Wolves in Blazers and Khakis? In defense of the Duke lacrosse teams, I

In the spring and summer of 2006 many journalists wrote pieces that were heavily critical of the Duke lacrosse teams. Few managed the level of disdain that Marc Fisher did in his column “Wolves in Blazers and Khakis” (13 July 2006) in the Washington Post
(http://www.washingtonpost.com/wp-dyn/content/article/2006/07/12/AR2006071201911.html). My impressions of the case are based on a number of news articles that appeared at the time, and the book, "Until Proven Innocent."

Mr. Fisher covered Collin Finnerty’s trial over an incident in Georgetown the previous November between a group of athletes including Collin versus Scott Herndon and Jeffrey Bloxham. Collin was convicted of assault: throwing fake punches and directing possibly homophobic insults at Jeffrey Bloxham. On the other hand, he never threw real punches and his friends indicated that he was the first person to get punched, an assertion that is consistent with a photograph shown by one of his lawyers.

We are all agreed that even assault should be illegal, though it is less serious than assault and battery. Likewise, using vulgar taunts is unacceptable behavior, yet it seems far-fetched that Collin and his friends were doing so in the absence of in-kind behavior from Scott and Jeffrey. Collin and his friends were probably drinking underage. I doubt that the incident was anyone’s finest hour. However, Mr. Fisher goes much, much further in his analysis of an incident that he says is common in Georgetown.

Mr. Fisher concludes that the complaining witnesses were entirely truthful in their testimony and implies that Collin’s friends perjured themselves in theirs. Claims of Collin’s excellent character are “proud, even arrogant,” but Mr. Fisher does not say that the priest (also family friend) and Michael Hannan, the father of Collin’s girlfriend, lied, only that they fail to apprehend Collin’s true nature.

Marc Fisher claims that Collin Finnerty and his friends behave decently while sober but appallingly while drunk. In the Georgetown incident, there is evidence that is superficially consistent with his hypothesis but not nearly enough to demand it. We don’t know how much the members of either of the two groups of friends had been drinking. Moreover, based his own testimony about an unrelated incident, Scott Herndon may be aggressive when he has been drinking. And Scott and Jeffrey might have perjured themselves, as discussed by Stuart Taylor and KC Johnson in “Until Proven Innocent.” Scott’s and Jeffrey’s accounts, in which they portray themselves as peace-loving victims, are not worth the trouble of laughing at. Why Mr. Fisher swallows them hook, line, and sinker in the absence of disinterested witnesses is beyond me, especially when the authorities implied that both parties were yelling at each other. It seems much more reasonable to assign blame for this minor scuffle equally to both parties.

But Mr. Fisher goes a step further than saying that Collin gets out of control when drunk. Mr. Fisher implies that he and his friends are putting on an act for their elders then showing their true selves only to one another. And that is the connection to the Duke rape case: “a raucous party at which a bunch of drunken kids verbally abused a hired performer,” an incident that was “entirely within character for these kids and the friend they tried to talk out of trouble.” He offers not one scintilla of evidence for his conjecture about Collin and his friends putting on an act. Moreover, his characterization of the party serves his thesis more than it resembles reality: the party was not raucus, and there was only one racial epithet uttered by a lacrosse player (not Collin) after being provoked by an in-kind remark by the stripper who was not the accuser, Kim Roberts.

Mr Fisher’s position leads him to discount what I see as compelling character testimony. Surely there is no tougher critic than the father of one’s girlfriend even in the best of times. After being indicted for rape, Collin was suspended and then put on academic leave at Duke, on top of being tried for the Georgetown incident. If Mr. Hannan had any doubts whatsoever about Collin’s character, Mr. Hannan would surely have forbidden his daughter from seeing him. Instead, Mr. Hannan took time off from his other responsibilities to defend the young man under oath.

Mr. Fisher is contemptuous of the lawyers and their yellow pads arrayed in Collin’s defense, as well as Collin’s blazers and khakis, and his and his friends’ “Yes, Sir’s.” This ignores two points. First, anyone with a modicum of common sense going to court will present himself well. Second, if I were in the shoes of Kevin Finnerty, Collin’s father, I would be looking at the Georgetown case through the lens of a possible thirty-year prison sentence for rape; therefore, my strategy in the former case would be governed by the need not to lose the latter one. Perhaps this explains the lawyers and the character witnesses, as well as the fact that Collin did not testify himself.

