Duke and Deceit: Brodhead’s Folly

by William L. Anderson
by William L. Anderson

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The long-awaited "60 Minutes" broadcast has proven to be devastating to the prosecution’s case in the Duke rape hoax – and, yet, Ed Bradley’s masterful performance barely touched the amount of police and prosecutorial misconduct that has existed. That is not Bradley’s fault; even though two-thirds of the show was devoted to the story, it would take a documentary to occur over many days just to begin to cover everything. Yes, it is that bad.

While most of my articles have dealt with the misconduct of Durham County District Attorney Michael Nifong and the Durham Police Department, there is another player in this sorry tale who is almost as culpable, that being Duke University President Richard Brodhead. Despite having served time as an administrator at Yale University before coming to Duke, Brodhead has proven that he needs to be sent back to the minors. Furthermore, if federal investigators really cared about investigating crimes, Brodhead could find himself going to federal prison.

It is supremely ironic that a number of real-live felonies have been committed by people in this episode, but none of them by the accused Duke Lacrosse players. Nifong’s illegal prosecutorial behavior, the filing of false reports, and the destruction of exculpatory evidence are among the felonies committed by the prosecutor and the police. While I doubt anyone in authority will bring criminal charges against these rogues in a court of law, that does not mean they are innocent.

However, in this piece I wish to concentrate on the behavior of Brodhead himself, who after Nifong is more responsible for this affair than any other person, save the false accuser herself. Moreover, I intend to establish that Brodhead very well might have been involved in the commission of felonies, and while I doubt he will face the kind of hard time that the wrongly-accused lacrosse players are facing, his conduct in this affair at very least should lead to his dismissal from Duke.

Before examining Brodhead’s record, however, let me say that in the early days, he was under pressure from the hard left on Duke’s faculty. Being a former English professor, my guess is that his politics at very best would be left-of-center, so these people were his natural allies. However, being president means that one must be able to see the larger picture and not be a tool of the campus Marxists. If he did not wish to make hard choices and perhaps offend the hard left, then he should have stayed at Yale or gone back to the classroom. In other words, one can have sympathy for Brodhead for having to endure the onslaught from people like Houston Baker in the early days of this affair, but then add that presidents are paid to have a backbone and make the hard, but moral, choices.

Much of the information I am putting in this piece comes from personal conversations and emails with parents of some of the Duke lacrosse players, as well as from the blogs, and primarily the Durham-in-Wonderland masterpiece that K.C. Johnson is running. What I am alleging would stand up in court as a truthful set of events – of that I have no doubt – and I am not engaging in speculation. Let us begin.

Shortly after the accuser told police that lacrosse players had gang-raped her, the Durham Police Department began its investigation. From all accounts, it was clear that the players were cooperating with the police. K.C. Johnson writes:

Virtually the only "evidence" that (Police Sgt. Mark) Gottlieb’s inquiry generated came as a result of the cooperation by the three residents of the house – Evans, Flannery, and Matt Zash. The trio each gave statements to the police without asking for counsel. They offered to take polygraphs – an offer the police, for reasons that remain unclear, spurned. And they willingly provided swabs of their DNA.

Furthermore, what has been described is not in dispute. Yet, what provoked the police, prosecution, and later Brodhead to declare that the players were setting up a "wall of silence"? Johnson gives some insight:

Despite this cooperation, Duke administrators actively assisted the state. Without informing President Richard Brodhead, administrators demanded from the captains a candid account of the evening’s events, allegedly citing a non-existent "student-faculty" privilege to encourage the captains to disclose any criminal activity. Multiple sources confirm that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a "facilitator" in arranging for a group meeting with police.

The night before the meeting, one player broke down and told his father, who happened to be in Durham. Other parents then were informed, and – recognizing the need to obtain competent counsel – postponed the meeting. In response, Gottlieb, incredibly, gave up, and turned the investigation over to Nifong.

This passage demands a closer inspection. First, it is clear that Brodhead's associates actively were involved in deceptive actions by citing the "student-faculty privilege" nonsense that was aimed at tricking them into speaking with police without representation. Thus, we ask the pertinent question: What did Brodhead know, and when did he know it? If the accusation against the administrators is true – and those to whom I have spoken tell me it is – and Brodhead either approved of the actions or did not try to stop them when he did know (or cover up these actions), then Brodhead could have been involved in a conspiracy to deprive these students of their rights to an attorney of their own choosing. Second, conspiracy to deprive someone of his or her civil rights is a federal crime, and while I have been very critical over the years of federal criminal law, nonetheless I point out this alleged transgression because the feds have prosecuted people for actions much more benign than what I have just described.

As Johnson goes on, the decision by the players to retain their own counsel enraged both Brodhead and Nifong, who was facing almost sure defeat in an upcoming Democratic primary:

The District Attorney’s assuming personal control of an ongoing – and scarcely begun – police investigation fundamentally transformed the case. Appointed to the office in 2005 despite a pattern of emotionally unstable behavior during his half-decade sojourn in Traffic Court, Nifong appeared destined for defeat in the upcoming May 2 Democratic primary.

In a primary electorate almost evenly split along racial lines, Nifong faced long odds. A strong white candidate, Freda Black, enjoyed higher name recognition than the incumbent as a result of her prosecuting a high-profile murder case in 2003. The two also had a personal history: Nifong had fired Black almost immediately after becoming district attorney. Meanwhile, a black attorney, Keith Bishop, ran a desultory campaign but threatened to siphon enough African-American votes away from Nifong to ensure a Freda Black victory. By late February, the local elite had delivered its verdict: Nifong’s fundraising had dried up; personal loans to his campaign kept his candidacy afloat.

