Wednesday, September 9, 2009
Ms. Jacobs indicates that Mr. Willingham’s attorney, David Martin, only became convinced of Mr. Willingham’s guilt after the trial was over. How is this possible when the evidence (at least that with which I am familiar) produced after the trial was exculpatory? Mr. Martin goes on to call the Innocence Project an “absolute farce,” despite the Innocent Project’s having a role in releasing over one hundred people. A defense attorney who calls the Innocence Project a “bunch of hype” is a little bit like a chemist who asserts that there are four elements (earth, air, water, fire), and that the periodic table is a scam.
But equally problematic for me is the strong likelihood that Mr. Martin defended Mr. Willingham while believing him to be guilty. One might be tempted to say that when a lawyer believes his own client is guilty, it is damning. However, my previous blog entry (http://viewfromwilmington.blogspot.com/2009/08/execution-of-cameron-todd-willingham.html) gives an example of a lawyer who did not believe his client, and was unrepentant when later DNA evidence exonerated him. Did Mr. Willingham or Mr. Lloyd (http://www.scpr.org/news/2009/08/17/not-enough-money-or-time-defend-detroits-poor/) get the effective counsel to which they are entitled? I have to wonder.
Monday, August 31, 2009
The author, David Grann, notes that indigent defendants on death row must “depend on court-appointed lawyers, many of whom are ‘unqualified, irresponsible, or overburdened,’ as a study by the Texas Defender Service, a nonprofit organization, put it. In 2000, a Dallas Morning News investigation revealed that roughly a quarter of the inmates condemned to death in Texas were represented by court-appointed attorneys who had, at some point in their careers, been ‘reprimanded, placed on probation, suspended or banned from practicing law by the State Bar.’” A recent NPR report implies that Michigan and Florida also have problematic public defender systems (http://www.scpr.org/news/2009/08/17/not-enough-money-or-time-defend-detroits-poor/). “In Miami, they say the only way they can squeeze in jail visits is if they work every weekend. And in Detroit, public defenders haven't seen a raise in more than 30 years.”
“Former Supreme Court Justice Sandra Day O’Connor has said that the ‘execution of a legally and factually innocent person would be a constitutionally intolerable event.’” Mr. Grann concludes, “There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.’”
I approach the criminal justice system as a private citizen, not as one with any special training in the law or politics. I have previously indicated that my suggestions for reforms could benefit from advice from those with greater expertise. Nevertheless, I have seen so much that is troubling that, along with others, I have to ask whether a refusal to look at evidence of innocence is sometimes motivated from cognitive dissonance.
Monday, July 27, 2009
Saturday, July 25, 2009
Remembering something that Bill Anderson mentioned, I found an article by Juliet Macur and Viv Bernstein at the New York Times from 4-05-06 (http://query.nytimes.com/gst/fullpage.html?res=9502E4DB1030F936A35757C0A9609C8B63) that mainly discussed Collin’s DC assault case. I also found an article in the Raleigh News and Observer by Samiha Khanna on 4-06-09 (http://www.newsobserver.com/news/story/425722.html) that dealt with the Georgetown case exclusively.
I find the timing of these two articles to be at least a strange coincidence. The N&O had already run one article that briefly discussed the fifteen incidents of lacrosse players getting into trouble with the law (http://www.newsobserver.com/front/story/422787.html), although the late March article had not mentioned the Georgetown incident. The N&O story could have appeared when it did because it was following the story in the Times that appeared on the previous day. However, 6 April 2006 was by no means a slow news day with respect to the DL case. On the same day as the N&O published an article on Georgetown, another article discussed Coach Pressler’s firing, and a third discussed Ryan McFayden’s email. And even if this were a case of copycatting, it would still not explain why the Times published an article when it did. The reporter at the Times might have been doing routine background checks on all of the players, or Jeffrey Bloxham, the man Collin allegedly assaulted, might have contacted them. However, a third explanation can be advanced.
The Durham police department (DPD) conducted the flawed lineup on 4 April 2006. I hypothesize that someone in the DPD or in the District Attorney’s office (possibly DA Michael Nifong himself) tipped these reporters right after the lineup that indictments were coming and that they should look into Collin’s record. Assuming that it was Mr. Nifong, I imagine that his motive was to create in Durham (and especially in the future jury) a response of “Aha, I knew it,” when Collin was arrested, much like the response from llcooljabe’s coworkers.
I attempted to contact the reporters involved to ask how they first learned about Collin’s arrest, but my repeated enquiries were not answered; therefore, the sequence of events I have presented remains speculative. Maybe the next time Michael Nifong gets on a witness stand, someone can ask him about his possibly leaking information to the press. New students of the DL case may wish to consult Taylor and Johnson’s “Until Proven Innocent,”, Michael Gaynor (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=060712), or myself (http://viewfromwilmington.blogspot.com/2008/12/wolves-in-blazers-and-khakis-in-defense.html) which detail how the MSM and some blogs misunderstood and misrepresented the Georgetown incident.
(Part II of the series “In Defense of the Duke Lacrosse Teams)
Update (10 August 2009)
The NYT story referred to the Raleigh N&O late March story when it discussed the 15 incidents of lacrosse players running afoul of the law, suggesting that the NYT did not research all of the players itself. The key point, though, is that both of the news stories in early April appeared well before Collin Finnerty became national news.
Houston Baker said that Collin Finnerty beat up a gay man in Georgetown, implying that the incident was potentially a hate crime. Professor Baker was also involved in an early skirmish in the political correctness war, the water buffalo incident involving Eden Jacobowitz, a student at the University of Pennsylvania (http://en.wikipedia.org/wiki/Water_buffalo_incident). In recognition of his disservice to the truth in these two cases, Professor Baker deserves a liar—liar-pants-on-fire award. Not only did Collin throw no punches, but no one in the incident was gay and the authorities never treated the Georgetown scuffle as a hate crime. Yet because of it, Collin’s character suffered far more reputational harm than Reade’s or David’s.
The Georgetown incident became one of several examples of supposed misbehavior by the players mentioned over-and-over in the MSM and on blogs. Others include Ryan McFayden’s ill-considered email and the racial slurs allegedly uttered on the night of the party. Many students of the DL case, including me, think that the MSM and the blogosphere often substantially misrepresented these incidents. However, their cumulative effect was to suggest that the lacrosse players were homophobic, misogynistic, and racist and possibly to dampen the resoluteness of those who would have spoken against a rush to judgment in the spring of 2006.
Update-2 (22 September 2009)
Newsday, a Long Island paper, also ran a story about the Georgetown incident on 6 April 2006 (http://www.newsday.com/news/duke-player-from-li-accused-in-05-case-1.606831), the same day as the Raleigh News and Observer did. The reporter, John Moreno Gonzales, mentioned having seen DC court records on the previous day. The Durham Herald Sun gave this incident four sentences in a 1500-word article on 7 April, and the reporter, Ray Gronberg, credits the New York Times article. The Hoya, the Georgetown campus paper, covered this incident on 27 January 2006 (http://www.thehoya.com/news/campus-assault-case-dropped/). Although any of the reporters covering the DL case might have come across the Hoya article, it is not easy to see why they would have been looking for it. On the other hand, if my speculation about Nifong were correct, one would have expected him to contact the Durham Herald Sun at the same time as the Raleigh News and Observer.
Update-3 (13 October 2009)
The NYT article caused at least two observers to draw the inference that Mr. Finnerty’s name was leaked prior to my writing this essay, Chris Lawrence (http://blog.lordsutch.com/related/3338) and sceptical (http://s1.zetaboards.com/Liestoppers_meeting/topic/1976244/1/). These authors did not cite the Raleigh News and Observer or Newsday’s articles, each of which appeared one day later as discussed above. The author of the N&O article, Samiha Khanna, may have also been the recipient of another leak, allowing her to contact Ms. Mangum in late March of 2006. Curiously, the New York Times public editor, Byron Calame questioned the appropriateness of devoting a 550-word article to the Georgetown incident (http://www.nytimes.com/2006/04/23/opinion/23pubed.html?pagewanted=2&_r=1), suggesting that one or two paragraphs within another story would have been more appropriate.
Wednesday, July 22, 2009
Recently I posted a response to a post by John in Carolina (JinC). As part of that post I touched up an alleged incident at a bar in Durham called Charlie’s. My reason was that JinC had initially expressed doubts about two witnesses who confirmed the disputed story to KC Johnson, and this troubled me greatly. At the time I had no wish to offer an opinion on whether the incident did or did not happen, but I was concerned that JinC said that KC Johnson and I were “hyping” the story (http://johninnorthcarolina.blogspot.com/2009/07/why-are-kc-johnson-halkides-hyping.html). Therefore, I posted a comment at JinC to indicate my support for the DL players on a subsequent JinC post. JinC seized upon my comment to ask for my opinion about the Charlie’s incident on the grounds that, to put forth the opinion that the incident is anything other than a hoax is in effect to harm the players. I would like to consider the events at Charlie’s before returning to its relationship to the players.
