Two Angry Men or One Angry Leftist?

by William L. Anderson
by William L. Anderson

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I had wondered when the hard-left publication The Nation would weigh in on the Duke Lacrosse Non-Rape, Non-Kidnapping, and Non-Sexual Assault case. Furthermore, I wondered if this venerable publication, which gave uncritical support to Stalin, Mao, Pol Pot and Castro in their heydays, would give us the usual hard-left line, or actually take a serious look at the issues in this case.

Alas, faced with the very hard evidence that the former and now disgraced District Attorney Michael Nifong (or DAMN, from here on), even Robert Perkinson has to admit that the charges were false, but that does not stop him from attacking the lacrosse players and K.C. Johnson and Stuart Taylor in his review of Until Proven Innocent. The verdict from Perkinson? They players were not guilty of rape, but they were guilty, anyway, and Johnson and Taylor are nothing more than standard-bearers of white, racist privilege.

Perhaps I should not be too hard on Perkinson in this review of his review. After all, he was willing to admit that there was no rape, which is better than Mike Stark did in the hard-left CounterPunch last year, when he claimed that DAMN really was the wronged party and that Reade Seligmann, David Evans, and Collin Finnerty most likely had done everything to Crystal Mangum that DAMN said they did.

Moreover, I guess I should be grateful for small favors. Stark, after all, decided that the fictional account was better than the truth when he wrote:

By contrast, Nifong did possess significant evidence to pursue the rape case. There was a traumatized victim, the testimony of an examining nurse who said a rape had taken place, physical evidence of assault and disgusting e-mails that circulated among the Duke students – like one that read, "I've decided to have some strippers over and all are welcome. I plan on killing the bitches as the [sic] walk in and proceed to cut their skin off while cumming in my duke spandex."

As the mainstream media accounts increasingly sided with the student "victims" accused of rape, these undisputed facts were forgotten.

Nevertheless, the lack of a toxicology report made it impossible to prove whether the victim was drugged at the "party" (which, besides the obvious trauma, would explain her contradictory and confused statements), and the lack of DNA evidence may simply have indicated the assailants used condoms.

There was no "exculpatory" evidence proving the innocence of the suspects. Instead, the case dissolved mostly because there was no "smoking gun."

Literally everything Stark has written was false, or extremely misleading. The "nurse," Tara Levicy, according to one of the lawsuits filed by some unindicted lacrosse players, did not do the exam at all, but observed while Dr. Julie Manly conducted the exam, Levicy not being medically qualified at the time to do a rape exam. Furthermore, besides fraudulently claiming to have done the exam (by signing the exam form as having been the one who conducted it), literally everything she told Mark Gottlieb and Ben Himan of the Durham Police Department was contradicted by the written medical reports. Crystal Mangum had no injuries "consistent with rape." None.

(To find more about the case and the most recent lawsuits, Robert Ekstrand, an attorney representing three of the players, has his suit on his firm’s website. To find information on another suit, this one filed by 38 players and their families against Duke University, Nifong, and Durham, go to this site. Both suits are well-documented and lengthy. A third lawsuit, filed by the indicted players, is aimed at Nifong and Durham.)

The email by Ryan McFadyen was written as a joke (albeit, a bad one) after the strippers had left after four minutes of their act – although they had been paid $400 apiece to "dance" for two hours. Although McFadyen apologized repeatedly for the private email that came into play only after it illegally was hacked by an unknown (to us, anyway) person, police tried to pressure him to testify untruthfully against the other players by dangling the prospect of publicizing the email and publicly humiliating him.

Contrary to Stark’s lies, the media took a long time to "side" with the players. For months, they were attacked nightly on "news" talk shows like "Nancy Grace" and the New York Times actively sided with DAMN, while Newsweek put the pictures of Seligmann and Finnerty on its cover as "rapists." The media turned, albeit reluctantly, only after it became obvious that DAMN was fabricating the entire thing.

