Category Archive 'Duke Rape Case'

18 Oct 2009

Moral Bankruptcy of Academia

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Peter Berkowitz discusses prominent cases in recent years of the response to controversy at Duke, Yale, and Harvard, in each of which instances faculty and administrators failed to defend freedom of thought and expression or members of their own community against the excesses of political correctness.

Professors have a professional interest in—indeed a professional duty to uphold—liberty of thought and discussion. But in recent years, precisely where they should be most engaged and outspoken they have been apathetic and inarticulate.

Consider Yale. On Oct. 1, the university hosted Danish cartoonist Kurt Westergaard. His drawing of Muhammad with a bomb in his turban became the best known of 12 cartoons published by the Danish newspaper Jyllands-Posten in September 2005. That led to deadly protests throughout the Muslim world. On the same day, at an unrelated event, Yale hosted Brandeis Prof. Jytte Klausen. Her new book, “The Cartoons that Shook the World,” was subject in August to a last minute prepublication decision by Yale President Richard Levin and Yale University Press to remove not only the 12 cartoons but also all representations of Muhammad, including respected works of art. …

To be sure, Yale’s censorship—the right word because Yale suppressed content on moral and political grounds—raised difficult questions. Can’t rights, including freedom of speech and press, be limited to accommodate other rights and goods? What if reprinting the cartoons and other depictions gave thugs and extremists a new opportunity to inflame passions and unleash violence? Can’t the consequences of the cartoons’ original publication be understood without reproducing them? Weren’t the cartoons really akin, as Yale Senior Lecturer Charles Hill pointed out in a letter to the Yale Alumni magazine, to the depictions of Jews as grotesque monsters that successive American administrations have sought to persuade Arab newspapers to cease publishing? And isn’t it true, as Mr. Hill also observed, that Yale’s obligation to defend free speech does not oblige it to subsidize gratuitously offensive or intellectually worthless speech?

These are good questions—to which there are good answers.

Rights are subject to limits, but a right as fundamental to the university and the nation as freedom of speech and press should only be limited in cases of imminent danger and not in deference to speculation about possible violence at an indeterminate future date. One can’t properly evaluate Ms. Klausen’s contention that the cartoons were cynically manipulated without assessing with one’s own eyes whether the images passed beyond mockery and ridicule to the direct incitement of violence.

Even if the cartoons exhibited a kinship to anti-Semitic caricatures, it would cut in favor of publication: a scholar would be derelict in his duties if he published a work on anti-Semitic images without including examples. And finally, if Yale chooses to publish a rigorous analysis of the Danish cartoon controversy, which affected the national interest and roiled world affairs, then the university does incur a scholarly obligation to include all the relevant information and evidence including the cartoons at the center, regardless of whether they are in themselves gratuitously offensive and intellectually worthless.

The wonder is that Yale’s censorship has excited so little debate at Yale. The American Association of University Professors condemned Yale for caving in to terrorists’ “anticipated demands.” And a group of distinguished alumni formed the Yale Committee for a Free Press and published a letter protesting Yale’s “surrender to potential unknown billigerents” and calling on the university to correct its error by reprinting Ms. Klausen’s book with the cartoons and other images intact. But the Yale faculty has mostly yawned. Even the famously activist Yale Law School has, according to its director of public affairs, sponsored no programs on censorship and the university.

Alas, there is good reason to suppose that in its complacency about threats to freedom on campus the Yale faculty is typical of faculties at our leading universities. In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members’ prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.

Similarly, in 2005, Harvard President Lawrence Summers sparked a faculty revolt that ultimately led to his ouster by floating at a closed-door, off-the-record meeting the hypothesis—which he gave reasons for rejecting only a few breaths after posing it—that women were poorly represented among natural science faculties because significantly fewer women than men are born with the extraordinary theoretical intelligence necessary to succeed at the highest scientific levels. Before he was forced to resign, Mr. Summers did his part to set back the cause of unfettered intellectual inquiry by taking the side of his accusers and apologizing repeatedly for having dared to expose an unpopular idea to rational analysis. Apart from a few honorable exceptions, the Harvard faculty could not find a principle worth defending in the controversy over Mr. Summer’s remarks.

