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Sunday, October 07, 2007

Review: Stuart Taylor, Jr. and KC Johnson's "Until Proven Innocent"

I should know better than to start a new book after midnight even on a weekend, but upon finishing what I'd been reading last night, I picked up Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, intending to read a chapter or two.

I put it down about twelve hours later to begin typing this review.


I know there are a couple of other books that had already come out this summer about the outrageously fraudulent rape prosecution against three Duke lacrosse players between March 2006 and April 2007. But large chunks of what I already thought I knew about the case came came from my occasional visits over the past year and a half to Dr. KC Johnson's Durham-in-Wonderland blog or, more recently, Johnson's and co-author Stuart Taylor, Jr.'s series of guest posts on The Volokh Conspiracy. I was impressed by their writing there, and by some other reviews I'd read of this book (including Jeralyn Merritt's and Ed Whelan's). So when I received a review copy, it went to the top of my "read-next" stack.

If you care about colleges, or college athletics, or justice and the criminal justice system, or political correctness, or rape and sexual assaults, or race relations, or mainstream media blindness — or any combination thereof — this is an important and worthwhile book. In it you will find much that is educational, shocking, funny, revolting, pathetic, outrageous, courageous, smarmy, and fascinating. It is a genuinely compelling story that, as I read it, frequently alarmed my poor dog (me laughing, me shouting in disbelief, me slamming the book down and then pacing and muttering for five minutes, me getting all choked up with empathy, me racing over to the computer to Google something or someone, me laughing again, and so forth).


The book is far from perfect. The prose is always workmanlike or better, but at least in this first printing the book shows signs of needing a better copy-editor. The first fifty pages occasionally read like the paragraphs were shoveled into position to form a roughly chronological introduction — perhaps because they were drawn in whole or part from blog posts or other writings? or they're new and were whipped up in a comparative hurry? — but without being knitted together very well. But that smooths out as the authors and/or editors hit their respective strides. There were also a distracting number of small proofreading or editing errors (unnecessary commas, unmatched parentheses, and such). My review copy came with a multi-page press release that included a seven-page "dramatis personae" list that I found essential, and that ought to be included in later printings. The index looks awfully thin for the number of text pages and their average indexable facts per page (which is very high). There are neither footnotes nor endnotes (although I would wager that a very large percentage of the source materials are either posted on or hyperlinked from Dr. Johnson's blog). But in context, these are mere nits.

I already knew enough about the case to have drawn confident conclusions about the now-disbarred, disgraced, and genuinely criminally conspiratorial prosecutor, Michael Nifong. If this book hastens by even a day the badly needed criminal prosecution of that man for conspiracy to obstruct justice and other serious felonies, the authors will have done the world in general, and my profession in particular, a great service. He's done one day of jail time for criminal contempt-of-court, and is now a probably judgment-proof defendant in the federal civil rights lawsuit just filed by the three accused players. But the man needs to be prosecuted fairly and aggressively, with all of the scruples minded and due process provided that he honored only in the breach as a prosecutor himself, but with a tenth the pretrial publicity and ten times the vigor he employed. In painting him, this book creates a coherent and thorough narrative that should nauseate anyone who loves the concept of justice. (I had to rinse my mouth after reading that Nifong claims his favorite book is Harper Lee's To Kill a Mockingbird.)

I was also generally acquainted with the despicable performance of the Duke administration, a large vocal minority of the Duke faculty (the "Gang of 88"), and the mainstream media throughout the affair, but the book provides, literally and metaphorically, chapter and verse on their sins of commission and omission. There are many goats, but a surprising and encouraging number of heroes too. (Where, oh where, though, was the rest of the Duke Law faculty besides the conspicuously heroic James E. Coleman, Jr. during all of this? They sat by essentially silent, it would appear, neither reminding their main-campus colleagues of the basic civil liberties they're charged with teaching to law students nor uttering a peep as Nifong proceeded to make mockery of those liberties. For shame, for shame.)

I knew in general that the defendants and their teammates had been badly abused but had kept their heads high and fought back honorably and doggedly. I had no sense before picking up this book, though, of any of the athletes' personal circumstances or characters. The book remedies that deficit, and in the process explodes some stereotypes about them. It also provides a series of vivid vignettes of the various defense lawyers and their complementary strengths and efforts.


