Mediation efforts in the Amherst case have failed, and the case has returned to the court docket. The Massachusetts college, about which I’ve written previously, provided perhaps the most troubling of the campus due process cases; the college failed to discover text messages that decimated the credibility of the accusing student (hereafter A.S.), and when the accused student (the boyfriend of A.S.’s roommate) did so, Amherst said it was too late to correct the record.

After the collapse of mediation, there have been three new filings in the case. The most interesting, from the accused student’s attorneys, contains a snippet of the deposition of Allyson Kurker, Amherst’s hired investigator. This case turned on Kurker’s inability/unwillingness to ferret out contemporaneous text messages of A.S.—which portrayed the incident as consensual, in which A.S. considered possible lies about the incident (to spare herself the social fallout), and which contained exchanges with another student that contradicted her subsequent testimony to Amherst.

Not only did Kurker fail to uncover these messages, but her report claimed that A.S. had assured her she had no relevant text messages or e-mails—an obviously false statement. Amherst’s previous filing implied that Kurker only was looking for text messages that confirmed A.S.’s story, or at least that A.S. might have interpreted Kurker’s questions in that way.

That fiction can no longer be maintained. In the deposition, Kurker made clear that when accusers change their minds about whether they were sexually assaulted, what they previously said about their attack isn’t relevant to her inquiry. She added that she was interested in contemporaneous writings from the accuser only “to the extent that the incident is being described as nonconsensual.” Kurker continued: “The only e-mails that I would have found material” were those in which A.S. had described the incident as nonconsensual. This standard suggests that Kurker sees her job as not searching for—indeed, arguably concealing—potentially exculpatory evidence.

A second filing came from Eric Hamako, one of the three panelists who rendered the judgment in the case. Amherst’s procedures deny an accused student a jury of his peers; instead, he goes before three student life administrators from surrounding schools. Hamako then worked at Smith—as program coordinator for the Office of Institutional Diversity and Equity (a position hardly known for employing aggressive civil libertarians). He now teaches at a community college in Washington state.

At one point in the hearing, A.S. indicated that she had texted someone on the night of the incident—to come over and comfort her, she said. (Actually, she had texted this student before the incident with the accused student, and had invited him to her room not for emotional comfort but to have sex.) Yet, of course, Kurker’s report indicated that A.S. had no relevant text messages. Here’s how Hamako responded to this critical information:

So: rather than ask A.S. about the key evidence in the case, and to explore why she had misled Amherst’s investigator, Hamako asked about her relationship with her friends. It’s almost as if he saw his job as not asking A.S. any questions that might undermine her story.

The accused student’s lawyers subpoenaed Hamako; he filed a motion to quash the subpoena, which you can read here. Even Judge Ronnie Abrams, author of perhaps the most unfair due process decision (Vassar), allowed disciplinary panelists to be deposed, in the Peter Yu case. Hamako contends that because the transcript of the hearing is available, he can’t provide any relevant information. He adds that he should be excused from testifying in the civil suit because “courts outright forbid disappointed litigants from probing jurors, judges, arbitrators, and other decision-makers’ mental and deliberative processes.” Yet the entire fiction of the college disciplinary process is that it’s wholly unlike the criminal justice process (with judges and jurors) or even arbitration (with protections for the parties under federal law). Nothing in Hamako’s brief suggests support for providing accused students with the protections of the criminal justice system, which might explain why it would be unnecessary to probe the minds of “jurors” or “judges” in subsequent civil cases.

Hamako’s brief and barebones affidavit, ironically, undermine his case. The brief concedes that he had read Kurker’s report—the report that made clear A.S. told the investigator she had no relevant text messages—before the hearing, where A.S. confessed to the panel that she did have relevant text messages. And his affidavit mentions having received secret training from both Smith and Amherst before adjudicating the case. The Smith training isn’t currently part of the case file, and it doesn’t appear as if the Amherst training is, either. As seen in the handful of cases where training has leaked out (Stanford, Middlebury, Ohio State), this training almost always prompts panelists to return guilty findings. Determining whether Hamako’s training influenced his decision not to challenge A.S.’s misleading remarks seems like pretty important information, especially since if the texts had come to light at the hearing, it seems inconceivable that the hearing outcome would have been the same. And it’s hard to know either (a) what training Hamako received; or (b) why he asked A.S. about the reaction of her friends rather than her contradictory text message testimony without deposing Hamako himself. Certainly that information isn’t available from the transcript.

Amherst, meanwhile, accompanied the failed mediation by asking to submit more written material, and accompanied the request with a 25pp. memorandum. The judge granted the request, but reduced the page length. The original memo mostly either repeated the college’s earlier arguments or simply misrepresented the arguments offered by the accused student.

A couple of arguments of note:

–Citing to a decision a few years ago regarding a case at Holy Cross, Amherst asserts that it has “broad discretion” to discipline accused students. But “broad” isn’t “unlimited,” which is essentially the standard that the college would need to survive the facts of this case. Amherst, again, is demanding that no judicial review occur even in a case where the accused subsequently proved his innocence, using evidence that any reasonably competent investigation from the college would have uncovered in the first place.

–The college explains away Investigator Kurker’s failure to uncover the key evidence in the case (the text messages—which the accused student’s lawyer uncovered without the benefit of authority that Kurker possessed, much less a subpoena) as par for the course. After all, the college reasons, no one could expect that an investigator “will find every piece of information that could possibly be relevant, or that a ‘thorough, impartial, and fair investigation’ will be flawless.” Expecting the college to uncover the key evidence, Amherst contends, is expecting “perfection.” The indifference to the truth—for an institution of higher learning—is remarkable.

My guess is that Amherst won’t be sharing either this brief, or Alyson Kurker’s deposition, with parents of prospective students.

 

 

With the broadcast of Fantastic Lies, author William D. Cohan has lashed out in increasingly vitriolic terms to the 30 for 30 documentary—though relatively few people seem eager to hear what he has to say. Apart from his review in Vanity Fair, he did a brief interview with the New York Daily News, saw Slate post a 2014 interview, and conducted a new podcast interview.

As he demonstrated during his book tour, Cohan tends to be more extreme in his interviews than in his written work. So I listened to the podcast, which doesn’t appear to be downloadable.

Whining

The bulk of Cohan’s Vanity Fair review revolved around an extended complaint that after he got paid to option his book, the resulting documentary didn’t embrace his theory of a wide-ranging conspiracy between the AG, the AG’s investigators, the State Bar prosecutors, the State Bar ethics panel, the judge, the defense lawyers, and unidentified out-of-state actors.

In his podcast interview, Cohan repeated the complaint, and added a concern with the failure of his face to appear on the screen. “The documentary,” he lamented (3.12), “was supposed to be based on my book.” And yet, he continued (3.35), “this final film contains none of my interviews, nothing from me.”

