Institutional Failures - Taylor & Francis eBooks

INSTITUTIONAL FAILURES

For Jennifer, my best friend and confidante, and for Lily, who reminds me what is important in life.

H.M.W.

Institutional FailuresDuke Lacrosse, Universities, the News Media,

and the Legal System

Edited byHOWARD M. WASSERMAN

Florida International University College of Law, USA

First published 2011 by Ashgate Publishing

Published 2016 by Routledge2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © Howard M. Wasserman 2011

Howard M. Wasserman has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the editor of this work.

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British Library Cataloguing in Publication DataInstitutional failures : Duke lacrosse, universities, the news media, and the legal system. 1. Rape--North Carolina--Durham. 2. Malicious accusation--North Carolina--Durham. 3. Duke University-- Administration. 4. Duke Blue Devils (Lacrosse team) 5. Trials (Rape)--North Carolina--Durham. 6. Discrimination in criminal justice administration-- North Carolina--Durham. 7. Prosecution--North Carolina-- Durham. 8. Mass media and criminal justice--United States. 9. Mass media and race relations--United States. I. Wassermann, Howard M. 364.1'532'09756563-dc22

Library of Congress Cataloging-in-Publication DataInstitutional failures : Duke lacrosse, universities, the news media, and the legal system / byHoward M. Wasserman. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7873-1 (hardback) 1. Prosecutorial misconduct--North Carolina--Durham. 2. Malicious accusation--North Carolina--Durham. 3. Rape--Investigation--North Caroli-na--Durham. 4. Mass media and criminal justice--United States. 5. Duke Blue Devils (Lacrosse team) I. Wasserman, Howard M. KFN7977.I57 2010 364.15'3209756563--dc22

2010032903ISBN 978-0-7546-7873-1 (hbk)ISBN 978-1-3155-8885-8 (ebk)

Contents

List of Contributors viiAcknowledgements ix

PART I OVERVIEW

1 An Institutional Perspective on the Duke Lacrosse Case 3Howard M. Wasserman

PART II LEGAL SYSTEM

2 When Good Prosecutors Go Bad: From Prosecutorial Discretion to Prosecutorial Misconduct 23Angela J. Davis

3 Duke Lacrosse, Prosecutorial Misconduct, and the Limits of the Civil Justice System 43Sam Kamin

PART III DUKE UNIVERSITY AND AMERICAN HIGHER EDUCATION

4 The Perils of Academic Groupthink 67KC Johnson

5 The Duke Lacrosse Saga: Administration versus Students and Faculty, among Others 89Robert M. O’Neil

6 In the Shadow of Duke: College Sport and the Academy Divided 111Dr. Ellen J. Staurowsky

PART IV NEWS MEDIA

7 Justice Delayed 131Rachel Smolkin

Institutional Failuresvi

8 Not Just Sloppy Journalism, but a Profound Ethical Failure: Media Coverage of the Duke Lacrosse Case 147Jane E. Kirtley

9 Covering the Notorious Case: Narrative and the Need for Sensationalism Done Well 167Craig L. LaMay

Bibliography 187Index 209

List of Contributors

Editor

Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law.

Contributors

Angela J. Davis, Professor of Law, American University Washington College of Law.

KC Johnson, Professor of History, Brooklyn College.

Sam Kamin, Associate Professor of Law, University of Denver Sturm College of Law.

Jane E. Kirtley, Silha Professor of Media Ethics and Law, School of Journalism and Mass Communication, University of Minnesota, Director, Silha Center for the Study of Media Ethics and Law, University of Minnesota.

Craig LaMay, Associate Professor of Journalism, Northwestern University, Medill School of Journalism.

Robert M. O’Neil, Professor of Law Emeritus, University of Virginia School of Law, University Professor Emeritus, University of Virginia, Director, Thomas Jefferson Center for the Protection of Free Expression.

Rachel Smolkin, Assignment Editor, USA Today, Former Managing Editor, American Journalism Review.

Ellen J. Staurowsky, Professor and Chair of Graduate Studies, Ithaca College Department of Sports Management and Media.

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Acknowledgements

The idea for this collection of essays on the Duke lacrosse controversy came from a public roundtable discussion held at the 2008 Annual Meeting of the Southeastern Association of Law Schools and published in the Seton Hall Review of Sports and Entertainment Law. Thanks to James Coleman, Angela Davis, Michael Gerhardt, KC Johnson and Lyrissa Lidsky for their participation on that panel.

Thanks to Alistair McKenzie, Chelsea Moore, and Elizabeth “Babe” Root (all Class of 2011, Florida International University College Law) for their outstanding research assistance.

Thanks to my colleagues Matthew Mirow and Elizabeth Foley for their guidance in putting this together and to my editors for all their hard work in making this book a reality.

PART I Overview

Chapter 1 An Institutional Perspective on

the Duke Lacrosse CaseHoward M. Wasserman

Why Institutions?

March 2011, shortly after this volume’s expected publication, marks the fifth anniversary of the infamous Duke lacrosse team house party, the event that triggered a series of events that none of the players could have foreseen when they decided to arrange for exotic dancers at the party.

Five years later, we have formed a well-known consensus narrative and conclusion about the Duke lacrosse case. A terrible injustice was perpetrated directly on the three players—Reade Seligmann, Collin Finnerty, and David Evans—who were wrongly accused and indicted on charges of sexual assault for the gang rape of an exotic dancer, and indirectly on the remaining 41 team members who, in various ways, were tagged as rapists or, at least, as helping to shield rapists. We have a single clear villain: Durham District Attorney Mike Nifong, who engaged in a wild rush to judgment.1 Moreover, the whole story was awash in issues of race, sex, socio-economic class, political correctness on college campuses, the conflict between academics and athletics on campus, and athlete violence. At the end of the day, of course, the players were exonerated long before they were tried or convicted and without spending any time in jail, while the primary bad guy was disbarred and jailed for a day for contempt of court. Duke faculty and administration were, to varying degrees, embarrassed for their handling of events2 as were most media outlets. Moreover, the lacrosse program moved on, reaching the National Finals one year later and winning

1 Crystal Mangum, the African-American dancer who falsely accused the players of gang rape, mostly fell from the picture. She never was prosecuted for making false statements or filing false charges, although her arrest on unrelated charges of attempted first-degree murder and arson several years later made sports news. See Duke Lacrosse Accuser Charged with Attempted Murder, Arson, WRAL.COM, Feb. 22, 2010, http://www.wral.com/news/local/story/7068705/.