But I'll tell you what choked me up, that I did not at all expect to be choked up by: It was the description of, and the quotes from, the women who knew these young men. Their moms and kid sisters. Their classmates among the student body generally, and in particular in the student government and student newspaper (both of which put their "adult" counterparts to shame with their maturity and open-mindedness). And especially their counterparts on the Duke women's lacrosse team (and their coach, Kerstin Kimel), who were themselves formidable NCAA Division I national competitors. They weren't girlfriends or  groupies, but respectful peers who would probably have been among the least tolerant fellow-students imaginable if the male players had indeed been the racist, misogynistic, violent bullies that the prosecution, the PC crowd, and the media insisted on painting them as. Instead:

While the three defendants had been in exile, Yani Newton and her teammates had been advancing to the semifinals of the national championship. In the ACC tournament, all the players had worn blue shoelaces to show solidarity with the men's team. While preparing for the trip to the Final Four in Boston, Coach Kerstin Kimel mentioned to a Herald-Sun reporter, in an off-the-record conversation, that the players might wear "innocent" armbands. By the time the team got to Massachusetts, the tentative plan was all over the news — and was being assailed as scandalous.

The players and coaches discussed the issue before the May 26 semifinal game against Northwestern. Given all the attention, Kimel said, the players could wear the armbands if they wanted but should not if it would be a distraction from the game. Most players settled on armbands displaying the lacrosse-team numbers of Dave [Evans], Reade [Seligmann], and Collin [Finnerty]: 6, 13, and 45, respectively. A few stuck with "Innocent." Midfielder Rachel Sanford wore that message on a headband right across her forehead.

The women lost a heartbreaker in the semifinal, 11-10, in overtime. But many in the media, and on Duke's faculty, were less interested in the game than in trashing the Duke women for having the gall to resist the media-faculty rush to judgment against their friends.

I can just imagine a helmeted, pad-wearing, stick-wielding Ms. Sanford scowling at her opponents from beneath that headband. I would not have wanted to be between her and her team's goal that day.

Allow me to wax old-fartish for a moment (as if I ever don't). Consciously or not, highly motivated, over-achieving college-age young women — despite their own tendencies to be young and irresponsible while they're young and irresponsible — start looking at the boys around them with a critical eye, searching in them to see not just what they are, but the men they are poised to become. Yet for speaking out against the notion that these particular young men were animals that needed caging or tranquilizing or castrating, they were called "stupid, spoiled little girls" (and worse). It was the sudden shock of imagining the male players through the tear-filled eyes of their female classmates — who knew better, who were watching these young men's futures being destroyed, and yet who could do nothing to stop it — that actually yanked my own parental-type reactions into gear.


Co-author Stuart Taylor, Jr. has a law degree from Harvard and spent three years at a superb D.C. firm, Wilmer Cutler & Pickering, and he and Johnson had close cooperation from the defense lawyer teams. As a consequence, there are no significant blunders in their understanding or explaining of the various legal principles and events, and in fact I think they do a commendable job of keeping everything broadly accessible to well-educated non-lawyer readers. In general, they display a solid grasp of prosecutorial responsibilities and ethics. Once or twice, though, I thought their enthusiasm and, well, advocacy for the students and against their foes led them astray.

For example, they do a splendid job of explaining why Nifong's application for a court order compelling all 46 lacrosse team members to surrender DNA samples for testing almost certainly lacked probable cause (some team members had not only not been at the party, but had been in other towns on the night in question, and at least two non-athletes were at the party but not named in the application). They conclusively demonstrate that the application was based on flagrant misstatements and exaggerations of the evidence the prosecutors then had in hand. And from all that, they correctly argue that the order was an unconstitutional intrusion on the players' Fourth Amendment rights. That should be enough, but Taylor and Johnson then proceed to run through all the exculpatory evidence that Nifong's team already had in hand yet didn't mention in their application.

That's a step too far: While obliged to disclose exculpatory evidence, a district attorney isn't ethically obliged to then marshal it against his own arguments in the most persuasive fashion. Part of the exquisite tension inherent in the role of prosecuting arises from prosecutors' obligation to accommodate simultaneous and conflicting roles as evaluators of evidence (to decide whether justice will be served if charges are pursued) and vigorous advocates for the State. The authors clearly understand how badly Nifong abused the first role, and that the second role didn't excuse him in that. But occasionally they seem less than crystal clear on how ethical prosecutors avoid Nifong's abuses while remaining effective advocates.

Similarly, of their three "big picture" wrap-up chapters — on the frequency of prosecutorial abuse generally, age-old tensions in rape law as exacerbated by feminist trends, and the disturbing PC paralysis and intolerance within the academy — it's the first one that I find least perceptive or persuasive. The authors seem ignorant, for example, of the fact that many capital defendants who've been removed from death row or even released from prison don't necessarily receive that relief because they've been proven innocent like the Duke lacrosse players were, but because their convictions and/or sentences have been overturned and, for whatever reason, the state is not quite able to re-establish their guilt beyond a reasonable doubt. (Lots of people who "walk" because their convictions are overturned are not necessarily "innocent.") Nor do I think it's practical to import the British practice of the same barristers prosecuting one week, then defending during the next. And if their assumption is that the British criminal justice system otherwise provides procedural or substantive safeguards for criminal defendants that are better than America's counterparts, they're sadly mistaken.

