The Duke Lacrosse Accusations: Goodbye to the Presumption of Innocence

Note:  Some analysts may find it more productive to refer back to this as only a reference after becoming more familiar with the controversy.

“A 27-year-old Durham woman told DA Nifong she was hit, kicked and strangled during an assault at a Duke Lacrosse party. She reported that she was sexually assaulted for an approximate 30 minute time period by the three males. That was before a mountain of digital photos, receipts, and eyewitness accounts appeared in the press which seemed to contradict the time line.”

“March 13, 2006 — Spring Break Lacrosse party

March 14 — Listed on the indictments of Evans, Finnerty and Seligmann as the “Date of Offense”

March 16 — First substantial police interview with accuser (photo line-up); Police search of 610 Buchanan house

March 17 — Durham police issue a “non-testimonial” order, giving them the right to threaten legal action if an individual won’t cooperate in the process of gathering evidence.

March 21 — Police I.D. session (photo line-up) with accuser. Evans apparently is not identified. Accuser and her “driver,” Jarriel Johnson, ask police about return of property.

March 22 — Lacrosse team players cancel meeting with DA Kim Roberts arrested on a probation violation from the 2001 conviction

March 23 — Court ordered DNA testing of lacrosse team

March 24 — Accuser’s interview with News-Observer

March 26 — 150 gather for “pots and pans” protest

March 27 — SBI receives samples from 46 team members

Search warrant issued for the dorm room of lax player Ryan McFadyen

March 28 — Duke president suspends season

March 29 — Lacrosse team “wanted posters” appear at a Take Back the Night rally; Scathing letter from Duke’s Houston A. Baker calling for dismissals

April 4 — Police I.D. session (PowerPoint photo line-up) with accuser. Seligmann, Finnerty, and Evans identified.

April 5 — Lacrosse season canceled

Coach Mike Pressler resigns.

E-mail signed “41” made public and Ryan McFadyen (jersey #41) suspended

April 10 — Defense attorneys reveal no match found in results of the first DNA testing

April 11 — NCU forum; Nifong meets with accuser

April 14 — “Sting” email sent to lacrosse players, possibly by police

April 17 — Collin Finnerty and Reade Seligmann indicted

April 18 — Search warrants issued for dorm rooms of Seligmann and Finnerty

April 19 — Kim Roberts sends e-mail to PR firm

April 20 — On-Time Taxi driver, Moezeldin Elmostafa, speaks to AP reporter

May 1 — The New Black Panthers demonstrate in Durham

May 2 — Nifong wins 45 percent of the vote in the Democratic primary

May 10 — On-Time Taxi driver, Elmostafa, held in jail for five hours

May 12 — Defense attorneys reveal no match found in results of second DNA testing

May 15 — David Evans indicted

May 16 — Nifong announces he “doesn’t foresee any further indictments” in the Duke case

May 18 — Seligmann’s first court appearance; 1,300 pages of “discovery” given to defense

May 24 — Lax midfielder Matthew Wilson is charged with drug possession and driving while impaired after a traffic stop. He is suspended indefinitely from the team 10 days later.

June 5 — Duke lacrosse team reinstated, former Duke lacrosse player Kevin Cassese, 25, appointed as interim coach

June 13 — Graduated basketball star J.J. Redick is arrested on charges of drunken driving after making an illegal U-turn to avoid a police checkpoint.

June 23 — Athletics Director Joe Alleva injured in a boating accident with his son — a former Duke baseball player — who is charged with operating a boat while impaired.

June 29 — Ryan McFadyen reinstated and cleared to rejoin lacrosse team

Larry Moneta, vice president for student affairs says the e-mail was sent “in jest,” using language from the novel turned movie: “American Psycho.”

June 30 — County Commissioner Lewis Cheek gathers enough signed petitions to put him on the November 2006 ballot against DA Nifong; Republican party chairman Steve Monks fails in his petition drive

July 11 — Finnerty convicted In D.C. assault case

July 14 — Durham Police Chief Steve Chalmers announces he will retire in December of 2007

July 17 — Citing extensive local, state, national and international media coverage, Superior Court Judge Kenneth C. Titus issues publicity restraints. Short of an all out “gag order,” the judge exempted media comments permitted by the N.C. State Bar’s Revised Rules of Professional Conduct.

July 20 — Several Durham police officers involved in an alleged verbal exchange of racial slurs and beating of Rene Dennis Thomas, a restaurant cook at Blinco’s Sports Bar in Raleigh.