2 Robert M. O’Neil, Faculty Reactions, Contentious Debate, and Academic Freedom, in RACE TO INJUSTICE: LESSONS LEARNED FROM THE DUKE LACROSSE RAPE CASE 31 (Michael L. Seigel ed., 2009). O’Neil elaborates on this point in his contribution to this volume.

Institutional Failures4

the National Championship four years later. On the other hand, it took too long to reach that outcome, and there were too many injuries and offenses inflicted along the way.3

As we continue to organize, understand, and, hopefully, learn from this saga, the question looms of who (or what) perpetrated that injustice and produced the somewhat-successful outcome. I want to suggest that the answer is less individual than institutional. The heart of the story took place within three powerful socio-political institutions—the legal system, Duke University and American higher education, and the news media. All three institutions had some part of the case thrown in their laps; all three created much of the controversy; and all three can point to both successes and failures in their engagement with the case—although far more of the latter than the former, which is why we still talk about these events five years later.

Consider how producer and former journalist David Simon described his masterpiece television program, The Wire—a show that has become a favorite subject of academic and scholarly discussion.4 Simon compared the show to Greek tragedy in portraying “doomed and fated protagonists who confront a rigged game and their own mortality.” But, Simon argued:

Instead of the old gods, The Wire is a Greek tragedy in which the postmodern institutions are the Olympian forces. It’s the police department, or the drug economy, or the political structures, or the school administration, or the macroeconomic forces that are throwing the lightning bolts and hitting people in the ass for no decent reason. … In this drama, the institutions always prove larger, and those characters with hubris enough to challenge the postmodern construct of American empire are invariably mocked, marginalized, or crushed.5

Simon’s view of The Wire echoes George Orwell’s description of the work of Charles Dickens: “In every page of his work one can see a consciousness that society is wrong somewhere at the root.”6

3 STUART TAYLOR JR. & KC JOHNSON, UNTIL PROVEN INNOCENT: POLITICAL CORRECTNESS AND THE SHAMEFUL INJUSTICES OF THE DUKE LACROSSE RAPE CASE 352–53 (2007); Andrew E. Taslitz, The Duke Lacrosse Players and the Media: Why the Fair Trial-Free Press Paradigm Doesn’t Cut It Anymore, in RACE TO INJUSTICE, supra note 2, at 175–76.

4 See, e.g., THE WIRE: URBAN DECAY AND AMERICAN TELEVISION (Tiffany Potter & C.W. Marshall eds., 2009); Dan Rowe & Marti Cecelia Collins, Power Wire: Understanding the Depiction of Power in TV Drama, 9 J. INST. JUST. & INT’L STUD. 182 (2009); see also Drake Bennett, This Will Be on the Midterm. You Feel Me?, SLATE, Mar. 24, 2010, available at http://www.slate.com/id/2245788.

5 Interview with David Simon, THE BELIEVER, Aug. 2007, available at http://www.believermag.com/issues/200708/?read=interview_simon.

6 GEORGE ORWELL, Charles Dickens, in INSIDE THE WHALE AND OTHER ESSAYS (1940), available at http://www.orwell.ru/libaryr/reviews/dickens/english/e_chd.

An Institutional Perspective on the Duke Lacrosse Case 5

We can organize the Duke lacrosse story around our three major socio-politico-legal institutions. Like the mortal characters on Simon’s show, the team members—particularly, most obviously, Seligmann, Finnerty, and Evans—were acted upon and nearly crushed by those institutional forces. That the outcome of the case ultimately was successful seems beside the point. All still endured hardships largely perpetrated by the institutions themselves. Each institution failed to perform its role properly in the case, at least initially. A larger question is how to reconcile the ultimately successful outcome with the notion of institutional failure. Did the institutions right themselves and self-correct, producing the proper outcome? Or did the case resolve itself appropriately in spite of those institutions? To understand the Duke lacrosse controversy is to study these institutions and to answer questions about the performance of each: to learn what each did right and wrong, to learn why, and to consider how each can improve in the future.

Of course, an institution is its people. An institution does nothing (for good or ill) unless the people within the institution do something. The institutional lens is not intended to exonerate individuals who behaved badly—Nifong or Mangum, members of the Duke faculty and administration, or individual members of the media or particular media organizations. But this perspective recognizes that institutions incentivize their members’ conduct. We cannot evaluate or understand how any individual acted without understanding the institutional structures within which he acted and the incentives that motivate and explain individual and macro-level action. Moreover, we cannot evaluate an institution’s success or failure or its ability to improve its performance in the future without considering those incentives and whether and how they must change.

Of course, altering incentives does not guarantee that similar failures will not occur in the future,. These are, after all, human institutions created and operated by fallible humans who err, deliberately or otherwise. Bad actors always may wield institutional power poorly. But by identifying incentives and systemic rules that triggered many of the problems in this case, perhaps we can teach institutions (and those within them) to handle the next case better.7

This volume places the Duke lacrosse case in an institutional context. Each part addresses one institution. The essays in each part explore the conduct and misconduct, steps and missteps, of each of these three institutions; the authors situate the story, in all its detail, in that institutional context. By considering how each institution (and the people within it) acted and why, and by considering the incentive structures in each institution that motivated that conduct, we can understand why each institution failed in the Duke lacrosse case and what changes, institutional and individual, can prevent a repeat.

