Blogs > Cliopatria > Duke Lacrosse Report--and "Aggressive Body Language"

May 2, 2006

Duke Lacrosse Report--and "Aggressive Body Language"


by Cliopatria


Slate has a piece by David Feige, an author and former public defender in the Bronx, outlining the myriad of procedural abuses associated with the D.A.’s indictment of two Duke lacrosse players. Feige’s conclusion: “In the end, between his media mania, harassing search warrants, and the outrageous attempt to interrogate individuals already represented by counsel, Mike Nifong has exposed a reality of the criminal-justice system that can often escape our attention: Prosecutors captivated by the beneficial glare of the media spotlight are often ready to ignore convincing evidence of innocence in the politically motivated pursuit of criminal defendants. The Durham district attorney's actions raise the question of whether prosecutors really are willing to win elections at the cost of wrongful prosecutions. Sadly, for Durham and Duke and for all of us, the answer in this case seems to be ‘yes.’”

As a reminder that flawed processes can sometimes produce flawed results, as part of a set of motions, defense attorneys released a photo of one indicted player, Reade Seligmann, time-stamped from an ATM machine at a time when the police report alleged that the rape was occurring. (Since Nifong, for reasons that remain unexplained, made the arrest before even investigating whether Seligmann had an alibi, the prosecution never presented this evidence to the grand jury; there are several other photos of the ATM scene.) In his only quote of the day, the D.A. said that he plans to seek a third indictment in two weeks. But from taking a look at the Raleigh TV websites, last night’s 11pm news ignored Nifong’s promise and instead, quite correctly, showed the Seligmann photo.

In a surprise, a Duke committee recommended restoring the lacrosse program in 2007, coupled with appropriate stringent regulations regarding behavior and consumption of alcohol by team members. That a law professor, James Coleman, chaired the committee was a good sign; the report contained none of the unfortunate tone or substance that has characterized previous statements on the issue from the Duke faculty. The report’s data also presented a much less negative view of the team than we’ve seen over the past six weeks.

The report makes clear the disturbing pattern both of increased excessive alcohol use by team members and team members’ disproportionate violation of college alcohol policy. But the document also condemns the administration for insufficient oversight in general and poor communication with the (ex-) lacrosse coach in particular; and contextualizes the issue by noting a more general problem of all Duke students ignoring the college’s alcohol policy, which the report calls “arbitrary and often ineffective.” And other aspects of the report portray the players as about as far from Nifong’s “hooligans” as imaginable. The team members are warmly praised for their courtesy to athletic staff, their good relationship with the women’s lacrosse team, and their record of volunteer service in the community; the report found no evidence that “the cohesiveness of this group is either sexist or racist.” None of this material excuses the (admitted) actions on the night in question, but it certainly calls into question allegations, like that of Duke professor Houston Baker, that these actions typified the team’s behavior.

For me, the single most interesting aspect of the report came in its discussion of the players’ athletic performance. Last year, more than half the team made the ACC’s academic honor roll, more than any other school, and between 2001 and 2005, the Duke lacrosse honor roll total more than doubled that of any other ACC school. The committee interviewed 10 Duke professors who had taught significant numbers of lacrosse students. Nine of the ten offered positive comments; one professor noted that “the lacrosse players were willing to defend unpopular positions in class.” Given the ideological tenor of the Duke faculty, it’s not hard to imagine what some of these positions might have been.

That analysis is worth remembering when taking into account the response of the tenth professor interviewed by the committee. Peter Wood, a member of the History Department, was a lacrosse player at Harvard and then coached the Duke women’s lacrosse team when it had club status; perhaps this common bond led lacrosse players to seek out his classes. That clearly was a mistake. Wood, co-author of the textbook Created Equal, which bills itself as “emphasizing social history—including the lives and labors of women, immigrants, working people, and persons of color in all regions of the country” based on “an expanding notion of American identity—one that encompasses the stories of diverse groups of people,” teaches courses in African-American and Native American history. Wood’s scholarship and teaching seem to reflect a clearcut slant on the American past—one well within the historiographical mainstream, but also, perhaps, not a good environment for students generally “willing to defend unpopular positions in class.”

Wood certainly didn’t welcome the students to his class. After his 2004 Native American history course, Wood wrote a letter to the dean complaining about “the decline in classroom behavior of lacrosse players in particular and athletes in general.” The committee noted that Wood has given a substantially harsher version of events in recent weeks than he did in his 2004 letter (which the report doesn’t release). In an attempt to verify Wood’s claims, the committee spoke to his teaching assistant, who reported that “she did not think the lacrosse players intentionally intimidated other students, but thought that they displayed aggressive body language in class.” So, the committee uncovered nine professors who said either that the players were no problem or that they were assets to the class—even if they “were willing to defend unpopular positions”—and a tenth who had only negative things to say about team members, and whose teaching assistant, incredibly, accused the players of “aggressive body language.” It is, of course, possible that members of the team behaved totally differently in Wood’s class than they did in the other nine classes the committee sampled. But I’d say it’s rather unikely.


