committed in the employment setting is also discrimination based on the employee's sex")).

Federal reprosecution of people found innocent in state court is what many supporters of the federal hate-crimes bill seem to want.

Former Attorney General Janet Reno, in explaining the Clinton Administration's support for a federal hate-crimes law, argued in 1998 that it would provide a federal "forum" in case the prosecution failed to obtain a conviction in "state court." See Jacon Sullum's syndicated column, available at www.reason.com/news/printer/35878.html.

A prominent civil rights lawyer, testifying on behalf of a feminist group supporing federal hate-crimes legislation, argued that it would help provide a vehicle for federal reprosecution if a state prosecutor failed to obtain a conviction due to his "inadequate resources" or "questionable effectiveness." See Hate Crimes Prevention Act of 1999, Testimony on S. 622 Before the Senate Committee on the Judiciary, 106th Cong. (1999) (testimony of Burt Neuborne, former ACLU National Legal Director, on behalf of NOW Legal Defense Fund).

(People can always claim that a state prosecution failed due to inadequate resources or ineffectiveness, even when the prosecution really failed because the defendant was innocent. Former John Edwards aide and blogger Amanda Marcotte, for example, claimed in a profanity-laced tirade that the Duke defendants were guilty of "sexually assaulting a black woman" and got off the hook only because Nifong was an "ineffective" prosecutor. Marcotte's blog, Pandagon, has falsely demonized critics of the federal hate crimes bill as bigots).

And a comment in an earlier blog post at this blog, the argument was made that federal hate crimes legislation was needed to provide a "safety valve" in case a state court found a hate-crimes defendant innocent.

In short, the federal hate crimes bill seems to be motivated by a desire to get around constitutional protections against double jeopardy that keep hate-crimes defendants from being retried at the local level after being found innocent in state court.

As such, the federal hate-crimes bill threatens a serious erosion in civil liberties.

Well, AS, Wise was writing about the former coach, Larry Pressler, and why he deserved to lose his job. Watch the knee jerk.