7 Unless, of course, we accept Orwell’s further conclusion about Dickens: that he attacked all manner of institutions without ever suggesting what he would put in their place or that he believed something new would make a difference, “[f]or in reality his target is not so much society as ‘human nature.’” ORWELL, supra note 6.


Narrative Overview

There already have been several outstanding straight narrative accounts of the Duke lacrosse controversy that are worth reading.8 At the close of this essay is a timeline showing the major events (familiar to most readers) involving all three socio-political institutions. A brief overview suffices at this point.

In March, 2006, an African-American exotic dancer accused multiple white members of the Duke men’s lacrosse team of a gang rape during an off-campus team party for which the dancer (along with one other woman) had been hired. The subsequent investigation, carried out amid much racially charged noise from faculty and students on Duke’s campus, resulted in the indictment of three players—Seligmann, Finnerty, and Evans—in April and May. The indictments came despite evidence that the accuser changed her story multiple times, that the second dancer contradicted the accuser’s story, that police-run identification procedures were seriously flawed, and that photographic and scientific evidence suggested the players’ innocence. Moreover, they came as Nifong was fighting for re-election in close primary and general elections. The prosecution’s case unraveled during the next several months, culminating in a December 2006 hearing in which the head of the private lab hired to perform DNA testing acknowledged suppressing, via an express agreement with Nifong, DNA data revealing that none of the genetic material matched any of the lacrosse players and that material from four unidentified men was found in the sample. That hearing also revealed that Nifong had misrepresented to the court his compliance with discovery and evidentiary-disclosure obligations. Soon thereafter, Nifong recused himself and North Carolina Attorney General Roy Cooper assumed control of the investigation. In April 2007, Cooper convened a press conference to announce that all charges had been dropped against the three indicted players and that they were actually innocent of the charges against them.

Just after the December hearing, a complaint was filed against Nifong with the North Carolina State Bar Disciplinary Commission, triggering a proceeding that resulted in Nifong’s disbarment in July 2007. The disciplinary charges had been in the works for several weeks and initially included only charges related to Nifong’s public statements; charges related to DNA evidence and discovery misconduct (revealed in that December court hearing) were added later. The Commission found that Nifong had made improper public extrajudicial statements about the

8 See TAYLOR & JOHNSON, supra note 3; Robert J. Luck & Michael L. Seigel, The Facts and Only the Facts, in RACE TO INJUSTICE, supra note 2; Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice,” 76 FORDHAM L. REV. 1337, 1341–48 (2007). See also the detailed findings by the Disciplinary Hearing Commission of the State Bar in N.C. State Bar v. Nifong, No. 06 DHC 35, Amended Findings of Facts, Conclusions of Law and Order of Discipline (Disciplinary Hearing Comm’n July 31, 2007), available at http://www.ncbar.gov/orders/06dhc35.pdf.


case, had withheld evidence from the defendants, and had made misrepresentations about his conduct and the case to the court.9 The Commission order also detailed the specific wrongdoing, the harm it caused to the indicted players and to the legal profession, and its conclusion that no punishment short of disbarment would adequately protect the public and the profession or acknowledge the seriousness of Nifong’s actions.10 Nifong also was held in contempt of court and sentenced to one day in jail for making misrepresentations to the court about his discovery compliance.

Action subsequently shifted to the civil justice system. The three indicted players reached a monetary settlement with Duke in advance of any litigation. Forty-one team members then filed three separate lawsuits against Nifong and other law enforcement officials, the DNA lab and its principals, and (in lawsuits by the unindicted players) Duke and its administrators.

This all occurred in a toxic soup of racial, gender, and socio-economic conflict. Some faculty seized on the events to further an ideological agenda, particularly with respect to issues of race and sex.11 The media—national and local, traditional and emerging—could not get enough of a sensational story that combined sex, violence, and sport, although much of the early reporting and commentary, which assumed (or outright suggested) the players’ guilt, proved very wrong.

A Tale of Three Institutions

Three significant socio-politic institutions engaged with this case when it was thrown in their laps. All three failed, at least initially and to varying degrees, in handling the case. Each certainly failed when measured against our ideal of how each institution should behave. Moreover, the ultimately successful outcome to the controversy does not veil that failure.

Institution No. 1: Legal System

The first institution is the legal system, which played the largest and most obvious role. This institution actually consists of three component parts, all of which were in play in the case.

First is the criminal justice process, which breaks down further. First is the investigative process, which primarily involves police, but often includes (and in this case did include) the district attorney taking a leading and supervisory role in pre-judicial investigation and fact-gathering. Second is the judicial phase of the criminal justice process, beginning with the grand jury and continuing through

9 Nifong, No. 06 DHC 35, at 20–22.10 Id. ¶¶ 4–8, at 23–24.11 TAYLOR & JOHNSON, supra note 3, at 103–04. This theme is explored in contributions

to this volume from KC Johnson and Robert O’Neil.


pretrial and trial proceedings. There is an obvious ebb and flow among these stages, reflected in how the law treats prosecutors: they play a singular role in the judicial phase but are treated as ordinary law enforcement officers in the investigative portion.12 Both parts are linked (in many states, including North Carolina) through the attorney general’s supervisory role and power to take over an investigation and prosecution from a local district attorney.13

The second component of the justice system is the attorney disciplinary system, which can hold prosecutors, as licensed attorneys and officers of the court, to account for their misdeeds within the investigative and prosecutorial stages. As Angela Davis and Sam Kamin both discuss, and as is widely recognized, disciplinary proceedings against prosecutors are exceedingly rare and virtually never result in disbarment. Disciplinary proceedings against the district attorney, the head local prosecutor, are particularly rare. This alone makes the Duke case unique and makes the attorney disciplinary system the one facet of the legal system that truly worked. The obvious question is why this tool worked so forcefully here, and, in light of that, why it was brought to bear in this case when it is rarely, if ever, used against misbehaving prosecutors.14

The third component is the civil justice system, particularly constitutional litigation seeking to remedy harms from misconduct in the other three parts of the justice system. Forty-one members of the lacrosse team turned to the civil justice system in three separate lawsuits that remain pending as of this writing; the gravamen of each is that Nifong, police, and other actors violated their constitutional rights in the wrongful criminal investigation and prosecution.

