Comings and Goings at Duke
Going: Anything remaining of Nifong’s reputation for competence. The district attorney has sought subpoenas for Duke identity card data to track the location of all 47 lacrosse players, plus two other Duke students, in the hours before and after the alleged incident. Nifong is just now asking for information regarding the movement of the three players against whom he brought indictments weeks ago? (It’s worth recalling that when Reade Seligmann’s attorney offered to share this information voluntarily with Nifong, the district attorney refused.) And even though three weeks ago he issued a statement eliminating the other 44 players as suspects, Nifong is now, again, effectively treating them as such? Since some of this data comes from Duke itself, and Nifong has stated publicly that the other 44 players are no longer under investigation, it is incumbent upon the institution to join in the defense attorneys’ efforts to quash the subpoena.
Going?: Brodhead’s ability to manage politically charged campus crises, after an account critiquing his conduct while dean at Yale, his position before coming to Duke. Author Michael Rubin contends that in the case of former Yale lecturer and former naval reserve officer James Van De Velde, Brodhead deliberately took actions—cancelling Van De Velde’s classes at the last minute before the spring 1999 term started, discouraging a subsequent investigation into the university’s handling of the case—that suggested to fair-minded outside observers that Yale believed Van De Velde could very well have murdered his senior thesis advisee, Suzanne Jovin. Nearly eight years later, the murder remains unsolved, and though no reason exists to believe that Van De Velde committed it, his academic career was ruined. As Rubin notes, “That [Brodhead] repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice . . . at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation.”
The release of Rubin’s article coincided with Brodhead’s highly peculiar remarks accompanying the reinstatement of the lacrosse team, comments that went out of their way to place the players in the absolute worst light possible. This already had seemed to be the administration’s party line, as seen in Robert Bliwire’s Duke Magazine article, which contained quotes from the team’s three most ferocious faculty critics and only one student, an anti-lacrosse team African-American whose views appear to be highly unrepresentative of the student body as a whole.
Two items typify a pattern that’s evident throughout the president’s lengthy statement. First, Brodhead noted, “As you probably know, initial reports circulated through the media advanced the case against the students; more recent reports have made the case in their favor.” This sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the quality and quantity of evidence presented in both waves of reports was about the same, so we’re pretty much back to square one, and since the conventional wisdom is that most women don’t lie about allegations of rape, the accused are probably guilty.
In fact, what Brodhead terms the “initial reports [that] circulated through the media [which] advanced the case against the students” have proven, in many cases, to be completely false (such as Nifong’s assurance that DNA evidence would identify the guilty, or his “hinting” to Newsweek that the players used a date rape drug). Moreover, none of these “media reports” contained any documents related to the case. Instead, they consisted of Nifong’s statements—remarks, it turns out, that almost certainly violated the state bar’s ethics guidelines on a prosecutor’s acceptable public comments.
Meanwhile, what Brodhead terms the “more recent reports [that] have made the case in their favor” is an unusual way to describe things. Yes, the video of Reade Seligmann at an ATM machine while he supposedly was committing a rape someplace else is posted on a media website, as is the transcript of the photo ID that ignored state procedures, as are defense legal motions outlining the wildly contradictory statements to the police made by the accuser and the second exotic dancer. But primary sources aren’t usually considered “media reports,” and certainly are not equivalent to the items referenced in the first half of Brodhead’s sentence.
If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, “As you probably know, initial reports circulated through the media, many of which have subsequently proved untrue, advanced the case against the students; more recent reports, documents, and other forms of evidence have made the case in the students’ favor and also raised concerns about the procedures followed in the investigation.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.
Another Brodhead comment: “Though it did not confirm the worst allegations against this team, the Coleman Committee documents a history of irresponsible conduct that this university cannot allow to continue.” Again, this sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the Coleman Committee didn’t find evidence confirming “the worst allegations against this team”—i.e., that three of its members raped someone, which is clearly the “worst” allegation against the team—but otherwise had nothing good to say about the players.
In fact, the committee found clear evidence that members of the team violated alcohol-related laws in a percentage disproportionate to their numbers, but added that the issue was a problem for hundreds of other Duke students. The committee also noted that the team members had very strong academic records, an impressive rate of community service, and showed no evidence of sexist or racist behavior on campus.
If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, “Though it confirmed that team members had a history of irresponsible alcohol-related conduct that this university cannot allow to continue, the Coleman Committee also documented impressive academic, social, and athletic performances by most lacrosse players.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.
While the president went out of his way to avoid any mention of positive items regarding the lacrosse team, he proved remarkably generous in discussing the local leaders who have targeted the Duke students. Brodhead expressed his gratitude for “the Durham leaders who have recognized that truth and justice are common values, things we must pursue and uphold together.”
One wonders to which specific “Durham leaders” Brodhead was referring? Perhaps City Manager Patrick Baker, who, after learning that several Durham policemen initially were skeptical of the accuser’s claims, personally spoke to each member of the Durham Police Department. He claimed that he was not pressuring the officers to get behind Nifong (and shore up the city’s position from a potential lawsuit down the road) but merely showing that “it’s proper for a city manager to know what's going on with his subordinates.” Or perhaps Brodhead had in mind Durham’s legal leader, Nifong. Yet yesterday came the latest from the discovery file about Nifong’s unusual conception of “truth and justice”: the accuser had performed earlier in the evening of the incident before two other clients; the accuser initially contended that the second dancer assisted with the rape; and the second dancer initially stated that she was with the accuser for all but less than five minutes on the evening in question, only to subsequently change her story after being arrested and having the district attorney waive a $15,000 bail bondsman payment she faced. Nifong mentioned none of these items in any of his 70-plus media appearances on the case before the primary, nor in his filing for search warrants, where he described the alleged assault as having lasted for 30 minutes.
If the president had wanted to place events regarding “Durham leaders” in the highly negative context he used when describing his own institution’s students, Brodhead could have remarked, “While we understand truth and justice are common values, things we must pursue and uphold together, Durham leaders must also understand that cardinal principles of pursuing ‘truth and justice’ are adhering to traditional investigatory procedures and evaluating all evidence fairly.” Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s said can sometimes be as important as what’s left unsaid.
In today’s Daily News, former New York Times legal correspondent and Kennedy administration federal prosecutor Sidney Zion gives a superb description of Brodhead’s behavior:
Against this backdrop [of prosecutorial misconduct], Brodhead this week did what he clearly considered to be a magnanimous gesture. In reinstating the team, he said he was"taking a risk." Richard the Brave.Uh-huh. And then he laid out conditions: The lacrosse team would be on probation; the players would have to respect new rules of behavior. I have no argument with these rules, having to do with drinking, etc., but coming from Brodhead, they were a new way to spell chutzpah.
The fundamental rule he should have imposed was on himself and his college: Respect the presumption of innocence and never impose collective guilt.
To be fair, the situation that Brodhead has experienced is an extraordinary one. In Nifong, he has dealt with a prosecutor who seems, at least regarding this case, to be lacking in both ethnics and competence. On campus, he has confronted the combination of a sizable rush-to-judgment faction of the faculty (the Group of 88) and what could be termed Duke’s “blue wall of silence”—the unwillingness, to my knowledge, of even one of the more than 500 professors on Duke’s arts and sciences or law faculties to publicly question Nifong’s myriad procedural irregularities.
Brodhead concluded his remarks by noting, “This university will be judged not by the events that happened here but by how we face them and learn from them. I am committed to drawing the lessons of recent events, and it’s my hope that by doing so, we will make a great university better.” That standard, it seems to me, is a fair one. It also is one that Brodhead is, increasingly, showing little indication of meeting.