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Apr 23, 2006 10:24 pm


The Duke 88



88 members of the Duke faculty—including 11 members of its History Department, among them such luminaries as William Chafe and Claudia Koonz—and 15 academic departments or programs recently signed a public statement saying they were “listening” regarding allegations against the Duke lacrosse team. The statement spoke of “what happened to this young woman” (which at that point consisted of nothing more than uncorroborated allegations) and gave a message to campus protesters: “Thank you for not waiting” until the police completed their investigation. Activities of these campus protesters, as we now all know, included such items as the “wanted” poster and branding the team “rapists.”

In today’s Newsweek, a student at predominantly African-American North Carolina Central carried the Duke 88’s thinking to its logical, if absurd, extreme. The student said that he wanted to see the Duke students prosecuted “whether it happened or not. It would be justice for things that happened in the past.”

Newsweek also became the second major news outlet (ABC is the other) to have received access to the exculpatory evidence of one of the indicted players, Reade Seligmann. (The story confirmed that the D.A. refused to review this evidence before making a charge, despite a request from defense attorneys.) According to the magazine, during or within the 16 minutes after the time of the alleged rape, Seligmann placed eight calls on his cell phone, was waiting on a curb a block away from the site of the alleged rape, where he was picked up by a cab; and he then went to an ATM machine, a fast-food restaurant, and card-swiped his way into his dorm. The cab driver has given a statement, cell-phone records exist of the eight calls, the ATM withdrawal slip was saved, and the card-swipe was timed by Duke’s security system.

At this stage, we don’t know whether a crime was committed in this case. But unless Seligmann had contact with the accuser before the alleged crime (which no one is claiming) or his defense team has engaged in a massive doctoring of evidence that fooled both Newsweek and ABC, it seems unlikely that Seligmann (who has no prior record of any misconduct, and who has received an outpouring of support in recent days from those who know him) committed any crime. In the words of Newsweek—hardly known as a bastion of overstatements—Selgimann’s “lawyer was able to produce evidence that would seem to indicate it was virtually impossible that Seligmann committed the crime.”

How many of the Duke 88 would affix their signatures to a public affirmation that they are “listening” to the exculpatory evidence of a student at their own institution, and expressing concern that local authorities could be veering toward a miscarriage of justice regarding Seligmann? Or do they “listen” only to versions of events that conform to their preconceived worldview, like the student at North Carolina Central, seeking “justice for things that happened in the past”?

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Irfan Khawaja - 8/4/2006

I hesitate to comment on this case because I find the whole controversy surrounding it so silly, but I do think Ralph is right that you (KC) are jumping to conclusions as much as the people at Duke appear to be. (I say "appears" because I haven't been able to figure out exactly what their statement says.)

The article to which you linked offers no evidence that Seligmann was in possession of the cell phone when the calls were made, or was photographed by the ATM when the card was swiped. So that evidence doesn't go all that far. The other evidence would seem, prima facie, to exculpate--but only if one has access to the full range of facts. News magazines never do at this stage of an investigation.

I personally find it somewhat implausible that Seligmann did commit a crime, but that is an armchair judgment--as are nearly all the judgments one hears about this ridiculous case.

Does anyone remember the Armanious murders in Jersey City last year?

http://www.michellemalkin.com/archives/001676.htm

Everyone became an expert on that case for three months, picking apart the malfeasances of the prosecutor until...they realized they shouldn't have said anything until all the facts were in. The lesson is worth learning.

The range of possibilities in the Duke case ranges from a Tawana Brawley scenario (the rape was a calculated hoax) to a Glen Ridge rape scenario (a famous gang rape of a teenage girl with a broomstick by high school football players; cf. Bernard Lefkowitz's excellent book "Our Guys") and everything in between.

Maybe it's safest to declare an all-round moratorium on commentary? I think the real question is why everyone feels obliged to have an opinion on a case where evidence is so scant.


Irfan Khawaja - 8/4/2006

I don't disagree with any particular sentence in your preceding post. But I would insist that there is something odd about the disproportionate attention that this case has gotten from every quarter.

It is certainly unfair that a person who has merely been accused is being treated as though he were guilty. But this particular unfairness is ubiquitous in American life. Look in any local paper anywhere: people are arrested for crimes on Monday, splashed all over the papers on Tuesday through Sunday, then forgotten about, even after they're exonerated. And such cases happen at universities all the time, too. They may not make it to the front pages of the news magazines but they happen.

Likewise, people get raped every day in this country--and use racial epithets, go to strip clubs, and all the rest. Does every rape case make it to the front page of the news magazines, much less every instance of racist talk? Of course not.