Jill Hopman wrote an article in the Duke Chronicle in which she lashed out at some Duke Lacrosse players for allegedly slamming shots and behaving obnoxiously (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/03/28/Columns/Acute.Embarrassment-1751335.shtml). Jane Stancill and Anne Blythe’s article in the Raleigh News and Observer (N&O) discusses how Hopman felt ostracized (http://www.newsobserver.com/news/story/423966.html). Their second article only devotes a portion of a paragraph to Hopman’s allegation (http://www.newsobserver.com/122/story/424563.html). Newsweek (4/10/06) noted Hopman’s allegation but also reported a alternative version of events, “(A source close to the families who did not wish to be identified because of the sensitivity of the matter said there were three players in the bar and they made a single, regretful toast to the team, whose season is on hold for now.)” Sally Fogarty, mother of two DL players, disputed the events, "There was absolutely no scene of lacrosse players at Charlie's yelling 'Duke Lacrosse' after the false allegations. My daughter was actually at the bar with Steph Sparks-Bob Ektrand’s sister-in-law-and two lacrosse players-one of whom is my son."
There are three possibilities with respect to the Charlie’s incident. Jill Hopman’s account of rowdy lacrosse players might be accurate. Or her account might be exaggerated, either deliberately or unconsciously. Finally, her account may be complete fiction.
There are some things about Ms. Hopman’s account that strike me as questionable. Some have asked how the event could possibly be true, given that Hopman indicates that members of the media were there. If they had seen such behavior, they would have reported it. This argument is not airtight; the reporters might have interpreted the players actions differently from Ms. Hopman or decided that the players needed to let off some steam. I wonder whether the lacrosse team had twenty players of legal age to enter a bar, and if underage players were there, it suggests that the person checking IDs must have been deceived. Perhaps she meant to say that only some of the twenty were lacrosse players, but if so, it would suggest that she is a poor reporter.
On the other hand, the idea that someone will make up a story out of whole cloth when that story could be refuted by so many people is also hard to credit. OneSpook wrote here at VfW, “In my opinion only, I believe that the reason Johnson found her “credible” is that (1) there were witnesses that collaborated her version of the events, and (2) that it seems hard to imagine that a first-year law student would make up an entirely false story of a public event that was, by her own admission, witnessed by many others.”
Sally Fogarty’s denial does not cover as much ground as one would wish, in two ways. First, unless her children were at the bar the whole evening, they cannot discuss what might have happened in their absence. This point, however, cuts both ways: It also means that one can believe that some players slammed shots without disputing the Fogarty’s veracity, and I do not question that they are being truthful. Second, the Fogarty children have not said what did happen, only what did not happen. Is their account of what happened similar to the Newsweek story or not?
Some have questioned other aspects of the story. Tarheel Hawkeye asked me in a comment thread at JinC, “How about telling us why the three reporters didn't get the story into the news media. There was a feeding frenzy at the time, but nobody reported anything about lacrosse players at Charlies. And if there were three cops there, why didn't any of them get the word out to their colleagues [Gottlieb and Himan] in the Durham PD?” Good questions, but what could the police at the bar tell their two colleages? It is not a crime to slam shots (assuming it happened). If there were reporters saw rowdy behavior, we should consider two possibilities. One is that they saw the events with a different frame-of-reference than Hopman’s, thinking perhaps that the players needed to let off steam. The other is that one of the reporters in Hopman’s account is Blythe or Stancill, in which case the reporters did get the story into the media. Hopman’s account does not name the reporters, and their identity is unknown, to the best of my knowledge. My conclusion is that the evidence is not strong enough to support a claim that Hopman’s story is utterly without basis in fact.
OneSpook wrote to me to speculate about Hopman’s perspective, “Hopman, steeped in her ‘feminist ideology’ was spring-loaded to believe the worst about the lacrosse team. She likely believed that at least some of them were guilty of a horrible crime against a woman. Thus, not having even the slightest clue about how men think and react in certain situations, and failing to even consider that the rape claim might be a complete lie, she viewed the toast she purports to have seen and felt an ‘Acute Embarassment’ at the behavior exhibited. And it is obvious that she laid it on, as thickly as possible; her account is hyperbolic in the extreme.”
Ultimately, I just don’t think the DL players would choose to behave as Ms. Hopman described. On the other hand, I agree with OneSpook that Ms. Hopman is unlikely to have made up a story out of whole cloth. Thus, I am left with case two, that she exaggerated the events that she witnessed. To me the Newsweek alternative version has the ring of truth.
Now that we have considered each case, let us ask ourselves what if the first case were true? In retrospect, it would not reflect all that badly on the players. Knowing that they were innocent and feeling marginalized by their school, let us say that they slammed shots and yelled. In a college bar this would not exactly be atypical behavior. Moreover, as OneSpook has again helpfully pointed out, the innocent players may have felt much as the American soldiers at Bastogne felt. I would hope that one of them did slam a shot to the 101st Airborne. In the context of 2006 it could be argued, this hypothetical behavior might have reflected an inability to assess the environment in Durham and the need for good public relations. In other words one could argue that if the players did exactly what Hopman had described, they would have been guilty of poor judgment.
Even more enlightening is the comparison of the hypothetical Charlie’s incident with other things the players did or were alleged to have done. When I discuss the case with those only slightly familiar with it, the use of racial slurs at the party comes up most frequently. People have also taken the Georgetown incident to be a case of gay-bashing, and Ryan McFayden’s email may also have come up once or twice (most students of the DL case know that these events were grossly mischaracterized), but I have never heard anyone bring up uncouth behavior at Charlie’s. In my view the incident does not belong in the front rank of events that gave the lacrosse players a worse reputation than they deserved.
Moreover, Duke Dad (who would seem to have a more personal and direct stake in the reputation of Duke students than I do) has indicated in his comments here that DL players slamming shots in a bar would not be a big deal for him, likewise Gregory. For these reasons I politely but firmly resist JinC’s implication that entertaining the possibility of Hopman’s story being even partly true is to turn the players into “collateral damage.” Duke lacrosse supporters can take a range of opinions with respect to what happened and still remain DL supporters in good standing. To extend OneSpook’s football analogy, I may just be a second-string player on the specialty teams, but we are all on the same team with respect to our fundamental interpretations of the case and our complete support of the team and especially of the three indicted players and their families.
Finally, let us return to the question that made me bring up the Charlie’s incident in the first place. In “KC Johnson Now” JinC initially expressed doubts about the existence of two confidential sources, and I discussed in my response why this struck me as being a serious matter. JinC disputes my reading of his words in his follow-up post “Chris Halkides’ Important Opportunity.” It seems to me that JinC is now saying that KC Johnson’s sources existed but that they are not credible or that KC Johnson should not have believed them. If that is so, then what is “settled” is that the sources existed, and JinC and I can agree to disagree about the interpretation of his earlier post.
AppendixStancill and Blythe’s second article pairs Hopman’s story with the candlelight vigil in the same paragraph. This is not the only time in the article in which the authors appear to be unsympathetic to the players. I think it is not an article of which the N&O should be proud. I contacted the reporters to ask about their sources, but I have not received a reply. AMac has indicated that he or she has attempted to contact Ms. Hopman.
Monday, July 6, 2009
Update 7/8/2009: This post has been edited since it was first uploaded. Three paragraphs have been removed.
In his post “KC Johnson Now” on 24 May 2009 (http://johninnorthcarolina.blogspot.com/2009/05/kc-johnson-now.html), John in Carolina (JinC) attacked fellow Duke Lacrosse (DL) blogger KC Johnson. I will examine two points that JinC raised, that KC Johnson banned Joan Foster and that Professor Johnson was untruthful about his sources that confirmed a Raleigh News and Observer (N&O) story from 1 April 2006. I will treat the second, more serious matter first.
The incident at Charlie’s
The N&O ran a story about an incident in which Duke lacrosse players were alleged to have behaved obnoxiously at a bar in Durham called Charlie’s. The second of these issues only emerged in the comments section at JinC. Professor Johnson indicated that he had spoken with both people who confirmed and who disputed this story in a comment at 8:57 PM.
John wrote at 7:35 PM, “You can imagine how hard they worked to confirm the shotslamming and shouting at Charlie’s story. But no one could. At least not until KC Johnson managed to find two witnesses he says ‘corroborated--in no uncertain terms--the story in Blythe and Stancill's article.’ Has KC ever disclosed that publicly until just now on this thread because he ‘had no clear grounds for attacking the article.’ What KC’s claiming about his ‘witnesses’ is very hard to believe.’ Another commenter (RD at 9:11 PM) pointed out that John was questioning KC’s veracity on nothing more than a hunch, and I agree with RD’s assessment wholeheartedly.
At 3:24 PM John wrote, “When I read KC's claim in his response to the post that he'd found 2 "corroborating" witnesses it was one of the saddest and toughest moments I've had blogging.” On a later date at 3:20 PM, John wrote, “I'm not sure KC found two ‘corroborating’ witnesses to the events Hopman claimed happened for reasons I first discussed on this thread when he first made the claim.” In response to a question from me in the comment thread, KC Johnson discussed this matter further (http://durhamwonderland.blogspot.com/2009/05/roberts-art-of-deception.html). He specifically references the times and dates of email correspondence. Does John claim that these are blatant fabrications? If so, what evidence does he have? Surely John appreciates that claiming a professional historian has made something up is a very serious charge.