The frustrated author returned to the theme seven minutes later, charging that the filmmakers (10.44) “could have aired pieces of my interview, which I did with them for six hours.” In case the listeners didn’t hear him the first two times, he added, “If they wanted to present an alternative narrative . . . they could have included me.”

Such remarks come across as petulant.

Cohan suggested that filmmakers missed out on a golden opportunity to include snippets of his allegedly 20 hours of interviews with convicted liar Mike Nifong. He has previously claimed that he would make these items publicly available. If the discussions are so revealing, why not post them on his website?

The author also complained that the documentary didn’t feature any snippets from his jailhouse interview with false accuser Crystal Mangum. He did concede that Mangum was in prison—but could only say (4.04) that she was there “for a different crime.” How many podcast listeners understood that this “different crime” was murder? Why couldn’t Cohan bring himself to mention it?

Cluelessness

The podcast suggested an almost complete lack of self-awareness by the defensive-sounding author.

For instance, at 8.22, Cohan asserted, “For the first time, Mike Nifong agreed to talk to a journalist, and it was me. So, what did I do? I interviewed him and I got his side of the story.”

Nifong, of course, gave dozens of interviews to journalists before the indictment. He returned in late 2006 for a lengthy sit-down with journalists from the New York Times (by that point, he later testified, the only newspaper he continued to read). So, yes, apart, from around 50 other journalists, Nifong spoke to Cohan for “the first time.”

Yes, it’s true that Cohan got Nifong’s “side of the story”—one that differed in important respects from testimony he made, under oath, to the State Bar in 2007. That appearance included questions from the disgraced DA’s lawyers, in a public forum, live-streamed by WRAL. Perhaps Cohan believes that Nifong’s own lawyers didn’t allow him to tell “his side of the story,” but that’s hard to believe.

Cohan also offered insight into his research technique (8.05): “What I did,” said he, “was what any self-respecting investigative journalist would do.” He went “back and try to interview as many of the principal people involved in this tragedy as possible.”

That list of “principal people” evidently didn’t include the AG’s investigators, the judge handling the case, the State Bar prosecutors, the State Bar disciplinary panel, the defense lawyers, and Mike Nifong’s campaign manager. Cohan didn’t explain why he chose the unusual technique—especially for a “self-respecting investigative journalist”—of not even trying to speak to these “principal” actors in the case. Distressingly, the podcast host didn’t raise the issue.

Cohan, whose book is filled with hundreds of pages rehashing other authors’ work, denounced the documentary as a “rehash” (4.44) that “miserably” failed to tell “the story in its nuance.” (“Nuance” is Cohan’s code for the AG-AG’s investigators-judge-State Bar prosecutors-State Bar ethics panel-defense lawyers-other actors conspiracy.) Why did the film take this approach? Cohan offered a “theory” (6.22): “Let’s face it, Duke and ESPN have a symbiotic relationship.”

This conspiracy theory is even stranger than Cohan’s claims about the State Bar. According to the author, Duke’s leadership—headed by a man who declared after Reade Seligmann and Collin Finnerty were indicted that “if they didn’t do it, whatever they did do was bad enough”—might have pressured ESPN to produce a documentary that would vindicate the claims of the same former students who President Brodhead (and the Group of 88) so eagerly denounced.

Cohan’s only explanation for this remarkable leap of logic was that Duke men’s basketball games get high ratings on ESPN.

Bu conspiracies are everywhere for William D. Cohan. At 8.43, he bizarrely claimed that unidentified “people” “objected to me even talking to [Nifong].” He continued, “They resented the fact that I went back and really figured out what happened here and why.”

So what did happen? Cohan doesn’t say. And who were these unidentified “people,” the “they” who resented his fact-checking prowess? Again, he doesn’t say.

Ethics

To the extent Cohan used his roughly ten minutes of interview time, he focused on his belief that even the most unethical prosecutors should be allowed to plow forward, unobstructed, to trial.

Almost wistfully (at 7.45), the author remarked, “There’s nothing I can do to rehabilitate the career of Mike Nifong. Unfortunately, [emphasis added] as you said, he was fired from being the DA.”

It’s nothing short of amazing that Cohan feels bad that a prosecutor lost his job after breaking myriad rules trying to put people in prison for 30 years for a crime that never occurred.

Cohan also repeated his bitter denunciation of the State Bar, who he now claims was “employed” by the “clever” defense attorneys to “subvert the justice system” by getting Nifong off the case. As a result (12.03), Nifong was not allowed to put on his case”—a case in which the “evidence wasn’t great” and in which the prosecutor losing at trial “probably would have been the right outcome.” Instead, the AG’s investigators conducted a thorough four-month investigation, uncovered evidence Nifong (in either his callowness or laziness didn’t discover), AG Roy Cooper publicly indicated that the accused students were innocent. This outcome continues to enrage author Cohan, who fumed (at 9.33) that “innocence isn’t a word that is used in jurisprudence” and that Cooper shouldn’t have spoken because he wasn’t “in the [captains’] bathroom” the night of the party.

(Cohan, it’s worth noting, is describing a case in a state that features the North Carolina Innocence Inquiry Commission, whose members are selected by two experts in “jurisprudence,” the chief justice of the North Carolina Supreme Court and the chief judge of the Court of Appeals.)

Cohan, alas, seems to believe that a trial should occur even in cases where the prosecution considers to the accused innocent, to satisfy the prurient curiosity of serious investigative journalists. In this case, Cohan’s trial-at-all-costs vision would have required:

(1) The State Bar overlooking obvious evidence of ethical improprieties by Mike Nifong, evidence so obvious that it would result in Nifong being found guilty on 27 of 32 ethics charges;

(2) Judge Smith ruling in a pre-trial hearing that the photo array evidence (the only evidence Nifong had against the accused students) was procedurally proper, even though it flagrantly violated Durham Police Department guidelines.

(3) The prosecution ignoring massive evidence of actual innocence, chiefly the DNA reports and the timestamped photos.

Even if the State Bar had been as indifferent to ethical improprieties as Cohan wished, and even if an unethical Nifong could have stayed on the case, Judge Smith likely would have ruled against the IDs.

As the interview neared a conclusion (at 14.00), Cohan confessed, “I believe I figured it out.” But, as in all of his interviews, Cohan offered no additional insight. Perhaps Cohan and Nifong can co-publish a sequel in which they reveal their theory of the “crime.”

Whenever I have given talks about the Duke lacrosse case, I usually have noted that removing bylines would lead most readers to guess that it was the Duke Chronicle articles that were produced by the paper of record, and the New York Times’ by a university newspaper. I always have remarked that this student newspaper was the sole publication that had nothing for which it needed to apologize in its coverage of the case.