There was a toxicology test done of Mangum’s hair, and it showed no traces of any "date rape" drugs. Mangum was well-known in Durham police and medical circles as a drug addict, and the first police officer who found her near-passed out in a car in a Kroger parking lot said she reeked of alcohol.

As for his "condoms" statement, perhaps we should shudder, for if the hard left ever does take over the judicial apparatus, we can bet that all science will be thrown out the window. First, Mangum claimed not only were no condoms used, but that the young men ejaculated on and in her. Second, the state crime lab found no condom residue on her from the exam. Third, we are expected to believe that even with condoms, three young men beating and grabbing a woman for 30 minutes would not leave other DNA on her. (Police checked the entire bathroom for the DNA of Mangum and the others and found nothing, despite the fact that the players had not cleaned up the bathroom after the party.)

Stark’s last line is most instructive. Indeed, when he announced that he was dropping the charges, North Carolina Attorney General Roy Cooper specifically declared that the young men were "innocent" of the charges. While it is true that the box checked on the official "dropping the charges" for was the "lack of evidence," there is no box that says "innocent of charges." That is why Cooper went to the trouble to make it clear that all of the evidence that he and the special prosecutors in this case found led to this declaration of innocence. That Stark and CounterPunch ignore that obvious fact is due to willful dishonesty on their part.

While Perkinson no doubt would have liked to have followed Stark’s line, even he realizes that there was no evidence against the players. However, that does not keep him from attacking them, as well as going after Johnson and Taylor, since all of them, in Perkinson’s view, stand for unfettered "white privilege."

Like Stark, Perkinson begins his piece with a long litany of wrongfully-convicted people who have been consigned to American prisons, and even executed. Now, there is nothing wrong with pointing out that fact, and I have done much of that myself, and will continue to do it. However, Perkinson is not doing this so much to call attention to wrongdoing by prosecutors, but to deal with the contrast of poor black (and white) men wrongfully imprisoned to the relatively well-heeled Duke athletes who wrongfully were accused of rape and other crimes.

He writes:

Of all these miscarriages of justice, however, none has attracted as much attention as the comparatively mild Duke lacrosse case, in which a small-time district attorney named Mike Nifong zealously pursued rape and kidnapping charges against three student athletes but finally managed to send only one defendant to jail – himself.

Tapping into national anxieties about sex, class and race, the Duke case provoked outsized passions from the start. Within days of the allegations that white men had gang-raped a black woman near campus, television crews descended on gritty Durham and gothic Duke like fire ants on Cheez Whiz. And the blogosphere – first on the left; then on the right – erupted with indignation. Although spinoff civil suits are still working their way through the courts, three books have already come out on the case. The most ambitious, Until Proven Innocent – a team effort by a prominent journalist, Stuart Taylor, and a Brooklyn College professor turned indefatigable blogger, KC Johnson – has received adulatory reviews in the Wall Street Journal and the New York Times, as well as a contract with HBO for documentary development. Readable, informative, tendentious and ultimately unhinged, the book tries its best to wring wider significance from this Southern tragicomedy. That it fails suggests Americans on opposite ends of the political spectrum are no more ready to hold a civil "conversation about race" – much less rape and race – than they were when Bill Clinton encouraged them to do so in 1997.

What Perkinson fails to point out is that the very reason this case exploded was that journalists and academics across the country decided to make this THE CASE about "white privilege" and nearly every other indictment that leftists want to make about American society these days. Obviously, the players must have been horrible people, according to Perkinson and his media friends, because when the strippers were leaving the lacrosse team party, one of the women called a player a "limp-d**k white boy," to which he called her something rather uncomplimentary based upon her race.

Perkinson continues:

As they drove away, one of the student athletes demonstrated his collegiate knowledge of history: "Hey, bitch, thank your grandpa for my nice cotton shirt."