The Nonbanning of Joan Foster
John wrote, “I think DIW lost something important when KC barred Joan Foster, one of the people who's been most effective from the first in the fight for DL justice. All Joan did was to civilly and persuasively disagree with KC over his ridicule of Prejean.”
Johnson denied banning Joan Foster in a comment at 8:59 PM, saying that he instead closed the thread. I first commented at 2:16 PM simply to say that KC did not ban Joan. I gave the link to the DIW post in which the thread was closed and KC offered Joan his best wishes (given below), though I did not quote the DIW thread itself. I did say it was “troubling” that John made his claim, a statement I made because I believed the assertion to be false, based on what I or anyone else could see in this comment thread.
John replied to me at 10:45 PM, “Do you have anything dated and in writing that says KC didn't bar Joan Foster from DIW. If you do and will pass it on, I'll give it a look with the intent of correcting "KC Johnson Now" if I can confirm what you send. I hope you share.” I have two problems with John’s comment. First, KC Johnson’s comments were from 25 April, which predates JinC’s post by about a month. Therefore, it fulfills his condition. Second, John did not explain why his condition that the evidence must predate Johnson’s comments at JinC was even necessary. There is only one reason I can think of to explain why John would do so, that John was again suggesting KC Johnson was lying.
I replied that I did not have direct information. I had never seen anything to indicate that KC had banned Joan, nothing more. John wrote back, “Citation of a written and dated record that KC didn't bar Joan is important, given that on the basis of such documentation I'd update "KC Johnson Now" with a correction if what you provide is verifiable. As can be seen above, you responded to my request with these two most relevant sentences: "I do not have direct information, one way or another. However, KC closed that thread for comments, and this is the only time I have ever seen him do that. ..." Chris, I know you can see your answer is equivocal as to the question of whether you can cite a written, dated record that shows KC didn't bar Joan from DIW.”
I don’t view my answer as equivocal, but some of my befuddlement was clear. I had no way of knowing what might have transpired between Joan Foster and KC Johnson privately. Yet the only publicly available information said nothing of banning. More importantly, it seemed to me then (and now) that John had it backwards. Why was I being asked to show that KC did not ban Joan? Shouldn’t we all be asking John what evidence he had the KC did ban Joan (a point I made much later, at 12:18 PM)? I was considering quoting the comment thread from DIW on the Stone Center, but imho did so first, at 9:20 AM. As noted above, to me this documents the non-banning in the way John requested. If there is something lacking in it, John has never identified what it is.
Next Kelly (who appears to be Joan Foster) said that she used the term “banning.” Her argument is that she was made to feel unwelcome by harsh comments from Debrah and the fact that KC failed to clear a comment of hers for several hours. I think this is a poor argument. I, too, have sometimes felt discomfort from Debrah’s strong words, but this is in the nature of comment threads. I have also seen a comment of mine held in limbo for many hours as others were cleared, at JinC. Joan should have stated the facts and let others come to their own conclusions, not use misleading language.
John said at 1:31 AM, “Many people commented Joan was barred from DIW. If she wasn't, KC could have cleared the matter up with just six words: ’Joan Foster isn't barred from DIW.’ Did he ever do it? If so, where? If not, why not?” First, I don’t believe that rumor should be published as fact. Second, I think it was Joan Foster’s responsibility to ask KC Johnson, not the other way around. John’s comment at 1:12 PM suggests that he agreed with my second point: “Often bloggers don't publish a comment after which the commenter will sometimes ask: "Are you barring me from your blog?”
John replied to my comment at 12:18 PM by saying at 1:34 PM, “You say you are ‘troubled.’ I hope you can find verifiable documentation of KC saying BEFORE I published that he hadn't barred Joan. If you can produce that, I think you'll feel delighted; and I'll update the post with the new documentation. Absent such documentation, what you've been repeatedly saying here is starting to look like emoting rather than adult discourse.” I don’t consider my comments to have been repetitive, nor do I believe the use of the word “troubled” to be emoting (John himself used the term elsewhere). Why my comments don’t qualify in his mind as adult discourse is mysterious. Finally, I note that John moved the goalpost: the documentation must be before he published this post, a condition he had not previously made.
Knowing that it would be a lengthy undertaking, I offered John and Joan the chance to continue our discussion with my present post. Joan’s response (at 7:20 AM) was to give me a question to answer, “My question before I ever enter your blog...do you agree with these types of attacks, yes or no?” I don’t expect prospective commenters to answer questions any more than I wish to answer theirs prior to their making an appearance. It is doubtful that either John or Joan had ever read anything I have written. If they had, they would know that I treat even people such as Marc Fisher, with whom I disagreed strongly, with courtesy (http://viewfromwilmington.blogspot.com/2008/12/wolves-in-blazers-and-khakis-in-defense.html). The same is true of Robert Zimmerman (http://viewfromwilmington.blogspot.com/2009/05/devilish-discords-reply-to-robert.html), with whom I disagree less strongly. John replied at 12:25 PM, As a matter of courtesy I acknowledge your invitation. Having read what you've posted here and at DIW, I hope you and others who've read what you've written can understand why I've no inclination to do so.”
I had indeed commented twice at DIW in the intervening time (http://durhamwonderland.blogspot.com/2009/05/roberts-art-of-deception.html). Besides thanking Debrah for a lighthearted comment at 12:15 AM, I had also asked a question (9:39 AM) about the incident at Charlie’s, discussed at the beginning of this post. John intimated that I was engaging in questionable behavior, but I was only doing what he should have done, which is to ask KC Johnson for more information about the witnesses. Professor Johnson’s reply at 10:08 AM was informative, but it is too long to quote in its entirety here. My final comment at JinC was to ask John to explain his reasons more fully for declining my offer, but he did not reply.
Once Joan Foster indicated that banning was her choice of words, John had three pieces of evidence that no such banning had occurred, including Joan Foster’s own admission that it was she who was responsible for the misunderstanding. Even if he had not promised to alter his post, he should have done so on the general principle of making one’s posts as accurate as possible. He has not and neither has he explained why the evidence before us is apparently insufficient in his eyes.
In his post “KC Johnson Now” John has given a clinic in how not to blog. He failed to edit obvious errors (attributing “It’s Not About the Truth” to Chuck Yeager, not Don Yaeger*). He published a rumor as if it were fact. He failed to check with Professor Johnson about either the non-banning or the story about the bar. He apparently did not ask Joan Foster directly about her supposed banning, either. He questioned KC Johnson’s truthfulness twice but disclosed no evidence to support his innuendo. Moreover, by accusing KC Johnson of making up sources, John has cast a shadow over on any work that Professor Johnson has done that involves confidentiality, this despite the fact that both John and Joan Foster claim to admire Johnson’s contributions to the DL case. When called on some of these matters, he either ignored them or brushed them aside. In doing these things he has made it a little bit harder for those of us who want blogging to be held to as high a standard as traditional journalism.
I have never met John or KC Johnson. Professor Johnson and I have exchanged a few emails about the case, but we are not friends, though we agree about many aspects of the DL case. I know John even less well, primarily through his recent writings at JinC, Liestoppers, and DIW. I wrote this post because he failed to live up to the standards of civility and adherence to the truth that he evidently expects of himself and others. I call upon him to amend or retract his misleading statements and urge others to do likewise in a constructive manner. If he did, it would undo much of the damage he has done.
I know that this post will create some controversy, and my closing remarks are directed to people who wish to comment. First, there is a difference between saying that person X did a bad thing and person X is a bad person. The former is acceptable (but should ordinarily be supported in some way), but the latter runs the risk of being merely abusive. Second, the topic of this post is limited to how John and Joan Foster acted in this particular instance. Although I can imagine that there will be some legitimate tangents, I reserve the right to reject a comment that strays too far from this topic. Third, I strongly urge civility, even when disagreements are large and feelings are strong.
*Update 7/11/09: This has been corrected.
Sunday, May 24, 2009
I will relusctantly put this blog on hiatus for about a month, starting at 11:59 PM Sunday 24 May. I have some pressing professional responsibilities which require my complete attention. I will not post anything, unless there are unforeseen circumstances arising. I do not plan to clear comments after today, but if you submit them in about a month, I will take care of them when I come back. I thank everyone for their interest.
Tuesday, May 12, 2009
(On 5/21/09 I revised the original essay. Most of the changes are minor editing to clarify some points that may have been confusing (http://forums.talkleft.com/index.php?topic=2008.0), but the final paragraph is entirely new.)
Professor Robert Zimmerman has written numerous times about the Duke lacrosse case and how the faculty responded. His praise of Professor Leitner’s article (the “sense” in the sense-and-nonsense post) indicates that he is sympathetic to the group of 88 faculty who signed the listening statement. Yet he has also written about the excesses of some in the Duke community (http://reharmonized.an-earful.com/2007/11/trouble-with-potbanging/). His assessment (http://reharmonized.an-earful.com/2007/12/sense-and-nonsense/) of Professor Steven Baldwin’s op-ed to the Duke Chronicle in October of 2006 is typically David Broderesque in its attempt to find some wrong on both sides (for example, http://reharmonized.an-earful.com/2007/11/lacrosse-racket-postscript).