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Robert KC Johnson - 5/3/2006

I know. But nine faculty report absolutely no problem with the students, and a TA in the tenth class, one handled by a professor vitriolically opposed to the team, sees a problem with "aggressive body language"? (This was a lecture class, from what I can determine; the TA doesn't seem to have done any teaching.) Coupled with the committee's findings that Prof. Wood's complaints as voiced now are far more severe than his complaints as voiced in 2004 (the time of the alleged "aggressive body language"), it's hard to take such a claim seriously. Of course, it has the advantage of being utterly impossible to disprove.

David Lion Salmanson - 5/3/2006

KC,
You have never seen aggressive body language in class? I see it almost every day used by boys and girls (I teach Upper School). At times, I think you have never set foot in a classroom with your glasses on. When I taught at the college level I rarely saw such behavior in my classes but I did see it when I observed classes taught by younger, female TAs.

Robert KC Johnson - 5/2/2006

But, of course, there's nothing in the statement of the Group of 88 that talks about "turning up the volume" re alcohol! The word alcohol isn't even mentioned in the ad. These are professors. If they meant they were turning up the volume in the campaign against underaged drinking, rather than thanking protesters who branded the lacrosse players "rapists" and said "time to confess," I presume they would mention it. Perhaps some members of the Group of 88 are now trying to contextualize their statement, claiming that they meant to condemn excessive alcohol use. But there's no evidence of that in their statement.

Nifong has prevailed, by a 45-41 margin. As far as I can determine under NC law, the case now has to go to trial (unless he dismisses it, which is unlikely).

On the issue of Nifong refusing to meet with Seligmann's lawyer, I agree--it's possible the defense lawyer is out-and-out engaging in a public falsehood. But neither Nifong nor anyone from his staff has denied the allegation, as could easily be done off the record. And if, indeed, Nifong did meet with Seligmann's attorney, the falsehood would be exposed. So, I admit: I assume that Kirk Osborn, who seems to be a prominent member of the NC bar, would not publicly issue an out-and-out lie on a matter that, if it is a lie, the DA could easily expose at any point in the future.

Just as with the statement of the Group of 88, there's a credibility context regarding Nifong and Osborn. Nifong, in an earlier court filing, affirmed that the DNA testing would exonerate the innocent. When all testing came back negative, he changed his mind and said rape cases are often prosecuted without DNA. Nifong said that the accuser identified Seligmann with 100% accuracy--without mentioning that she first said, "He looks like one of the guys that assaulted me," hardly a ringing assertion. Nifong also has engaged in numerous procedural improprieties, ranging from sending police officers to dorms to interrogate students without their lawyers present to ignoring state guidelines for photo IDs. Osborn, on the other hand, stated two weeks ago that Seligmann could produce cellphone records, ATM receipts and video, a dorm card key swipe, and a witness statement from someone who was with Seligmann at the time of the alleged rape. And, with yesterday's filing, Osborn has now produced every piece of evidence he publicly promised.

So, at this stage, judging on their ability to back up their public statements, I'd say that Seligmann's attorney is more credible than Nifong. I don't think that's "trusting" the defense attorney--Osborn has backed up his statements, Nifong, to this point, hasn't.

As to whether a rape occurred, I have no idea. But I fail to see how the procedures followed in indicting Seligmann move Durham any closer to determining whether a rape occurred, and, if so, who committed it.

Ralph E. Luker - 5/2/2006

As for the statement by the 88 faculty members, it doesn't urge the students to turn up the volume -- though it does say "we're turning up the volume." Given the long history of excessive alcohol-influenced bad behavior by Duke lacrosse players and a long history noting it, it was about time someone turned up the volume -- and better it be faculty members.
You have it from the defense attorneys, I take it, that Nifong refused to look at exculpatory evidence. Do you have it from Nifong's office? Discrediting the DA and his chief witness is standard operating procedure in a case like this. Have you no suspicion of the defense attorney's claims? Of course, if they do their pre-trial smearing well enough, the case probably won't go to trial -- despite the rape kit evidence that the woman's wounds were consistent with a rape having occurred.

Robert KC Johnson - 5/2/2006

On the ad, the bottom of the page in the grey box, final sentences, the faculty (in their own voice) say the following: "We're turning up the volume at a moment when some of the most vulnerable among us are being asked to quiet down while we wait. To the students speaking individually and to the protesters making collective noise, thank you for not waiting and for making yourselves heard."