Such salvos across the color line struck a sensitive nerve around Duke. Although W.E.B. Du Bois had once singled out Durham as one of the most racially enlightened communities in the South, a climate he attributed to the "high ideals" of Trinity College (Duke's predecessor), town and gown have since parted ways. While Duke clawed its way to the top of the college rankings, Durham settled into postindustrial malaise. Today, the South's premier research university sits in a struggling, racially mixed town (46 percent white, 44 percent black) known more for its elevated murder rate than SAT scores. Embittered locals (almost 20,000 of whom work at Duke) refer to their city's largest employer – an institution built on tobacco profits – as "the Plantation."

Actually, the player was quoting a line from the black entertainer, Chris Rock, but there is no doubt that the racially-charged exchange added fuel to the bonfire of the vanities that already was burning in Durham. Yet, given that some blacks from Durham called me a "white mother-f**ker" and made other threats to me because I openly said Nifong was lying, I am not quite willing to see the Duke students as the Second Coming of the Ku Klux Klan. Instead, they were angry kids responding to someone making a racial epithet at them, and that is a sorry but true fact of life.

Now, if Duke today resembled the prep school I attended 40 years ago, when segregation and open racial slurs were still the norm, I could better understand the local hatred for Duke and its students. However, Duke has admitted black students for nearly a half-century and the only reason that even more black students from North Carolina and the Durham area don’t attend is because the locals ostracize these academic high-achievers for "acting white."

It is instructive to point out that the only reason that Nifong actively pursued the case in the way he did was because he desperately wanted to win the election for district attorney, and the only way he could do it was to gain a majority of votes from the black community. And the only way he could do that was to gain indictments, which were met with showers of praise from "black leaders" and a huge majority of black votes in the May, 2006, Democratic primary. He also received more than 90 percent of black votes in the November, 2006, general election, and this came after "60 Minutes" had thorough exposed the case as a sham.

Even after Cooper’s declaration of "innocence," the NAACP continued to post on its website a huge list of inaccuracies and outright falsehoods describing the case. While spouting the language of "due process," the leadership of the North Carolina NAACP set out to eviscerate due process for the Duke defendants, calling for a gag order which clearly was aimed at the defense, since Nifong already had announced he would make no more public statements.

Moreover, the NAACP actively fought an attempt to have a change of venue, declaring that the prosecution would have a better chance of conviction because blacks on the jury would likely vote guilty. Said North Carolina Central University law professor Irving Joyner, who "monitored" the case for the NAACP:

Much of what the defense is putting out there now will never be presented to the jury…. We have a rape shield law and other evidentiary barriers. Nifong may have been engaging in some political showmanship at the beginning of the case. But that does not take away from the value of his evidence and the fact that he has probable cause to pursue the case. He still has a viable shot at victory before a jury in Durham.

He added:

A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina…. This case originated in Durham and should be tried here.

One of the most striking things about this case was that Nifong had no real evidence, and did everything he could to lie about what obviously was exculpatory. Yet, the NAACP and people like Joyner to the very end insisted that there was a rape, and that Durham was "entitled" to a conviction.

Yet, none of this makes it into Perkinson’s narrative, as it does not fit his demonization of the players. It would have been instructive – and true – that the three young men were indicted and faced three decades in prison precisely because they were white, and the black leaders and voters, not to mention the gaggle of Durhamites of the hard left, were demanding scalps.

Perkinson continues his shots at the players and at Johnson and Taylor:

With its high stakes, resonant themes and boomerang denouement, the case has natural story potential, but the authors of Until Proven Innocent fail to do it justice. Although they gained unfettered access to the defense team, the result isn't intimacy or pathos of the sort found in legal thrillers like Jonathan Harr's A Civil Action; it's tedious hagiography. To Taylor and Johnson, the indicted players are not just wrongfully accused but persecuted paragons of modern masculinity. They exemplify not only "tenacious spirit," "pure determination and hard work" – as described by a former Green Beret, no less – but also gentler virtues. One of them, who, embarrassingly for the defense, had been arrested for assault in 2005, is described as having a "reserved demeanor and unusually mild disposition [that] masked a personal warmth." Another is introduced by a fellow student as "the most caring and honorable individual I have ever met."