At bottom, Duke lacrosse is a case about criminal accusation, investigation, and prosecution, making the justice system the true focus of this tale, the most obvious institutional failure run by the most obvious individual villain in the story. However, the story is more complicated than that because the justice system also can claim to have succeeded. The players were exonerated—declared actually innocent—of the charges against them, with the exoneration arguably coming from within the justice system’s processes. They were cleared by the state attorney general, who stepped into the case in place of the misbehaving local prosecutor. They were exonerated because they had outstanding legal representation in the criminal justice process and their lawyers could expose Nifong’s actions and uncover exculpatory evidence through the state’s open-file discovery system.15 The

12 Buckley v. Fitzsimmons, 509 U.S. 259 (1993).13 Nifong, No. 06 DHC 35, ¶ 10, at 3; TAYLOR & JOHNSON, supra note 3, at 328. See

generally Abby Dennis, Note, Reining in the Minister of Justice: Prosecutorial Oversight and the Superseder Power, 57 DUKE L.J. 131 (2007).

14 See Monroe H. Freedman, Professional Discipline of Prosecutors: A Response to Professor Zacharias, 30 HOFSTRA L. REV. 121, 124 (2001).

15 See Rodney Uphoff, The Duke Defendants Reaped the Benefits of a Zealous Defense—But Do Only the Rich Get Real Lawyers?, in RACE TO INJUSTICE, supra note 2, at 237.


indicted players also received substantial financial compensation in a settlement of threatened litigation with Duke, although Duke likely was not liable and certainly not liable in the amounts it paid.16 Moreover, Nifong suffered criminal punishment for his misconduct in being held in contempt of court and jailed for one day, and suffered professional sanction in having bar disciplinary proceedings instituted against him that resulted in his disbarment—regardless of how rare that might be.

On the other hand, the justice system can be criticized for permitting such a weak case to get as far as it did; it arguably should not have been necessary for the AG to intercede or for the case to take more than a year to resolve itself. Arguably, it was obvious from the outset that no arrests, and certainly no indictments, ever were warranted. The time, energy, and resources necessary to survive that year were neither costless nor harmless to the accused players.17 The players’ various civil actions against the actors in the criminal justice system remain pending as of this writing. Recovery is extraordinarily unlikely for any of the players, demonstrating, as Sam Kamin shows in his contribution, the broader inability of the civil justice system to halt and remedy unconstitutional behavior within the criminal justice process.

Most critically, the “successful” outcome in the legal system in the Duke case may simply illustrate the institution’s shortcomings. As Angela Davis describes, it is rare, if not unheard of, for a prosecutor to have criminal or disciplinary proceedings instituted against him, much less to be disbarred, for misconduct involving a single prosecution. It is rarer still for a prosecutor to be jailed for contempt of court. It is rare for a state attorney general to intervene in a prosecution, and it is rare that accused have the financial wherewithal to hire lawyers with the time, skills, and resources to uncover hidden exculpatory evidence, expose prosecutorial misconduct, and win their clients’ freedom. In fact, most prosecutorial misconduct goes undiscovered, much less punished. The judicial system’s success in this case becomes the exception that proves the general rule of institutional failure.

Institution No. 2: Duke University and American Higher Education

That the men accused of this crime were college students dragged a second institution into the mix. Duke University entered this case as the exemplar of higher education and the great American research university. And it might be the institution that most unqualifiedly failed, as KC Johnson and Robert O’Neil show in their individual contributions.

Most prominent was the Duke faculty, which, after Nifong, emerged most sullied from the mess.18 Many faculty turned the accusations of sexual assault into an ideological crusade on issues of race, sex, class, and socio-economic status, a

16 O’Neil, supra note 2, at 52.17 Taslitz, supra note 3, at 175–76.18 TAYLOR & JOHNSON, supra note 3, at 387; O’Neil, supra note 2, at 31.


crusade too often indifferent to the facts of the case and a crusade that continued well after it was clear that no sexual assault had occurred and that the players were innocent of any criminal charges against them. In fact, the faculty’s speech—and the Duke administration’s failure to stop, control or sanction faculty for their speech—is central to the civil lawsuit by one group of unindicted players, who argue that Duke was obligated to protect them from the criticisms and attacks by the press and faculty members, and that the school’s failure was an actionable breach of contract.19 Of course, that legal theory triggers obvious concerns for academic freedom and the constitutional liberty of faculty to speak out, however erroneously or even irresponsibly, on matters of public concern. But even if there should be no legal liability, one can question whether truth should matter more than ideology in a university setting and among scholars. As Johnson and O’Neil both describe, Duke lacrosse has at some level become synonymous with outspoken, wrong-headed, and stubborn academics.

The accused were not merely students, but student-athletes, dragging the case into ancient and unending controversies about the place of athletics in a university. The case triggered questions about Duke’s over-commitment to athletics, given that the successful balance of the two is a key element of the school’s identity and its athletic reputation had flourished at the same time as its academic reputation.20 It also triggered questions about athletes’ culture of (somewhat gender-based) privilege and isolation from the broader university, in particular about a unique lacrosse culture of privilege. Interestingly, the players’ strongest early supporters were the women’s lacrosse team; several players made a public statement of support for the accused men’s team during their own NCAA tournament game, only to be sharply criticized by some Duke faculty and some media commentators as ignorant girls enabling arrogant, privileged rapists.21 Lacrosse is hardly a revenue sport, although it is widely recognized as growing in popularity nationally and at the collegiate level, becoming more than a niche eastern prep-school sport. The case thus became a forum for broader arguments about the place of athletics in the university setting, a subject Ellen Staurowsky, Robert O’Neil, and Craig LaMay all tackle in their essays.