That claim no longer is tenable, after an embarrassing—and, in light of the 30 for 30 documentary, spectacularly ill-timed—recollection of the Group of 88 by Neelesh Morthy. I normally refrain from sharp criticism of a student newspaper’s articles. But this highly revisionist piece—entitled “Misreading ‘A Social Disaster’”—was so poorly done (and so remarkably uncurious about what its subjects told the reporter) that it deserves comment, especially given the Chronicle’s previous high standards on the case.

Morthy interviewed four members of the Group, two of the Group’s faculty critics (Steve Baldwin and Roy Weintraub), and one of the Group’s faculty defenders (Jim Coleman). To one of the Group members—presumably a tenured professor, given the passage of time between 2006 and now—Morthy granted anonymity. Thus protected, the anonymous Group member proceeded to claim that he or she offered to pay bail for an accused student. The bail for the falsely accused players was $400,000. (Did a Group member really have hundreds of thousands of dollars laying around in the spring of 2006?) The never-before-seen claim was so remarkable that I assumed Morthy tried to verify it with the falsely accused players or their attorneys. Yet his article did not refer to a request for comment.

So I e-mailed Morthy to ask. The first response thanked me for offering “suggestions” if Morthy decided to “follow-up [sic] on the topic.” The e-mail had made clear it was asking a question, not offering suggestions for an additional article that surely would never appear. When I again asked whether he had sought comment from any of the falsely accused players or their lawyers before printing the claim that a Group member offered to put up a $400,000 bail, Morthy replied, “I decline to comment.”

Declining to comment about performing a basic journalistic task isn’t a good look for the Chronicle.

At least one section of the article left it unclear whether Morthy had even read the Group’s ad. He chatted with Christine Beaule, who has left Duke to teach at the University of Hawai’i. (Beaule, who is at least the tenth Group member to get another academic job, gushed that her current institution, as the reporter paraphrased, “has more respect for minorities, less sense of entitlement and that racist statements are not used as loosely as she sometimes found at Duke.”) Beaule informed Morthy that, “With all due respect to The Chronicle, it’s not an important place to promote a message. It was just another space.”

Yet the statement itself said something entirely different—that the Group members placed the ad in the Chronicle because they considered it “the most easily seen venue on campus.” Morthy’s article provided no indication that he asked Beaule (a former writing instructor!) about this contradiction. Instead, he just passed along her misleading statement. And since the copy of the ad accompanying the article (at least on the Chronicle’s website) was too small to see clearly, readers could not easily check.

Morthy also spoke with Alex Rosenberg, consistently one of the Group’s most defiant members. In 2006, Rosenberg was outspoken in his criticism of Reade Seligmann; he told me that fall that he was “ashamed” of Seligmann. Rosenberg informed Morthy, however, that “[Seligmann] didn’t seem the kind of person who would be guilty of a violent crime.” What explains this remarkable shift of opinion? Why didn’t Rosenberg communicate this sentiment in 2006, when it might have made a difference? Morthy seemed uninterested in exploring such issues.

While a sharp critic of Mike Nifong, Jim Coleman also has been defending the Group almost since the day the criminal aspect came to a close (Nifong’s criminal contempt hearing). He did so again in his Chronicle interview; Morthy paraphrased him as musing that the statement “had no impact whatsoever on the case or on Nifong’s improper conduct.” No prominent critic of the Group ever claimed that the Group had an impact on Nifong’s misconduct, so Coleman was left to argue against a straw man. On the first point (as Coleman, if not Morthy, surely knew), the ad negatively influenced local opinion to such an extent that it played a prominent role in the accused students’ motion to change venue—perhaps the first time in American history in which college students cited their own professors’ words as grounds for taking a trial out of the university’s town. Did Coleman’s remarks to Morthy suggest that the Duke Law professor was prepared to file an amicus brief on Nifong’s behalf if the change-of-venue motion had gone before Judge Smith? Yet another question the Chronicle left unexplored.

Morthy’s . . . unusual . . . approach to journalism seemed in service of portraying the Group of 88 statement as a generalized response to racism or sexism, but not a rush to judgment on the case. (“It wasn’t about the kids at all,” assured Beaule.) Though Group members have been advancing such a claim for years, it’s rather hard to do so—since in the cover e-mail soliciting signatures, Wahneema Lubiano described the statement as “about the lacrosse team incident.” [emphasis added] Morthy disposes of this problem by not mentioning Lubiano’s cover e-mail in his article.

Even so, the actual wording of the ad renders Morthy’s “misreading” framing absurd. The Group affirmed, in their own words, that something “happened” to false accuser Crystal Mangum. And they expressed their thanks—“for not waiting”—to the protesters that swarmed the campus in late March 2006. The highest-profile of these protests included the potbangers (who advocated the captains’ castration), the “open-mike” protests (which featured speakers, wearing t-shirts, presuming guilt), and the “Take Back the Night” protest (which saw the distribution of the “wanted” posters).

Morthy gets around this inconvenient problem of the statement’s own language by not mentioning either of these clauses in his article. I asked him why. The response? “I decline to comment.”

Alas, Morthy’s timing couldn’t have been worse. Three days after his article appeared came the 30 for 30 documentary, whose opening section contained length video of the protesters who the Group of 88 thanked, publicly, for not waiting. Did Morthy—and the Group members who spoke to him—somehow hope that ESPN would cancel the documentary before it was broadcast?

Morthy, of course, cannot be faulted for multiple current and former Duke professors misleading him in an attempt to whitewash their performance in the lacrosse case. He can, however, be faulted for seeming to view his role as (at best) an uncurious stenographer. It’s a shame to see the Chronicle lower its standards and sacrifice its strong record on the case in a futile effort to redeem the Group’s reputation.

In 2014, financial industry author William D. Cohan stepped well outside his area of expertise to pen a book on the Duke lacrosse case. His revisionist work advanced a three-part thesis:

1. Something happened in the bathroom at the lacrosse captains’ house on the night of the spring break party, but Cohan couldn’t or wouldn’t say what happened.
2. The primary victim in the lacrosse case was former District Attorney Mike Nifong, who was “crucified” for his efforts to fairly adjudicate the matter.
3. A shadowy conspiracy including AG Roy Cooper, Cooper’s investigators, the state bar disciplinary panel, the state bar prosecutors, the judge in the criminal case, the defense lawyers, and unidentified out-of-state donors subverted justice. This conspiracy was so sophisticated that it bequeathed no evidence that an author of Cohan’s skill was able to uncover.

Cohan reached these conclusions by gathering new evidence—interviews with a convicted murderer (Crystal Mangum), a convicted liar (Nifong), the lawyers for a convicted liar (Nifong), and a fanatic faculty critic of the lacrosse players (Peter Wood). Cooper declined to speak with him; and, for reasons Cohan never explained, he did not seek to interview Cooper’s investigators, the state bar disciplinary panel, the state bar prosecutors, the judge in the criminal case, the defense lawyers, or Nifong’s former campaign manager.