As the controversies at Yale, Duke and Harvard captured national attention, professors from other universities haven’t had much to say in defense of liberty of thought and discussion either. This silence represents a collective failure of America’s professors of colossal proportions. What could be a clearer sign of our professors’ loss of understanding of the requirements of liberal education than their failure to defend liberty of thought and discussion where it touches them most directly?

What indeed?

07 Sep 2007

“Until Proven Innocent”

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Abigail Thernstrom has some harsh comments on the Progressive community in her review of the new book by Stuart Taylor Jr. and KC Johnson on the Duke Lacrosse Case.

Until Proven Innocent” is a stunning book. It recounts the Duke lacrosse case in fascinating detail and offers, along the way, a damning portrait of the institutions — legal, educational and journalistic — that do so much to shape contemporary American culture. Messrs. Taylor and Johnson make it clear that the Duke affair — the rabid prosecution, the skewed commentary, the distorted media storyline — was not some odd, outlier incident but the product of an elite culture’s most treasured assumptions about American life, not least about America’s supposed racial divide. …

The state attorney general — after an agonizing yearlong investigation, culminating in Mr. Nifong’s removal from the case — determined in April 2007 that Messrs. Evans, Finnerty and Seligmann were innocent of all charges. Nothing — absolutely nothing — had happened at the party. The players’ innocence had been apparent to their own attorneys from the outset. It should have been apparent to Mr. Nifong, too, given all the exculpatory details he knew. But he was desperate to win a close primary election and needed black votes, so he proceeded with an unjustified prosecution and publicly vilified innocent young men.

In this fundamental injustice, he was aided and abetted by others in Durham. Richard Brodhead, the president of Duke, condemned the lacrosse players as if they had already been found guilty, demanded the resignation of their coach and studiously ignored the mounting evidence that Ms. Mangum’s charge was false. He was clearly terrified of the racial and gender activists on his own faculty. Houston Baker, a noted professor of English, called the lacrosse players “white, violent, drunken men veritably given license to rape,” men who could “claim innocence . . . safe under the cover of silent whiteness.” Protesters on campus and in the city itself waved “castrate” banners, put up “wanted” posters and threatened the physical safety of the lacrosse players.

The vitriolic rhetoric of the faculty and Durham’s “progressive” community — including the local chapter of the NAACP — helped to intensify the scandal and stoke the media fires. The New York Times’ coverage was particularly egregious, as Messrs. Taylor and Johnson vividly show. It ran dozens of prominent stories and “analysis” articles trying to plumb the pathologies of the lacrosse players and of a campus culture that allowed swaggering white males to prey on poor, defenseless young black women. As one shrewd Times alumnus later wrote: “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bienpensant journalist.” Such Nifong allies — unlike the district attorney himself — paid no price for their shocking indifference to the truth.

Some observations by the authors themselves appeared in yesterday’s Washington Post.

The 24-hour sentence was imposed on Mike Nifong, the disbarred former district attorney of Durham, after a contempt-of-court trial last week for repeatedly lying to hide DNA evidence of innocence. His prosecution of three demonstrably innocent defendants, based on an emotionally disturbed stripper’s ever-changing account, may be the worst prosecutorial misconduct ever exposed while it was happening. Durham police officers and other officials aided Nifong, and the city and county face the threat of a massive lawsuit by the falsely accused former students seeking criminal justice reforms and compensation.

All this shows how the criminal justice process can oppress the innocent — usually poor people lacking the resources to fight back — and illustrates the need for reforms to restrain rogue prosecutors. But the case was also a major cultural event exposing habits of mind among academics and journalists that contradict what should be their lodestar: the pursuit of truth.

Nifong’s lies, his inflaming of racial hatred (to win the black vote in his election campaign) and his targeting of innocent people were hardly representative of criminal prosecutors. But the smearing of the lacrosse players as racist, sexist, thuggish louts by many was all too representative.