Such puffery is a necessary staple of the defense bar, but it makes for a dull, intellectually dishonest book. Determined to repel each prosecutorial advance, the authors explain away every foible of the defendants. When a campus committee finds that the lacrosse players, who make up less than 1 percent of the student population, account for 25 percent of the school's disorderly conduct violations, the authors step over the data and emphasize "the report's highly positive major findings," that the players, who are overwhelmingly recruited from Northeastern prep schools, generally receive higher grades than other athletes. When a nonindicted player writes in a widely publicized e-mail that he plans after the next stripper party "on killing the bitches" and "cut[ting] their skin off while cumming in my duke issue spandex," the authors dismiss it as an "off-beat" literary allusion to American Psycho. Rather than flesh out their protagonists as imperfect human beings caught in the depersonalizing clutches of the law, Taylor and Johnson stage them as wooden idols, here sending flowers to the coach's wife, there volunteering for a cystic fibrosis foundation.

As one who not only has read (and reviewed) Until Proven Innocent, I cannot say that I detected such hero worship. Granted, Johnson and Taylor did not demonize the lacrosse players, and anything short of declaring them the Very Spawn of Satan simply will not do for The Nation and its hard-left readership. (I will add that I have spent much time with a number of players and their parents, and find that they are pretty normal people, and certainly do not deserve the demonization that Perkinson and others pile upon them.)

Moreover, it is one thing to make excuses for the players and quite another to present them in a false light. For example, let us look at the "25 percent of the school’s disorderly conduct violations" statement.

Perkinson found that line in the Coleman Report, which was a report of an ad hoc committee at Duke chaired by law professor James Coleman. However, what is instructive about that "25%" statistic is that only four students at Duke that particular year were charged, one being a lacrosse player. One should keep in mind that "disorderly conduct" is a catch-all charge and not exactly a Crime Against Humanity. But one-in-four is a lot different than the massive crimes that Perkinson is trying to insinuate.

(There are difficulties with the statistical analysis used in the Coleman Report. The authors of the report compiled all the charges against the lacrosse players, but only collected the serious violations of the rest of the student body, such as cheating, stealing, plagiarism, and the like. It is instructive that none of the lacrosse players were charged with these kinds of offenses. The authors then compared the more trivial violations of the lacrosse players against the serious violations of the rest of the student body, which violates all sorts of norms of statistical analysis and presents a false picture of the lacrosse team.)

Although Perkinson does admit that Nifong abused his powers and pushed a case despite having no evidence, nonetheless he decides that the Real Sin of this book is how it portrays members of the Duke University faculty. He writes:

…the most dastardly evildoers in this overstuffed polemic are Duke faculty members, particularly "hypersensitive" academics associated with the "politically drenched" women's studies and African-American studies programs. These "rush-to-judgment" "extremists" stand accused not only of shoddy scholarship, obfuscating jargon and voting disproportionately for Democrats – all familiar crimes to readers of David Horowitz – but of organizing an "anti-lacrosse jihad." By trading in "crude, contempt-filled stereotypes of athletes" and "antiwhite racism," Duke's "pretentious prattlers," we are told, managed to create a climate of physical danger for the lacrosse players and blow vital wind into Nifong's sails.

The evidence here – in what is really the heart of the book, the rest of it being mostly cribbed from defense briefs – is surprisingly thin: selectively quoted op-eds, an intemperate open letter, a garbled newspaper ad and sundry leaked e-mails, most of them drafted hastily in the early days of the case, when the police were trumpeting "really, really strong physical evidence" of a detestable crime. But this doesn't stop the authors from making brassy claims. In the age of affirmative action, they tell us, "hate-filled" academics have been able to turn centuries of racial and gender oppression upside down. In this topsy-turvy "Durham-in-Wonderland," as Johnson titles his blog, the victims are "fortunate white people" and campus radicals behave like "white racists of old." The innocent lacrosse players, alas, are not only victims of prosecutorial misconduct but of "mob-driven...race-based justice."