Incidentally, it's not clear to me why hiring a stripper is peculiarly repulsive for "smart, wealthy college students" as opposed to the thousands upon thousands of other sorts of people who hire them. If this is a moral issue, intelligence and wealth have nothing to do with it. I find it simply bizarre that people are so outraged that Duke students are doing something that (evidently) would be perfectly OK in non-Duke students. But then, when was the last time that the country was convulsed in a controversy about working class Joe Smith hiring a stripper?

It seems obvious to me that this case has assumed the gargantuan proportions it has merely because it plays to stereotypes of all kinds. Some people see the racist arrogant prep school lacrosse players. Some see a Tawana Brawley situation. Some see an out of control left faculty going PC. Etc.

In the end, though, this is an utterly banal, meaningless event no matter how it turns out. It is either another ordinary crime or an ordinary false accusation. The fact that it involves a not-so-well-off black accuser and wealthy white suspects, and that it happened at Duke (or nearby), is only meaningful to people who think that "black," "white" and "Duke" invest meaning in an otherwise meaningless event. They don't.


Robert KC Johnson - 4/25/2006

There are a couple of separate issues in your post. One: on the facts of the case, the testimony of both the cab driver and the neighbor help establish Seligmann's alibi. It may be, as you point out, that the prosecution will try to show they're lying, but I don't see how their version of events could be interpreted as harmful to the players.

Two: you point out that the "social context" makes the team's claim of innocence difficult to believe. The letter of the Group of 88 implies similarly. It seems to me dangerous ground when people start claiming that "social context" can prove crimes.


steven strickberger - 4/25/2006

The Duke 88 were not jumping to any rash judgments concerning the guilt of the two indicted lacrosse members. It is the social context and the behaviors of the lacrosse team at Duke, in the context of the alleged claim of assault, that make the teams’ members proclaimed innocence seem so suspect. A neighbor heard a party attendee yell “thank your grandpa for my new cotton shirt." The second stripper claims she was called "nigger "and both she and the alleged victim were threatened with a broomstick. Both entertainers/strippers claim they left the party after the verbal harassment and then were coaxed to return. The players are not disputing this part of the story. The e-mail, sent by the infamous team member, to the team, the very same night about “killing and skinning strippers," makes the teams' judgment and behavior very suspect. I don’t remember the villain in American Psycho, dressing in Duke spandex, and pleasuring himself, while killing and skinning strippers. For the players to use that excuse, that this e-mail was referring a team “inside joke”, that was referencing a theme in a movie, seems arrogant and disingenuous. Anyways, American Psycho should be interpreted as an imaginary dream sequence, not a real assault. It appears that one team member sent a copy of this e-mail to the police. Possibly he is the only player cooperating with the D. A. The cab driver claims he heard a player in the yard say" she is only a stripper and is going to call the police." Possibly he too has an axe to grind with the players. Then the party disperses very quickly. According to the police records no one was in the house when the police responded to the call concerning the racial epithets. This behavior is very odd. .It would not be rash for a prosecutor to think that a sexual assault possibly occurred. The rape experts at the hospital reported that the alleged victims’ bruises and conditions were consistent with rape. It appears the D.A .does have enough solid evidence for an indictment. It would be too coincidental that all these possible witnesses are lying. It is possible. Those judgments should be made by a jury. and I believe the D.A. made the right call. Even if the time stamps were accurate, Ron Seligman still would have had time to attack the alleged victim. The victim claims the assault lasted thirty minutes. Twenty minutes of fighting an assault could certainly have seemed like thirty minutes to her. Seligman's alibi is not foolproof. That he was jovial in the cab does not indicate his innocence. Guilty rapists might not feel remorse. Also the alleged gay bashing in Washington D.C. that Finnerty pled to does not bode well for his defense. Why would Finnerty agree to do community service if he was innocent in the D. C. case? In the context of the light community- service sentence he agreed to, and no apparent punishment by his coach or the university, it would not be improbable that he thought he really thought he could still try his luck. His first plea did not tarnish his reputation. Having a history of no real consequences for his actions, at least to one alleged assault, the possible alcohol and drug influence, the apparent objectification of women, apparent racism among some of the players, raging hormones, and a propensity to violence, might have led to the assault. For the D.A. to press charges and certain faculty members at Duke to say that they” are listening” does not seem rash or playing to a “mob mentality”. Why didn't any of the players prevent or castigate the players making the racist comments? Why no apologies to the two dancers after they finished stripping, assuming the other players only heard the racial slurs, and were naive to the possible assault that occurred? Why would the neighbor and the cabbie offer corroborating accounts of the possible assault? Why would the hospital employees also have an axe to grind with the lacrosse players? Possibly the “accuser” came to the party already drunk, possibly on drugs, and recently assaulted, but that seems improbable. It appears that the D.A. had plenty of evidence to indict the players. To claim he was making a rush to judgment is ludicrous. The 88 faculty members that signed the "we will listen letter" were acting in good faith regardless of how the possible trial plays out.