Baldwin wrote (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/24/Columns/The-Administrations.Mismanagement.Of.Lacrosse-2384801.shtml), “The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves. They should be tarred and feathered, ridden out of town on a rail and removed from the academy.” Professor Robyn Wiegmann replied (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/25/Letters/Cultivate.Community.Of.Critical.Thought-2400650.shtml), “Being tarred and feathered is the language of lynching, and the practice of lynching was rarely one that eventuated in a court case of any kind, let alone one in which the defendants claim 10 minutes on one of the most important television programs in the United States. My disappointment in Duke right now is that it wants to avoid the analysis of the language and history of race, instead of using this moment-in its broad social implications-to actually study it.” Baldwin then apologized by saying (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/25/Letters/insensitive.Language.Unintentional-2400648.shtml?norewrite200610261312), In particular, in the next-to-last paragraph of the editorial I used some terms that I have now learned have racial connotations for some…I deeply regret that what for me is a totally non-racial issue has assumed that character.”
Zimmerman critcized Baldwin, writing, “I’m happy to grant that it was past time for faculty members to speak publicly and critically about the treatment of the lacrosse players on campus and by Nifong. I’m hard pressed to think of a way of making the point that’s more obnoxious and less constructive than Baldwin’s, though.” By failing to say what he would find constructive, Zimmerman took the easy way out: He cloaks himself in a mantle of moderation (indicating some wrong on both sides), but he doesn’t have to commit himself and take a stand against the group of 88 and their allies. In contrast, Zimmerman praised Wiegman’s reply as “well-modulated” and implied that her “language of lynching” statement has been blown out of proportion. Why didn’t he defend Baldwin by the same criterion? Most of Baldwin’s letter concerned the right and wrong ways that a university might treat its students; his tarring and feathering comment is no more the bulk of what he is saying than Wiegman’s language of lynching comment, perhaps less.
Zimmerman treated Baldwin’s comment that certain faculty “removed from the academy” literally. He also described “targeted” faculty as engaging in a “it-for-tat that strikes me as unwarranted” when they wrote to Broadhead to ask for his removal. This is a false equivalence. No one has ever said that Baldwin contacted President Broadhead to remove anyone. Moreover, because he coupled it with a clearly metaphorical call for tarring and feathering, the passage in his letter cannot be read as an actual call for anyone’s dismissal. However, some members of the Duke faculty had previously called for Coach Pressler’s removal (Pressler was forced to step down), and now some were literally calling for Baldwin’s.
Zimmerman conceded that tarring and feathering are not really the language of lynching, “but so what? It’s still the language of intolerance and vigilantism, directed indiscriminately at an unspecified group of colleagues who didn’t live up to the paternalistic standard Baldwin set for himself and the university.” Zimmerman thus set up a false alternative; a professor need not agree with Baldwin’s principle of in loco parentis to refrain from publicly shaming his or her students (not only is it wrong to do so, but it is also not a very effective teaching tool). Since Baldwin was not literally calling for tarring and feathering, one can ignore Zimmerman’s equating Baldwin’s comments with vigilantism, however given his post on the potbangers, he is probably sincere in reviling vigilante justice. More problematic is that he seems to be holding up tolerance as always and unquestionably a good thing. Yet, the Duke faculty should not tolerate mistreating students any more that it should tolerate racism.
Zimmerman’s cavalier “so what” is inadequate in two ways. First, accuracy of expression is among the central goals of the academy (I would put it close to the top). Baldwin was criticizing specific members of the faculty for what they did do, whereas Wiegman was calling Baldwin, a self-described liberal, to task for something that he did not do, that is making a remark with strong intimations of racism. Even if Wiegman, a professor of Women’s Studies and Literature, were merely ignorant of the origins of the phrase to tar and feather (which seems unlikely), it would still be a serious error. Furthermore, for Zimmerman to say that her false charge of racial insensitivity does not matter while at the same time praising those who raise issues of racial inequality (such as Wiegman and Leitner) is blatantly inconsistent.
If one is in any doubt that some Duke professors shamed their students in wildly inappropriate ways, the Liestoppers board has collected some examples (http://s1.zetaboards.com/Liestoppers_meeting/topic/1632939/1/). I will present only a sample. Grant Farred accused the Duke students who registered to vote with the intention of ousting Prosecutor Michael Nifong of racism and naked self-interest. As the case was unraveling, Houston Baker called the lacrosse players a “scummy bunch of white males.” If a Duke professor had called a black fraternity a scummy bunch of black males, I wonder what the public outcry would have been. Karla Holloway rebuked the women’s lacrosse team for wearing armbands in support of the men’s team, whose season had been cancelled (Until Proven Innocent, p. 234). Tim Tyson likened the team to “white supremacists” and said that the spirit of the lynch mob lived in that house on Buchanan Street (http://durhamwonderland.blogspot.com/2008/05/tyson-reinvents-history.html). He also said that Duke students not talking to Sgt. Mark Gottlieb outside the presence of their attorneys “may be illegal” and constituted a “terrible moral miscalculation.” Perhaps most disappointingly Father Vetter and Reverend Wells, both of whom minister to the Duke community, independently gave sanctimonious, guilt-presuming sermons. Most astonishing, though, is Kim Curtis’ interpretation of the players’ confidence that the DNA results would exonerate them. She implied that the lacrosse players knew that someone else had perpetrated a rape and that the players were accomplices by not naming him.
To paraphrase the NYT’s Peter Applebome, some in the media had declared open season on the Duke lacrosse team in general and the three indicted players in particular. One wonders why more in the faculty did not rebuke the media for doing so, instead of painting bull’s-eyes on the players’ backs. Zimmerman does not understand what makes the Baldwin-Wiegman exchange “unbearably sad” to Harvey Silverglate (co-founder of FIRE). Perhaps it was that the discussion about the inexcusable way that the “feckless” faculty were treating their own students was interrupted by a claim that these faculty were victims, an eerily similar claim to one found in the clarifying statement made the following January (http://www.concerneddukefaculty.org/) by the Group of 89.
Here are some questions to which I would like to hear Professor Zimmerman’s answers. Is it his contention that a discussion of the language and history of race was more urgent than a discussion of how Duke should treat its students in legal peril? What did this “moment” actually have to do with the “language and history of race” in the first place? If Wiegman knew that tarring and feathering was not associated with lynching but made this charge anyway, would Zimmerman still say, “so what?”
No one has ever claimed that the three indicted players used racial epithets on the night in question. Therefore, long before October of 2006, there was no reason to believe that the alleged rape had anything to do with race. Yet Wiegman and the Group of 89 still wanted to speak of nothing else: They played the accusation of racism as though it were an ace that could never be trumped. When I first encountered this case, I believed that the members of the Group of 88 were sincere in their concern about racism at Duke, despite being overzealous about the accusation of rape. After Wiegman’s spurious charge of racism against Baldwin, Huston Baker’s racist attack on the players, and the Group of 89’s showing more concern over unspecified racism and sexism than for its students being denied due process, I can no longer take their claims seriously.Full disclosure: I am the reporter who originally solicited Harvey Silverglate’s comments (http://web.duke.edu/~kcl10/DSFEDuke/Duke_Taylor11.pdf).
Tuesday, May 5, 2009
Recently a commenter here claimed that the lineup was not to identify her alleged attackers but rather to help her recall who was at the party. However, even if this rationale were true, it would still violate the recommendation on not showing faces multiples times put forth in the chapter by Wells, et al. Moreover, once Ms. Mangum picked certain individuals in the photos, I would predict her to identify them in a trial based on her memory of the photos. In stark contrast to the views of these authors, Professor Irving Joyner of North Carolina Central University and case monitor for the NCNAACP (http://www.usatoday.com/news/nation/2007-02-27-duke-race_N.htm), says “as long as she can identify the men in court, the photo lineup is ‘really unimportant.’" Her identifying them would be enough to "support" a verdict of guilty in a rape case in North Carolina (“Until Proven Innocent,” p. 379), meaning that the jury could have convicted Reade Seligmann and Collin Finnerty, both of whom had alibis for the time in question.
This is where the conviction of some forty-six putative drug dealers, most of whom were black, in Tulia, Texas, a town of about five thousand might be discussed for comparison. The story of the mostly wrongful convictions is the subject of a documentary (“Tulia, Texas”) aired as part of the Independent Lens series on PBS in February of 2009. The convictions were based entirely on the word of one undercover cop in the absence of other witnesses or corroborating fingerprints. Curiously when this film premiered in Wilmington in November of 2008, a representative from the WPD mentioned the Duke case in passing, when discussing whether a case like Tulia could happen here. In assessing the motives of the now discredited policeman, it is fair to point out that the professional rewards for exaggerating the number of drug dealers was considerable.
An exacerbating factor in both the Duke case and the Tulia case is the role of stereotypes. The first defendants in the Tulia case faced an all-white jury, and one can speculate that the stereotype of blacks being more likely to use and deal in drugs played a part in these convictions (http://www.texasobserver.org/article.php?aid=611). Likewise it was easy to believe the early story of jocks gone wild because it played into a picture of rich, white men of privilege doing whatever they pleased. The combination of a low threshold for conviction and stereotyping the defendants would seem to be synergistic in its ability to generate miscarriages of justice.
