Sunday, May 24, 2009

On Hiatus

Update (5/27): I will clear the occasional comment. If the volume of comments increases, I will not, solely due to time constraints.

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

Devilish Discords, A Reply to Robert Zimmerman

(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 (, 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 ( His assessment ( 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,

Baldwin wrote (, “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 (, “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 (, 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 ( 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 ( 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 ( 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 (

Tuesday, May 5, 2009

The final Duke photographic lineup and some thoughts on Tulia, Texas

Chapter 13 in the book “Race to Injustice: deals with eyewitness-identification procedures. The authors are Gary L. Wells, Brian L. Cutler, and Lisa E. Hasel, and the first two authors helped to develop the procedures that Durham adopted prior to the lacrosse case as well as serving as consultants for the defense. With respect to the final array of photographs on April fourth, the authors write, “The repeated presentation of certain suspects’ photos is obviously egregious; ironically, existing recommendations for proper identification procedures have spent little time discussing this issue…precisely because it seems so obvious.” The American Psychology-Law Society and the North Carolina Innocence commission both recommend against showing the same faces multiple times, and for doing the lineup in a double-blind fashion (meaning that the officers in charge of presenting the photos should not know who the suspects are).

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 (, 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 ( 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 ( 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 ( 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.