These students and protesters, as I've noted ad nauseum, produced a "wanted" poster and publicly labeled the players as rapists, telling them to confess. Unless the items in the grey boxes represent students and not the faculty voice (and I'm almost positive that's not the case), I haven't in any way misintepreted the Group of 88's statement. The faculty explicitly say "we're turning up the volume." And they explicitly say "thank you" to the protesters.

There's no contradiction between suspects lawyering up and a DA seeking exculpatory evidence--this happens all the time. As I know too well, lawyers are sometimes necessary to protect the wrongfully accused. The DA could have obtained search warrants of the players' residences--something he did only after arresting Seligmann. He could have requested individual interviews with the team members (with their lawyers present)--but instead he preferred to send police to Duke dorms to try to question the players outside the presence of their counsel. He could have subpeonaed cellphone records, credit card records, or the dorm keycard records of team members. He could have invited the team members to testify before the grand jury. He could have chosen to indict via a probable cause hearing rather than through the grand jury. He could have asked the police to question friends of the lacrosse players to determine what suspects might have been saying. The fact that a suspect says he won't talk to police without a lawyer present doesn't mean that the investigation simply has to stop. Under the Nifong approach, we'd have dozens of wildly incomplete cases going to trial every day.

Yesterday's filing also brought to light that the photo array (the only evidence, to date, that links Seligmann to any crime) didn't conform to the state's suggested guidelines in not one but two ways. First, it included only the suspects in the case. But second, instead of a law enforcement figure not involved in the case handling the procedure, as the state recommends, the questions were asked by one of the two policemen in charge of the investigation. The accuser's first comment about Seligmann was, "He looks like one of the guys that assaulted me." The investigator then asked a subtly leading question, which yielded a statement that she was 100% certain. "He looks like one of the guys that assaulted me" isn't 100%--one reason why states have procedures in place to guard against false IDs. This document, too, has probably been leaked by defense attorneys. But there's no indication that Seligmann's lawyers doctored it in any way.
http://www.wral.com/news/9139366/%20/slideshow/news/9141851/detail.html?qs=;s=5;w=800

Ralph E. Luker - 5/2/2006

You need to go back and read the statement the 88 faculty members signed. It is found at http://www.duke.edu/web/africanameric/listening.pdf. It quotes a number of student comments -- without necessarily endorsing them. What the faculty members say is that "What the students know is that the disaster didn't begin on March 13 and won't end with what the police say or the court decides. Like all disasters, this one has a history." That's the faculty statement. You quote selectively from the various student quotations reprinted in the ad. The faculty statement doesn't urge students to "turn up the volume." Rather, it appears in the known context of history of consistent alcohol abuse, of abusive behavior by the lacrosse team members (a third of whom had priors), an e-mail by one of the team players who threatened to kill and skin a stripper, etc., and a context in which lacrosse players were stonewalling. You both berate the DA for not seeking exculpatory evidence and praise the wisdom of the student athletes for stonewalling. You just can't have it both ways, KC.

Robert KC Johnson - 5/2/2006

It is pretty close to a certifiable truth that Reade Seligmann was at an ATM machine at 12.24am on the night of the incident:
http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/story_graphics/20060502_dukelax_alibi.jpg
(WRAL's website has the full video.)

The fact that Seligmann's defense attorneys are expensive is fortunate for him. But whether they're expensive defense attorneys or public defenders doesn't affect the content of the video, the cell phone records, the cabbie's testimony, the dorm card-key swipe, or the receipt from the restaurant.

I agree with you--it's not a certifiable truth that Seligmann is innocent. For all we know, the second batch of DNA could come back on May 15 linking him to the crime (which is why, among other reasons, the DA should have waited to issue any indictments). Or there could be yet-to-be-discovered video or photographic evidence linking him to the crime (if a crime occurred).

But it does seem to me very close to the certifiable truth that the procedures followed that led to Seligmann's indictment were not proper, and flawed procedures often lead to flawed results. Let's face it: it's very, very rare that someone who's been indicted can produce a video of himself at an ATM machine at the same time the police report suggested he was committing a crime someplace else.

Based on the behavior we've seen from the DA, there's no doubt that the players' eventual strategy of working through their lawyers was correct. In a normal circumstance, things might have been different--but while the DA was going on national TV proclaiming that a rape definitively had occurred, any player who wandered in and sat down for a chat with Nifong would have been a fool. Even so, at the very start of the inquiry, the three players who lived in the house did cooperate, fully. It was only after the DA's behavior started becoming odd that the players (quite appropriately) became more defensive.

The Group of 88's letter doesn't mention the players' stonewalling, just as it doesn't mention their pattern of excessive use of alcohol. It contains no mention that the due process rights of the players should be protected. It does say "thank you" to protesters who were publicly labeling the players guilty of rape, and promises to "turn up the volume" further.