However, there were differences between this case and the Duke case, the first being that a few of the Tulia defendants were able to produce alibis and had their charges dropped. Another difference is that poverty and the use of long prison sentences against the first defendants caused some of the rest to accept plea-bargains. Finally, one area of both similarities and differences is the role of the press. Attorney Jeff Blackburn noted, “The only say we had was in the press. Mr. Blackburn, who hired a private investigator out of his own pocket, also said, “We had to go outside [the legal system], to the press. I’m glad that we had the allies that we did. [Otherwise] it would have been swept under the rug.” The allies to which Mr. Blackburn referred included the ACLU of Texas, the William Kunstler Foundation, and the NAACP legal defense fund (http://www.forejustice.org/wc/tulia_travesty.htm). The Tulia case illuminated the positive role the press has to play when someone is wrongfully convicted. In the Duke case the NCNAACP argued for a pretrial gag order (http://www.wwaytv3.com/node/1260). These are typically issued when publicity will impair a defendant’s right to a fair trial (see Chapter 8 in “Race to Injustice”). The NAACP legal defense fund is allied with the NAACP but not affiliated with it.
When the punishment for an offense is a multiyear prison sentence, there should be a higher standard of evidence required to obtain a conviction than the word of one person. Despite the cautionary lesson from Texas, the federal drug laws have not been changed. One wonders how criminal statutes came to have weak requirements for conviction. In Chapter 12 of “Race to Injustice” on the grand jury system, former Federal prosecutor Michael Seigel writes, “Without a doubt, the worst accusation that an individual can face today is that he is a child molester or rapist.” I submit that when the public is fearful about a particular type of crime, or when it holds a type of crime in special contempt, politicians will tilt the law in favor of conviction.
Thursday, April 23, 2009
). The presentation included readings from the writings of several wrongly convicted minority individuals, including Ronald Cotton, Lesly Jean, and Hector Gonzalez. In response to a question after the presentation was over, Mr. Clark implied that he was working on a case in which two retarded boys are being held on the basis of signed confessions, in spite of both individuals being illiterate.
Mr. Clark, who represents Crystal Gail Mangum, the accuser in the Duke lacrosse case, is an affable and voluble individual. Ms. Mangum has published her memoir, “Last Dance for Grace” with Mr. Clark’s assistance, and the two have attempted to tell her life story to the media for some time. He discussed having conversations with Inside Edition and HBO, among others. He says that after initial enthusiasm among creators, their bosses or their boss’s bosses quash the project. The producers say something close to “Vince, they won’t let me do it.” Mr. Clark puts at least some of the blame for this on the families of the Duke three, who have dinner with Sumner Redstone. Mr. Clark says that Ms. Mangum wants to talk about herself and the mistakes she has made. She disappoints some in the media, who would like to have her confront Mr. Cheshire or the Duke three on camera. He attributed to 60 Minutes senior producer Michael Radutzky a statement to the effect that he would put a bullet into prosecutor Michael Nifong’s head so that no one would believe Ms. Mangum.
Mr. Clark spoke about the many hours he spent interviewing Ms. Mangum and also the time he spent going to church and listening to her speak with her pastor. “My job was to listen to Crystal.” Mr. Clark said that there are blogs that have criticized Ms. Mangum every day for three years: “That is why I have an affinity for her. What if she is lying, shouldn’t she be allowed to finish college?” Mr. Clark asked rhetorically whether the members of the audience had ever done anything with which they were uncomfortable. A member of the audience asked if she were lying, should she be prosecuted. Mr. Clark said that if one accepts the Attorney General’s conclusion that the three are innocent, they have to accept his decision not to prosecute. Earlier he noted that the AG said that she believes her story.
Mr. Clark implied that attorney Joseph Cheshire didn’t want most prosecutors who were guilty of misconduct put in prison, only Mr. Nifong, who made the mistake of going up against the wrong people. He also quoted professor Angela J. Davis, professor of law at American University, as telling Mr. Cheshire “Joe, you know this is not right, what you did to her.” Professor Davis has written extensively on prosecutorial power.
He also took issue with the idea that the lacrosse case was the worst case of prosecutorial misconduct ever. He said that Mr. Nifong never should have been talking in public. He also said that the Durham police department has “some problems with other investigations.” About the Duke three, Mr. Clark contrasted their experience with those of Mr. Gonzalez and the other individuals discussed in the program, saying, “They were shown on television.” When later asked about the Newsweek cover featuring mug shots of two of the accused players, Mr. Clark said that he and Crystal both thought that it “never should have been done.” Much earlier, Mr. Clark had characterized a discussion on Nancy Grace’s show as a scream fest.
With respect to Crystal and her family, he said that some in the media doubted that Crystal was a student at North Carolina Central University, but that when they saw professors greet her, the cameras shut off. Mr. Clark asked what was wrong with photos of Crystal sitting in class or with her diploma, which he said does not occur. Mr. Clark said that Ms. Mangum’s father tried to hold the family together, but that her mother had psychological problems. The media latched on to Ms. Mangum’s cousin Jakki, to whom Crystal had not spoken in six years, because of the desire within the media to portray Crystal’s family in a freakish light. Jakki, who is a transsexual, was treated as a family spokesperson.
After the presentation an observer characterized Ms. Mangum’s comments earlier that evening by quoting Ms. Mangum, “I want to tell my story.” However the observer indicated that Ms. Mangum spoke only about her experiences with the media, not about the case itself. When this remark was overheard by a presumed event organizer, this individual said that a discussion of the case itself was not the point of the evening.
Monday, April 6, 2009
O’Neil’s article is weakest in its analysis of chemistry professor Steven Baldwin’s interactions with the Group of 88. O’Neil has nothing to say about Baldwin’s main point, that a university and its faculty should use the principle of in loco parentis to guide its actions toward students (http://media.www.dukechronicle.com/media/storage/paper884/news/2006/10/24/Columns/The-Administrations.Mismanagement.Of.Lacrosse-2384801.shtml?sourcedomain=www.dukechronicle.com&MIIHost=media.collegepublisher.com). Indeed, O’Neil spends little if any time on the fact that the Group of 88 and its allies upbraided the lacrosse players and their families in public.
“On the other hand I do not believe that a faculty member publicly describing any student in pejorative terms is ever justified. To do so is mean-spirited, petty and unprofessional, at the very least. The faculty who publicly savaged the character and reputations of specific men’s lacrosse players last spring should be ashamed of themselves.
They should be tarred and feathered, ridden out of town on a rail and removed from the academy. Their comments were despicable.”
I discussed the Duke lacrosse case with a very highly esteemed professor at Wabash College, my alma mater. He said that he did not think that Wabash would treat its students this way. He thought and hoped that they would be defended against the outside world and raked over the coals in private (presumably for the boorish behavior of some of the players). Baldwin made clear that acting in loco parentis did not mean forswearing accountability. Yet he also indicated that the Group of 88 and/or the faculty had dispensed with the presumption of innocence. Those casually following the case in the spring of 2006 might have concluded that the lacrosse players were a rotten bunch, given that their professors’ comments seemed to buttress those of District Attorney Michael Nifong.
However, it is Baldwin’s pentultimate comment that draws O’Neil’s fire. Baldwin’s desire to remove the offending faculty is “starkly uncollegial (p. 46). In ascending order of seriousness, there are a number of problems with O’Neil’s analysis. First, Baldwin was not literally calling for their removal any more than he was planning to buy feathers and warm up a vat of tar. Second, Robyn Wiegman claimed that tarring and feathering was the language of lynching (something that she and the rest of the group must have known was untrue), implying that Baldwin was a racist. As Johnson remarked, this is hardly collegial. At least Baldwin’s essay was based in what the Group of 88 and its allies had actually done. Third, members of the Group of 88 met with President Broadhead and asked him to fire Baldwin, literally to remove him from the academy. O’Neil does not even mention the latter two points, which seem far more uncollegial. It was Baldwin who defused the situation (with the encouragement of the provost) by apologizing for saying that the errant faculty should be “tarred and feathered,” though Harvey Silverglate opined that Baldwin surrendered the moral high ground by doing so. Fourth, Houston Baker called for Duke to fire Coach Pressler and to dismiss the players (http://www.dukenews.duke.edu/mmedia/features/lacrosse_incident/lange_baker.html). O’Neil fails to address any of these behaviors.
It is pertinent that Karla Holloway publicly criticized the women’s lacrosse team (Until Proven Innocent, p. 234) for “the team-inspired and morally slender protestations of loyalty that brought the ethic from the field of play onto the field of legal and cultural and gendered battle as well.” The women’s lacrosse team had worn armbands in support of the three indicted players. The hypocrisy of criticizing women (including at least one woman of mixed racial heritage) for speaking out when the Group of 88 had thanked protestors for their demonstrations against the supposed racism and sexism of the men’s team is obvious. It also makes risible the Group of 88’s opening claim that “We are listening to our students.”