Dozens of the activist professors who dominate campus discourse gleefully stereotyped and vilified their own students — and not one member of Duke’s undergraduate faculty publicly dissented for months. Duke President Richard Brodhead repeatedly and misleadingly denigrated the players’ characters. He also acted as though he had no problem with Nifong’s violations of their rights to due process.

The New York Times and other newspapers vied with trash-TV talk shows hosted by the likes of CNN’s Nancy Grace, a biased wacko-feminist, and MSNBC’s Joe Scarborough, a right-wing blowhard, in a race to the journalistic bottom. The defendants — who endured the ordeal with courage and class — and their teammates were smeared nationwide as depraved racists and probable rapists.

To be sure, it was natural to assume at first that Nifong had a case. Why else would he confidently declare the players guilty? But many academics and journalists continued to presume guilt months after massive evidence of innocence poured into the public record. Indeed, some professors persisted in attacks even after the three defendants were declared innocent in April by North Carolina Attorney General Roy Cooper — an almost unheard-of event.

Brushing aside concern with “the ‘truth’ . . . about the incident,” as one put it, these faculty ideologues just changed their indictments from rape to drunkenness (hardly a rarity in college); exploiting poor black women (the players had expected white and Hispanic strippers); and being born white, male and prosperous.

This shameful conduct was rooted in a broader trend toward subordinating facts and evidence to faith-based ideological posturing. Worse, the ascendant ideology, especially in academia, is an obsession with the fantasy that oppression of minorities and women by “privileged” white men remains rampant in America. Its crude stereotyping of white men, especially athletes, resembles old-fashioned racism and sexism.

Hat tip to Daniel Lowensten.

23 Jun 2007

Two Meritless Prosecutions

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Dorothy Rabinowitz, in the Wall Street Journal, compares Duke student prosecutor Nifong with Scooter Libby prosecutor Fitzgerald in A Tale of Two Prosecutors.

It was a noteworthy week on the justice front. Even as Mr. Nifong was facing ethics hearings in North Carolina, Scooter Libby’s attorneys came before trial Judge Reggie Walton, in Washington, to plead for a delay in the beginning of the 30-month sentence the judge had handed down. Special prosecutor Patrick Fitzgerald’s project — the construction of a major case of obstruction of justice out of a perjury rap against Mr. Libby — had come to a satisfactory conclusion.

For Mr. Fitzgerald, whose prosecutorial zeal and moral certitude are in no small way reminiscent of Mr. Nifong’s, the victory was complete with those two final judgments: the severe sentence for Mr. Libby, and the judge’s refusal, last week, to allow its postponement pending appeal. The prosecutor’s argument for a heavy sentence emphasized Mr. Libby’s alleged serious obstruction of justice — a complicated effort, considering that there was no underlying crime, or evidence thereof, and that this case, which had begun in alleged pursuit of the leak of a covert agent’s identity was, as the prosecutor himself would finally contend, not about that leak at all.

Just what serious obstruction of justice Mr. Libby could have been guilty of, then, was, at the least, a heady question, though not one, clearly, that raised any doubts in the judge. Neither did Mr. Fitzgerald’s charge — also in pursuit of a heavy sentence — that the defendant had caused, by his obstruction, no end of trouble and expense in government effort.

The obligation to truth, the prosecutor argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald’s own dubious relation to truth and honesty — as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge — in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent’s name — he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker’s identity — a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery — it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into “obstruction” or “lying” violations. It was its own testament to the nature of this prosecution — and the prosecutor. …

The prospects for Mr. Libby’s success in an appeal hinge on three points, two concerning the court’s refusal to allow the defense to present certain witnesses. The other potentially powerful issue relates to Mr. Fitzgerald. The Special Prosecutor was given, on his appointment (by his long-time friend, acting Attorney General James Comey) a remarkable freedom from accountability to any higher authority or Justice Department standards. This unique freedom was made explicit in his appointment letter. Such unparalleled lack of control, the appeal will argue, is a violation of the principle of checks and balances.

However it comes out, both the case mounted against Mr. Libby, and the sentence delivered, have plenty of parallels. It is familiar stuff — the fruits of official power run amok in the name of principle and virtue — and it’s an ugly harvest. Mr. Libby is another in the long line of Americans fated to face show trials and absurdly long sentences — the sort invariably required for meritless prosecutions.