Robert KC Johnson - 4/24/2006

Correct--he could do that. Or he could have waited for any indictment until after the second DNA tests were in, after search warrants were executed on the players' rooms, after his office had explored possible alibis. Had there been no primary on May 2, it's hard to believe he wouldn't have followed this course: what DA wants to indict on incomplete evidence?

One specific example: MSNBC has reported that (after the indictments were made), people from the DA's office unofficially asked MSNBC reporters for the photos that the defense attorneys made available. What rationale would there have been for the DA not to have issued a subpeona on all players for all photos related to the party before issuing the indictment?

Let's say, hypothetically, the DA drops the charges against Seligmann and indicts X and Y. Defense cross-examination of the police officers would simply be, "If you made one mistake in identifying the perpetrator, by your own admission, why should we believe you didn't make a mistake again"? Perhaps such a question wouldn't persuade a jury--but in a case like this, where the evidence isn't at all clear, I'm dubious, even if the newly charged parties were guilty.

This ties back to the Kors/Silverglate point on due process--due process doesn't exist just to protect the accused; it exists to help produce the outcome most consistent with justice.


Ralph E. Luker - 4/24/2006

No. He doesn't necessarily drop charges against both of the men currently accused. He could drop charges against one of them, maintain the charges against the other one, and even bring charges against one or two additional persons. I don't see any prejudicial damage to his case in that.


Robert KC Johnson - 4/24/2006

Correct. But under the hypothetical scenario in this case, we'd have the DA charging two players with the crime, dropping those charges, and then charging players for the very same offense who were part of his original suspect pool, investigated, but didn't consider guilty--in a very high-profile case. That kind of scenario rarely (if ever) happens--we're not talking about, say, his having indicted people on underage drinking in an attempt to "flip" them for their testimony.


David Lion Salmanson - 4/24/2006

Remember that Duke's initial response to the most obvious problems (underage drinking sponsored by captains of a team that had a history of underage drinking problems) was painfully slow. If Duke had acted faster on the elements that clearly were within its realm, than there may have never been national attention on the case at all. I'm from a town that J. R. Moehringer described asbeing famous for two things: lacrosse and liquor. The connection between the two is not accidental. The sad thing is this type of encounter both with and without rape is played out a lot on college campuses. Binge drinking, a hyper-sexual culture, and slaps on the wrist for prior offenses add up to a group of boys who believe they have the right to do almost anything and get away with it. That needs to stop both with individual accountablity on the part of perpertrators (many of the lacrosse players dodged their earlier underage drinking convictions, will they be held accountable now?) and a societal shift away from sex as the be all end all of any relationship.


Ralph E. Luker - 4/24/2006

I don't understand why you think that if the DA dropped the charges in one case his chances of a conviction in another would be near xero. Charges get dropped by the prosecution in court all the time and that doesn't prejudice other, related, cases. In fact, charges are sometimes brought in order to flip a potential witness against other defendents. Happens all the time, KC.


Robert KC Johnson - 4/24/2006

He does have the option of dropping charges and indicting others if the evidence were to point in that direction. But if it occurs, his chances of a subsequent conviction are close to zero. Any half-competent defense attorney could raise reasonable doubt simply by asking that if the DA himself wasn't sure of who committed the crime, how could the jury be?

Perhaps the DA had a good reason to indict when he did--before even searching the players' rooms for potentially exculpatory or incriminating evidence, much less anything else--other than the fact that this was effectively the final grand jury that met before the primary (there's one, of course, the day before the primary, but its action almost certainly would have been sealed till after the vote).

Perhaps Durham County handles all cases in this manner. But somehow I doubt it.


William Harshaw - 4/24/2006

While I understand your position, I think your "merely" is critical. We often find symbolic events, both in our personal lives and in public affairs, and the symbolism comes precisely because the event resonates with more than one set of preconceptions. So the Duke case has no particular intrinsic importance but quite possibly will come to be a historic symbolic event.


Ralph E. Luker - 4/24/2006

In terms of what might happen if the 2nd DNA tests come back with positive results, the DA has maintained since the two arrests that there could be more -- whether it is the "third" party or other parties. Moreover, the DA has the option of dropping charges that he no longer believes are credible.