I extensively analyzed Cohan’s book at Durham-in-Wonderland (you can read those posts here; if you just want a short version, I’d recommend this post). But Cohan is back, with a highly critical review of the upcoming ESPN 30 for 30 documentary, Fantastic Lies. (Every other published review of the documentary has been glowing.) It seemed worthwhile, therefore, to take a closer look at Cohan’s essay, which suffers from the same problems of his book: a basic misunderstanding of how the criminal justice system is supposed to work; a crediting of the word of convicted liars and murderers over the evidence that actually exists; and a deeply emotional hostility to the lacrosse players, the Duke students who supported them, and the defense lawyers in the case, whose work played such a role in exposing the misconduct of Cohan’s hero, Mike Nifong.

Cohan’s review introduces the party. A fisking then follows:

You may remember bits and pieces of what happened next. Mangum was black. All but one of the players on the lacrosse team were white. Among them were David Evans, Reade Seligmann, and Colin Finnerty, all of whom Mangum later accused of raping and sexually assaulting her in the house’s small bathroom. The young men were subsequently indicted by a Durham County grand jury after a police investigation and a nurse’s examination convinced Mike Nifong, the district attorney, that a crime had occurred. The indictments created a firestorm that played out in the media (including this publication) and on cable-news channels, and all across the Internet. It ignited a national debate about sexual assault on college campuses that rages to this day.

There’s absolutely no evidence that “a police investigation and a nurse’s examination convinced Mike Nifong, the district attorney, that a crime had occurred.” On March 27, 2006, Nifong gave a barrage of interviews making clear his belief a crime occurred. Those statements came before he had ever read the report of SANE-nurse-in-training Tara Levicy. And apart from Mangum’s disjointed statements, there was no evidence from the police investigation on March 27, 2006 that would have corroborated Nifong’s first pronouncements of guilt—Mangum couldn’t identify any of her alleged attackers; three captains had given police statements indicating that nothing happened; the second dancer, Kim Roberts, gave a statement that didn’t back up Mangum’s story; and the first officer on the case, John Shelton, disbelieved Mangum.

In this respect, Cohan’s statement about Nifong is, at minimum, willfully misleading.

But the Duke lacrosse case, as it came to be known, wasn’t so simple. In fact, its nuances were hard to behold and poorly understood. Soon after the indictment, as the Duke students hired top-notch defense attorneys, the narrative began to change and a vexing legal circus ensued. Mangum could no longer recall with precision exactly what happened on the night of March 13, 2006. Nifong overzealously championed his case in the media. The DNA evidence did not match any of the three players, but it showed that other men had been with Mangum in the week before the incident.

What Cohan doesn’t mention here (and what Vanity Fair readers presumably wouldn’t know) is that Mangum’s eventual story claimed a 30-minute gang rape in which her perpetrators didn’t use condoms. If the “DNA evidence didn’t match any of the three players,” it’s pretty hard to see how Mangum could have been telling the truth—or that Cohan’s claim that “something” (but he won’t say what!) happened in the bathroom could possibly be true.

In a clever tactic, the defense attorneys turned to the North Carolina State Bar to intervene, and for the first time in its history, the state bar brought charges against a sitting district attorney—Nifong—for being too outspoken and concealing the crucial DNA evidence. Nine months into the case, Nifong dropped the rape charge and offered Mangum the chance to abandon the entire case. But she refused his offer. She said she wanted justice. Eventually, to defend himself in front of the state bar, Nifong had to recuse himself from the case, and he handed it over to Roy Cooper, the North Carolina attorney general who four months later dropped the remaining charges against the players, declared them “innocent,” and called Nifong a “rogue prosecutor.”

This is a quite remarkable paragraph. The defense lawyers—facing a prosecutor who flagrantly violated multiple ethics rules—filed an ethics complaint. What were they supposed to do? Thank Nifong for violating ethics guidelines? The state bar—receiving a complaint about a prosecutor who flagrantly violated multiple ethics rules—adjudicated the case, culminating in open proceedings (which Cohan could have personally attended, but did not). What were they supposed to do? Release a statement affirming that prosecutors don’t have to follow ethics guidelines? Cooper didn’t simply “four months later” declare the players innocent. He did so based on the results of an investigation overseen by two senior prosecutors (whom Cohan didn’t try to interview), which uncovered even more evidence undermining Mangum’s tale.

Cohan’s America, it seems, is one in which prosecutors convinced of the “justice” of their case can break any and all ethics rules, without consequences.

In the end, there was no trial—a fact that most people forget. The three players received $20 million each in a settlement with Duke. The university spent more than $100 million between legal fees, settlement costs, and other expenses to move on from the ignominy and preserve its “brand.”

As Stuart and I (independently)—as well as Bernie Reeves many years ago—have reported, the total settlement with the three falsely accused players was approximately $20 million. (Cohan cites no evidence for his fantastic claim.) Settlements with the other players and ex-coach Mike Pressler were no more than $5 million combined. So if the university really “spent more than $100 million between legal fees, settlement costs, and other expenses,” this claim means that Duke’s lawyers made out with around $75 million. Perhaps Cohan should file an ethics complaint against them for overcharging their client.

…But the problem with Fantastic Lies isn’t its opportunistic programming as much as its uneven portrayal of the events in question. The Duke lacrosse case, after all, was remarkable for, among other things, its enormous complexity. This was the main point I tried to convey in The Price of Silence, my book on the scandal, which came out in 2014. (I should mention—not with any sort of Dickensian pretensions—that the final version clocked in at 614 pages for a reason. The innumerable subtleties of the story demanded it.) For the first time, Nifong explained his motivations for prosecuting the case with such zeal. For the first time, Mangum shared what she believed happened on the night of March 13, 2006. Cooper, the state attorney general, never charged her with making false accusations in the lacrosse case; she told me she still believed she had been sexually assaulted.

Anyone who actually has slogged through The Price of Silence must have guffawed at Cohan’s explaining the 614 pages by citing the “innumerable subtleties” of the case. The book contains hundreds upon hundreds of pages of filler material—random paragraphs, one after another, summarizing other articles, or interviews, or blog posts (including some of mine) that read as if they were at least initially prepared by a research assistant. The book could have been cut by 50 percent without affecting it in any way, other than making it easier to read.

The fall after my book came out, Jonathan and Simon Chinn, the principals at Lightbox, wanted to option The Price of Silence for a documentary. Simon Chinn was the producer of the Oscar-winning documentaries Searching for Sugar Man and Man on a Wire. They explained that they wanted to tell the true, multi-faceted story of what happened, not just the sanitized version that the players, their parents, and their attorneys preferred—and the one that everyone now remembers and accepts as fact. On the other hand, after they signed the contract and paid my fee, they were free to make whatever movie they wanted.