Ralph E. Luker - 5/2/2006

What you say assumes that the members of the lacrosse team were not stonewalling prior to the two indictments, when in fact it was the refusal of the team members to be forthcoming with whatever information that they had that set the context for the two indictments and the statement by the 88 faculty members. You are making yourself a mouthpiece for expensive defense attorneys who are releasing allegedly exculpatory information -- whether by leaks to the press or by filings in North Carolina courts. One or both of the students who are currently indicted _may_ be innocent of the charges. Contrary to what the leader of the New Black Panthers says, they are entitled to that presumption, but it is a presumption, not a certifiable truth.

Robert KC Johnson - 5/2/2006

The point is, however, that the DA didn't even bother to ask--or to investigate himself whether such evidence exists. Procedurally, that strikes me as bizarre--the behavior of someone whose chief goal was to secure an indictment, and to do so before the primary, regardless of whether the indictment ultimately produced a conviction. From the point of view of someone prosecuting a case, what rationale would there be to indict someone without undertaking even a cursory investigation as to whether they had an alibi? In this respect, the players were lucky they could afford high-priced attorneys and investigators. In the way the system is supposed to work, the state should have uncovered this evidence. It's not the police's job to act as an advocate of a person who files a complaint, undertaking a minimal investigation to produce just enough evidence to get an indictment and then hoping that no other evidence appears. The fact that this sometimes occurs is less high-profile cases doesn't excuse the DA's behavior in this case.

On what would have happened if Nifong had gone to Seligmann's attorney before the indictment--you're right, we don't know. But we do know that Seligmann's attorney attempted to present the evidence to Nifong immediately after the indictment, and that Nifong refused to see the attorney, claiming that he knew more about what happened that night than the attorney ever would. (A few days later, MSNBC reported that people from the Durham police asked MSNBC to see its copies of the party photos, which the police hadn't known existed.) Seligmann was identified on a Thursday; he was arrested the following Tuesday. By the following Thursday (two days later), he had cell phone records, the cab driver's testimony, his dorm key card swipe, and his receipt from the fast food restaurant. (Not the ATM photos, yet.) In other words, he produced all evidence but the ATM photos within two days. Had the DA asked for it on the day of the ID, it could have been produced before the grand jury met on the following Monday. It's possible, of course, that in the highest-profile case in the country right now, Seligmann would have declined to produce that evidence and accepted indictment anyway--thereby ensuring that his name would be, in some way, tarnished for years. That strikes me as a very, very unlikely scenario. But again, the procedural angle strikes me as the most significant: what motive would exist, from the standpoint of the DA, not even to ask Seligmann's attorney whether such evidence exists?

I agree with you that (until yesterday's court filing) these were leaks. But they were leaks of a highly peculiar sort. They went to mainstream news organizations (ABC, Newsweek), not advocates. They involved verifiable pieces of evience (dorm-key swipe, receipts, the cab driver's testimony backed by cell phone records). And they represented evidence that in a normal investigation would have been produced by the state in the initial inquiry--not conflicting he said/she said testimony or uncorroborated accusations that the accuser arrived injured or inebriated, etc., of the type that you'd expect would be produced at trial and inherently involve issues of weighing credibility by a jury. At this stage, does anyone really believe that if this evidence, in addition to the ID from the procedurally irregular array, had been presented to the grand jury that the grand jury would have indicted Seligmann?

On the 88 faculty members--there's not a single mention in their letter of student alcohol abuse (as opposed to two sentences thanking the protesters who produced the wanted poster and chanted outside one residence "it's time to confess" to the "rapists"). And if the report makes nothing else clear, it's that the lacrosse team didn't have a pattern of sexist or racist behavior, or even documented incidents of such behavior. If the Group of 88 wants to take on underage drinking of Duke, they're going to have to go after more than the lacrosse team.

Wood wasn't a signatory of the letter. But his dramatically different perception of the team (and athletes in general) from the other nine professors interviewed suggests that some members of the faculty had a view of the team that at the very least was debatable.

Ralph E. Luker - 5/2/2006

As a matter of fact, however, you do not know that Seligman could have produced the apparently exculpatory evidence when Nifong might have asked for it, because it's been turned up and selectively leaked only _after_ the accused have had charges filed against them and they've hired high priced attorneys and investigators on their behalf. Yet, you write _as if_ they would have had such evidence immediately at hand, if only Nifong had asked.
Given the fact that only 3 of 45 players have faced any academic probation, that the collective behavior of the students is widely acknowledged to have been habitually offensive, and that 1 of the 3 suspended played sent out as mindlessly offensive a missive as I've ever seen, I just don't understand your complaint. The complaint about student alcohol abuse at Duke has a history stretching back a decade or more. The 88 faculty members simply made clear that habitually offensive behavior had been tolerated for too long.