That the lacrosse team represented and competed on behalf of Duke University created a unique dilemma for the university administration. As allegations and accusations swirled in the first weeks after the rape accusation and as faculty were beginning to speak out, Duke University President Richard Brodhead first canceled a single game, then canceled the entire lacrosse season and forced out the lacrosse coach, and then suspended Seligmann and Finnerty following their indictments. Brodhead took dramatic and firm action, in the sensible belief

19 Carrington v. Duke Univ., No. 1:08-cv-119 (M.D.N.C. filed Feb. 21, 2008), available at http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2008cv00119/47871/1/; see also TAYLOR & JOHNSON, supra note 3, at 213–14.

20 O’Neil, supra note 2, at 32–33.21 TAYLOR & JOHNSON, supra note 3, at 233–35.


that the university controlled who played under the Duke name. On the other hand, the players argued that Duke’s institutional obligation was to protect and support them. Moreover, they claim that Duke violated its legal obligations by not providing them unequivocal and all-out support and by acting against them before the case had fully played out in the legal system.22 The argument for this as a legally enforceable duty is jurisprudentially weak, and the players almost certainly will fail on such a legal claim. But, it is worth considering the nature of a university’s institutional obligations to its student-athletes, both from institutional action as well as faculty criticism. At what point is the relationship between athlete and institution so special that the university must render unequivocal support, at least until evidence of guilt comes out? This question depends on the special and controversial role sport does and should play in the university.

Institution No. 3: News Media

The news media could not get enough of this story. It had everything the press typically craves and always has craved in a story: sex, crime, violence, class and sport. The media horde—national and local—descended on Duke almost as soon as the initial allegations emerged, and the story became a national sensation. The problem, Craig LaMay argues, is not that the press covered a sensational story, but that it simply did sensationalism very badly. The earliest and most thorough criticism of the media’s performance, written by Rachel Smolkin for the American Journalism Review just months after the collapse of the prosecution, is reprinted here.23 Jane Kirtley adds to the journalism analysis by considering the media’s performance in light of the industry’s own professional ethical guidelines.24

The press permitted itself to be used by Nifong in those early days and weeks, reporting his version of events in the early days and weeks and promoting his simple narrative of privileged white male student athletes preying on an underprivileged African-American victim. Most outlets were reluctant to report contrary facts for a long time. By the time factual support fell entirely from the prosecutor’s narrative, many outlets simply dropped the story. Too many outlets and individual reporters and commentators refused to change or alter or backtrack from that narrative even in the face of mounting evidence; some stuck by their original facts, while others ignored the story altogether.

Additionally, because “the press” is not a monolith, neither were the media failures in the case. Duke lacrosse featured many of the divides marking the current media landscape. There were marked differences in the quality and level

22 Carrington v. Duke Univ., ¶¶ 565–73, No. 1:08-cv-119 (M.D.N.C. filed Feb. 21, 2008).

23 Rachel Smolkin, Justice Delayed, AM. JOURNALISM REV., Aug.–Sept. 2007, at 27, reprinted in Chapter 7.

24 SOC’Y PROF. JOURNALISTS, CODE OF ETHICS (1996), available at http://www.spj.org/ethicscode.asp.


of reporting between national and local news outlets. As Kirtley shows, there was a demonstrable gap in quality between the work of “traditional” or “legacy” media (newspapers such as the New York Times and most cable news outlets), many of which followed and reported Nifong’s comments and narrative without independent research or analysis, and the work of blogs and other emerging media that did commendable independent investigation and reporting and are widely credited with outperforming the established media. In fact, the indicted players’ attorney explicitly praised the investigative work of many bloggers as making it easier for them to defend the players successfully.25

Institutional Communications and Institutional Relations

The multiple failures that produced this modern Greek tragedy are not isolated within any institution acting alone. Rather, part of the failure in the Duke case was due to the inability of the three institutions to communicate with and fully understand one another. Too much was lost in translation among these modern gods; as each institution failed individually, it dragged others down with it. Thus, while each essay focuses on one target institution, we must remain aware of the connections among the three.

Consider, for example, the links between the news media and the legal system, where one might argue that the former’s failures enabled many of the latter’s mistakes. We can speculate how the story would have played out but for the media’s obsession with the case. Begin with the mainstream media’s general inability to cover the legal system well, given the press’s tendency to opt for sensationalism at the expense of the process, evolution, and nuance that are at the heart of legal proceedings.26 Throw in the Duke case’s sensational mix of sex, violence, class, and sport, and it is not surprising that the press did not find nuance in its reportage. Once Nifong made himself available as a public source during spring 2006, the media were hooked on that single, simple, not nuanced side of the story.

Of course, prosecutors only make 70-plus media appearances, as Nifong did, if the media want to talk about a case and want to provide someone with a microphone and a public forum. Prosecutors feel pressure to pursue a particular case when it draws heavy media, and thus public, attention. Similarly, faculty members are more likely to speak out on a controversy, as did so many Duke faculty, when national broadcast and cable news outlets are everywhere and providing a forum, and the entire country or the entire world is listening.

Conversely, the ultimate, unique resolution of the legal portion of the case—exonerated players, disbarred and incarcerated prosecutor—can be attributed to

25 Id. at 27.26 See Gilbert S. Merritt, Courts, Media, and the Press, 41 SAINT LOUIS U. L.J. 505,

511–12 (1997); Kelli L. Sager and Karen N. Frederiksen, Televising the Judicial Branch: In Furtherance of the Public’s First Amendment Rights, 69 S. CAL. L. REV. 1519, 1519 (1996).


the unique level of media attention the case attracted; the media swarm can receive some credit for the ultimate “success” of the case. An attorney general considering superseder is more likely to act aggressively when so many people are watching. Similarly, media coverage perhaps explains why this instance of prosecutorial misconduct—but virtually no others—resulted in ethics charges and disbarment. The press, and thus the public were watching this prosecution and this attorney disciplinary proceeding; the nature of the misconduct had been widely reported and documented, and the facts were not seriously contested. Such public focus and attention likely exerted some pressure on the Commission to respond extremely forcefully to what was widely, and uniformly, seen as extreme misconduct.27