To accept this interpretation requires an elastic imagination. African-American professors make up just 4 percent of Duke's faculty (women, 31 percent), yet Taylor and Johnson would have us believe that the gradual augmentation of their ranks has muddied "traditional conceptions of academic excellence" and bound the whole institution in a "straight-jacket of political correctness."

As one who has been involved in this case from nearly the beginning, I can say unequivocally that Johnson and Taylor exaggerate nothing. The actions taken by 88 of the Duke faculty members, including the rush-to-judgment "We’re Listening" advertisement to the op-ed by Duke historian William Chafe that the proper "context" of the lacrosse case was the 1955 murder of Emmett Till gave Nifong exactly the wind he needed to push (as Perkinson calls) his "Pequod" along. Moreover, while most of the signees from the infamous advertisement came from the Women’s Studies, the English Department, and African-American Studies arena, which make up a tiny percentage of the overall faculty, nonetheless these departments have dominated the administrative promotions that have occurred at Duke since the frame-up began. Writes K.C. Johnson:

An announcement from Duke yesterday: Lee Baker, an associate professor in cultural anthropology and African-American Studies, was named dean of Trinity College. The chair of the search committee described Baker as "very sensitive to student issues."

It’s unclear whether the search committee considered Baker’s decision to sign the Group of 88’s statement – which, after all, rushed to judgment in denouncing Duke students – and then to reaffirm that signature by joining the "clarifying" faculty in January 2007 as emblematic of what the institution means by "very sensitive to student issues."

Baker joins fellow African-American Studies Department faculty member – and the far more strident Group activist – Paula McClain (Academic Council chair) in occupying two of the most powerful academic positions at Duke. Some might consider it remarkable that a department with a mere two percent of the overall Duke undergraduate faculty has managed to secure two such influential positions. Yet the African-American Studies department has defied statistical probabilities before: in a higher total than any other department, 80 percent of AAAS professors joined the Group of 88. The department also paid for the statement out of its official funds, in violation of Duke rules, and hosted the statement on its website for nearly six months.

Furthermore, Perkinson fails to point out that these professors held rallies on campus, praised demonstrators who called for the castration of all of the white lacrosse players, and openly called the players rapists while in class. One of the signees, Kim Curtis, was found to have engaged in grade retaliation against two of the players, and Duke was forced not only to change the grades, but also give a handsome payout to the family of Kyle Dowd, one of the players.

There is one other dishonest statement that Perkinson gives. He writes:

The authors spotlight Alan Gell, a white man wrongfully sent to death row in North Carolina. Conspicuously, though, they omit Darryl Hunt, an African-American North Carolinian who spent eighteen and a half years in prison for raping and murdering a white woman, ten of them after DNA testing proved his innocence. (The Hunt saga apparently provides too awkward a counterpoint to the authors' drumbeat about reverse racism.)

Actually, they did highlight the Hunt case, and I did as well. However, to have found out that small but important fact would have required that Perkinson actually have read the book instead of just lambasting it as a right-wing tirade.

The Duke case was important because it highlighted what happens when politics – and especially identity politics – becomes the polestar in criminal justice. What happened in Durham in 2006 and beyond is little different than what happened in Scottsboro, Alabama, in the early 1930s. The difference was that the races were reversed. However, to understand this point is also to admit that despite their having suffered many injustices, blacks in a position of power are just as capable of perverting justice as the worst of Jim Crow whites.

That point, of course, is anathema at The Nation, and that is why people like Perkinson will continue to create their own fanciful narratives of what happened in Durham two years ago. Like Mike Stark of CounterPunch, Perkinson could not see past his own hard leftist narrative, and so the end product is dishonest.

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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