But overall, this is not just an important book, but a good book. Its authors should be proud of their work. And the rest of us should continue to ponder the lessons the book teaches on a wide variety of topics.

Posted by Beldar at 03:44 PM in Books, Law (2007), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to Review: Stuart Taylor, Jr. and KC Johnson's "Until Proven Innocent" and sent a trackback ping are listed here:


(1) David Wollstadt made the following comment | Oct 7, 2007 8:02:27 PM | Permalink

Just a quibble: women who play college lacrosse don't wear pads and helmets, like the guys do. Instead, women's lacrosse has a bunch of rules designed to prevent the girls from hitting one another--but mostly these rules just encourage the referees to blow their whistles.

(2) Beldar made the following comment | Oct 7, 2007 8:37:12 PM | Permalink

Thanks, Mr. Wollstadt! I don't know the sport, as played by either sex. But I imagine that Ms. Sanford's headband would have been all the more intimidating if she wore it with only the scowl and her uniform, sans pads or helmet. (I know she still had that stick, right?)

(3) Gregory Koster made the following comment | Oct 7, 2007 8:56:53 PM | Permalink

Dear Mr. Dyer: Two points:

1. Why wouldn't it be, "practical to import the British practice of the same barristers prosecuting one week, then defending during the next. And if their assumption is that the British criminal justice system otherwise provides procedural or substantive safeguards for criminal defendants that are better than America's counterparts, they're sadly mistaken."

I admit, it might be awkward at first to Prosecute, then defend, but would it be any more awkward than the old practice of having judges "riding circuit?" I'd be interested to hear your reasoning on this. Also, why you think the British system does not do a better job safeguarding defendent's rights.

2. I may be misunderstanding you on this point:

"While obliged to disclose exculpatory evidence, a district attorney isn't ethically obliged to then marshal it against his own arguments in the most persuasive fashion."

After the words "marshal it" did you mean to add "in court?" I would think any DA would want to marshal as persuasively as possible any exculpatory evidence in the privacy of their offices, if only to see if a case has a weakness that would make it not worth while prosecuting.

You are right about the overall quality of the book. I thought I would know it all, because I've followed Mr. Johnson's "durham-in-Wonderland" blog quite closely. But the book puts it all together, letting you expreience it in a way that reading the blog day by day. I think this may be why the first pages are weaker than the rest of the book: the authors were in such a hurry to get going, that they underestimated the amount of background they would need to give readers. I wish I had had the "dramtis personae" list you got with the press kit, and hope they incorporate it in later printings.

Sincerely yours,
Gregory Koster

(4) Beldar made the following comment | Oct 7, 2007 9:22:54 PM | Permalink

Thanks for another excellent comment, Mr. Koster.

Were I Czar of America, before abolishing my own office, I probably would split America's legal system into a bifurcated one like the Brits use, with barristers and solicitors. I would do so for selfish reasons, because it would mean I'd be a barrister and I'd get to try more cases and not have to worry about as many pre-trial details. I already have the physique of Rumpole, and although I've given up tobacco, I enjoy cheap wine and I'm sure I could find a dirty wig somewhere.

On the other hand, my understanding is that they're actually moving away from that birfurcated system hand-over-fist, though, in the UK, basically by expanding the role of solicitors to include more in-court appearances.

My impression is that American prosecutors are considerably more involved, on a nitty-gritty day-by-day and supervisory basis, with law enforcement officers than their barrister counterparts are in the UK, though. We certainly have more thorough-going pretrial discovery opportunities here in both civil and criminal matters than the Brits employ (their systems still resembling very much the "trial by ambush" methods used in America a century ago). In criminal cases, American defense attorneys are entirely likely to directly attack the credibility of police officers on cross-examination, whereas my impression (not exclusively from Rumpole reading, but somewhat from that, yes) is that such is considered unsporting and highly irregular in the UK. Barristers are also not supposed to interview their witnesses -- whereas "woodshedding" witnesses is a grand old tradition for American lawyers on both sides of either civil or criminal cases.

These same factors that I've described as differences are also among the more important ones that most lawyers would say tend to benefit defendants, i.e., protect the rights of the accused. Of all the other countries in the world, the UK — which is, after all, the source of virtually all our own common-law tradition — probably does the closest job of approximating the panoply of rights and privileges and practices that American lawyers would describe as "essential" (and that, for instance, fights are going on now about whether prisoners at Guantanamo Bay need be provided). England (or maybe Scotland) would be my second choice, in all the world, behind the U.S. as a place where I'd want to be accused of a serious crime.

