Frontpage Interview's guest today is KC Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center. With a B.A. and Ph.D. from Harvard University, he specializes in 20th century U.S. political, constitutional, and diplomatic history. He writes a blog, Durham-in-Wonderland, which offers comments and analysis about the Duke/Nifong case.
FP: KC Johnson, welcome to Frontpage Interview.
Johnson: Thank you for speaking with me.
FP: Kindly summarize briefly for our readers what this case involving the three Lacrosse students is about.
Johnson: This is the story of how a case virtually devoid of evidence, constructed upon a tissue of procedural irregularities, nonetheless has lurched forward. At a March team party at an off-campus house rented by three lacrosse captains, one captain hired two exotic dancers to perform. After leaving the party, which ended sourly, an African-American dancer with a criminal record and a history of false allegations (including an unpursued claim that three men raped her a decade ago) claimed to have been raped to prevent being involuntarily committed at Durham Access Center. After going through multiple stories, the accuser eventually settled on a claim of a violent gang rape by three players (with three others, who were never charged or in any way identified, serving as accomplices). The rape, she alleged, lasted a half hour; and at least two of her attackers, who she said didn't wear condoms, ejaculated.
Although the second dancer contradicted her account in virtually every way; the team captains gave statements to police, without their lawyers present, denying the allegations and voluntarily turned over to police DNA samples and their e-mail account passwords; and although the team captains offered to take lie detector tests (an offer the police spurned); and no DNA matches of any sort between any player and the accuser's DNA appeared; and although an original photo line-up of the players found the accuser unable to identify her alleged attackers, D.A. Mike Nifong eventually indicted three players, including one, Reade Seligmann, whose attorney produced a videotape of him more than a mile away, at an ATM machine, at the time of the alleged crime.
FP: Let's talk about District Attorney Mike Nifong's conduct. What is your angle on it and why has the legal community and most of the media been so quiet about it?
Johnson: Nifong's conduct in this case is the most unethical of any district attorney I have ever seen; I cannot recall a case in the last 15-20 years in which this many procedural violations were known at this stage of the process.
This is a man who violated multiple provisions of the North Carolina Rules of Professional Conduct simply to get a case. His most damaging violation was ordering the Durham Police not to follow their own procedures in the line-up that resulted in the identification of the three players charged. The procedures required five filler photos per every suspect; Nifong told police to confine the line-up to suspects—members of the lacrosse team.
The media, of course, were not initially quiet: led by the New York Times, early coverage all but had the players tried and convicted. The case fit into a comfortable narrative for a liberal media elite of out-of-control wealthy white athletes violating a poor African-American woman. As the case has collapsed, most media—with the crucial exception of the Raleigh News & Observer and CBS's 60 Minutes—abandoned interest in the affair, rather than revisiting their early flawed reporting. The New York Times, meanwhile, published a widely ridiculed August article that read more like a public relations piece for Nifong than a piece of journalism. The article contained four out-and-out errors of fact, all of which tilted the story in favor of the prosecution, and all of which the Times refused to correct.
FP: What has been the overall reaction of the Duke faculty and administration? What is your take on it?
Johnson: In the first week of the investigation (March 16-23), Duke administrators actively assisted the state. Without informing President Richard Brodhead, administrators demanded from the captains a candid account of the evening's events, allegedly citing a non-existent "student-faculty" privilege to encourage the captains to disclose any criminal activity. Multiple sources told me that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a "facilitator" in arranging for a group meeting with police.
After Nifong began his publicity barrage on March 27, faculty leftists became involved. Houston Baker, a professor of English and Afro-American Studies, issued a public letter denouncing the "abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us" and demanding the "immediate dismissals" of "the team itself and its players." Then, on April 6, 88 members of Duke's arts and sciences faculty signed a public statement saying "thank you" to campus demonstrators who had distributed a "wanted" poster of the lacrosse players and publicly branded the players "rapists." To date, not a single member of what has become known as the "Group of 88" has retracted his or her signature or publicly criticized Nifong's procedural violations.
(I started my blog as a response to the Group of 88's statement, which I considered a betrayal of the signatories' duties as faculty members, and only expanded to the case itself as the magnitude of Nifong's procedural misconduct became clear.)
