Some time ago I found a comment about the Duke lacrosse case at a blog frequented by actuarial students. Everybody was talking about the DL case in 2006 (http://www.actuarialoutpost.com/actuarial_discussion_forum/showthread.php?t=78024&page=15). The comment from llcooljabe at 4-18-2006 read, “A bunch of my coworkers are hugely into local lacrosse (I live in Long Island). One of them said when this whole thing broke a few weeks ago, that if anyone on the duke team did it, it would be this collin kid from Garden City. Whether he's guilty or not, his life is effectively ruined because of the publicity.” It struck me as odd because Collin’s diversion in the Georgetown case was not revoked until after the arrest, which occurred on 4-18-06. Why would anyone have expected Collin to be involved in the rape case, given his unblemished disciplinary record at Chaminade High School?
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.
Saturday, July 25, 2009
Wednesday, July 22, 2009
Charlie's
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.
Appendix
Monday, July 6, 2009
Comments Policy
I will not generally clear comments between 8 AM and 5 PM. I will try to clear comments in the order in which they are sent. I may reject comments that are abusive, or that stray far from the topic of the post. I may reject comments that are factually inaccurate or that fail to cite sources.
John in Carolina’s post, “KC Johnson Now”
Update 2, 7/10/09: The three paragraphs that I removed pointed out an error that appeared on another site. Although no one has questioned the accuracy of what I wrote, some have asked me to explain my deletion. The error on this site has been amended, and this made my comments moot. If this situation arises again, I will amend or comment on my post to acknowledge a correction made elsewhere, rather than remove the paragraph(s). I am sorry about any confusion I have created.
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.
Concluding remarks
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.
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.
Concluding remarks
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
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.
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.
Chris
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 (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
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 (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.
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.
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