After a few false starts, the Chinns selected Marina Zenovich to direct the film. She was known for her two documentaries about Roman Polanski and another about Richard Pryor. She seemed genuinely moved by the incredible complexity and many subtleties of the story. In December 2014, she filmed me for close to six hours at the Brooklyn Navy Yard. After that, I helped her and the Chinns when I could. After Nifong declined to be interviewed or filmed, they asked me for the tapes of my conversations with him in order to include his voice in the documentary. With Nifong’s permission, I gave the Chinns 20 hours of my digital recordings, plus the transcripts, of our conversations. After they asked, I also gave the Chinns the digital recording of my conversation with Mangum, who is now in the North Carolina Correctional Institution for Women, in Raleigh, where she’ll be for the next 14 to 18 years as a result of her 2013 conviction for second-degree murder in her boyfriend’s death. (The prison would not allow Zenovich to film Mangum.)

I did not get much information along the way about the film. Nor did I really expect any. I am hardly the first writer to be kept in the dark about how his book was being used, or not, in a documentary film. Occasionally, Jonathan Chinn and I would speak. After each conversation, I felt reassured. “It’s a dense topic and not a straightforward story from any angle,” he wrote me in September 2015. “That’s what makes it so fascinating. Editorially, we are interested in unpacking the way in which this story fed into a city, state, and country’s pre-existing racial and economic dysfunction and provided every side with a runaway bandwagon to jump onto. Some of the archive we have sourced of what was going on in Durham and on campus is remarkable in its expression of raw anger, mistrust, and frustration. It’s turning out to be a story as much about the fallibility of the media and our universities as anything else. . . . Juicy stuff!”

In December, the Chinns sent me a cut of Fantastic Lies. It was breathtaking, but not in a good way. Nothing from my interview was used, nor were any of the recordings I shared with them from Nifong or Mangum. Instead, Fantastic Lies presents the narrative that the parents of the indicted players and their defense attorneys have been busily trying to preserve in amber for years: that the players were falsely accused, and that the Durham police, aided and abetted by Nifong, the rape nurse, and the media created an epic conflagration. Instead of grappling with why there never was a trial and how the North Carolina State Bar was used to subvert justice, the film once again spews the defense version that justice was served, even though it was not, and that no amount of money, not even $20 million, could ever compensate the three players for what Mangum and Nifong did to them.

These four paragraphs represent the heart of Cohan’s review. He was happy to take the Chinns’ money as payment for the option on his book, but now is whining that the final documentary didn’t feature snippets of his interview with Marina Zenovich.

I haven’t seen the documentary. But I’m not at all surprised that it doesn’t include material on “how the North Carolina State Bar was used to subvert justice”—since (I assume) any broadcast at ESPN has to be cleared by the network’s counsel. Lawyers generally won’t clear fact-free ruminations of a broad government conspiracy.

Although I find Cohan’s book substandard, it’s hard not to pity him. When the book originally was optioned, he doubtless told his friends and colleagues that a documentary would appear that would vindicate his deeply revisionist interpretation of the case. But the documentary team did the investigation that author Cohan did not. And much like Mike Nifong’s experience after Roy Cooper’s team did the investigation that prosecutor Nifong did not, Cohan is now left to be humiliated before his friends, colleagues, and a national television audience.

We’ll never know what really happened in that that bathroom 10 years ago, and the house itself has long since been torn down. To be sure, Fantastic Lies is more than just a bunch of fantastic lies. But it can certainly seem that way. In the end, sadly, it is another major missed opportunity to explain to a wider audience the complex story of the Duke lacrosse case.

The first sentence is nothing more than a recapitulation of Cohan’s “something-happened-but-I-won’t-tell-you-what-thesis.” But the second sentence is extraordinary—author Cohan asserting that the documentary contains a “bunch” of “lies.”

That’s an unequivocal, factual assertion. Perhaps Cohan would have been better served spending more time in his review identifying even one of these lies (he doesn’t, even as he misstates—twice!—the amount of the settlement) and less time petulantly complaining that the documentary doesn’t contain any clips of his interview.

At this stage, I’d urge Vanity Fair to ask Cohan to identify, publicly, the “bunch” of “lies” in the documentary. And if—as I strongly suspect—he cannot do so, I hope that VF would retract the column and publicly apologize to the documentary team.

As for the review: intense criticism from a Nifong apologist like Cohan suggests that the filmmakers got the story right.

The Chronicle has a multi-faceted look back at the lacrosse case, ten years later. The discussion with Richard Brodhead (who declined to be interviewed for the upcoming 30 for 30 documentary) was particularly revealing.

Four quotes, none of which Brodhead appears to have been asked about for the article.

Brodhead, April 2006:

“We can’t be surprised at the outpouring of outrage. Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure.”

Brodhead, today:

“I am certainly at ease in my conscience with the role that I played.”

“I don’t spend my time looking back on this.”

“This was distracting.”

————

Brodhead, April 2006 (in his first public appearance after the arrests of Reade Seligmann and Collin Finnerty):

“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.”

Brodhead, today:

“I am certainly at ease in my conscience with the role that I played.”

“I don’t spend my time looking back on this.”

“This was distracting.”

————

Brodhead, April 2006 (in an internal e-mail to his top advisors, apparently suggesting an appropriate prism through which to view the case):

“Did you ever see the movie with Edward Norton and the [C]atholic elementary school?” The movie, Primal Fear, featured a guilty Norton tricking his lawyers into believing his innocence.

Brodhead, today:

“I am certainly at ease in my conscience with the role that I played.”

“I don’t spend my time looking back on this.”

“This was distracting.”

————–

Brodhead, July 2006:

“We are eager for our students to be proved innocent” at trial.

Brodhead, today:

“I am certainly at ease in my conscience with the role that I played.”

“I don’t spend my time looking back on this.”

“This was distracting.”

———

Two notes:

There’s no indication from the article that Chronicle reporter Gutham Hathi ever asked Brodhead about these quotes, or whether he continues to stand by them.

The only people quoted in the article, which reflects on Brodhead’s performance, are Brodhead, his current or former advisors, and a Durham resident active in a neighborhood association.