July 21 — Duke rape case investigators, Sgt. Mark Gottlieb and officer Richard Clayton, are re-assigned to administrative duty.

All three defense lawyers formally request Judge Titus modify his quasi-gag order, arguing they were entitled to “pursue lawful strategies” to try to get the indictments dismissed or the charges reduced — including using “the court of public opinion” to try to show their clients don’t deserve to be tried; Duke names John Danowski as new lacrosse coach

July 27 — Officers Gary Lee and Scott Tanner charged with simple assault. Gottlieb, Clayton and other investigated officers are restored to full-duty status.

September 1 — Superior Court Judge William Osmond Smith III assumes sole management of the case and schedule

December 7 — Congressman Walter B. Jones asks the US Dept. of Justice to investigate DA Nifong

December 15 — Private DNA laboratory head, Brian Meehan, testifies that he and Nifong agreed not to report all DNA results

December 22 — State drops the rape charges against all three defendants

December 28 — NC State Bar accuses Nifong of violating ethics rules

December 29 — NC Conference of District Attorneys issues public rebuke and calls for Nifong to recuse himself

January 12, 2007 — Nifong requests the State Attorney General’s office handle the case

April 11, 2007 — AG Roy Cooper dismisses all remaining charges citing a lack of evidence

June 15, 2007 — Mike Nifong announces his resignation as Durham’s District Attorney”

Courtesy of VanceHolmes.com, legal blog

Note: The following timeline was compiled by Jared Mueller and Tiffany Webber using information provided by ABC News, NBC 17 News, the Durham Herald-Sun, The Raleigh News & Observer and The New York Times.

TIMELINE OF MARCH 13-14, 2006

Based on several published reports, The Duke Chronicle offers readers a timeline for the night of March 13 and the early morning of March 14:

11:30 PM — Approximate time, according to a Durham police warrant, of the two exotic dancers’ arrival at 610 N. Buchanan Blvd.

11:50 PM — Neighbor Jason Bissey told the Raleigh News and Observer that he saw two women walk to the back of the house, where they were greeted by a man.

12:00 AM — Bissey sees the two women enter the house.

12:02 AM — A time-stamped photo provided by defense attorneys shows women dancing in front of the lacrosse players.

12:03 AM — Another photo shows both dancers leaving the party.

12:03 AM-12:30 AM — There is a 27-minute gap where no photos were taken.

12:07, 12:14 AM — Phone bills indicate two outgoing calls are made from sophomore Reade Seligmann’s cell phone.

Sometime before 12:24 AM — A taxi driver has said in a written statement that he picked up Seligmann and a friend a block and a half away from the party.

12:24 AM — Seligmann’s ATM card is used at a Wachovia bank. The taxi driver confirmed that he drove Seligmann and his friend to a bank and fast food restaurant before taking them to West Campus.

12:25 AM — Seligmann calls his girlfriend, another Duke sophomore, on his cell phone.

12:20 AM-12:30 AM — Bissey told the Durham Herald-Sun he saw the women leave the house during this period, only to try to go back inside to retrieve a missing shoe.

12:30 AM — A time-stamped photo shows Mangum, wearing only one shoe, rifling through her purse and apparently smiling on the back porch of 610 N. Buchanan Blvd.

12:37 AM — A photo shows the woman lying on her side on the porch, apparently passed out.

12:41 AM — A photo shows the woman sitting in the passenger seat of a car with the door open.

12:45 AM-1:00 AM — Bissey said he saw the two dancers leave in a car sometime during this time period. He said he saw one man standing adjacent to the East Campus wall, shout “Thank your grandpa for my nice cotton shirt.” He added that he saw the players leave the residence shortly thereafter.

12:46 AM — Seligmann’s DukeCard is used to gain access to his Edens dormitory.

12:53 AM — The second dancer calls 911, saying white men who came out of 610 N. Buchanan yelled “nigger” at her from near the East Campus wall. Defense attorneys questioned inconsistencies in the call — the caller first said she was driving, and later said she was walking when the slur was yelled.

12:55 AM — Durham Police Department officers arrive at a quiet 610 N. Buchanan Blvd. They saw there was evidence of a party, but nobody answered the door when the officers arrived.

1:22 AM — A female grocery clerk at a Kroger located on Hillsborough Road calls 911, saying “There’s a lady in someone else’s car, and she will not get out…She’s like, intoxicated, drunk or something.”

1:30 AM — The police officer who came to respond to the Kroger call tells a dispatcher that Mangum does not need medical attention, adding, “She’s not in distress. She’s just passed-out drunk.”