Finally, the marshaling I had in mind was in Nifong's written application for the nontestimonial identification order, and the place in the book I was referencing was on page 58, beginning with "The application by Nifong's office omitted all of the large body of evidence that the rape charge was probably false...." While Nifong had a duty (under both NC law and federal constitutional law as interpreted by the Brady case) to turn that excuplatory evidence over to the defendants, he had no obligation to summarize or even mention it for the judge in the State's NTO application, and I expect that any prosecutor — including entirely ethical ones — would think the notion the Nifong should have done so to be silly. By the same token, that exculpatory evidence, if argued by the defense in opposition to the NTO, would have probably counted for little if anything: The judge would decide whether Nifong had or had not made a prima facie showing of probable cause, and if so, he'd issue the NTO, and if not, not; but he would be unlikely to weigh Nifong's evidence against that presented by the defense at that stage or for that purpose. Ultimately, as Taylor and Johnson point out, this was effectively mooted by the (wise in hindsight) strategic decision of the defense lawyers that they wanted Nifong's team to have all the players' DNA and that they therefore wouldn't have challenged the NTO even if there were good grounds to do so.

(5) John Cunningham made the following comment | Oct 7, 2007 10:07:41 PM | Permalink

I've followed the durhaminwonderland blog quite closely, and it seems that the only Duke law school prof who stood up for due process was a Prof. Coleman. Interesting that the great "civil libertarian" Erwin Chemerinsky was tongue-tied throughout the whole time.

(6) The Drill SGT made the following comment | Oct 8, 2007 6:09:25 PM | Permalink


Beyond Kimel and Coleman as the most visible, the profs from the Econ department published a good letter welcoming athletes to their classes. Further I think one (but only one of the many)Dean may early statements about needing to not convict the students before they were tried.

(7) DRJ made the following comment | Oct 8, 2007 9:22:43 PM | Permalink

Usually I want to comment on legal issues but to me this story is more about colleges in general and Duke in particular. Our next-door neighbor's son is a senior at Duke and acquainted with some of the students and faculty you mention in your post. You couldn't ask for a nicer young man - articulate, well-educated, friendly, poised - and I would be proud to claim him as my own son. (I practically can, having seen him almost every day from the age of 2 until he left for college.)

It's not hard for me to imagine these Duke students as similar to our neighbor but it's a mystery to me how or if Duke has helped them develop as persons. I've seen our neighbor's course selection. Many course offerings are PC and of little worth, and his reports of what some professors say and teach in class is worse. Since the lacrosse episode, we also know how valueless some of these professors really are.

I'm not picking on Duke. Sadly, I have no doubt this could have happened at almost any college in America.

(8) DRJ made the following comment | Oct 8, 2007 9:25:16 PM | Permalink

By the way, you got a *free* review copy? You dog. I want on a list like that but I want to review Texas Longhorn sports books.

With pictures.

(9) clarice made the following comment | Oct 8, 2007 10:05:02 PM | Permalink

I think Durham in Wonderland performed the most remarkable public service--day after day. It provided the only fair coverage of the case in the midst of a media lynching.
KC Johnson is an internet hero to me.

(10) Looking Glass made the following comment | Oct 10, 2007 2:59:39 AM | Permalink

Durham in Wonderland didn't just dump data on the reader, information was marshaled and presented in devastating fashion.

KC Johnson was a master of finding just the right quote and response to finish a post as well.

One commenter summed it up using the language of sport.

"You cannot stop KC Johnson. You can only hope to contain him."

That speaks for me as well. Thank God for KC Johnson.

(11) ChrisR made the following comment | Oct 17, 2007 9:39:45 AM | Permalink

I saw this book on the stands at Barnes&Noble yesterday and was amazed that someone had written a book about this already. Though I suppose its news worthiness will fade rather quickly, so any book needs to be distributed in a timely manner. I would think anyone who had an interest in following this story would have already seen everything on CNN or Fox. Mayby the author is hoping for a made for TV drama, as the 100+ cable channels have a voracious appetite for almost any concept.

(12) CAL made the following comment | Oct 21, 2007 2:07:29 PM | Permalink

"I would think anyone who had an interest in following this story would have already seen everything on CNN or Fox."

But that was just it. The MSM narrative was so overwhelming that for a year three innocent young men were persecuted and nearly lost their liberty when even a cursory review of the facts, particularly the 'line up', the accusers various wildly inconsistent statements, and the evidence - electronic and human - that one of the three finally charged was nowhere near the house at the requisite time, was all that was needed to know something was going horribly wrong in Durham.

After that finally penetrated the 'fake but inaccurate' MSM narrative, we got a couple mea culpas and the whole thing was brushed under the rug. I assume UPI doesn't let them off so lightly for ignoring the facts for a year and reams them out properly. Nancy Grace, I am looking at you.

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