Under personal, financial, and political pressure – and perhaps even, at first, believing that a crime occurred – Nifong seized the opportunity to exploit the case. He quickly secured a court order demanding that the players submit DNA samples and new photos. That motion, we now know, was fraudulent:

• Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; no evidence existed for either claim, as even the transparently pro-prosecution New York Times conceded.
• Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup.
• Nifong, it turned out, falsely promised the court that negative DNA tests would "immediately rule out any innocent persons."

We know how the rest of this story goes. When the accused students obtained counsel, Brodhead announced that he was "disappointed" with their decision. This is important to remember: the players already were being convicted both in the media and by large segments of the Duke faculty and student body, and the athletes did what individuals being accused of serious crimes should do, and that is to seek legal representation. According to U.S. Supreme Court decisions that a good liberal like Brodhead would support, individuals accused of crimes are entitled to legal representation, but Brodhead tried to use trickery to circumvent that right, and had the district attorney and the police covering his backside.

Instead of telling the truth – that the players were cooperating with the investigation and had offered to take lie detector and DNA tests – Brodhead issued statement after statement calling for the players to "cooperate" in language that suggested that they were hiding behind their lawyers. Furthermore, another little-known incident highlights just how cowardly and cravenly Brodhead was acting.

After the players obtained lawyers, Durham police officers unannounced and without search warrants went to the on-campus dormitory rooms of some of the players to "question" them (without their attorneys being present). On solid advice of counsel, the players refused to talk to the police or let them into their rooms, as is their Constitutional right. It clearly was a publicity stunt in which police were hoping to give the impression that some guilty people were hiding something.

Instead of denouncing this assault on the law and the illegal police invasion, Brodhead ignored the police predations and again called for "cooperation" on behalf of the lacrosse players. Of course, by this time, everyone understood "cooperation" to be a "confession" from the players. (Students across campus were holding signs declaring "Get a conscience, not a lawyer," and "It’s Sunday. Time to Confess." Furthermore, faculty and students were posting "wanted" posters with pictures of the white lacrosse players, with the posters openly accusing the student-athletes of rape. Brodhead never publicly denounced any of these despicable actions.)

Yes, there was pressure, but Brodhead decided to bend before the hard left and disobey the law, or at least cooperate with efforts of the prosecutor and police to break the law. Again, we are dealing with conspiracy to deprive individuals of their civil rights. People have gone to prison for such actions in the past.

Brodhead ultimately fired the lacrosse coach, Pressler, and he cancelled the team’s season, but this was not enough to mollify people like Baker and others who were fanning the Reichstag Fire flames, so he started a number of "campus initiatives" thus encouraging the "rush to judgment" that he said he allegedly wanted to avoid. Not surprisingly, no matter what Brodhead did to satisfy the left, they only wanted more, and he did not disappoint.

Unfortunately, there is more to this sorry tale of lawbreaking. After it became clear that the prosecution was a hoax, a number of students at Duke, along with some alumni, started an organization "Duke Students for an Ethical Durham," which encouraged people in Durham County to register to vote so they can participate in the upcoming election, with one portion of the ballot dealing with what effectively is a recall vote for Nifong.

In most instances, universities encourage voter registration. In this case, Duke has openly tried to discourage it. When students recently set up a voter registration table near the football stadium during a recent Duke football game, the university openly and very publicly shut down the table and forced the students to stop their efforts. K.C. Johnson writes:

The incident outside the football stadium also has attracted the attention of Walter Abbott, who has formally complained to the Justice Department. The issue clearly is one of federal concern: according to this title and chapter of the U.S. Code, any person who "knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for . . . urging or aiding any person to register to vote, to vote, or to attempt to register or vote" can be fined and face up to a 5-year prison term.

Furthermore, as Abbot notes, the university would be in violation of the federal Higher Education Act. The question I would have would be about Brodhead’s involvement. If Brodhead knew about this or authorized the action, then he would have been involved in a criminal conspiracy to intimidate the voter registration process.

I do not use words like "criminal" lightly here. Yes, I believe that some of the Durham police officers as well as Michael Nifong have broken criminal laws and should be pursued in criminal court. But Brodhead’s actions also need to be placed under the same scrutiny. Here is someone who was placed in a position of trust, and he not only has bumbled and fumbled, but he also engaged in actions that were meant to bully students and keep them from exercising their rights.

Although I doubt that anyone from the U.S. Department of Justice will pursue this case, given that the DOJ is comprised of the same politically-correct types that dominate Duke University, that does not mean Brodhead and others have not broken the law. Brodhead’s performance demonstrates that he is not ready – and most likely never will be ready – for the Big Leagues. He has permitted – and even encouraged – intimidation of students and faculty members. (I have received emails from Duke faculty members who believe the players are innocent, but also know that there will be retribution against them if they speak out.) He attempted to use deceit in a situation where truth was needed.

One would hope that when this affair is ended, Brodhead at the very least would be given his golden parachute. As for his legal culpability in this whole thing, I leave it up to the lawyers for the lacrosse parents and players to determine if they wish to have their day in court. Brodhead had a simple choice: do right, or do wrong. We know his choice, and now he and a number of other people have to live with it.

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.

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