Tuesday, December 26, 2006

Jamie Glazov: Nifong's Folly

December 26, 2006

Frontpage Interview's guest today is KC Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center. With a B.A. and Ph.D. from Harvard University, he specializes in 20th century U.S. political, constitutional, and diplomatic history. He writes a blog, Durham-in-Wonderland, which offers comments and analysis about the Duke/Nifong case.

FP: KC Johnson, welcome back to Frontpage Interview.

Johnson: Thank you for having me.

FP: So, with the lack of DNA evidence, the prosecutor has now dropped the rape charges against the three Duke University lacrosse players. But he has kept the other charges (sexual offense and kidnapping) in place.

What could possibly be left of a case if the accuser, who for months insisted that she was raped, is now – as demented as all of this is – no longer even certain that vaginal intercourse occurred in the first place? What possible credibility can there be here to anything she says? She has already given investigators more than a dozen different versions of the alleged assault and DNA samples were found from five unknown men.

What gives here? What prosecutor with any integrity would even continue with this case?

Johnson: In a word, no prosecutor with any integrity would continue with this case—but if we have learned nothing else over the past nine months, Mike Nifong is not a man of integrity.

At this point, no pretense exists that anything but self-preservation motivates Nifong. By dropping the rape charges, Nifong effectively impeached his only witness. On April 4, the accuser was shown photographs of the 46 white players on the Duke lacrosse team. In that lineup, the accuser made multiple errors (for starters: claiming to have seen two players who could prove they weren't at the party and incorrectly identifying the player who made the broomstick comment). But she identified four people as possible attackers, and Nifong chose three to indict.

She did more than identify, however: she described what each of the alleged attackers did to her. By offering a new version of events 282 days after the party, Nifong argues for disbelieving the accuser's on-tape descriptions of acts from the April 4 ID session.

But Nifong needed to impeach the accuser to help his own cause. In a December 15 court session, Dr. Brian Meehan, head of a private DNA lab, stated under oath that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence. This move violated North Carolina's Open Discovery Law and contradicted the principle of the Brady decision, which requires turning over any potentially exculpatory material to the defense.

Like a prospective defendant in an ethics or possibly even criminal case, Nifong needed to find ways to minimize the significance of the exculpatory evidence he and Meehan conspired to prevent the defense from seeing.

The bizarre decision to drop the rape charges but retain the others can only be explained by looking at Nifong's legal needs. By claiming that no rape occurred, Nifong can, perhaps, rationalize the decision reached by Meehan and him that the DNA from five, unidentified males was irrelevant to the case, and therefore should be excluded in Meehan's report.

Ironically, his action should have no effect on the ethical problems the Meehan revelations will pose Nifong: even if the allegations are sexual assault rather than rape and sexual assault, DNA from five other males as part of the rape kit is clearly exculpatory material, and no justification exists for withholding it.

FP: This is all isn't about the truth, of course, but about a leftist political agenda. The motives are clearly sinister, no? Even as Nifong's case unravels, Duke's faculty is still overwhelmingly hostile. How could this possibly be? Can you give us some of the details and your interpretation?

Johnson: Even at this late stage, 18 times more Duke faculty members have issued statements or taken actions critical of the lacrosse players than have either defended the players' character or publicly attacked Nifong's behavior.

In early April, 88 members of Duke's arts and sciences faculty signed onto a public statement that said "thank you" to campus protesters who had branded the lacrosse players rapists. The story, it seems, was irresistible to those who see the world through a race/class/gender worldview. One signatory, Wahneema Lubiano, even wrote that the players were "perfect offenders"; another, Mark Anthony Neal, wrote that the affair showed the need for Duke to adopt a "progressive" curriculum.

Ironically, for figures who were so eager to condemn others, some members of the Group of 88 have less than pristine personal backgrounds. Take Lubiano, for instance. On her CV, she has listed two books as forthcoming, in 1997—one from Verso press, the other from Duke University Press. Neither book has seen the light of day; neither press has any record of either book on its website.

For the Group of 88 and their ideological allies, this issue isn't about justice or Nifong's misconduct: it's about exploiting the case to advance their own pedagogical or ideological agendas.

FP: Tell us about the continued hypocrisy of the NAACP.

Johnson: Before this incident, the North Carolina NAACP had a recent record of aggressively demanding procedural changes that would ensure fairness for criminal defendants. For instance, the state NAACP backed a 2004 law mandating that prosecutors turn over their entire files to the defense; and also had championed new eyewitness ID procedures calling for use of seven filler photos for every suspect and other due process-friendly changes.

In this case, Nifong created a lineup confined to suspects (the lacrosse players), while on December 15, the head of a private DNA lab admitted under oath that he and Nifong agreed to withhold exculpatory DNA evidence.

Yet not only has the state NAACP not protested the prosecutor's actions, it has consistently defended Nifong. A defense motion requesting a change of venue laid out the extent of the NAACP's actions, which included a posting on the organization's website containing demonstrably false statements about the lacrosse players. Meanwhile, the group designated a case "monitor,' NCCU professor Irving Joyner, who has aggressively bolstered Nifong's case in interviews, falling back on the argument that the prosecutor "must have something" that hasn't been revealed and wholly ignoring the procedural misconduct.

In light of its behavior in this case, it would be difficult to take seriously anything we hear in the future from the NAACP about the civil liberties of criminal defendants.

FP: So what does all of this say about rape/sexual assault law? Aside from Susan Estrich, where are all the prominent feminists who should be saying something? Why are they deafeningly silent?

Johnson: Susan Estrich deserves enormous praise—initially somewhat supportive of the prosecution, she has transformed into a biting critic of Nifong's actions. In part, she's done so because she has recognized that this case will harm real victims of rape.

Unfortunately, other major feminist groups have taken a different approach. In June, NOW issued a statement condemning the defense attorneys and the media in the case, suggesting that any criticism of the accuser's veracity (this in a case where the accuser gave at least ten different versions of events, and never told a police officer the same story twice) constituted an assault on her privacy.

Ironically, most criticism (from attorneys and from both the mainstream media and the blogosphere) has focused on Nifong, not the accuser. The impression that many feminists have left—whether intentional or not—is that any criticism of a rape case prosecution, even of a prosecutor who's behaving in an unethical fashion, constitutes unacceptable attacks on the accuser. That isn't a tenable position.FP: As Jeff Taylor has pointed out the other day in Reason Magazine, this case has served as a reminder that sometimes federal oversight is necessary. Your thoughts?

Johnson: Playing off the suggestion of North Carolina congressman Walter Jones, Taylor pointed to Attorney General Alberto Gonzales as "the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials."

By fantastically claiming that the accuser can no longer "remember" central aspects of the version of events he used to indict the three players but that he still wants to send the players away to prison for dozens of years, Nifong positioned himself as the caricature of a reckless, malicious prosecutor—unintentionally confirming the argument that Jones made in his letter to Gonzales.

Sometimes, in short, federal oversight is the only option.

FP: KC Johnson, thank you for joining us.

Johnson: Thanks for having me.

Jamie Glazov is Frontpage Magazine's managing editor. He holds a Ph.D. in History with a specialty in U.S. and Canadian foreign policy. He edited and wrote the introduction to David Horowitz’s Left Illusions. He is also the co-editor (with David Horowitz) of The Hate America Left and the author of Canadian Policy Toward Khrushchev’s Soviet Union (McGill-Queens University Press, 2002) and 15 Tips on How to be a Good Leftist. To see his previous symposiums, interviews and articles Click Here. Email him at jglazov@rogers.com.

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