One of the most discouraging things in following the Duke non-rape case has been the outright cravenness of certain groups whose members see themselves as arbiters of justice. For some people, the facts of the case do not matter; all that matters is for the outcome to mirror their own views of "social justice" and that the rights of individuals be squashed.
While I would like to say that the response of the Duke University arts and sciences faculty has been the most disappointing aspect so far, there are other people who have disappointed me even more. After all, as a member of a university faculty, I am well aware of the things that college professors and administrators are capable of doing in the name of ideology (and sometimes using the language of liberty to promote things that are the antithesis of liberty).
But even as craven and outright evil as many (but certainly not all) of the Duke arts and sciences faculty have been, no one group has been as outright hypocritical and outwardly malevolent as the NAACP, and especially its Durham County chapter. An organization that was founded amidst the violence and injustice of Jim Crow era has endorsed that very violence and injustice in the name of justice.
Started in 1910, the NAACP was formed to deal with the vast network of segregation laws and the wrongful imprisonment and murder of black men in "Progressive" America. An early account goes as follows:
A map of the United States soon appeared in our office with a pin stuck into every spot where there had been a lynching. The lower part of the map was black with pinheads….Our publicity must soon have reached the South, for shortly after the meeting (Rev. John Haynes) Holmes came to us with a post card which he had received from a town where a lynching occurred. It was a picture post card. In the foreground was the dead Negro, and back of him, and on both sides, were the lynchers, clear-cut photographs that could have been used successfully for identification. The men’s confidence that no one would dream of prosecuting them was the most striking thing about the card.
These are terrible words, and for that kind of injustice and malice, which occurred on a regular basis, there really can be no repayment. Furthermore, even though the Jim Crow era is long past, black men still are victimized by wrongful prosecution, something eloquently displayed on the website for the Innocence Project. Because of the attendant publicity given to wrongful convictions, and especially when those convictions involve mistaken identifications by real victims who simply picked the wrong person, one should not be surprised that others who seem to care about wrongful convictions would seek to reform the system.
Historically, the NAACP has done heroic work in this area. Not only are black men victimized by wrongful identifications, but the rush to judgment (to use that hackneyed phrase) and the short-cutting of legal procedures that accompanies misidentifications are major causes of unjust convictions. (The English jurist William Blackstone, who greatly affected the early development of U.S. law, once wrote that it was better that "20 guilty men go free than one innocent man convicted," and the procedures and supposed "safeguards" in our legal system are supposed to place heavy burdens of proof upon the prosecution. When prosecutors and judges seek shortcuts, justice itself is placed in the dock.)
Thus, one would hope that an organization which says it is dedicated to the pursuit of justice would be consistent in its approach to legal affairs, but that clearly is not the case with the NAACP in North Carolina. As the history professor and blogger K.C. Johnson has written,
The NAACP has gone beyond silence. In three ways, it has taken acts involving the lacrosse case that have contradicted its longstanding core principles on criminal justice matters, risking permanent damage to the organization’s moral standing.
Johnson then identifies three areas in which the North Carolina and Durham County chapters of the NAACP have circumvented their own stated policies for controversial cases, those being policies on change in venue, free speech and gag orders, and procedures and criminal identifications.
The NAACP and Changes in Venue
In trials involving blacks being tried in racially-charged cases, the NAACP often has called for changes in venue to better ensure that black defendants face juries that perhaps are more likely to pay attention to exculpatory evidence than local juries. Johnson writes:
The NAACP Legal Defense Fund’s homepage celebrates its triumph in the case of Wilbert Rideau, whose eventual release from prison came as a result of a trial made possible by an NAACP-supported change of venue. Citing extensive pre-trial publicity in overwhelmingly white Lake Charles, Louisiana, the LDF successfully appealed for a change of venue; eventually, the case was heard by jurors from the racially mixed, university city of Monroe. Theodore Shaw, LDF Director-Counsel and President, remarked that the move was about "fairness," because "even the guilty are entitled to a trial untainted by racial discrimination and misconduct."
Contrast this position with that of the local NAACP and its spokesperson, North Carolina Central University law professor Irving Joyner who outright opposes any possibility of a change in venue in order to give prosecutor Michael Nifong a better chance of gaining a wrongful conviction. As Joyner told Sports Illustrated earlier this year:
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.
Obviously, the prospect of the defense being forbidden to defend the accused is one that should give some people pause, but Joyner seems to be saying that perhaps if exculpatory evidence is excluded, a jury will buy the accuser’s tale. Johnson pointedly asked Joyner why he specifically wanted a Durham jury to hear the case, to which Joyner replied:
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.
The words could not be more chilling, and they are even more so because they are the semi-official words of an organization that openly has come out against racially-motivated railroading of defendants into guilty verdicts. Moreover the NAACP — at least until now — never has used the location of the origination of the case as a compelling reason for trying that case in that locality. In other words, Joyner is counting on the judge to exclude exculpatory evidence and for black jurors simply to ignore anything else that might demonstrate the innocence of the defendants.