1:58 AM — An e-mail sent from the Duke account of sophomore lacrosse player Ryan McFadyen discusses hiring strippers and “killing the bitches.

FIRST, THE EXPLOSION

The scandal was fast out of the gate after the night of March 13, 2006. After the fraternity-ish party that night, strippers and lots of beer, Chrystal Mangum made serious allegations of sexual assault at the hands of multiple lacrosse players, within a few weeks arrests were made.Whatever really happened on the party-night in question (apparently less than meets the eye), the first weeks, really the first few months after the event and accusation, were a powerful period in the moral history of Durham.

Although already there were signs that evidence was iffy:

Nonetheless, the case, essentially driven by D.A. Mike Nifong, steamed forward:

Apparently, Mangum first alleged rape by “20” players, then changed the number to three. The guys she finally fingered had pretty good alibis from the start. Perhaps the case should never have been a case, except that emotions exploded, far beyond allegations. It had an energy of its own, and a willing prosecutor, eagerly running for re-election as District Attorney and badly in need of the support of Durhams’ black voters.

The media honed in rather accurately on the sub-text issues driving the emotions, for example:

A few weeks later, another indictment, as the case continued to have wind in it’s sails:

Three white, privileged boys had been singled out as the offenders at the infamous party. But was there truly evidence against any of them?

Meanwhile, Durham became possessed, as by medieval demons. Entire blogs, entire websites sprung up, devoted to the wrenching implications of the crime that had been alleged. Soul searching in writing was common, but anger, rage of some flavor or other was more common. One member of the M.O. Mystery staff was in Durham during those months, attended numerous public meetings, and lived the surreal experience of a community in turmoil, absolutely in turmoil, over crimes which in the end turned out not to have taken place.

This is not to imply that concern was insincere, or that the issues were trivial. Serious people weighed in in a serious way.  Perhaps most famous, or infamous, was the declaration by select Duke faculty, the long remembered manifesto by the “Group of 88.”

Really, the published document was just an awkward mash-up of concerns expressed by Duke students about the troubled racial and sexual atmosphere of the Duke campus as they knew it. But the timing, this sharp call to social justice on the heels of the detonation that went off regarding the off-campus party, stirred accusations of “political correctness” run amok, and of a rush to judgment.

It was said that these faculty members were abandoning the presumption of innocence. Many signatories later asserted they were doing no such thing, simply taking the current atmosphere as ripe for a teaching moment regarding often unspoken issues.

Ten years later, the following are a few paragraphs from a long article in the Duke Chronicle:

The seeds of destruction were there early on, remarkable anecdotes piled on upon another.  Here are disquieting reports as related from a political site, The Federalist:

We might mention that the attorneys quoted above are well respected in their region, and are never accused of making up tall tales…. 

One reason the commotion over the case finally abated, or at least changed in tone or direction, was the fact that the criminal case really wasn’t a case. Physical and documentary evidence was either nonexistent, or downright exculpatory for the defendants. The accuser’s co-worker strongly doubted the assault could have taken place. And the accuser had a record of odd behavior, and dubious statements, which should have cast her allegations under the darkest shadows of doubt. In any other environment, at any other time, the case would have been quickly laughed out of the system. But not in Durham, with the mix of black anger, academic-world posturing, and politics that prevailed that year.

Among many examples, a cab driver transported one of the defendants at a time he was supposedly busy raping, later the cabbie returned to the house for other fares and saw the area teeming with people and activity, seemingly incompatible with the crime.

Drop by drop, evidence emerged which gave the lie to the allegations, or at least robbed them of credibility. There was never any line-up, or photo identification process which went by accepted procedure, so the victim’s ID of the boys was worthless. And then the D.A. cheated in numerous ways, most notoriously hiding, simply trying to bury, exculpatory evidence as it came back from the labs. Among other things, yes, forensics showed the victim had plenty of sexual contact in the hours or days before her complaint. And none of it with Duke Lacrosse team members. 

By late 2006 the tide was turning, by January of the following year Nifong’s prosecution had collapsed. From January, 2007:

And also:

Many a career was derailed by the end of the affair, for example the DNA analyst who apparently cooperated with Nifong in concealing exculpatory results from defense counsel.

 The head of a private laboratory where DNA evidence in the Duke lacrosse case was tested no longer works there.