O’Neil quotes the policy of the American Association of University Professors, which states that professors “should show respect for the opinions of others,” but he points out that this policy was modified in 1970. Even in diluted form, the AAUP’s policy would seem contrary to Houston Baker’s December 2006 response to a polite email from a lacrosse parent. The parent had asked Baker to reconsider his views in the light of recent evidence. Baker called the players “farm animals,” among other obnoxious comments.
It is legitimate to ask whether criticism of students falls within a faculty member’s academic freedom or does it constitute a violation of the university’s or the AAUP’s code of faculty conduct. Yet, one has to look at all the facts, not select only the criticisms of the Group of 88 that one thinks one can rebut. Moreover, if we conclude that the faculty had the right to shame the student-athletes and even to ask that they be kicked out, but fail to ask should they have done so, we are missing the more critical issue. Baldwin said that the impact of the ad was devastating, swinging the pendulum against the players (http://www.diverseeducation.com/artman/publish/article_7059.shtml). O’Neil gives little consideration to this viewpoint, just as he ignores Wiegman’s, Holloway’s, and Baker’s incivility, preferring casuistry to common sense.
Monday, March 2, 2009
Let us assume that there exist terrorist cells, consisting of low-level operatives who will be given information on a need-to-know basis for Al Qaeda or another organization. Suppose that the Justice Department claimed that it needed preventive detention to stop terrorists from committing a particular violent act. Could we fashion rules to grant this power that is well short of violating the principle that a prison has the right to challenge his detention in front of a neutral party? I suggest the following guiding principles.
The rules governing this preventive detention should be written by the Congress as statutes; they must not emanate from the Justice Department itself. The investigators would seek a warrant from a judge or panel of judges based on evidence of an imminent threat that rises to the level of “reasonable suspicion.” The detention should be of limited duration (its purpose is only to disrupt a terrorist operation that had just been set into motion), or if for a longer period of time than (let us say) one week, the detention could be challenged in a second court. Both courts would have to be secret, something along the lines of the FISA court. The detention could not be repeated unless new evidence was offered each time. There could be no interrogation of the detainee, unless a lawyer with security clearance were able to render assistance. Charlie Cassidy and Cassandra Porsch mentioned this idea in the context of special administrative measures in an article in the Georgetown Journal of Legal Ethics (Volume 17, Issue 4, p.681, 2004).
In contrast to the hypothetical situation above, the rules for the monitoring of attorney-client conversations (one of the so-called “special administrative measures”) were generated within the Justice Department and adopted by the Bureau of Prisons without comment. It is worth noting that the Military Commissions Act removed the right of enemy combatants to challenge their detention in courts (http://www.huffingtonpost.com/geoffrey-r-stone/restoring-habeas-corpus-r_b_42674.html). These two examples imply that our present system shortchanges both the legislative and judicial branches of our government, thus bypassing critical checks and balances. The essays of Geoffrey Stone (http://www.huffingtonpost.com/geoffrey-r-stone/trust-us-as-governance_b_43058.html), the statements of the Coalition to Defend Checks and Balances (part of he bipartisan Constitution Project), and Charlie Savage’s book, Takeover: the Return of the Imperial Presidency,” suggest that the separation of powers, in which all three branches of government play their constitutional roles (www.bordc.org/resources/cdcstmt.pdf), is never more needed than when balancing liberty against security.
Monday, January 19, 2009
1. Such policies are against U.S. law. Harold Hongju Koh, Dean of the Yale Law School, testified eloquently on this point in the Gonzalez confirmation hearings (http://www.humanrightsfirst.org/blog/index.asp). No person, not even an enemy combatant is outside the law, despite this administration’s arguments to that effect. Jordan Paust’s book gives the most extensive discussion with which I am familiar.
2. These tactics hurt our troops in several ways. First it renders them more likely to be subjected to the same treatment. Second, torture makes it more difficult to gain the trust of he local population, as Iraq veteran Paul Rieckhoff pointed out (http://www.huffingtonpost.com/paul-rieckhoff/torture-is-not-us_b_11846.html). Third, the possibility of harsh treatment makes enemy soldiers less likely to surrender and more likely to fight to the death (http://www.nytimes.com/2006/09/25/opinion/25rieckhoff.html?_r=1). Rieckhoff’s essay is not only eloquent, but he speaks from a position of authority.
3. Torture provides the information that the torturer wishes to hear, not necessarily the truth. John McCain’s experiences in Viet Nam give one example of this. The false information obtained from suspected Al-Qaeda terrorist Ibn al-Shaykh al-Libi on the supposed Iraqi chemical weapons was used to justify the war in Iraq. This incident is only demonstrates how damaging it is to our nation to torture information out of suspects. Another example in the treatment of Abu Zubaydah. Ron Suskind gives an account of some of our practices in “The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11.”
The highest profile example of false confessions was probably the Central Park jogger rape case (http://www.counterpunch.org/cassel1221.html). If one accepts that there is such a thing as a false confession, then it is inescapable that the problem will worsen when the interrogation methods are “enhanced.” Finally, unlike a more disinterested interrogator, the torturer has an enormous stake in believing that the intelligence he or she gleans is true: The torturer would have to confront that his or her objectionable actions served no purpose if the intelligence were lies told only for the sake of ending the pain, a colossal problem of cognitive dissonance.
4. These practices alienate our allies and our potential allies around the world. Iraqi support for the invasion dropped precipitously immediately after the Abu Ghraib photographs were published. The editorial page of the Economist wrote (11 January 2003), “The taboo against torture is also strongly and deeply supported by western public opinion. If America, covertly or openly, begins to use torture systematically against al-Qaeda suspects, there is bound to be a backlash, both at home and abroad. Many
of the subjects might be innocent people, which would be morally repellent--and
would hand a propaganda victory to Islamic extremists.”
5. These practices are inconsistent with the fundamental conservative tenet of not discarding principles and practices that have served us well since the time of the Revolutionary war. Our nation has been a leader in the humane treatment of prisoners in armed conflicts, starting with George Washington and continuing through WW II and Korea. Is Al-Qaeda a more dangerous enemy than Germany or Japan was in the 1940s?
These reasons make a compelling case for altering our present, seriously misguided course. Finally I should mention two treatments of the ticking time bomb scenario. I have reviewed Dr. Brecher’s indispensible book on this subject in an earlier post (12 December 2008), and Michael Kinsley’s article in Slate is an insightful response to Charles Krauthammer’s position (http://www.slate.com/id/2132195/). The discussion of the arguments for and against torture here is abbreviated by intention; however, I will expand on some of these points, especially the ticking bomb rationale in subsequent posts.
“The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11,” by Ron Suskind.
“Beyond the Law,” by Jordan J. Paust.
“A Question of Torture,” Alfred McCoy.
“The Guantanamo Files,” by Andy Worthington.
“The Dark Side,” Jane Mayer.
“Torture and the Ticking Bomb” by Bob Brecher.
“Eight O’Clock Ferry to the Windward Side,” by Clive Stafford Smith.
“Guantanamo and the Abuse of Presidential Power,” by Joseph Margulies.
The Ghosts of Abu Ghraib
Standard Operating Procedure
Taxi to the Dark Side
Saturday, January 17, 2009
In a number of ways, the Duke lacrosse case, a frequent subject of this blog, is different. The defendants faced an unethical prosecutor and a police force that repeatedly broke the rules. However, the defendants’ lawyers unmasked the prosecution’s attempt to bury exculpatory DNA evidence. Sadly, both the miscarriages of justice mentioned above and the Duke case illustrate a point made in Mr. Grisham’s book that I am paraphrasing: “In this country, you are innocent until proven broke.” There has been much ado over the wealth of these particular defendants’ families, but it is too infrequently noticed that these lawyers earned their paychecks the right way, by uncovering exculpatory evidence that the DA wished to hide. The shame is not that the Duke three came from wealthy families; rather, it is that we have tolerated a judicial system that sometimes cannot function unless the defendant is able to pay to play.
The sixth amendment to the constitution gives an accused the right to counsel. Given the great weight juries sometimes give forensic evidence, I liken putting a public defender in front of a jury without a meaningful ability to challenge possibly faulty evidence to sending a lacrosse player onto the field without gloves or a helmet. Therefore, I propose that for crimes that carry a sufficiently large maximum penalty, perhaps ten years in prison, that the public defender’s office should have available a sum of money. This money could be used to pay for DNA tests, clinical laboratory or other forensic tests, or a licensed private investigator. I propose a sum of $5,000 for most cases and $10,000 for capital cases.
It is vital to the success of this proposal that the judge trying the case be given as little authority as possible in directing the use of this money, possibly none at all. As indicated in “The Innocent Man,” a judge who approved public money on forensic tests could be tarred as being soft on crime. Voters might well punish someone who spent money on supposed criminals. However, I think that if we assent to the need of a public defender, we should also recognize the need to level the playing field between the prosecution and defense.
I have a strong hunch that this proposal could be considerably sharpened via amendments, particularly from those with more real-world exposure to the criminal justice system than I have. To that end, when I receive constructive comments, I will modify it accordingly. Therefore, comments are even more welcome than usual.