The case of Yale basketball player Jack Montague has gotten a lot of press in the last few days. At this stage I know nothing of the specific facts of the case. But there are several concerns that deserve mentioning:

(1) The fiction of the college disciplinary process is that it address violations of the campus code, not felony offenses. Therefore, it’s acceptable for colleges and universities to deny basic due process to accused students. At Yale, that means a student accused of sexual assault has:

• no right to the discovery of exculpatory evidence (even if the university, lacking subpoena power, stumbles upon it);
• no right to see the full evidence upon which the university relied to make its determination
• no right to an impartial panel (panelists receive secret “training,” which at the few universities where it has been revealed—Stanford, Ohio State, Middlebury—has been guilt-presuming);
• no right to meaningful representation by a lawyer in the disciplinary process (he can have a lawyer, but the lawyer can’t ask questions or address the panel);
• no right to meaningfully cross-examine the accuser (questions must be submitted in writing to the panel, which can ask them or not, at its discretion);
• no plausible right to follow-up cross-examination questions (see this Scott Greenfield post for the significance of this denial).

Again, the justification for these denials of basic due process is that no one is accusing the student of rape.

How, then, to reconcile this fiction with posters that blanketed the Yale campus asking the Yale basketball team to “stop supporting a rapist” [emphasis added]?

When the alleged disciplinary offense is the same as a felony, the idea that deny due process serves the interests of fairness is preposterous.

(2) Of the media coverage of this issue, one article handled the issue responsibly. In the New Haven Register, Chip Malafronte wrote: “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

Every article on this case should contain such a sentence. How can someone be a “rapist” if he hasn’t even been charged with a crime—much less convicted?

Other coverage of the case (Jezebel unsurprisingly stands out here) has been far less responsible. And I very much doubt, based on how this general issue has been covered in the last several years, that many reporters will follow Malafronte’s example.

(3) Moreover, all coverage of this incident should place Yale’s policy in a specific context. First—as I’ve pointed out in many essays at Minding the Campus—this is a university whose handling of sexual assault allegations is fundamentally unfair, and seems based more on a response to moral panic than a pursuit of justice.

Second, and of particular importance for this case given the posters blanketing the campus, Yale itself has admitted (in the words of Deputy Provost Stephanie Spangler) that the university “uses a more expansive definition of sexual assault” than required either under federal law or by the Connecticut criminal code.

Yale has never explained why it chose to redefine a term commonly understood in both culture and the law. And at this stage, it’s not public what specific allegations Montague even faced. But to the extent he faced allegations that don’t fit the definition of sexual assault, and as a result of Yale’s actions he has now publicly been branded a “rapist” in campus posters, it would seem that he has suffered real harm from Yale’s peculiar use of the dictionary.

(4) In the past few weeks, a lawsuit against the University of Tennessee and continuing controversy at Baylor have both shown that, in specific contexts, star athletes appear to get special treatment in sexual assault allegations.

But most accused student-athletes aren’t football or basketball players at Power Five conferences, and I know of no evidence that accused student-athletes in any other context get treated any better than the typical accused student. That is: they, too, are subjected to the kind of due process-unfriendly procedures that Montague apparently experienced.

Montague’s case is a reminder that in one important respect, accused student-athletes get worse treatment than the typical student. Perhaps the only meaningful protection for an accused student in the college disciplinary process is its secrecy—their chances of a not-guilty finding aren’t good, but at least the finding won’t become public.

But for athletes, as former Yale quarterback Patrick Witt and now Montague have discovered, maintaining that secrecy is much harder than for a non-student-athlete. In Montague’s case, because he was in the public eye, his departure from the team unsurprisingly raised questions that would not have been asked in the case of another student.

(5) In an official statement, Yale unsurprisingly (and appropriately in this instance) shielded itself behind FERPA and declined comment.

But, incredibly, an agent of the Yale administration took a different course. As quoted by Malafronte, the Yale Women’s Center released a public statement purporting to “speculate” and then adding: “[W]e can comfortably say that, should all of this be true, this is progress. It seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for . . . Though we can only speculate as to the intent behind the basketball team’s shirt protest, the team’s actions appeared to be a dismissal of the very real threat of sexual violence.”

In other words: an official Yale agency all but confirmed that Montague was expelled for “sexual violence.”

Between the publication of the Register article and this morning, someone (Yale’s general counsel, perhaps?) appears to have spoken to the Women’s Center, which released a modified statement “recogniz[ing] that FERPA and Yale policy prohibit Yale from commenting on the exact nature of any specific incident.”

But the Women’s Center has already commented. Its comment all but confirmed the rumors. And that comment, along with the harm it caused, can’t be undone.

The revised statement contains no apology to Montague.

Beyond the considerable personal, financial, and emotional toll that comes with waging a federal lawsuit, one other item confronts accused students if they decide to go to court—the randomness of judicial assignments. Two cases from last week show how, in most of these cases, the outcome depends almost entirely on the judge to whom the matter is assigned. An indifferent judge will jettison even the strongest of cases. And a conscientious judge will be willing to focus on the key question at hand (the college’s fairness) even in cases where the facts aren’t clear-cut.

For an example of the latter pattern, consider a decision from Judge Tim Ellis, of the Eastern District of Virginia. (You can read Judge Ellis’ opinion here.) The case came out of George Mason, where a student was engaged in a consensual BDSM relationship with a student from another school. The couple broke up, and according to the undisputed record, the male student didn’t take it well. (At one point, he called his former girlfriend to say he’d kill himself unless she spoke with him.) She eventually accused him of sexual assault during their relationship.

George Mason charged the student with two offenses—failing to obtain the accuser’s consent in an October 2013 incident, and violating the university’s then-speech code with his threatening phone call. The problem? The university didn’t seem to initially understand that context of the couple’s BDSM relationship, and by the time the hearing occurred, the panel concluded that the case was too murky to come back with a guilty finding.

Pre-Dear Colleague letter, this decision would have ended the case, but the accuser appealed. At this point, George Mason began a string of procedural violations that prompted Judge Ellis’ decision. Though the appeal was supposed to originate with the chair of the hearing panel, that didn’t occur. The bureaucrat who heard the appeal, Brent Ericson, then had ex parte conversations with the accuser. He decided to effectively toss out the panel’s decision and review the case de novo. And he broadened the allegations to include all aspects of the couple’s relationship, even as the accused student still thought he was only defending against a single incident. By the time Ericson met with the accused student, he already had decided the accused was guilty.

Judge Ellis reasoned that colleges don’t have to provide a perfect amount of due process, but this laughable procedure was far too much. He also offered two important, broader insights. On why these cases are so important, he noted, if an accused student “seeks education or employment with institutions or organizations that require disclosure of [the student’s college] records, [his] only options are to forgo opportunities with those institutions or organizations or to authorize the dissemination of records that would likely foreclose [his] ability to pursue such opportunities because of the allegedly defamatory nature of the records.” It’s important, therefore, for colleges to get the decision right.

Ellis also had sharp words for the exceptionally broad speech code (which has since been repealed) upon which George Mason partially relied to make its case. “Controversial and sometimes offensive ideas and viewpoints,” he wrote, “are central to the educational mission of universities. It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause ‘distress’ or ‘discomfort,’ which is precisely the type of the speech [the GMU] code seeks to suppress.” In short, due process and civil liberties matter, at least in Judge Ellis’ courtroom.