When the pendulum swung, it really swung. Accusers became abusers, and the maligned Lacrosse Boys suddenly wore halos, and cloaks of bravery for what they had endured. They had been much, and quite unfairly, persecuted, but upon vindication any poor judgment related to hiring a stripper, and in that sense demeaning the poor, suddenly disappeared. No part of the scandal enjoyed the analysis of shades of gray, everything was raging black, and white, both literally and figuratively.

Not all reaction to the tragedy was over the top, here are a few paragraphs from the national column of distinguished academic economist Thomas Sowell:

In the bitter aftermath, it became more and more common to see references to the abysmal way the criminal justice system, Duke University, and a “progressive” society in general had engaged the scandal from the start.

About 80 to 90 per cent of the sharpest, most biting criticism came from publications associated with the political right wing. Does that mean that some were happy, if only unconsciously, to see the clock turned back a bit, black accusers as liars, upscale white athletes as heroes, and most of all the liberal media as buffoons? Or is the imbalance due to the fact that left-leaning publications, those far too quick to condemn the “rapists” in the first place, were unwilling to recognize their foolishness and issue appropriate apologies?

On a factual basis, much of the invective against the “liberal” rush to judgment was quite correct, and quite apt. To continue quoting from Mary K. Ham’s enumeration of Lacrosse Scandal sins published in The Federalist:

In a stunning irony, a lynch-mob mentality (Lacrosse Team members truly feared for their personal safety during this juncture) with wealthy whites as victims was allowed to hold sway, on a supposedly enlightened campus of the highly educated?

No wonder there was pointed pay-back after all the chickens had come home to roost. There was, objectively speaking, a lot be disgusted about in the rush to judgement on a major college campus. Much of the media fared poorly in retrospect, too–Mary Ham again:

On the other hand, there had been credible reports that one student at the Lacrosse party, for example, had thanked the women of color for coming from stock that “produced his fine cotton shirt,” and other racially insensitive remarks were alleged. Lacrosse players did have he reputation as excessive partiers at times, arrogant at other times.

Young Reade Seigleman did get into an altercation in a bar months before with someone he had snarled at as “Gay,” a matter which landed him court dates and probation. So for the team, in general, to go all the way from uniformly loathed to universally martyred was a swing too extreme in the other direction.

But even before the tide had completely turned, intemperate remarks were heard from the anti-rush-to-judgement crowd, as well…

 In an article in The New York Post, John Podhoretz accused the faculty of “declaring that those students did not deserve the presumption of innocence.” (…a statement that goes too far, even if the Group of 88 were quite foolish). 

And there was some strong pushback at Duke. Stephen Baldwin, professor of chemistry, published a column in The Chronicle on Oct. 23, 2006 asserting that the faculty who had “savaged the character” of the lacrosse players should be “tarred and feathered, ridden out of town on a rail and removed from the academy.”

The careful analyst will note the irony: Professor Baldwin, addressing what he viewed as a lack of care and restraint in the behavior of the original “88” faculty, abandons restraint and temperance himself in remarks which sail way over the top. He thus made himself the photographic negative of Houston Baker, the radical professor who quickly perceived how justice could be met in light of the accusations—disband the lacrosse team and expel all its students. Magnetism, and media-ready discourse, seems to thrive on the wild push and pull of the polar opposites.

This is part of why we call it The Year That Durham Went Mad. Something in the water may have widely affected brain cells and mitigated and against a reasoned, intelligent approach to the issues at hand.

In a postscript, almost too good, that is to say to bad and painful and unfortunate to be true, the disturbed young woman whose allegations cost towns and universities tens if not hundreds of millions, cost numerous citizens their jobs and peace of mind, she won’t be seen again, not for a while. Locked away, she wears the orange suit. Her latest transgression–the murder of her boyfriend.

An early public radio story looked at some of the nuance, but the basically political way in which University leadership tried to thread the needle seemed evident:

Analysts of the Lacrosse case can spend 20 to 30 hours, or more, just reading blog posts from the past—and almost into the present. KC Johnson, the co-author of the hard-hitting book albeit with an apparent slant from the right, kept up the aptly titled “Durham in Wonderland” for some years. His own post below from July 2014—you can Google his comments and countless others. Note that the Group of 88 lives on, in a certain infamy in most circles:

The blogger certainly ends with a point which is hard to ignore…

It was all unprecedented, if that not only explains and in some ways forgives the raging over-reactions. WRAL-TV’s archive quoted locally famous attorney

Wade Smith:
Attorney Wade Smith, who represented one of the players, recalled… the storm of controversy that followed the campus, the lacrosse team and the players for months.