His classmates and a teacher have spoken up for Collin, as found in “Until Proven Innocent” (pp. 12-14). Nader Baydoun and R. Stephanie Good’s “A Rush to Injustice” recounts Duke student Emma Stevenson and her friends discussing the rape case just prior to indictments (pp. 155-156). “They joked that Nifong would probably indict someone as unlikely as Collin Finnerty because Collin was one of the nicest guys on the team and one of the least likely to hurt anyone.” Reporting several months later, Peter Applebome wrote about the time immediately after the names of the first two indicted players were announced (http://query.nytimes.com/gst/fullpage.html?res=9D07E2D9103FF936A25757C0A9619C8B63&sec=&spon=&pagewanted=1), “Nona Farahnik, who lived in the same dormitory as Mr. Finnerty and Mr. Seligmann, said, ‘When they said it was Reade and Collin, everyone knew it didn't happen.’” Since these testimonials come mainly from his male and female classmates, they undercut Mr. Fisher’s thesis.

Articles by Sharon Swanson (http://www.metronc.com/article/?id=1258) and Joan Collins (http://friendsofdukeuniversity.blogspot.com/2006/05/letters-from-friends-2.html#c116353966571190418) consistently describe Collin as mild-mannered. Collin’s parents stood by him unreservedly (http://www.wral.com/news/local/story/1267263/); his father said, "In some ways, I'd say Collin is a much better man than I could ever hope to be." Although one might argue that the support of one’s parents should be treated with gentle skepticism, it surely should not be ignored entirely. Collin’s neighbors asked him to baby-sit prior to his indictment and indicated they would be happy if he did so again (http://www.webcommentary.com/asp/ShowArticle.asp?id=gaynorm&date=060723). His coach at Chaminade High School made Collin an assistant during the time the rape charge was still pending and later praised his performance in that capacity (http://www.metronc.com/article/?id=1403). If one reads Collin’s freshman essay on cloning (http://www.duke.edu/~chf2/10%20steps%20page.html), he or she may begin to doubt and ultimately to reject Mr. Fisher’s portrait of Collin as a wolf. Finally, along with this ample evidence to his good character, doesn’t Collin’s empathetic reaction to the case of Eric Volz (http://www.newsobserver.com/news/crime_safety/duke_lacrosse/story/572485.html), speaks more clearly and forcefully about who he really is than the insignificant incident in Georgetown?

Mr. Fisher does not seem to think so. His response to my bringing up the Volz case and the interest that the Duke Three have shown in Innocence Project (http://www.nydailynews.com/news/2008/04/12/2008-04-12_cleared_duke_lacrosse_player_works_to_he-1.html) was, “I'm glad to hear that the indicted students are taking an interest in the rights of the accused, and as I've said from the very beginning of this matter, the appalling rush to judgment in the phony rape case reveals a mindset that deserves far more rigorous attention, especially on college campuses. But in the case of the Georgetown incident, I covered that trial and there was very little that was unclear--it seemed plain that the accused behaved deplorably. To my mind both then and now, they deserved a far more serious punishment than they received.”

The judge must have felt otherwise, since he set aside Collin’s conviction near the end of 2006. One could dismiss Mr. Fisher as one of many superficial, self-impressed journalists, who, lacking heart or brain, declared a “free-fire zone” (Peter Applebome’s apt phrase) on the lacrosse players. Yet, the puzzle deepened for me when I started reading Mr. Fisher’s other columns: a compassionate interview with Alan Keyes’ daughter, a lamentation about an inner city youth choir program that was in jeopardy, a bittersweet retrospective on Leonard Slatkin’s tenure as music director in Washington, DC. Mr. Fisher wrote “one incident often does make a gentleman's character.” But I would like to give Mr. Fisher the benefit of the doubt that he did not give Collin. One sour piece of fruit does not condemn the whole tree.

Update (August 10, 2009): I added another link, this one in the third paragraph from the end.