As Brodhead failed to resist his faculty's assault on due process, his actions, whether intended or not, fortified a public image of guilt. On March 25, in an unprecedented move, the president cancelled (at the last minute) the lacrosse team's game against Georgetown, citing underage drinking at the party. Then, on April 5, Brodhead demanded Pressler's resignation, cancelled the lacrosse season, and issued a statement anchored by a lament on the evils of rape—at a time when the players were firmly denying any sexual contact, much less rape. These moves enjoyed enthusiastic support from Board of Trustees chairman Robert Steel. The president later issued a statement urging a trial, on the grounds that it would give the accused players an opportunity to be "proved innocent," in effect turning on its head 220 years of American constitutional history.
Based on the actions and statements of both the faculty and administration, a fair-minded neutral observer could only conclude that Duke's administrators and most outspoken professors believed that a rape occurred.
FP: Expand for us a bit on how this case intersects with political motivations.
Johnson: In Nifong's case, the political motivation was straightforward. An appointed district attorney, he was running in the May Democratic primary against two challengers: a well-known white woman, Freda Black, whom he had fired as an assistant district attorney in one of his first acts in office; and a weak black candidate, Keith Bishop. The party's electorate was about evenly divided between white and black voters.
Black was much better known than Nifong (she had helped prosecute a high-profile murder case in 2003), and in mid-February, she seemed on the verge of putting the race away. Nifong started having trouble raising money—he attracted only $1150 in contributions for all March—and, to keep his candidacy alive, he loaned his campaign nearly $30,000. (A lifetime bureaucrat whose wife is a "victims' rights" advocate, Nifong isn't personally wealthy.)
Then came the lacrosse allegation. Nifong took control of the police investigation, gave over 50 interviews that highlighted (in misleading fashion) an alleged racial motive for the alleged crime, and soared in polls. He captured the primary by 881 votes, thanks to robust showings in black precincts.
In the fall campaign, two unaffiliated candidates ran against him: with minimal support from the white community, Nifong again squeaked through, with less than 50%, thanks to overwhelming backing in black precincts. By the fall, he had abandoned all pretences that his motives were anything other than political, stating at one point that his trying the case would address Durham's "underlying divisions," and wildly claiming that his critics considered his prosecution "a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide" the case.
FP: How do you think the Duke/Nifong case will turn out? Crystallize for us the main lessons we must all draw from it.
Johnson: Legally, the outcome of the case very much depends on the judge, Osmond Smith. Any judge with integrity would have to suppress the procedurally improper line-up ordered by Nifong and then used to indict the three players; without the results from that line-up, Nifong has no case. There are two other key decisions the judge could make: (1) He could grant a defense motion to force Nifong's recusal from the case, which in effect would dismiss the charges, since it's inconceivable any other prosecutor would try this case; or (2) he could grant a motion for a change of venue, which would effectively ensure an acquittal, since Nifong has constructed his whole case around appealing to biases with Durham's community.
There are myriad lessons we should draw from events of this case, including the following:
Rape law needs modification. Until the 1970s, rape law was far too friendly to the defendant; now it is the reverse. Nifong has done many unethical things in this case, but he has been correct in one assertion: under North Carolina law, a jury can convict solely on the testimony of the accuser and her identifying her alleged assailants. That means that, as a matter of law, Reade Seligmann could be convicted—even Seligmann has electronic and physical evidence that can definitely prove his innocence (he's on videotape a mile away at the time of the alleged crime).
Duke, as an institution, has revealed a hollow moral core. Seven months into a case of what might be the highest-profile example of prosecutorial misconduct in the last decade, two Duke law professors and two Duke arts and sciences professors have publicly criticized Nifong. Meanwhile, Group of 88 members continues to defend their actions, even to the point of making demonstrably false public assertions about the players. Meanwhile, Brodhead has shown himself unwilling or unable to lead the institution, allowing what amounts to a "separate-but-equal" system to be established in Durham, under which Duke students are second-class citizens.
The silence of North Carolina's political and legal establishment regarding Nifong's misconduct is stunning.
The media needs to reconsider how it covers rape cases. To a greater extent than any crime other than child abuse, a presumption of guilt exists.
The next time the NAACP speaks up on behalf of standard procedure in a criminal justice case, the media should ask why the organization betrayed 70 years of its principles on criminal justice issues to give Nifong a pass in this case.
In Durham, North Carolina, a robust constituency exists for the politics of revenge and prosecutorial misconduct.
FP: KC Johnson, thank you for joining Frontpage Interview.
Johnson: Thank you for speaking with me.