Or consider the connections between the university and the legal system. Duke’s administration (like other university administrations dealing with student-athlete misconduct28) did not quite know how to respond to a matter involving its student-athletes in a case that transcended university rules and triggered broader legal problems. It could not decide whether its proper role was to act quickly and decisively or to wait until larger society—the criminal justice system—resolved the issues. The result was a split response. Duke canceled the lacrosse season and forced out the coach less than a month after the controversy broke while the legal system was only at the accusation and investigatory phase; the school also suspended Finnerty and Seligmann after their indictments but before they had been convicted. But, President Brodhead also tried to urge people to wait until the judicial system had spoken before the university or its members should pass any ultimate judgment, although Brodhead perhaps misspoke when he said, “We are eager for our students to be proved innocent.”29 Meanwhile, much criticism of Duke faculty focuses on their inability or unwillingness to remember the rules of legal process, particularly the presumption of innocence, in their initial criticisms and condemnations of the players and in their refusal to accept the legal system’s outcomes as conclusive of whether wrongdoing had occurred. For some faculty members, guilt or innocence were beside the point, and the final judgment should not be left to the judicial system.30

27 Perhaps too forcefully. Michael Cassidy suggests that the Commission may have overresponded in considering Nifong’s public statements as part of its disbarment decision, since many of those statements may have been protected by the First Amendment. See R. Michael Cassidy, The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle, 71 L. & CONTEMP. PROBS. 67, 68–69 (2008).

28 Craig LaMay explores the broader issue of student-athlete misconduct and media coverage of it.

29 Letter from Richard H. Brodhead, president, Duke Univ., to Friends of Duke Univ. (July 25, 2006), available at http://friendsofdukeuniversity.blogspot.com/2006/02/press-release-no-2.html.

30 TAYLOR & JOHNSON, supra note 3, at 328–38.


Conversely, the legal system does not easily reach into the insulated confines of the Ivory Tower.31 Thus the reason Duke’s settlement with the indicted players is widely and properly understood as a public-relations decision motivated by moral and ethical concerns far more than any realistic concern for Duke’s likely legal liability. It is not clear that Duke did anything legally wrong to the players; rather, the school wanted the controversy, and the attendant bad PR, to go away. Similarly, the unindicted players’ claims against Duke are apt to fail because no court is likely to find that a university violated its students’ rights by failing to silence faculty members who were speaking (however wrongly and however unfairly) on a matter of public concern.

Finally, as LaMay describes, the media were interested in the Duke lacrosse story because it involved college athletics and college athletes, playing into century-old, never-resolved concerns for out-of-control athletics and athletes. Even better, it happened at Duke, a school long lionized as a place that did things “right,” that struck the proper balance between academics and athletics and succeeded in both. A story puncturing that aura—presenting Duke student-athletes as privileged, arrogant, violent lawbreakers in conflict with the school’s academic culture (in other words, no different from any other Division I university)—was irresistible. So, too, was the early narrative of the case as a town-and-gown rift between the largely white, well-off, and educated denizens of Duke and the largely minority, poor-and-working-class citizens of Durham and students at North Carolina Central University, the historically black state college in town.32

Ultimately, LaMay argues, the media do not cover higher education well. Finding itself on new terrain, the press attached itself to certain easy narratives about Duke, higher education, college athletics, and student-athletes, often at the expense of facts on the ground.

Race, Sex, Class, and Other Groups

No retelling of the Duke lacrosse story can avoid issues of race, sex, socio-economic class, privilege, and political correctness.33 Much begins with how the case flipped our expectations. The accused were white, young, educated, wealthy/middle-class student-athletes playing a traditionally white sport; the accuser was a poor, less-educated African-American exotic dancer with a history of possible

31 See generally AMY GAJDA, THE TRIALS OF ACADEME: THE NEW ERA OF CAMPUS LITIGATION (2009).

32 See Sharon Rush, The Town-Gown Relationship, in RACE TO INJUSTICE, supra note 2.

33 This forms the core of KC Johnson’s contribution. See also TAYLOR & JOHNSON, supra note 3, at 105; Michele Alexandre, Black Venue Hottentot Revisited: Gratuitous Use of Women of Color’s Bodies and the Role of Race and Gender in Campus and Academic Reactions, in RACE TO INJUSTICE, supra note 2, at 127.


drug or alcohol use. None of our socio-political institutions could resist or handle that inverted story, which somewhat explains much of what followed. The media attention is most understandable. In an industry in which the very definition of news is “man bites dog,” news outlets were attracted to a story in which all settled expectations were upended.

Similarly, perhaps Nifong felt obligated to vigorously prosecute the players, even on a seemingly weak case, to prove that the system would in fact protect poor, minority victims against white, wealthy aggressors. Facing re-election before a largely minority electorate, Nifong was tempted by a different set of institutional incentives—popular election of top local prosecutors—to personally take charge of and pursue this particular case..34 On the other hand, the players’ exoneration depended on expensive and expert private defense counsel armed with the time and resources to pursue, demand, and discover exculpatory DNA evidence and the underlying prosecutorial suppression of evidence that often never is discovered or exposed. This is the type of representation that most defendants, many of them minority, cannot afford or obtain.34

A Way Forward or Duke Redux?

In addition to framing the story, the essays that follow critique the mistakes that occurred at Duke and in Durham beginning in March 2006 and suggest changes to these socio-political institutions to prevent a repeat of this modern Greek drama. Again, these institutions are human creations and human operations, so future mistakes and missteps are inevitable. But institution-level recognition of past mistakes and institution-level changes perhaps can moderate future failures.35

The institutional incentives that contributed to the disaster at Duke remain largely unchanged. Head local prosecutors remain subject to popular election and electoral pressure. And all prosecutors continue to act, at least in part, as the advocate for the state in an adversary process with responsibility for putting forward the strongest case of a defendant’s guilt. The news media continue to look for juicy stories that will appeal to readers and viewers, and those stories usually involve sex, violence, crime, and sports. Moreover, all media still want to be first with those stories. Universities continue to try to balance athletics and academics, despite the often-inherent contradictions and conflicts between them.

