The Brodhead Apology

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On Saturday, September 29, nearly six months after North Carolina Attorney General Roy Cooper declared three former Duke University lacrosse players "innocent" of all criminal charges against them, Duke President Richard Brodhead gave an apology for his own conduct during a conference on the lacrosse case held at Duke. I emphasize the time because the very fact that Brodhead has waited this long ultimately harms him and takes away from his many eloquent words.

I put the apology here, because while it is brief, at least it confirms many of the criticisms people have made of Brodhead, the Duke administration, and the faculty there:

This conference is not just about the Duke lacrosse case. It is about a kind of event that has taken on a central place in American culture: the legal case that creates a national community of attention, the case the public consumes every "fact" of with an endless appetite for more. Cases like these typically combine scandal, celebrity, and highly combustible social issues, race and sex perhaps chief among them. And having become one of America’s principal forms of shared public life, these cases highlight crucial problems of our culture — problems of achieving justice in a media-saturated society, problems of fundamental fairness to individuals, and problems in the way the American public is informed and misinformed about the world we live in.

The Duke community lived through a classic example of such a case. When a case like this is over, it’s tempting to think that the facts so clearly established at the end of the day must have been equally clear throughout the process. This was not the case. When the accusations were made, our students said emphatically that they were innocent. On the other hand, the district attorney made a series of public statements expressing absolute confidence that a crime had occurred and that the students were guilty of criminal charges. These starkly opposite versions of the truth created deep uncertainty about what had happened.

Added to this, the local and national media began weeks of highly sensational coverage, creating an air of instant, uncritical certainty that fed on itself in a remarkable way, with each day providing new "revelations" that became known around the world, confirming and re-confirming public assurance that an outrage had occurred.

Given the uncertainty at the heart of the case and given the tides of passionate prejudgment the DA’s comments and media accounts touched off, I staked out a position on behalf of the university that contained three principles. First, the type of crime that had been alleged had no place in our community. Second, the presumption of innocence is fundamental to our legal system, and our students were entitled to that presumption. And third, this whole matter had to be entrusted to the criminal justice system for its resolution.

As president, I had responsibility for the statements the university made and the actions the university took in a virtually unprecedented situation, and I take responsibility for them now. But I didn’t come here to retell the story or explain the logic of our acts. We are now in the aftermath of this extraordinary case, and the aftermath, we have to hope, is a time for learning. Having spent my life in the cause of teaching and learning, I am not at all unwilling to learn lessons of my own. I am happy for this chance to share some of those lessons.

First and foremost, I regret our failure to reach out to the lacrosse players and their families in this time of extraordinary peril. Given the complexities of the case, getting this communication right would never have been easy. But the fact is that we did not get it right, causing the families to feel abandoned when they most needed support. This was a mistake. I take responsibility for it, and I apologize.

Second, some of those who were quick to speak as if the charges were true were on this campus, and some faculty made statements that were ill-judged and divisive. They had the right to express their views. But the public as well as the accused students and their families could have thought that those were expressions of the university as a whole. They were not, and we could have done more to underscore that.

Third, I understand that by deferring to the criminal justice system to the extent we did and not repeating the need for the presumption of innocence equally vigorously at all the key moments, we may have helped create the impression that we did not care about our students. This was not the case, and I regret it as well.

Fourth, this episode has taught me a hard lesson about the criminal justice system and what it means to rely on it. Given the media circus and the public reactions it fed, I thought it essential to insist that the matter be resolved within the legal system, not in the court of public opinion. As far as it went, this was right. But what this case reminds us is that our justice system — the best in the world — is only as good as the men and women who administer it. In this case, it was an officer of this system itself who presented false allegations as true, suppressed contrary evidence, and subverted the process he was sworn to uphold.

Relying on the criminal justice system in this case proved to have serious limits. But for the university to strive to set the system to rights — for instance, by attacking the District Attorney — presented problems as well. For one thing, none of us can lightly speak as if the system itself is tainted because some of our own have been accused of a crime. I was also concerned that if Duke spoke out in an overly aggressive fashion, it would be perceived that a well-connected institution was improperly attempting to influence the judicial process, which could have caused the case to miscarry in a variety of ways. Finally, there was no legal recourse against the District Attorney, for me or anyone else. Under North Carolina laws, no one had authority to take an active case from a DA absent the DA’s own request, as finally happened in January.

Even with all that, Duke needed to be clear that it demanded fair treatment for its students. I took that for granted. If any doubted it, then I should have been more explicit, especially as evidence mounted that the prosecutor was not acting in accordance with the standards of his profession.

The larger problem for society is how to create and maintain the optimal balance between the independence of the legal system and protection of individuals from false prosecutions. If this state should ever again have a rogue prosecutor on the loose with no more remedies than were available last time around, the failure to have learned the lesson of the Duke lacrosse case would be intolerable. I do not want to create some instant legislative "solution" that opens the door for new injustices tomorrow. I recognize that it is not easy to get the checks and balances right when two such important interests are at stake. But it’s essential for all relevant parties to work to create these mechanisms, and I trust the current conference will contribute to this cause.

