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September 2007 Archives

By ABIGAIL THERNSTROM

This piece was originally published in the Wall Street Journal, 9-6-2007.

Privileged, rowdy white jocks at an elite, Southern college, a poor, young black stripper, and an alleged rape: It was a juicy, made-for-the-media story of race, class and sex, and it was told and retold for months with a ferocious, moralistic intensity. Reporters and pundits ripped into Duke University, the white race and the young lacrosse players at the center of the episode, and the local justice system quickly handed up indictments. But as Stuart Taylor Jr. and KC Johnson show in "Until Proven Innocent"�and as the facts themselves would show when they finally came to light�it was a false story, a toxic controversy built on lies and bad faith.

There was plenty of wrongdoing, of course, but it had very little to do with Duke's lacrosse players. It was perpetrated instead by a rogue district attorney determined to win re-election in a racially divided, town-gown city; ideologically driven reporters and their pseudo-expert sources; censorious faculty members driven by the imperatives of political correctness; a craven university president; and black community leaders seemingly ready to believe any charge of black victimization.

"Until Proven Innocent" is a stunning book. It recounts the Duke lacrosse case in fascinating detail and offers, along the way, a damning portrait of the institutions�legal, educational and journalistic�that do so much to shape contemporary American culture. Messrs. Taylor and Johnson make it clear that the Duke affair�the rabid prosecution, the skewed commentary, the distorted media storyline�was not some odd, outlier incident but the product of an elite culture's most treasured assumptions about American life, not least about America's supposed racial divide.

A bit of college-age stupidity triggered the sequence of events. The co-captains of the Duke lacrosse team held a house party in Durham, N.C., on March 13, 2006, and hired two strippers from an escort service for the occasion. The women who showed up�Crystal Mangum and Kim Roberts�happened to be black.

It turned out that Ms. Mangum�although the public would not learn of such details until very late in the life-span of the scandal�had a serious alcohol and narcotics problem. She had been diagnosed as bipolar and had spent a week in the state mental hospital the previous summer. Having arrived at the party late, she did not start dancing until midnight. Time-stamped photos show that her performance lasted only four minutes. By 12:30 she had passed out, as she often did�it was later discovered�at the Durham night club where she worked as an "exotic dancer." The other dancer, Ms. Roberts, eventually drove her to a grocery store and asked for help, and the security guard there called the police, who assumed that Ms. Mangum was "passed-out drunk."

In the custody of police, Ms. Mangum said nothing about a rape. (Ms. Roberts called the rape charge a "crock" when she first heard of it, until District Attorney Michael Nifong bribed her to say otherwise by reducing a bondsman's fee�from an earlier conviction�by roughly $2,000.) Ms. Mangum, fearing recommitment to a mental hospital, landed on rape as the explanation for her incoherent and generally woeful condition when she was prompted by a nurse-advocate at a mental-health processing facility. There was no medical evidence to substantiate the charge.

In a series of interviews with prosecutors, Ms. Mangum drew wildly different and implausible pictures of the alleged rape. DNA tests from swabs taken the night of the incident revealed that she had had recent sexual contact with as many as four men, none of whom were Duke lacrosse players. Defense lawyers discovered this damning detail only after combing through more than 1,800 pages of documents released by the district attorney months after the testing was done. The DNA cover-up was only one of the procedural travesties that eventually cost Mr. Nifong his job and law license and (last week) earned him a one-day jail sentence.

In two photo-identification lineups, Ms. Mangum couldn't identify anyone as her rapist. On a third try�before which Mr. Nifong announced to her that all the photos that she was about to see were of Duke lacrosse players�she suddenly fingered three: David Evans, Collin Finnerty and Reade Seligmann. It was apparently of no consequence to Mr. Nifong that the lineup violated basic departmental rules and that none of the men she identified bore the slightest resemblance to the descriptions she had given police.

Time-stamped photos�at the party and at an ATM�along with cellphone and taxi records showed indisputably that Mr. Seligmann could not have participated in the 30-minute, three-orifice gang rape and vicious beating of which Ms. Mangum accused the three players. Messrs. Evans and Finnerty did not have such air-tight alibis, but each cooperated fully with the police, even offering to take lie-detector tests, and there was not a shred of evidence against them. The district attorney branded the defendants as "hooligans," but others�like Messrs. Taylor and Johnson here—described them in glowing terms, as earnest, hard-working students.

The state attorney general—after an agonizing yearlong investigation, culminating in Mr. Nifong's removal from the case�determined in April 2007 that Messrs. Evans, Finnerty and Seligmann were innocent of all charges. Nothing�absolutely nothing�had happened at the party. The players' innocence had been apparent to their own attorneys from the outset. It should have been apparent to Mr. Nifong, too, given all the exculpatory details he knew. But he was desperate to win a close primary election and needed black votes, so he proceeded with an unjustified prosecution and publicly vilified innocent young men.