Another key to finding a way forward depends on how each institution self-corrected, either during the controversy or after the events had fully played out. As Jane Kirtley shows, some media outlets recognized their mistakes on the Duke lacrosse story and have adopted a new internal oversight model in response. The legal system ultimately exonerated the innocent players and punished the

34 Angela Davis explores the electoral pressures that affected the investigation and prosecution. See also Uphoff, supra note 15.

35 But see supra note 7.


malfeasant prosecutor, perhaps setting a tone of closer oversight for prosecutorial misconduct in the future. However, debate continues whether that result was because the multiple checks built into the system worked or because people worked outside an institution to override its errors. Duke President Brodhead publicly acknowledged his and the university’s mistakes.36 On the other hand, as KC Johnson continues to argue, including in his contribution here, many Duke faculty remain unrepentant in their insistence that the lacrosse players were guilty of some misconduct and deserved punishment.

Finally, we cannot avoid the shortness of collective memory. This volume will be published as we near the fifth anniversary of the house party that started it all. None of the members of the 2006 lacrosse team remain at Duke nor do many students who witnessed or participated in these events. Many of the faculty who thrust themselves into the heart of the controversy have moved on to other schools. All that remains are three pending civil actions that are unlikely to succeed or settle and that seem stuck in limbo. It is entirely possible (if somewhat cynical) that the next great controversy could explode, and none of the lessons of the Duke lacrosse controversy will be remembered or put into operation. Our institutions might fail all over again, just as Simon and Dickens would have expected. Much depends on how much the public, and the public’s institutions, remember, internalize, and learn from their earlier mistakes.

The Duke case was unexpectedly back in the public eye in May 2010, following the brutal murder of Yeardley Love, a senior member of the University of Virginia’s women’s lacrosse team, and the arrest of George Huguely, a senior member of the men’s lacrosse team who had had a relationship with Love, on charges of first degree murder.

This case bore no resemblance to the Duke case beyond the accused being white college lacrosse players. There also was an ironic connection: Huguely attended the same prep school as several members of the Duke team; in early days of that scandal, he was quoted in a story on the case: “I sympathize for the team. … They’ve been scrutinized so hard and no one knows what has happened yet. In this country, you’re supposed to be innocent until proven guilty. I think that’s the way it should be.” Importantly, however, contra Duke, a crime did in fact occur here. Immediate reports showed Love died violently. It quickly emerged that Huguely admitted to police kicking in the door to Yeardley’s bedroom, grabbing and shaking her, and striking her head against a wall multiple times, although his attorney insisted Huguely did not mean to kill Love.37 Note the difference in rhetoric from defense counsel; while attorneys for the Duke players insisted

36 Richard H. Brodhead, president, Duke Univ., Remarks on the Ethics of Trying Cases in the Media (Sept. 29, 2007), available at http://www.americanrhetoric.com/speeches/richardbrodheaddukeapology.htm).

37 See L. Jon Wertheim, Did Yeardley Love Have to Die?, SPORTS ILLUSTRATED, May 17, 2010, at 28.


from the outset their clients did nothing wrong38 (a somewhat aggressive stance), Huguely’s lawyer was talking about intent and the specifics of the crime charged. Evidence also emerged of a tempestuous romantic relationship gone very bad, with past violent confrontations between Huguely and Love, making this appear like an all-too-common case of domestic violence.39

Unfortunately, the public’s only reference point for this crime involving a lacrosse player was the Duke lacrosse case, so the media link was unavoidable. Moreover, it provides a preliminary opportunity to consider whether our three institutions did, in fact, learn anything from the Duke mess.

Early media performance was mixed. Reporters did not run wild with this story, which lacked the same race- and class-charged salaciousness. Many tried to keep the focus on Love as the victim, celebrating her life and talking about the loss and effect of her death on her teammates and fellow lacrosse players (both the men’s and women’s teams continued to play in the NCAA tournament in her memory40) and on her classmates (hundreds turned out for her funeral and she was awarded a posthumous degree in a special ceremony).41 Unfortunately, some outlets remained careless in describing the Duke case even as a historical reference, referring to it as a “rape scandal” (although no rape occurred) and describing charges in the case as having been “dropped” or “dismissed,” ignoring the players’ outright exoneration and the official determination that no rape, or any other crime, occurred in Durham in March 2006.42

UVa officials similarly tried to maintain the focus on celebrating Love and her accomplishments, particularly in honoring her at graduation. In comments shortly after Huguely’s arrest, the university president did allow that “She appears now to have murdered by another student,” an unfortunately conclusive statement, although a tentative one (certainly compared to some of the statements from Duke officials and faculty) and one that reasonably described the situation at the moment of the arrest. The president also seemed to be making the broader (if debatable) point that this way of dying compounds her loss.43

Coverage of Love’s death could revive two themes that were part of the Duke story and that are discussed in this volume. The first is the so-called campus jock

38 TAYLOR & JOHNSON, supra note 3, at 93.39 Wertheim, supra note 37, at 28.40 The men’s team reached the national semifinals, where it lost to Duke.41 See, e.g., Slain Lax Player Honored at Graduation, ESPN.COM, May 23, 2010,

available at http://sports.espn.go.com/ncaa/news/story?id=5212884; Family, Friends Attend Service for Love, ESPN.COM, May 8, 2010, available at http://sports.espn.go.com/ncaa/news/story?id=5173379. Of course, one could find a race-and-class angle to the media celebration of Love, an attractive, white, wealthy student-athlete at an elite university, distinct from a poor, African-American working as an exotic dancer.