There was at least one bright spot in the events of the last week, specifically, Mr. Nifong’s removal from office — a case, at long last, of a prosecutor called to account. It will be some while we can guess, before any such wheels of justice grind their way to the special prosecutors.

How can a prosecutor be permitted to convict a defendant of obstruction of justice without first proving any crime had ever been committed? How can a defendant be possibly be convicted of perjury for allegedly misleading the prosecutor about the identity of Robert Novak’s informant which the prosecutor already knew and did not need to inquire about?

21 Jun 2007

Racism, Then and Now

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John Steele Gordon, in the Wall Street Journal, compares two cases of gross injustice in America arising from racial stereotypes, one recent, the other over 80 years ago.

Imagine this: In a Southern town, a woman accuses several men of rape. Despite the woman’s limited credibility and ever-shifting story, the community and its legal establishment immediately decide the men are guilty. Their protestations of innocence are dismissed out of hand, exculpatory evidence is ignored.

The Duke rape case, right? No, the Scottsboro case that began in 1931, in the darkest days of the Jim Crow South.

The two cases offer a remarkable insight into how very, very far this country has come in race relations, and alas, in some ways how little. For race is central to why both cases became notorious. In Scottsboro, Ala., of course, the accusers were white and the accused was black. In Durham, N.C., it was the other way around.

On March 25, 1931, a group of nine young black men got into a fight with a group of whites while riding a freight train near Paint Rock, Ala. All but one of the whites were forced to jump off the train. But when it reached Paint Rock, the blacks were arrested. Two white women, dressed in boys clothing, were found on the train as well, Victoria Price, 21, and Ruby Bates, 17. Unemployed mill workers, they both had worked as prostitutes in Huntsville. Apparently to avoid getting into trouble themselves, they told a tale of having been brutally gang raped by the nine blacks.

The blacks were taken to the jail in Scottsboro, the county seat. Because the circumstances of the women’s story — black men attacking and raping white women — fit the prevailing racial paradigm of the local white population, guilt was assumed and the governor was forced to call out the National Guard to prevent a lynch mob from hanging the men on the spot. The nine were indicted on March 30 and, by the end of April, all had been tried, convicted and sentenced to death (except for the one who was 13 years old, who was sentenced to life in prison).

A year later, the Alabama Supreme Court upheld the convictions of those on death row, except for one who was determined to be a juvenile. By this time, however, the “Scottsboro Boys” had become a national and even international story, with rallies taking place in many cities in the North. Thousands of letters poured into the Alabama courts and the governor’s office demanding justice.

The International Labor Defense, the legal arm of the Communist Party USA, provided competent legal help, and the convictions were overturned by the U.S. Supreme Court because the defendants had not received adequate counsel. Samuel Leibowitz, a highly successful New York trial lawyer (he would later serve on the state’s highest court) was hired to defend the accused in a second trial, held in Decatur, Ala. This turned out to be a tactical error, as Leibowitz was perceived by the local jury pool — all of them white, of course — as an outsider, a Jew and a communist (which he was not). Even though Ruby Bates repudiated her earlier testimony and said no rape had taken place, the accused were again convicted, this time the jury believing that Ruby Bates had been bribed to perjure herself.

Again the sentences were overturned, and in 1937 — six years after the case began — four of the defendants had the charges dropped. One pleaded guilty to having assaulted the sheriff (and was sentenced to 20 years) and the other four were found guilty, once again, of rape. Eventually, as Jim Crow began to yield to the civil rights movement, they were paroled or pardoned, except for one who had escaped from prison and fled to Michigan. When he was caught in the 1950s, the governor of Michigan refused to allow his extradition to Alabama.

It is now clear to everyone that the nine Scottsboro boys were guilty only of being black.

When the accuser in the Duke case charged rape, the district attorney — in the midst of a tough primary election — saw an opportunity to curry favor with Durham’s black community and exploit the town-gown tension found in every college town. He ran with it, inflaming public opinion against the accused at every opportunity.

