The Brodhead Apology
by
William L. Anderson
by William L. Anderson
DIGG THIS
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.
Copyright
© 2007 LewRockwell.com
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