‘Until Proven Innocent’ and Duke’s President
September 21, 2007
by Robert Shibley
Johnson, a longtime friend of FIRE, and Taylor, an excellent National Journal reporter, have done the nation a valuable service through their chronicling of what they call the most egregious case of prosecutorial injustice in U.S. history that was revealed while the case was unfolding. (Worse cases of prosecutorial misconduct exist, of course, but the vast majority of such cases are only exposed after the fact.) I heartily recommend that you buy the book if you have any interest in the case; we will be ordering several copies for the FIRE office.
One feature of KC and Stuart’s reporting that was of particular interest to me as a Duke alum was the pusillanimous response to the case exhibited by Duke administrators such as President Richard Brodhead. KC, guest blogging on the Volokh Conspiracy, has two great entries on Brodhead’s actions during the case. Both are well worth reading in their entirety, but some of the information is really revealing. For instance, the first entry
Speaking to the Durham Chamber of Commerce, [Brodhead] stated, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.” What, precisely, did [defendants] Seligmann and Finnerty do? They attended a party they played no role in organizing, and they drank some beer.
“Bad enough?” Bad enough for what? Bad enough to deserve to have a rogue prosecutor try to put them in jail for 30 years for “whatever they did?” Brodhead probably didn’t mean that, precisely, but that was his problem all along—he did not have the courage to take a stand when it became increasingly clear that three of his students were being railroaded by a group of people who had it out for Duke in general and the accused students in particular. Brodhead apparently had other concerns, though, as described in KC’s second blog entry
…Brodhead appears to have been cowed by extremists within his faculty. (It’s worth remembering that this case began just over a year after Larry Summers lost a vote of no-confidence in Harvard’s Faculty Council.) A turning point event came in an emergency meeting of the Academic Council on March 30, 2006. The president urged caution and asked faculty to wait for the facts to come in. But the assembled professors, around 10% of the arts and sciences faculty, responded with vitriolic attacks against the team. One speaker claimed that Duke, as an institution, tolerated drinking and rape, and the lacrosse incident reflected a University problem from the top down. Another suggested punishing the team by suspending lacrosse for three years and then making it a club sport. A third asserted that the team embodied the “assertion of class privilege” by all Duke students. A fourth called on the University to do something to help the “victim.”
President Brodhead is not, I think we can all agree, likely to soon be nominated for a Profiles in Courage award. The man and the hour surely did not meet. However, it would be a mistake to come down on Brodhead too hard. There are probably very few college presidents in America who would have acted in a more praiseworthy fashion than Brodhead did if put in the same situation. Indeed, a much larger number probably would have actively and noisily joined those calling for the heads of the lacrosse players. I am grateful, at least, that Brodhead chose to spare Duke that embarrassment.