Update-1 (13 October 2009)
The 2009 Duke lacrosse book “Race to Injustice” has a chapter on the defense teams in that case. This author of this chapter, Rodney Uphoff, included a discussion of indigent defendants as the final section of his essay. His essay supports the general notion that indigent defendants often receive inadequate representation. I recommend his and a number of the other chapters. In the latter half of 2009, the case of Cameron Todd Willingham became national news, and I blogged twice in succession on this case (http://viewfromwilmington.blogspot.com/2009/09/more-on-willingham-case.html). I changed the word “stipend” to “sum” in the third paragraph.
Sunday, January 11, 2009
I read your essay “Acadeaniacs” in the New York Observer,23 March 2005 (http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=17459), and I found a great deal with which to disagree. It starts off promisingly enough, by relating how a student you met called President Bush evil and then said that we had no standard by which to judge Saddam Hussein. You correctly noted this incongruity but then wrote an essay with an enormous error of omission. Your essay is written in opposition to postmodernism in academia, and at the same time in implicit defense of the Bush administration. Postmodernism is the view that there are no universal truths; instead there are only competing opinions. By failing to criticize the postmodernism that so pervades this administration, you lead me to wonder whether you really care as much about challenging the idea of postmodernism as you do about bashing Democrats and supporting Republicans.
This administration behaves as though there is no such thing as objective reality. Therefore, it uses words according to their ability to persuade, not according to their closeness to truth. An implication of political postmodernism is that it becomes impossible to advance the notion that reasonable men and women may disagree with each other on some point. Instead, disagreement is necessarily equivalent to disloyalty. A Texas Republican said that if you oppose Karl Rove on anything, you become an enemy even if you are not one (Mark Crispin Miller, Fooled Again, 2005, p.82). This administration’s actions have been corrosive to public discourse and action in at least three areas, the role of journalism in mediating between the government and the people, the justifications for war in Iraq, and science policy.
An academic thinker may approach a problem by studying it in a preliminary way, then developing a hypothesis, testing it if possible, and finally drawing conclusions. Something like this should also be the normal course of events in a democracy: presentation of a problem, analysis and debate to consider alternatives, then a decision. This administration reversed the process: First came the decision behind closed doors, then came forth the arguments (often false) in a sham debate.
To control public debates, this administration has applied postmodernism to journalism. Eric Boelert points out that this administration’s tactics have been to blur the distinction between responsible journalists and irresponsible punditry such as Armstrong Williams or nonjournalists such as Jeff Gannon (http://dir.salon.com/story/news/feature/2005/03/02/media/index.html?pn=1). When Jeff Gannon asking fawning questions is made to be as worthy as Helen Thomas to ask substantive questions at briefings and press conferences, the very idea of professional journalism is imperiled. Boelert quotes David Brock as saying "Their explicit goal is to get us to the point where there are blue [state] facts and red [state] facts." As one means to blur the distinction between news and opinion, this administration has used press releases disguised as news. These tactics erode the ability of the press to be an independent inquisitor of government policy. Boelert summarizes the comments of Pulitzer Prize winner Ron Suskind:
Ron Suskind argues that the Bush administration has rejected the fundamental idea of debate and intellectual exchange. "Other administrations ceded to fact, and saw the benefit -- the value -- to meaningful public dialogue based on fact," he says. "They understood that was one of their obligations, to engage with people who were there to ask pointed and pertinent questions and demand answers to them. They understood that's how it worked and that that was the precedent. This administration has said, 'What does that have to do with me?'"
The adminstration was committed to war with Iraq no later than the spring of 2002, as can be seen in
The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 (2006), and The Price of Loyalty by Ron Suskind, and A Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies (2005), by James Bamford. Then the White House attempted to sway the public toward embracing the war, while simultaneously maintaining the fiction that what the inspectors found or what Saddam did could change the outcome.
President Bush began the selling of the Iraqi war in his 2002 State of the Union speech, in which he said “States like these (Iran, Iraq, or North Korea), and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world.” This assertion is completely bewildering: Iraq and Iran had fought a bloody and debilitating war in the 1980’s, yet, the notion of an axis implies cooperation and collaboration. With respect to the case for the existence of Iraqi WMDs, one brief example will suffice to indicate that facts didn’t matter to this administration. None of allegations made by defectors allied with Chalabi about the locations of Iraqi WMD programs were substantiated by the inspectors’ work in 2002-2003, a discrepancy which should have weakened the defectors’ credibility.
The White House’s allegations of ties between Iraq and Al Qaeda never suggested administration cares at all for factual accuracy or logical consistency. The intelligence community strongly disputed reports of meetings between the Iraqi government and Al Qaeda operatives, despite strong-arm tactics to push it toward such claims, as documented by Ron Suskind in The One Percent Doctrine. Indeed, the very idea of ties between Iraq and Al Qaeda never make sense: Saddam was a secularist, whom Bin Laden reviled.
And yet, the problem that may be most pertinent to a discussion of postmodernism is that the administration’s arguments were incoherent (at least as much as the arguments put forth by the students you engaged). As political columnist Michael Kinsley has said, the administration’s arguments stumbled into each other like drunks (http://www.slate.com/?id=2072211). Kinsley highlighted the contradiction between the contention that the Iraqis had WMDs and the claim that they would not use them against our troops if attacked.
Another inconsistency was the charge that Saddam was guilty of gross human rights violations coupled with the acknowledgement that the United States would stand down its military threat if Saddam complied with the UN resolutions with respect to the inspectors (http://www.slate.com/id/2077856/). This is a meretricious argument, in that makes our nation seem noble for its intention to depose a tyrant. Yet suppose that Saddam had been able to comply with the inspections to everyone’s satisfaction. He still would have been just as guilty of human rights abuses; therefore, this administration’s bringing up those crimes was entirely irrelevant. The administration’s arguments were dissonant, clashing even with each other, apart from whether any of them were true.
To postmodernists such as Irving Kristol, Karl Rove, or Ahmed Chalabi, the objections presented above miss the point. The arguments may have been “phony” (to quote Kristol’s description of the reasons given for military action in Granada), but they worked in both instances. That this administration could drive public opinion in spite of the facts becomes more obvious when one compares polls taken just after 11 September 2001 to polls taken near the start of the Iraqi war. Over time more and more people believed that there was a link between Iraq and 9/11 (http://www.csmonitor.com/2003/0314/p02s01-woiq.html).
The same sacrificing of truth to political gain has also permeated this administration’s approach to issues requiring scientific expertise. This has been documented in The Republican War on Science (2006), by Chris Mooney, and Bush versus the Environment (2004) by Robert S. Devine. A Newsweek cover story (13 August 2007) on the global warming debate reinforces Mooney’s analysis. The tactic of this administration (and the Republicans in general) has been to exaggerate the degree of dissent within the scientific community about the reality of global warming and its causes, then to use the manufactured uncertainly as a rationale for not taking action. Senator Inhofe implied that global warming was a hoax perpetrated by scientists. These tactics willfully misunderstand that science operates by testing falsifiable hypotheses. The mere existence of global warming skeptics is not surprising or particularly meaningful. What would be significant is if they performed and published experiments that bolstered their claims in peer-reviewed journals.
In September 2002 tens of thousands of fish died along the lower Klamath River in Oregon. A team of fisheries biologists led by Michael Kelly had been against releasing water for irrigation on the basis of it potential to harm two species of endangered fish, as well as to other fish. Vice President Cheney sought a second opinion from other scientists, whose report was construed by the White House as not entirely supporting the team’s conclusions. The water was let out for irrigation, and that summer witnessed the death of about 33,000 salmon, damaging the fishing industry. The issue is not merely that this administration was wrong, but that it shopped around for a viewpoint that could be twisted to support a politically advantageous irrigation policy. This is postmodernism in action.
In general, this administration has given undue weight to scientific opinions that happens to support its political and economic policies. It has sought to pack advisory councils with poorly qualified, but strongly ideological individuals. These are the actions of those who don’t believe that science can probe objective truth. Instead, this administration appears to believe that there is nothing more than competing scientific opinions, and the way to prevail is to promote one’s own views through arm-twisting.
The way this administration behaved with respect to Iraq, to economic policy, to the environment, or to treatment of detainees has a common thread. It began to become apparent what the philosophy of this administration is when I read Ron Suskind’s article “Without a Doubt,” published on 17 October 2004 in the New York Times Magazine. One can only cringe when one comes across examples of the president’s stubbornly clinging to falsehoods, such as insistence that Sweden had no army, for example. His ignorance of the two major types of Muslims, Shias and Sunnis, as reported by Great Britain’s ambassador, helps one to understand the postwar debacle a little better. The lack of a process for rationally considering alternatives has been a remarkable weakness in this presidency that might be initially puzzling. However, the comment from a senior advisor that Suskind reports is particularly chilling but also clarifying:
The aide said that guys like me were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” I nodded and murmured something about enlightenment principles and empiricism. He cut me off. “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you are studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do.”