42 KC Johnson, Virginia and Duke, INSIDE HIGHER EDUC., May 6, 2010, available at http://www.insidehighered.com/views/2010/05/06/johnson.

43 Virginia Lax Player Charged in Murder, ESPN.COM, May 5, 2010, http://sports.espn.go.com/ncaa/news/story?id=5158985.


culture generally and even the specific “lacrosse culture,” which is perceived as a permissive and privileged, white, wealthy environment that enables bad athlete behavior, especially as to women.44 The second is the relationship between male and female college athletes. At Duke, the women’s lacrosse players were the most public and vocal supporters of their besieged male counterparts, a stance for which they were sharply criticized; at Virginia, we see a story of close friendships and even romantic relationships between male and female athletes, particularly between male and female lacrosse players.

A Basic Timeline of the Duke Lacrosse Controversy

March 13–14, 2006: Party at the home of lacrosse team captains. Initial accusations of sexual assault by one of the exotic dancers hired at the party. Early medical examinations and police investigation.

March 24, 2006: District Attorney Mike Nifong takes personal control over the investigation and prosecution. Three days later, makes the first of more than 70 press conferences and public statements on the case.

March 25, 2006: Rally on Duke University campus at which faculty members and students demand punishment of players.

April 4, 2006: Durham police conduct third lineup, violating numerous procedures in its operation.

April 5, 2006: Lacrosse coach Mike Pressler fired.

April 6, 2006: Suspension of Lacrosse season. Publication of first “Group of 88” editorial advertisement in Duke’s Chronicle.

April 10, 2006: Nifong receives results of genetic testing from DNA Security, Inc. The data shows no DNA matches to any lacrosse players and finds genetic material from four unidentified males.

April 17, 2006: Reade Seligmann and Collin Finnerty indicted and suspended from Duke University.

44 Andrew Sharp, Murder at UVA: George Huguely, Yeardley Love, and Lacrosse’s Worst-Case Scenario, SB NATION, May 6, 2010, available at http://www.sbnation.com/2010/5/6/1459030/george-huguely-yeardley-love-uva-lacrosse-murder; Katie Baker, By Virtue, Not by Force: Are the White Boys of Lacrosse Predestined to be Dicks? DEADSPIN.COM, May 4, 2010, available at http://deadspin.com/5530777/by-virtue-not-by-force-are-the-white-boys-of-lacrosse-predestined-to-be-dicks.


May 2, 2006: Nifong prevails in Democratic primary election for Durham District Attorney.

May 3, 2006: Committee chaired by Duke Law Professor James Coleman releases a report of its investigation. Report finds that no sexual assault or other unlawful conduct had occurred at party.

May 15, 2006: David Evans indicted.

October 27, 2006: Nifong and DA office produce 2,000 pages of data underlying the initial DNA report.

November 7, 2006: Nifong re-elected as Durham District Attorney by a plurality.

December 13, 2006: Defense counsel files Motion to Compel further discovery.

December 15, 2006: At hearing on Motion to Compel, head of DNA testing lab admits that DNA testing had produced no evidence linking the indicted players to the accuser. Also admits to withholding exculpatory DNA evidence in agreement with Nifong.

December 28, 2006: Disciplinary complaint filed against Nifong with North Carolina State Bar.

January 12, 2007: Nifong withdraws from the prosecution, turning the case over to the North Carolina Attorney General.

January 27, 2007: Amended Disciplinary Complaint filed with North Carolina State Bar.

January 16, 2007: Second editorial advertisement by rump Group of 88.

March 14, 2007: Duke settles lawsuit with former lacrosse coach Mike Pressler. The settlement later would be reopened in a defamation lawsuit by Pressler against one Duke administrator. That case settled in March 2010.45

April 11, 2007: North Carolina Attorney General Roy Cooper announces exoneration of Seligmann, Finnerty and Evans, including a pronouncement that the three student-athletes were factually innocent.

45 Pressler Drops Lawsuit, ESPN.COM, Mar. 31, 2010, available at http://sports.espn.go.com/ncaa/news/story?id=5045316.


June 18, 2007: Duke University announces financial settlement with Seligmann, Finnerty, and Evans, pre-empting any civil action.

July 24, 2007: Disciplinary Hearing Commission of North Carolina State Bar announces its findings of attorney misconduct by Nifong and orders his disbarment.46

August 30, 2007: Nifong found guilty of contempt of court, sentenced to one day in jail.47

October 5, 2007: Three indicted players file a civil action against Nifong, the City of Durham, and other government and private actors, other than Duke and its officials. The lawsuit is pending as of the date of publication of this volume.48

December 18, 2007: Four unindicted players, led by Ryan McFadyen, file a civil action against Duke and various Duke administrators, Nifong, the City of Durham, and other government and private actors. The lawsuit is pending as of the date of publication of this volume.49

February 21, 2008: Thirty-eight unindicted players, led by Bo Carrington, file a civil action against Duke and various Duke administrators, Nifong, the City of Durham, and other government and private actors. The lawsuit is pending as of the date of publication of this volume.50

46 N.C. State Bar v. Nifong, No. 06 DHC 35, Amended Findings of Facts, Conclusions of Law and Order of Discipline (Disciplinary Hearing Comm’n July 31, 2007), available at http://www.ncbar.gov/orders/06dhc35.pdf..

47 Duke Prosecutor Nifong Sentenced to Day in Jail, USA TODAY, Aug. 31, 2007, available at http://www.usatoday.com/news/nation/2007-08-31-nifong-jail_N.htm.

48 Evans v. Durham, No. 1:07-cv-739 (M.D.N.C. filed Oct. 5, 2007), available at http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/1/.

49 McFadyen v. Duke Univ., No. 1:07-cv-953 (M.D.N.C. filed Dec. 18, 2007), available at http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00953/47494/34.

50 Carrington v. Duke Univ., No. 1:08-cv-119, (M.D.N.C. filed Feb. 21, 2008), 2008 WL 495583.

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