Robert KC Johnson - 4/24/2006

And I agree completely (as I've noted before) with your point that the Duke administration demonstrated insufficient oversight of the program, and, more generally, of Duke students living nearby in off-campus housing.


Robert KC Johnson - 4/24/2006

The last I looked, the DA indicted two members of the lacrosse team, so I wouldn't say this particular instance is an example of an "imbalance of power" that favors the players.

As to my preconceived world view, as a centrist Democrat, I find nothing particularly "liberal" in the "listening" statement. It contains 11 items, purportedly from students, claiming racial discrimination on campus. Nine of these statements have no identification at all. The other two are anonymous.

The remainder of the statement contains three paragraphs from the Duke 88. One encourages campus protesters--which, as I noted, included such items as the "wanted" poster, statements that the team were rapists, and Houston Baker's public letter advocating expulsion of the lacrosse team. A second explicitly notes "what happened to this woman"--which, as far as I know, hasn't yet been determined, and certainly wasn't at the time this statement was revealed. The third maintains that "the disaster didn't begin on March 13th and won't end with what the police say or the court decides."

If such statements represent an example of how the Duke 88 "explicitly show they have *not*" jumped to conclusions, I would hate to see what they're like when they do jump to conclusions.


Robert KC Johnson - 4/24/2006

It would seem to me that, at the very least, the DA should have inquired as to whether any of the suspects could prove they were not present at the time of the alleged crime; and, given that there's a DNA test outstanding, waited until those results came in (which he now says is May 15). I'm not a lawyer, obviously, but this seems like common sense.

What happens to the case, for instance, if the second DNA test, which had been ordered before the indictments were obtained, contains material from players not arrested?

There seems to have been a desire on the DA's part to obtain indictments before the May 2 primary, regardless of whether doing so served the long-term interests of the case.


Dennis R. Nolan - 4/24/2006

I think KC's main point, which may have been lost in discussion of some details, is that the information made public so far is too sketchy and contradictory to permit a cautious observer to make a firm judgment at this point as to whether there was a rape and if so, whether the two indicted students committed it.

Perhaps the D.A. has additional evidence he has not yet disclosed. If so, indictments (which are, after all, only charges) may have been proper. One should be extremely hesitant to jump from the fact of an indictment to a conclusion of guilt. A grand jury hears only from one side. There's an old saw in the law business to the effect that a prosecutor should be able to get a grand jury to indict a ham sandwich.

Given all this, it seems irresponsible for any person without access to all the information to accept the accuser's assertions or to demand immediate punishment of the alleged criminals. Unless we're in Wonderland, the trial should come before the verdict.


Wendy Wagner - 4/24/2006

KC, your equation of the 88 Duke professors who specifically said they were "listening," not judging or coming to any conclusions, to an obviously extremist and immature statement from an NCCU student, is irresponsible, inflammatory rhetoric, and this irresponsibility is not at all mitigated by your framing it as a question.

What I suspect the Duke professors who signed on to the statement are doing is trying to address the imbalance of power by showing support for the side that lacks it. I know that it's hard for supporters of the lacrosse players to imagine that there is an imbalance of power that favors them, but years and years of history show us that the balance of power does favor wealthy white men over their poor black female accusers. It does not mean that we should jump to conclusions one way or another; what is remarkable about the Duke faculty's statement is that they explicitly show they have *not*. It is your complaint that reveals that you have done precisely what you have accused the Duke faculty of doing. Except your "preconceived worldview" involves "liberal" faculty.


Ralph E. Luker - 4/24/2006

KC, At what point in the investigation would you have favored an arrest? At what point an indictment? Duke's administration, at least, seems to have been even-handed. As I understand it, only three students have been suspended. One might even argue that Duke's administration let behavior by students reach this end by not making clear some time ago that behavior such as hiring strippers for drunken parties would not be tolerable behavior for a Duke student.


Eric Leigh Muller - 4/24/2006

I find it interesting that not one of the signatories of the letter was from the Duke Law School faculty.


Robert KC Johnson - 4/24/2006

All that you say, of course, is true. It's possible that Seligmann loaned his cell phone to someone else, who called and spoke to (among other people) Seligmann's girlfriend; ditto with the ATM card; ditto with his dorm pass key. (The cab driver who picked him up and drove him to the ATM machine and then to Duke also would have to be lying.) But that would also suggest some planning of the crime--which even the DA hasn't suggested exists. The counterfactual here is whether the DA would have indicted if he had all this evidence before going to the grand jury. I find it hard to believe he would have.