To put oneself in opposition to the reality-based community can only mean that one is an irrationalist, meaning that one does not believe in objective reality. What is meant by creating one’s own reality? Seymour Hersh gave one possible answer in Chain of Command: The Road from 9/11 to Abu Ghraib (2004), when writing about President Bush’s statements on torture:
There are many who believe that George Bush is a liar, a president who knowingly and deliberately twists facts for political gain. But lying would indicate an understanding of what is desired, what is possible, and how best to get there. A more plausible explanation is that words have no meaning for this President beyond the immediate moment, and so he believes that his mere utterance of the phrases makes them real. It is a terrifying possibility (p. 367).
Chris Mooney summed up the Bush Administration’s relationship to science:
By failing to respect the integrity of science, and instead repeatedly undermining it and employing it opportunistically, the Bush administration erodes public confidence in the scientific endeavor and leaves it crippled and undermined. This fosters outright relativism about the value of science as opposed to other ways of knowing—outright “faith,” for example. (p. 257)
Mooney quotes Thomas Murray, who says that this administration “has a postmodern take on science.” Mooney discusses the anonymous comments of Bush’s aide about the reality-based community (see above). “Whoever is speaking here has become the most dangerous sort of relativist.”
If our leaders do not believe in using reason, facts, and logic to make decisions, then what is left? President Bush has indicated that he thinks his gut and his faith in God are sufficient. President Bush once said, “I may not know where Kosovo is, but I know what I believe.” A White House official said, “the President is not a fact checker,” in regards to the false Niger uranium claim, but his comments beg the question, “Who in this administration is checking facts?” One wonders how honest decisions can ever be made in the absence of reliable information.
Moreover, there is a symbiosis between Bush’s trusting his gut instincts and the One Percent Doctrine, first enunciated by Vice President Dick Cheney: If there is even a one percent chance that someone or something can do us harm, we have to act as if it were a certainty. At first encounter, this sounds as if this administration merely wishes to be zealous in their protection of our country. Upon further examination, it means something different and far more dangerous, and this administration treats it as carte blanche to do what it pleases. This administration’s line of thinking seems to be: The number of threats that this country faces that have at least a one percent chance of coming to pass is very large. Is there a one percent chance that Iran or North Korea, or even Pakistan could harm us? Of course, yet we don’t have the resources to invade all of them. So which one’s do we invade? We use our instincts, our gut intuition.
Suskind argues that Vice President Cheney’s formulation divorces action from deliberation. Therefore, Cheney liberated President Bush from the complex and dull task of reading, weighing facts, considering alternatives, and only then deciding and acting, based on one’s proscribed role in government. On the contrary, this administration has used the unitary theory of the executive to expand its role well beyond that envisioned by the founding fathers. If one is president of the strongest country on earth and is further liberated by the One Percent Doctrine, the power must be so intoxicating that checks and balances are merely fetters. It is no wonder that President Bush called the Constitution “just a goddamned piece of paper (http://www.capitolhillblue.com/artman/publish/article_7779.shtml).”
Since the time I first read your essay, my study of the Duke lacrosse case has made me more receptive to the notion that postmodernism is a real threat to the academic enterprise. However, why not acknowledge the harm postmodernism has done to this nation in the last eight years?
Friday, January 2, 2009
Part I, the alleged assault
Ms. Mangum, an exotic dancer, discusses the events of March 13, 2006 in two places in her book, pp. 33-56 and pp. 189-208. Ms. Mangum claims that she has always given a consistent account of the alleged rape (p. 189). She claims never to have taken illegal drugs, and she says that she was surprised at reports that she was on a strong cocktail of drugs for bipolar disorder that night. She says that she had two beers prior to arriving at 610 North Buchanan, the house rented by several of the lacrosse co-captains. This was less than she would usually drink before a performance (p. 48). She says that she took a few sips of the drink that “Dan Flanagan” gave her before spilling it and declined Nikki’s offer of her drink. She says that she was aware of the dangers of taking the medication she had been prescribed along with alcohol and that she did have prescriptions for “a number of drugs” on p. 47. She says that there is no proof and no toxicology reports that she took prescription drugs on March 13. She does not give the names of the drugs for which she had prescriptions or discuss why she stopped taking them as she implies. She assumes that information about her prescriptions came from release of her medical records or doctors and is outraged that her medical records were made public. She also reports that one of her doctors withdrew from treating her because of a conflict of interest stemming from his connections with Duke University.
While Ms. Mangum and Kim Roberts (Nikki, the other dancer) prepared in the bathroom, she heard the partygoers repeatedly refer to them as “black bitches.” After she and Nikki started to dance, she was surprised to see Nikki naked (she says that she had not planned on being completely naked). This surprise caused her to fall almost on top of Nikki, which she says was not intentional. As she and Nikki got up, she believes someone yelled that they were going to stick a broomstick up their anuses. Nikki said that they needed to get out of there. A person she believes was David Evans, one of the three indicted players, coaxed them back inside the house.
Shortly thereafter, she was forced into the bathroom and grabbed by the throat. Despite her screams, no one helped her. Ms. Mangum does not describe the physical appearance of her attackers, nor does she name them. That is odd, given that she seems to know what David Evans looks like. She does say that she is not good at remembering “minute details” about her surroundings (p. 56). She writes (p. 190), “I know people want me to name names and point fingers, but that would just be opening up a whole can of worms.” The first attacker penetrated her vagina and anus. The second attacker penetrated her vagina. Her pulling at his shirt caused her glued fingernails to pop loose. The third attacker at first demurred, on the grounds of having a fiancée, but then also assaulted her. She does not say where he penetrated her, but she does think that she may have been penetrated by a foreign object. The second attacker then penetrated her anally but ejaculated onto the floor. She suggests that a DNA sample near the sink in the bathroom was from a partygoer, presumably her second attacker. She implies that the alleged attack took ten minutes (p. 194) and that she was in the house for thirty minutes (p. 197).
After Ms. Mangum and Nikki left, she told Nikki about the attack. She received a mild sedative at Duke Medical Center before 3 AM. She had a pelvic exam that was so “excruciating” that it took a long time to complete (p. 193). She says that the hospital staff reported truthfully on the injuries they described but that the injuries were more extensive than reported in the media though it is not clear what she means. She claims bruising of her neck and knee. She claims (p. 225) that the videotape showing her dancing about ten days later was actually filmed several months earlier.
Part II, The investigation
Ms. Mangum says that the police did not try to coach her, yet they did tell her that the pictures were more than likely to be people at the party. She also says that she never danced at the Platinum Pleasures Club again. She denies that DNA evidence exists of her having multiple sex partners prior to the events at 610 Buchanan, and she says that there was no semen found in her orifices. She also denies being a prostitute but acknowledges masturbating for customers. She hints at the existence of other DNA evidence in her case file and calls for the file to be released. She implies that the use of racial slurs by itself is a hate crime (p. 203).
About the investigation she says (p. 197), “The notion that the Durham Police Department somehow decided that my case was about framing people for no reason seems so crazy.” She makes one puzzling statement about the DNA tests (p. 202): “If the DNA confirms that none of the people charged left DNA on me, then the test performed their function.”
During the second meeting with the Coman/Winstead team that took over from Durham DA Michael Nifong, Ms. Mangum felt frustrated by the rapidity of the questions. Near the end of the meeting, she said, “They are going to get away with it because Duke has paid everyone to be silent.”
Part III, Ms. Mangum’s adolescence
Ms. Mangum wished to be a ballerina when she was young. She also spent hours studying dance moves in music videos on television. Ms. Mangum’s parents loved her, however they favored her sister. Her portrait of her sister is particularly unflattering. Her father was quite willing to use corporal punishment. Her mother seems to have been hospitalized for mental illness at least one time (p. 83). She implies that she is estranged from her family but is not specific on the reasons. She accuses her cousin Jackie of trying to sell her story and believes that someone paid her to talk (p. 68).
By far the most horrific story within this portion of the book is Ms. Mangum’s account of a gang rape when she was fourteen. One of her abusers was her boyfriend Frederick and the other two were friends of his. Frederick was also physically and psychologically abusive. Her relationship with Frederick sent her into a depression, requiring hospitalization and treatment. She swallowed sixty aspirin tablets when she was a teenager and again was hospitalized.
Ms. Mangum describes herself as being religious and fearing God. She says that in the last year she gravitated back to the church for solace (p. 70).
Part IV, Ms. Mangum’s adult life prior to the alleged attack
Ms. Mangum’s husband was fourteen years older than she, and after they married, she joined the navy. She says that she was more concerned about him than herself. She writes (pp. 150-151), “Being kindhearted and a caring person is a character flaw I suffer from.” Ultimately, Kenneth was verbally and physically abusive. After the breakup of her marriage, she started dating Ryan, the father of her two older children.
Ms. Mangum gives the following account of her arrest in 2002: She says that she was drunk, and an equally drunk man gave her the keys to his car, which turned out to be a taxicab. Her motive for wanting to go home was to check on her children. She stopped after police pursued her but then backed up, hitting a police cruiser. She was charged with two felonies and five misdemeanors (p. 174).
In 2004 Ms. Mangum took a job as a medical technician in an adult care facility for about a year but had a conflict with her manager and was fired. As in other interpersonal situations, she lays the majority of the blame for the problem on the other person (p. 176). She acknowledges that she abused alcohol and had a mental heath issue in 2005 that was diagnosed as bipolar disorder by one mental health professional and recurring depression by another.