Gag Orders and Free Speech
Gag orders supposedly are mechanisms to keep prosecutors and defense attorneys and witnesses from publicly discussing cases before they come to trial, and civil liberties groups always have opposed them, or at least until now. Take the supposed position of the NAACP on gag orders that were built into a "victims’ rights" amendment that people were trying to have added to the U.S. Constitution that would have made gag orders easier to obtain:
People of color have also historically been wrongly accused in this nation of crimes varying from the very minor to the most heinous. It is for this reason that the NAACP has also been a strong and steadfast supporter of the Constitution, the Bill of Rights, and the concept of due process in the American judicial system. It is our deeply held belief in the need to protect the innocent and allow every American the right to a fair trial that leads us to oppose . . . the proposed constitutional amendment to protect the rights of victims of crimes, (since) we have grave concerns that the negative effects this amendment would have on the rights of the accused seeking a fair and impartial trial would outweigh the benefits it bestows upon victims. [The letter was reproduced in page S2985 of the 2000 Congressional Record.]
In the Duke case, however, the NAACP has turned its back completely upon that stellar defense of liberty that just was quoted. Instead, the NAACP demanded a gag order only after defense attorneys began to present their public case which raised serious doubts about the nature of the rape, sodomy, and kidnapping charges against Reade Seligmann, Colin Finnerty, and David Evans. Writes K.C. Johnson:
The organization’s record in the Duke case could not have differed more from these principles. In late May, Al McSurely, chair of the NAACP’s Legal Redress Committee, publicly stated the NAACP favored a gag order, which he euphemistically termed a "quiet zone/let’s let justice work" motion. His justification, according to the Durham Herald-Sun, was that "media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial." [emphasis added] McSurely e-mailed me to say that, in fact, a “quiet zone” request was filed, under the auspices of the Durham Conference on Moral Challenges, a group organized by the NAACP, but consisting of over 150 Durham Community leaders, did make such a request.
Furthermore, Johnson points out:
Leaving aside the question of why the NAACP didn’t demand a "quiet zone" when Nifong dominated the airwaves, the Constitution does not confer upon an accuser "legal rights to a fair trial": the accuser has the power of the state on his or her side. Nor can an accuser’s legal rights somehow trump the very real constitutional protections possessed by defendants. The Durham Conference’s argument thus went beyond what even the most extreme victims’ rights advocates have endorsed, much less the more moderate victims’ rights proposal featured in the Feinstein/Kyl (Victims’ Rights) amendment — which the NAACP so fiercely (and appropriately) opposed.
In other words, in this particular case, a "fair trial" does not mean that the courts should respect the constitutional rights of the defendants, but rather should believe the accuser no matter what the defense presents in court. In that one sentence, the NAACP has managed to turn upside down an entire system of rights and confer upon the government a "right" that it does not own: the right to railroad people into illegal and wrongful convictions.
Procedures and Criminal Identifications
Perhaps, there has been no more egregious breach of the law and legal ethics on the part of prosecutor Michael Nifong than the manner in which he had the accuser "identify" the three men who ultimately were charged with the afore-mentioned crimes. As was recently pointed out on the "60 Minutes" broadcast and elsewhere, he showed the accuser only Duke Lacrosse player photographs, which violated the very state guidelines that the Durham Police Department had accepted.
Duke University law professor James Coleman, an African-American who has been outspoken against the prosecution from the start (and one of the few Duke faculty members to stand up against this monstrous injustice), told the Raleigh News & Observer in a letter:
This (procedure) strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.
To put it another way, it was a rigged procedure, guaranteeing an indictment without there really having to be any evidence against a particular individual. As already has been pointed out in numerous places, Seligmann has ironclad proof that he was not present when the supposed "rape" occurred, yet he sits in the dock with a real chance of being convicted and sentenced to 30 years in prison for something he clearly did not do. This is the very sort of thing that the NAACP has claimed to be fighting since its founding.
Yet, what is the present position of this organization? Johnson writes:
In the Duke case, the NAACP has been, to put it mildly, blasé about this issue — despite the fact that the Nifong lineup violated Durham procedures in at least four ways and reflected principles totally at odds with those of police departments and prosecutors elsewhere in North Carolina. Professor Joyner, the organization’s designated monitor for the case, recently commented, "Based on case law from the U.S. Supreme Court and our North Carolina appellate courts, it is very easy for an identification procedure to pass constitutional muster and the written procedure which was adopted at some point by the Durham Police Department is not constitutionally required. Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities." He specifically declined to condemn Nifong’s lineup. McSurely did the same, saying he didn’t want to add to the public commentary on the case, and, in any case, “Mr. Nifong is an experienced prosecutor, and he can defend his decisions before the Court.”
So, on the one hand, the NAACP has long fought against procedurally suspect eyewitness IDs, lest they produce a "conviction . . . based on unreliable evidence." But in the Duke case, the local NAACP has contended that despite Nifong having violated virtually every element of the Durham procedures and contradicted all relevant statewide trends, the jury should decide such procedural questions?
Add to Johnson’s comments that the jury that Joyner wants is a jury made up of people who have no intention of examining exculpatory evidence — or even being permitted to hear such evidence, a jury that will have its collective mind made up before the trial to convict. This is something out of the worst of Jim Crow, yet it is what the NAACP tells us is "justice."
In his interview with "60 Minutes," Professor Coleman reminded people that the very tactics that Nifong has been using in the Duke case are the tactics that can and will be used to wrongfully convict poor blacks who cannot afford the kind of defense that the Duke athletes are able to have. Does the NAACP wish to set a legal precedent that literally will undo everything positive that is has done in the arena of criminal law?