In this fundamental injustice, he was aided and abetted by others in Durham. Richard Brodhead, the president of Duke, condemned the lacrosse players as if they had already been found guilty, demanded the resignation of their coach and studiously ignored the mounting evidence that Ms. Mangum's charge was false. He was clearly terrified of the racial and gender activists on his own faculty. Houston Baker, a noted professor of English, called the lacrosse players "white, violent, drunken men veritably given license to rape," men who could "claim innocence... safe under the cover of silent whiteness." Protesters on campus and in the city itself waved "castrate" banners, put up "wanted" posters and threatened the physical safety of the lacrosse players.

The vitriolic rhetoric of the faculty and Durham's "progressive" community--including the local chapter of the NAACP�helped to intensify the scandal and stoke the media fires. The New York Times' coverage was particularly egregious, as Messrs. Taylor and Johnson vividly show. It ran dozens of prominent stories and "analysis" articles trying to plumb the pathologies of the lacrosse players and of a campus culture that allowed swaggering white males to prey on poor, defenseless young black women. As one shrewd Times alumnus later wrote: "You couldn't invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist." Such Nifong allies�unlike the district attorney himself�paid no price for their shocking indifference to the truth.

Abigail Thernstrom is a senior fellow at the Manhattan Institute and the recipient of a 2007 Bradley Award.

By Stephen M. Bainbridge

This piece was originally published in the Washington Examiner, 7-31-2007. Reprinted with permission.

Washington, D.C. — Let's assume, for the sake of argument, that the climate change phenomenon commonly called "global warming" exists and is being caused, at least in part, by human activity. Who is responsible? The only sensible answer is, everybody. We all contribute to the release of greenhouse gases, as did our ancestors going back at least to the beginning of the Industrial Revolution.

One would therefore think litigation is no more an appropriate response to global warming than litigation would be to any so-called "act of god." One would be wrong.

Earlier this year, Texas trial lawyer Stephen Susman told the Dallas Morning News that "You're going to see some really serious exposure on the part of companies that are emitting CO2." He added, for good measure, that "I can't say for sure it's going to be as big as the tobacco settlements, but then again it may even be bigger."

Indeed, trial lawyers are gearing up to turn global warming into their next pot of gold. A coalition of environmental groups and cities are suing the Overseas Private Investment Corporation and the Export-Import Bank of the United States for making loans to finance oil pipelines, oil drilling, and similar projects that supposedly result in a net emission of billions of tons of carbon dioxide. After Hurricane Katrina, New Orleans trial lawyers Gerald Mapes and Timothy Porter sued dozens of energy companies, claiming they had contributed to global warming.

Last year, Business Week reported that there were 16 pending global warming cases of these sorts pending around the country. More are surely in the pipeline, so to speak.

Indeed, the prospect of a boom in global warming litigation is prompting law firms to begin setting up units specializing in climate change issues. According to the Dallas Morning News, for example, Dallas law firms Vinson & Elkins and Thompson & Knight have set up global warming units with 41 and 26 lawyers, respectively.

If it weren't for the precedents set by tobacco, alcohol, and obesity lawsuits, one might be tempted to dismiss climate change litigation out of hand. After all, the law typically requires a showing of causation. Before you can hold me liable, you must show that but for my conduct you would not have been injured. Typically, you also must show that my conduct was the proximate cause of your injury.

How can one firm—or even one industry—be blamed for a global phenomenon that took decades to arise? Making causality findings and apportioning responsibility in this context is ludicrous. Yet, what might a New Orleans jury still smarting over Katrina do if they got the chance to decide Mapes and Porter's suit?

This is a classic example of why tort reform is a pressing need. The Institute for Legal Reform offers some chilling statistics: "America's civil justice system is the world's most expensive, with a direct cost in 2005 of $261 billion, or 2.09 percent of GDP.

"Tort costs were $880 per U.S. citizen in 2005, meaning the average American family of four paid a 'litigation tax' of more than $3,500 due to increased costs from lawsuits and other liability expenses that force businesses to raise the price of products and services. That cost is equivalent to nearly an 8 percent tax on wages."

These costs are having a dramatic impact on the US economy. A nonpartisan report prepared for New York Senator Charles Schumer and New York City Mayor Michael Bloomberg, found that the "propensity toward litigation" in the United States is "driving growing international concerns about participating in US financial markets."

Along with regulatory excesses like the Sarbanes-Oxley Act, the litigation industry in this country is making our capital markets and our economy as a whole less competitive.

It's time for Congress and the president to step up with legislation that take the question of global warming out of the arena of ad hoc judicial decision making and put it into the hands of our elected officials. Both fairness and efficiency demand it.

UCLA Law Professor Stephen Bainbridge is a member of The Examiner's Blog Board of Contributors and blogs at www.professorbainbridge.com.

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.