What frustrates me about this case is that a different response by the Duke faculty might have improved the situation (it's easier to say this in retrospect than it was at the time, of course). From virtually all the press coverage, the DA has, at best, behaved in an erratic fashion. He's new at the job, with an election coming up, and in a position with the run-of-the-mill town/gown tensions and a racially divided electorate. In such a climate, and given the obvious legacy of race relations in the South, it's unsurprising that he received strong pressure for a quick indictment from some elements of the African-American community, and from some locals that seem to resent Duke.

In an ideal world, the DA would have faced countervailing pressure from Duke (it wouldn't have come from anyplace else given the political and demographic climate ot Durham)--at least to run an above-board investigation, to search out potential alibi witnesses, to wait for an indictment until the second round of DNA testing comes in. Essentially, the call would have been for fair play and respect for civil liberties--principles the academy claims to hold dear.

Instead, the vocal elements of the Duke faculty (and student body) joined the most vociferous groups in the community, and there were almost no voices at Duke (except, belatedly, some students) who spoke up against a rush to judgment.

Of course, the Duke lacrosse team wasn't an easy group to defend. A sizeable faction of it seem to be arrogant jerks. To me, the idea of wealthy and smart college students hiring strippers for a party is repulsive. At least one of them used a racial epithet. In this sense, they fit into the preconceptions many in the academy have about what is wrong with America. But a Duke professor could have honorably called for cancelling the season and firing the coach, say, and not simultaneously act as if the rape must have occurred.

Maybe none of this would have mattered, and the DA would have charged forward regardless. But a call to treat the Duke students fairly wasn't at all irreconcilable with support for justice. A more tempered investigation certainly wouldn't have hurt the cause of justice: to take one instance, conducting a photo ID that didin't include just lacrosse players--as two detectives recommended but the DA refused to do. There are three alternatives: 1) a rape occurred, and those charged did it; 2) a rape occurred, but other players committed the act; 3.) nothing criminal happened. At this stage, it's entirely possible that alternative (2) occurred--while, as you point out, (1) is possible too, and so, of course, is (3). The DA's rush to indict basically means that if (2) happened, there's little chance the guilty parties will be convicted.

In the case of Seligmann, his photo is now on the cover of Newsweek, and this arrest will, one way or the other, haunt him for the rest of his life. If he's guilty, of course, he would deserve such a fate. But it appears that he very well could not be guilty. At the very least, he shouldn't have been indicted at this stage of affairs, and the DA's behavior in his case has been procedurally irregular.

Fair play and procedural regularity are supposed to be cardinal principles in the academy, yet arguments along these lines seem to have been in very short supply from the Duke faculty. That's unfortunate.




Robert KC Johnson - 4/23/2006

As I said in the post, at this stage, I don't know (nor do I think anyone else does) whether or not a crime occurred. We still await the second DNA tests (conveniently delayed till after the primary) and possible additional investigation by the police.

The DA, however, has gone well beyond saying that a crime has occurred. He has charged two people. One of them--Seligmann--seems to have very strong evidence that he wasn't there at the time the crime allegedly occurred. Yes, his lawyers have leaked evidence--but that evidence was independently verifiable by both Newsweek and ABC, and is so varied (cell-phone records, ATM, dorm key, cab driver testimony) that he'd have to have been a criminal genius to have done this, on the fly, as a cover-up. If Seligmann is innocent, that doesn't mean a crime didn't occur: a crime could very well have occured. But, because of the DA's bungling, if Seligmann is innocent, it almost certainly means that no one can be convicted of it.

The Duke 88 essentially said that a crime was committed--and certainly gave encouragement to protesters who were making that argument. In an atmosphere where the DA simply seems to be over his head, if cooler voices had prevailed at Duke, perhaps the institution could have lobbied more effectively for an even-handed investigation. But at this stage, it doesn't seem unreasonable to wonder whether faculty at Duke are going to be as aggressive in standing up for the rights of one of their own students, who has a lot of exculpatory evidence on his side, as they were in claiming that a crime was committed, when virtually no evidence had come to light.


Ralph E. Luker - 4/23/2006

You rather consistently ignore the _fact_ that the hospital examination of the NCCU student confirmed that she had injuries consistent with rape. There's also reference to the use of a broomstick, which could well explain the absence of DNA evidence. The Durham County DA might be incompetent, but you jump on every bit of exculpatory evidence leaked by a high-priced defense team, as if that were somehow an even-handed showing of evidence. I'd be very careful about leaping to conclusions, if I were you, just as the Durham community, including Duke faculty and students, ought to be cautious.

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