Not so much for Magistrate Judge Terence Kemp, of the Southern District of Ohio. He had before him one of the three most troubling campus cases I’ve seen (along with Amherst and Miami of Ohio) since I started writing about this issue. It involved a former Ohio State student who was pursuing a joint MBA/MD degree. Four months before receiving his MD, he learned that he was being accused of sexual assault by woman with whom he had been briefly involved ten months before. (The allegation was remarkably non-specific: she said she had no memory of events, but was sure she hadn’t consented.)

What he didn’t know—and wouldn’t find out until it was too late: two days before she reported the sexual assault, his accuser had received word that she was going to be kicked out of medical school, for failing grades. Her conveniently timed report (of an incident that she appears never to have mentioned to anyone until her academic career was on the line) allowed her to cite Title IX and demand an “accommodation”—namely, that she be allowed to stay in school. Ohio State’s Title IX bureaucracy supported her demand (even writing a letter describing her as a sexual assault victim before any investigation occurred) and the medical school backed down.

For reasons that remain unclear (but seem not too hard to guess), neither the accuser nor OSU’s Title IX bureaucrats told the investigator in the case about the close timing between the expulsion notice and the rape claim. Not that the investigator, Jeff Majarian, did much digging. One of the witnesses mentioned the academic problems, but Majarian didn’t pursue the matter. Nor did he ask the bar where the two had met if there was a videotape of the night of the incident—as a way of checking the accuser’s intoxication levels. And though his questioning of additional witnesses led to some obvious follow-up questions for the accuser, he elected not to re-interview her. Instead, he prepared a report, which served as the factual basis for the university’s disciplinary hearing.

Panelists at this hearing had received special training from Ohio State. They learned, for instance, that they were to use the preponderance of evidence threshold—which OSU described as “50% and a feather”—and therefore didn’t need a “smoking gun” or even “damning evidence.” OSU also told them that sex offenders “are overwhelmingly white males” and “are experts in rationalizing their behavior.” And that there are a lot of them—as many as 57 percent of “college men.”

The hearing was a farce, both because the accused student didn’t know about his accuser’s possible motive to lie, and because OSU refused to allow his expert witness (an Ohio State pharmacology professor who was going to testify about the accuser’s intoxication level) to testify. The accused student was found guilty and expelled.

When he sued, his case wound up in Magistrate Judge Kemp’s courtroom. Testimony from multiple OSU administrators indicated what could best be deemed an indifference to the truth. Some examples:

Q: Am I stating it correctly that fair also means that you want to try to get the right result?

Title IX coordinator Kellie Brennan: We want to get the result that we can based on the information that we have.

 

Q: [Brennan’s] job is also to make sure the process is fair, right?

Investigator Jeff Majarian: I don’t know.

 

Q: And Ohio State has an interest in making sure the hearing panel gets it correct, don’t they?

Panel chairman Matthew Page: I think that procedurally we want to ensure that our board members come to the decision they think is fair based on the evidence they considered.

 

Q: Do you have any understanding as you sit here today about whether you have an obligation to correct a false statement at a hearing panel?

Sexual Violence Support Coordinator Natalie Spiert: I do not know.

 

Q: [Do you have] an obligation to make sure that the hearing panel gets it right? …

Spiert: No.

If these, and other assertions, much troubled Magistrate Judge Kemp, it didn’t show—he sided with the university, in a rote opinion suggesting that accused students basically can’t win due process cases. (You can read his opinion here.)

It’s hard to argue that justice was done in the Ohio State case. But if the judge is indifferent to fairness, there’s little an accused student can do.

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.” Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter how the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories. One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed. The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student that “neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with such inflammatory, unsubstantiated allegations as “the average rapist rapes 14 people before he ever spends a night in jail” or “1 in 4 women will survive rape and/or sexual assault during her time in college”; citations to the discredited David Lisak’s work on undetected rapists; and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement). An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student, then enrolled at UC’s law school, that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness. Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6^th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.” But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6^th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”) It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexually assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6^th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high-schoolers, perhaps parents would be better off sending their children to another university.

As The Hunting Ground continues its pre-awards season publicity crusade, an odd article appeared in Vanity Fair. The purported topic is a profile of two of the documentary’s chief protagonists—Annie Clark and Andrea Pino. (Pino is the UNC accuser who can’t keep her central vignette straight.) But the article mostly serves as an example of how poorly the media handles both sexual assault and The Hunting Ground controversy.

Consider the following items:

In January of 2013, Clark and Pino were among five students at the University of North Carolina at Chapel Hill who filed a federal Title IX complaint against their school to the U.S. Department of Education. They said they had been sexually assaulted, and, despite various efforts, the university no longer felt safe to them.

What were these “various efforts”? Does the fact that “the university no longer felt safe” to students (who had, it’s worth noting, filed no report with the police or made a sexual assault allegation against the university) constitute legitimate grounds for a Title IX complaint? Was Pino more consistent in her interview with Vanity Fair about what an unnamed UNC administrator/professor told her than she’s been elsewhere? VF reporter Leora Yashari leaves these questions unanswered.

More:

The Hunting Ground posits that campus sexual assault is not only endemic—statistics cited in the film say that one in five women are sexually assaulted while in college—but that universities take pains to cover up instances on their own campuses.

The idea that modern American universities—thousands of them, from all over the country—are capable of this sort of massive cover-up is laughable. But if so, a conspiracy of this type would merit a criminal investigation. To the extent that the handful of the cases described in The Hunting Ground are emblematic of this “cover up,” the documentary’s trouble with facts casts strong doubt on its thesis.

Yashari continues,

Meanwhile, 19 Harvard Law School professors, in conjunction with Slate’s Emily Yoffe,_have written an open letter discrediting the film’s statistics. They point to the featured case of former student Kamilah Willingham against fellow student Brandon Winston.__ Willingham accused Winston of assaulting her when she was unconscious. According to the film, Winston was dismissed from the university in September 2011, but appealed a year later and was re-instated. The letter, which refers to The Hunting Ground as “biased” and “propaganda,” strongly supports Winston as the victim of its release, and accuses the filmmakers of falsifying facts and statistics. [odd bolding pattern in original]

It’s not clear how Yashari—in a column under the heading of “true stories”—concluded that the HLS professors’ letter came “in conjunction with Slate’s Emily Yoffe.” (I tweeted her asking for evidence; she didn’t reply.) Does Yashari believe that law professors weren’t capable of writing the letter without the assistance of a journalist? Also, a trivial error, but reflective of Yashari’s casual approach to the fact: Yoffe writes for The Atlantic.