Closer to home, this case highlights challenges universities face when students are tied to serious criminal charges. This challenge has many aspects: how the university advises a student in these circumstances, how the university regulates the presence on campus of students charged with serious crimes, how the university interacts with parents, and many more. My colleagues in the Duke administration are going over all our procedures to see what we can learn from our experience. But these are complex questions, and they aren’t ones Duke can or should hope to solve on its own. To work through these difficulties and see that their lessons are learned not only here but around the country, we will be hosting a national conference of educators, lawyers and student affairs leaders to discuss best practices in this important field.

I’ll end with the deepest lesson this case taught me. When I think back through the whole complex history of this episode, the scariest thing, to me, is that actual human lives were at the mercy of so much instant moral certainty, before the facts had been established. If there’s one lesson the world should take from the Duke lacrosse case, it’s the danger of prejudgment and our need to defend against it at every turn. Given the power of this impulse and the forces that play to it in our culture, achieving this goal will not be easy. But it’s a fight where we all need do our part.

Much of me hopes the Duke lacrosse case will be forgotten someday. But if it is remembered, let’s hope it is remembered the right way: as a call to caution in a world where certainty and judgment come far too quickly.

While I have been one of those critics, I do not wish to engage in “piling on” here, as a number of other people, including Jay Bilas, one of Duke’s best-known recent alumni, already have said the speech is “too little, too late.” Other lacrosse family members have said similar things to me. Because I am neither a Duke alumnus nor someone who might be considered a Duke "stakeholder," I do not think it appropriate for me to pronounce judgment on the speech or its timing.

However, I do believe that I should point out just how egregious the conduct of many people at Duke really was; I also emphasize Brodhead — to his credit — literally is the only person at Duke to give a public apology for his role in the massive miscarriage of justice that occurred in Durham and at Duke University. Indeed, Brodhead did have much for which to apologize.

Brodhead said the following, which needs to be better analyzed:

The Duke community lived through a classic example of such a case. When a case like this is over, it’s tempting to think that the facts so clearly established at the end of the day must have been equally clear throughout the process. This was not the case. When the accusations were made, our students said emphatically that they were innocent. On the other hand, the district attorney made a series of public statements expressing absolute confidence that a crime had occurred and that the students were guilty of criminal charges. These starkly opposite versions of the truth created deep uncertainty about what had happened.

Added to this, the local and national media began weeks of highly sensational coverage, creating an air of instant, uncritical certainty that fed on itself in a remarkable way, with each day providing new "revelations" that became known around the world, confirming and re-confirming public assurance that an outrage had occurred.

However, Brodhead cannot plead ignorance of the facts here. During the summer of 2006, Kevin Finnerty and his wife, Mary Ellen, the parents of accused player Collin Finnerty, offered to give Brodhead a copy of the entire case file. They wanted to show him that they had nothing to hide, nothing. Brodhead refused, stating that he could "not be a judge."

Of course, that was ridiculous, given that much of the Duke faculty, administration, and student body already had acted as judge and jury when the Duke campus exploded with protests and accusations. The lacrosse players had their pictures on "wanted" posters spread all over campus, the administration refusing even to protest the posters, which were spread by Duke students and employees.

The Duke administration said nothing when "Castrate!" signs appeared on campus, and when professors denounced the lacrosse players in class, openly calling those students rapists in front of their peers. The administration did almost nothing to help the lacrosse players when they literally were forced off campus, some having to sleep in their cars or drive long distances to their homes just to seek refuge.

The Duke administration at first said it was going to permit the Black Panthers to go onto campus in order that the members of the group could "interview" the lacrosse players. While Brodhead apparently changed his mind and kept the Panthers off campus, nonetheless by even entertaining the idea that people who were threatening to kill these players would be allowed onto campus, the administration sent a clear message to the players and their families that the young men were nothing but a den of rapists.

Indeed, after canceling the game with Georgetown after protesters carrying signs declaring, "Don’t be a fan of rapists," Brodhead refused to meet with the parents, sending the sign that he believed the players were guilty. Time and again, he minimized the need for due process and presumption of innocence, telling the Durham Chamber of Commerce, "Whatever they did was bad enough."

Because the presumption of guilt was so strong in Durham, one would think that Brodhead would have been interested in at least looking at the file which held all of the documents that Nifong had released to the defense. (Of course, we know now that Nifong was withholding key DNA evidence, lying to a judge about it and earning a day in jail for criminal contempt.)

This is the same university president who said nothing when one of his vice presidents, John Burness, consistently slimed the players and their families in "off-the-record" sessions with journalists. (The vast majority of Burness’ comments turned out to be untrue, but he still is gainfully employed as a VP at Duke. So much for accountability.)

So, in the end, one can welcome any apology from someone who took part in the rush to judgment. Furthermore, my sense is that Brodhead’s apology, late as it is, still is more heartfelt than any of the "apologies" that Michael B. Nifong has given for gaining false indictments, lying to judges, lying to the press, and seeking to imprison innocent people for a crime that never occurred.

However, I think that it also is safe to say that had Brodhead been seeking to do the right thing in 2006 and much of 2007, as opposed to appeasing the mobs that demanded the players’ scalps, he would not have needed to make an apology at all. Instead, he would have been vindicated and would have been seen as a profile in courage instead of someone having to say he was sorry for all the damage that he and his underlings did to people who never deserved that treatment in the first place.

October 3, 2007

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services.

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