To be sure, there was no lynch mob, which happily is almost inconceivable today. But many Duke University students and faculty, and many members of the media (Nancy Grace of Court TV comes to mind), simply plugged the alleged circumstances into their racial paradigm — wealthy white college jocks partying and behaving badly with regard to a poor black woman — and pronounced the Duke boys guilty. Wanted posters went up on campus with pictures of the accused; 88 members of the faculty sponsored an ad in the college paper effectively supporting the posters; and the university president suspended two of the accused upon their indictment (the third had already graduated), cancelled the rest of the season for the lacrosse team, and forced the resignation of the team coach.

Here is where the real difference between the Scottsboro boys and the Duke boys kicked in: not race but money. The Scottsboro boys were destitute and spent years in jail, while the Duke boys were all from families who could afford first-class legal talent. Their lawyers quickly began blowing hole after hole in the case and releasing the facts to the media until it was obvious that a miscarriage of justice had occurred. The three Duke boys were guilty only of being white and affluent.

The district attorney won his election. But when the case fell apart and his almost grotesque malfeasance was exposed, he first resigned his office and ultimately was disbarred from the practice of law. Duke University has just settled with the three students it treated so shamefully for an undisclosed, but given the university’s legal exposure, undoubtedly substantial sum. Meanwhile, the 88 members of the faculty have yet to apologize for a rush to judgment that was racist at its heart.

The country has come a long, long way in regard to race relations since 1931. But we have not yet reached the promised land where race is irrelevant. Far too many people are still being judged according to the color of their skin, not the content of their character, let alone the evidence.

16 Oct 2006

Journalism, Stereotypes, and Scapegoating

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Back in the first half of the last century, too frequently the pillars of the community, and their allies in the fourth estate, stereotyped and scapegoated the Negro, and then celebrated every lynching as a victory for justice and law and order. Then, as now, a small minority of skeptics saw through the falsehood and hypocrisy so eagerly embraced by opportunistic pols, the conformist mob, and the slimey priesthood of dead tree pulp.

The identity of the victims of mob mentality and the forms of lynching have changed, but the basic process of a passionate embrace of irrational accusation precisely because it provides a yearned for excuse to punish some living representative of a hated stereotype, the vindictive pursuit and punishment of the unhappy victim drafted to serve as scapegoat, and the whole ugly affair egged on and encouraged by the press sinking to the lowest level of emotionalism, group hatred, and prejudice has not changed.

In Rape, Justice, and the “Times”, Kurt Anderson excoriatingly, and deservedly, reviews the Duke rape story, the prosecutor’s, and the New York Times’ behavior.

As a young writer at Time, whenever I’d hear “That story’ll write itself,” I wanted to reach for my revolver. The line, delivered with bluff cheer, suggests that good material makes good writing easy, which isn’t true. Its premise is the very wellspring of hackdom: The more thoroughly some set of facts reinforces the relevant preconceptions, caricatures, clichés, and conventional wisdom, the easier it makes life for everyone, journalists as well as their audiences. Most people want to be told what they already know. And in a world of murky moral grays, who doesn’t sometimes relish a black-and- white tale, with villains to loathe, victims to pity, injustice to condemn?

Thus the enthralling power of the Duke lacrosse-team story when it broke last spring. As a senior Times alumnus recently e-mailed me, “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist.” That is: successful white men at the Harvard of the South versus a poor single mother enrolled at a local black college, jerky superstar jocks versus $400 out-call strippers, a boozy Animal House party, shouts of “nigger,” and a three-orifice gangbang rape in a bathroom.

The story appalled us good-hearted liberal metropolitans, but absolutely galvanized the loopy left at Duke. One associate professor, Wahneema Lubiano, could barely disguise her glee. “The members of the team,” she wrote in a blog, “are almost perfect offenders” because they’re “the exemplars of the upper end of the class hierarchy … and the dominant social group on campus.”

Furthermore, she wrote, “regardless of the ‘truth’ ”—that is, regardless of whether a rape occurred—“whatever happens with the court case, what people are asking is that something changes.”


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