Yes, the unprecedented. By definition we’re all unprepared for that. But, the question is writ large, ever larger really as it recedes into sad history.

The University.

The Academy.

The repository of knowledge and wisdom.

How did it do, when it’s leadership was sorely needed?

THE CASE FOR THE UNIVERSITY:

“The University” is a shorthand for numerous players, who should perhaps not all be tarred with the same brush, but include among others, John Burness, as senior vice-president for public affairs and government relations, Larry Moneta as vice-president for student affairs, Sue Wasiolek as student dean, and Joe Alleva as Duke University Athletic Director, as well as President Brodhead, of course. Analysts of the case are free to read full-length books and other materials on the case, but the basics boil down to whether Duke adequately stood up for accused students in their time of trial. Brodhead, at the vortex of all this and probably the ultimate decision-maker, pleads the situation was so difficult, multi-faceted, and unpredictable that no one could have always planned their next move perfectly—the case ran away with an awful energy of its own.

“I am certainly at ease in my conscience with the role that I played,” he said in a post-mortem for the Duke Chronicle, March 10 of 2016 at the 10-year anniversary of the case.

No question, the juggling act a university administrator must play is staggering, balancing the concerns raised by a) trustees b) donors c) alumni d) faculty e) students f) community, and g) media and public perception. The University’s relations with a surrounding (in this case angry) community are strong considerations, as are present and future alumni and donor perception. Any University President will probably plead, “You have really no idea what threading all those needles is like,” and indeed most of us would probably find it eye-opening to face those challenges for even a single day. In the Chronicle article, Brodhead relates at some length the trying times of the lacrosse debacle.

None of these comments address fundamental moral issues—presumption of innocence as an example—but do speak to an administrator’s consciousness: the lie of the land looked this way or that way at this point in time. It’s much more of a strategic take on events, not a moral one.

In the same interview, more strategic analysis:

For some, it was a handsome apology of someone in a nearly-impossible situation, who naturally might look back and recognize one or two things that might have been done differently. For others, it was a non-apology apology, the kind where a person says in perfunctory fashion, ‘Well, if anyone was offended, I’m so sorry offense was taken…’ They would have rather he said, ‘We abandoned students and their families, and there is no excuse.’

THE CASE AGAINST:

The case against Duke in the lacrosse case alleges, as in Jay Bilas’s letter above, a severe failure to hew to fundamental moral pillars.

As represented by the University’s top administration, the leadership simply failed to hold fast to three fundamental principles as key ideas in their decision-making:

1) The Presumption of Innocence is paramount, sacred as if it were the Eleventh Commandment. If a University cannot hold on to that anchor of human decency, civility, and common sense in its actions, it has failed already.

2) Guilt by Association is Wrong, Always. Almost as basic as principle number one, it perhaps should be a Twelfth Commandment. If ultimately one or two lacrosse players had been prosecuted and punished for sexual violence against their guest-stripper, what would that have to do with the other players, many not even at the party or in the vicinity? Why would that implicate the coach? (If the call for blood required broad associations of guilt, why not tar and feather the lacrosse-field grounds keepers, and equipment handlers? Why not expel all the male players and the female lacrosse players as well, after all several lacrosse girls were known to have close, sibling-like connections with their male counterparts and supported them in the crisis. Why not tar and feather them as well?)

3) The Truth, the Whole Truth, and Nothing But the Truth rarely come packaged as a concise, 100-character tweet. Truth however you define it is generally more complex, and reveals itself In the Fullness of Time. Otherwise, trials in serious crimes would last five or six minutes, not the five to six weeks–and sometimes five to six months–required to fully explore evidence and testimony. And graduate student research would not take years and thousands of hours, but just minutes here and there. A Rush to Judgment should thus be as reflexively anathema to the Academy as a mail-carrier tossing his bag in the trash, because t’s heavy, before bringing your letters to you, or a surgeon operating with filthy, ungloved hands.

Again the WRAL archives, quoting attorney Wade Smith:

Almost on the lighter side, if there were a lighter side…

Even the sidebars, the tangential issues help make clear that once our society declares a disaster, it’s a disaster, perhaps not for attorneys and billable hours, but for almost anyone else. Just as an example, imagine the scene—Duke keeping it’s payoff to abused parties so confidential that even their liability insurer was left out of the loop, and then demanding the insurer pay up.

At times words will fail us, and remind us why we study True Mystery and true stories with hidden dimensions. No fiction could ever be as strange, interesting, and telling about the sort of society in which we dwell.