More:

According to Clark and Pino, the media backlash is indicative of the kind of scrutiny that many survivors of sexual assault face.

“[There is an] obsession with taking instances and picking apart traits in the story to make it an anomaly,” Pino said. “We focus so much on deconstructing them and disproving them, which is unlike any other crime.”

The cultural phenomena of Making a Murderer and Serial are, if nothing else, “taking instances and picking apart traits in the story”—in these cases, of murders rather than sexual assault allegations. Has Pino ever read the crime section of a newspaper? Any decent newspaper has at least one reporter who focuses on “taking instances and picking apart traits in the story.” Has she ever attended a trial, or listened to remarks from a criminal defense attorney?

The remark illustrates the delusional mindset behind one of The Hunting Ground’s central protagonists—and someone, as Vanity Fair informs readers, who is now working with the Senate’s leading foe of students’ civil liberties, Kirsten Gillibrand.

 

Two days after Judge Steven Jones allowed a Georgia Tech sexual assault judgment to stand—even as the judge admitted that conduct from the university investigator “very far from an ideal representation of due process”—the university will be back in court, facing another lawsuit calling into question its fairness.

Just as in the first case, an internal appeals process overturned a decision by Georgia Tech’s “single investigator,” Peter Paquette. Just as in the first case, the student wound up being expelled anyway. Just as in the first case, the accused student is noting the curricular impact of the expulsion—requesting an injunction since Georgia Tech is in the process of changing its required courses, so if he can’t enroll this spring, he’d be permanently harmed as classes vanish from the curriculum. If anything, the facts of this case are even more compelling. (You can read the complaint here.) Fortunately for the accused student, the case was assigned to Judge Richard Story, rather than Judge Jones, the jurist indifferent to Georgia Tech’s unusual conception of due process in Wednesday’s ruling.

The case involves two students, one gay and one bisexual (John Doe, or JD, the plaintiff), who aren’t identified in the complaint. After sexual activity in April 2014, the accuser waited just under a year to file charges with Georgia Tech, even though he had regular social contact with JD during most of that time. As occurs in the overwhelming majority of campus cases, there’s no evidence the accuser went to the police.

The two students hooked up twice in April 2014; but the accused student soon made it clear he wasn’t interested in a relationship. Nonetheless, shortly after their second hook-up, the eventual accuser rented a nearby duplex for the following academic year. He thus, as the complaint notes, “arranged to rent a house that was literally fifteen feet away from the person who he would accuse almost a year later of sexual misconduct.” Photos from fall 2014 show the two socializing together, even though they no longer had any type of sexual relationship. In early February 2015, the would-be accuser sent a message asking the plaintiff to come “cuddle with him”; the plaintiff refused and said he had no interest in a sexual relationship.

That message appears to have marked a turning point in the two students’ relationship. The accuser shortly thereafter asked JD to delete their private Facebook correspondence; in what turns out to have been a major mistake, JD complied with the request. By the end of the month, the accuser unfriended him on Facebook and ceased all contact with him. He filed a complaint in April 2015. JD, who hadn’t been open about his bisexuality, was forced to reveal his sexual orientation to his parents as a result.

Georgia Tech investigated. The school—whose policies, as was seen in the previous case, designate a sexual assault accuser as the “victim,” and witnesses as “informants,” thereby belying the presumption of innocence—uses the “single investigator” model, with Paquette running the show. As shown in the previous case, Paquette’s investigative technique is unusual. He interviews students, but doesn’t record the interviews, and shares with the accused student only summaries of his private interviews with his “informants.” (An accused student has no right to sit in, or have a legal representative sit in, on any of Paquette’s interviews.)

In this case, according to the complaint, the accuser presented Paquette with edited version of Facebook conversations he’d had with the student he accused; Paquette (like all college investigators) lacked subpoena power to compel production of the entire exchange. Nonetheless, after speaking to JD, the investigator didn’t sound too sure that anything untoward had occurred. He produced a report conceding that “it is reasonable to believe that based on the nonverbal action of [the accuser] that John Doe believed he had consent.” Case over, right?

Guess again. In a bizarre interpretation of the presumption of innocence, the investigator argued, “However, the charge of this investigator, however [sic], is to determine if one of the stories is more likely than not.” In other words: Paquette seems to view his job not as determining whether it was more likely than not the accused student reasonably believed he had consent. Instead, he utilizes some vague standard of attempting to determine which person’s story the investigator found most likely. So if Paquette was 99 percent certain an accused student believed he had consent, that student theoretically could still be deemed a rapist by Georgia Tech if Paquette was 99.5 percent convinced the accuser had too much to drink.

How did Paquette reach his conclusion in this case? He determined—based on 12-month-after-the-fact conclusions—that the accuser was “very intoxicated.” (The second hookup occurred at a party; both students had been drinking.) According to Paquette, being very intoxicated made it “more likely than not” that the accuser was “incapacitated and incapable of giving consent.” In other words: it was more likely than not the accused was very intoxicated, and it’s more likely than not (according to Paquette’s wholly subjective standards) that a very intoxicated person will be incapacitated.

No wonder Judge Jones concluded that Paquette’s vision fell “very far from an ideal representation of due process.”

JD appealed. As occurred in the previous Georgia Tech case, the university appeals committee looked skeptically at Paquette’s work (especially his odd determinations of credibility), and overturned the finding. The accuser had five business days to file an appeal to the president; he didn’t do so. Case over, right?

Guess again. On the sixth business day, an appeal was filed—but not by the accuser. Instead, his parents filed the appeal. Rather than dismiss this as procedurally improper, the president heard the appeal, and restored Paquette’s finding. JD then exercised his final right of appeal, to the Board of Regents. Remarkably, they overturned the president’s actions (it seems very likely that the board was also aware of the dubious conduct in the other Georgia Tech case as well). Case over, right?

Guess again. The Georgia Tech president remanded the case to the appeals committee, but gave them a new charge, reiterating an extreme affirmative consent policy (“the initiator must obtain consent at every stage of sexual interaction”) and holding that “intoxication,” in and of itself, is enough to have “incapacitation,” and thus sexual assault. Under this extraordinary definition—which would make a good chunk of the sex between Georgia Tech students to be rape—the appeals committee reversed its original findings, and upheld Paquette’s judgment.

The juxtaposition between the two Georgia Tech cases is remarkable. In the first case, Paquette proclaimed that once a key witness lied to him, that decision alone undermined the witness’ credibility. So because the accused student in the first case lied to Paquette about sexual contact with another female student (regarding which Georgia Tech said he did nothing wrong), the investigator no longer deemed him credible regarding the allegation that led to his expulsion. But here, according to the complaint, the accuser made several false or misleading statement to Paquette—with no loss of credibility.

Will Judge Story show the courage that Judge Jones did not?