You may have guessed from the title that this month’s column has something to do with former Durham County District Attorney Mike Nifong and the Duke Lacrosse case. It does—eventually—but first a digression.
I was somewhat bemused at the news that Bob Dylan had been awarded the Nobel Prize for Literature. I have thought for a long time that if the Swedish Academy would ever bother to interrupt its string of mostly obscure Third World anti-colonial polemicists for an old American white guy, it would be Philip Roth. My law partner John Gresham remains somewhat incensed that if the award was going to a singer-songwriter, it should have been Leonard Cohen. Mr. Cohen of course is no longer eligible for the Nobel, due to his recent passing. And besides, he was actually a Canadian.
In my opinion, the most deserving unconventional and now deceased American writer never to have won the Nobel Prize for Literature was Theodor Seuss Geisel, aka “Dr. Seuss.” I’m serious. All of you have read his books or had them read to you by your parents. They made a lasting impression on you, right? Brilliant simplicity. Try imitating his style and writing in his characteristic anapestic tetrameter (English majors among you will recognize that as a poetic meter that has four anapestic metrical feet per line, with each foot having two unstressed syllables followed by a stressed syllable). It can’t be done. A Seuss story is instantly recognizable and can have been written by no one else.
Back to Nifong. If you don’t know who Mike Nifong is, or don’t know what the Duke Lacrosse case was about, then you were living in a bubble about 10 years ago and this won’t make any sense to you. First Google “Duke Lacrosse case” and review a couple of the hundreds of thousands of hits that come up and perhaps your memory will be refreshed.
Personally, every time I think people are over all of that, something reminds me of the case or somebody asks me about it. My role was to chair the hearing committee of the Disciplinary Hearing Commission of the North Carolina State Bar that disbarred Mr. Nifong after a five-day hearing in June 2007. If that hearing wasn’t exactly “the trial of the century,” it certainly was “the disciplinary hearing of the century” and received unprecedented media coverage. It has dogged me ever since.
A few months ago, ESPN began airing a documentary about the case in its “30 for 30” series entitled “Fantastic Lies,” which in my opinion is actually a pretty fair effort to tell a story akin to a Greek tragedy so broad in its scope and implications as to defy a comprehensive telling. I make a cameo appearance toward the end, where for about six seconds I’m shown holding my head in my hands in what appears to be an attempt to keep it from exploding. Since then, a number of folks have asked me about that fleeting clip, and many of them want to revisit with me the whole sad tale.
I pretty much said all that I thought about Mr. Nifong and the case in my closing remarks at the hearing, which were actually printed verbatim in the New York Times (still available on the Times site here
). My main point then, which I’ll reiterate now, is that:
“It seems that at the root of it is self-deception arising out of self-interest. Mark Twain said that ‘when a person cannot deceive himself, the chances are against his being able to deceive other people.’”
What I meant by that was that in my amateur psychological diagnosis, it wasn’t so much that Nifong had consciously lied or set out from the beginning to frame the defendants, but rather that the facts turned out not to support his vision of what “should” be true. Therefore he could fool himself and be blind to the obvious truth that no sexual assault had occurred because his political ambition to be elected as district attorney depended on the narrative that there had been an actual rape. Apparent facts that did not square with that personal reality could be disregarded. If he had faithfully carried out his prosecutorial duty and dismissed the charges for lack of evidence, then in all likelihood his leading opponent would have won the election and in short order have fired Nifong from the assistant district attorney position in which he had served for his entire political career. One should not be so smug as to be certain of one’s own ethical rectitude if faced with such a Hobson’s choice.
The Duke Lacrosse case embodies an example of the application of the Oxford Dictionaries current Word of the Year—“Post-Truth.” The dictionary defines “post-truth” as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”
It wasn’t only Nifong who fell victim to the trumping of personal belief over actual facts. What bloggers referred to as the “Gang of 88” Duke University professors hastily signed on to a barely grammatical screed in the Duke student newspaper condemning the lacrosse players before any facts were known, simply because the narrative of privileged white athletes raping an African-American female fit so neatly into their liberal academic zeitgeist. The press ran rampant with the story, first because of the scandal worthiness of the initial story line of boys gone wild and later with the flip-flopped one of a rogue prosecutor persecuting the innocent. Whatever one’s personal belief about what happened could be supported by post-truth analysis, unburdened by objective facts, those “pesky things” as John Adams once referred to them.
Ultimately, as we now know, the defense team uncovered exculpatory DNA evidence that had been withheld, an investigation by Assistant Attorneys General Jim Coman and Mary Winstead exonerated the lacrosse players, Attorney General Roy Cooper in a remarkable declaration acknowledged that the defendants were actually innocent and Nifong was disbarred. The disciplinary hearing was essentially the only forum where testimony about the case was taken under oath from those who were involved and the “facts” were aired in a public forum. But the case lives on, and there are some who still believe that “something happened” and that the lacrosse players were guilty of some transgression more serious than admittedly boorish behavior.
Anybody who followed the recent political campaigns and has been exposed to the pervasiveness of fake news on the internet and cable knows that we indeed live in a “post-truth” world where it is increasingly difficult to cull kernels of fact from the chaff of dissembling detritus purveyed by disingenuous politicians, pundits and other assorted trolls. A decade ago, the Duke Lacrosse case presaged that: of the millions of words written about the case as it was unfolding but a small percentage came close to factual accuracy.
Which brings me back to the timelessness of Dr. Seuss. My law school classmate Mike Nifong (yes, that’s right, UNC School of Law, 1978) basically did not speak out about the case following the DHC hearing until interviewed by author and journalist William D. Cohan for his 2014 book entitled “The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities.” In it, Mr. Nifong claimed that I and the rest of the disciplinary hearing panel prejudged him and that I had prepared my closing remarks beforehand.
That is not true. For the first time, here is what actually happened. Prejudged? Most definitely not. Most anybody who was there for the whole hearing or followed it on Court TV or other media would come to the same conclusion. Closing remarks? The real story is that while some indistinct thoughts had swirled around my head, I hadn’t really thought about it much until the three of us on the panel went back after closing arguments to deliberate. After a few minutes of going through the charges, we agreed on what the ruling should be. While we found most of the Bar’s allegations to have been proven by the “clear, cogent and convincing” evidentiary standard, we actually concluded that several should be dismissed. I then asked the other two members of the panel to give me a few minutes to go over what I would say when we went back into the courtroom and I rendered the ruling. While I was exhausted from the stress of the hearing and just wanted to be done with it, I also knew that the case needed a coda that clearly summarized the rationale for our unprecedented action of disbarring an elected district attorney.
Due to the intense media and public interest, the hearing was held in the North Carolina Court of Appeals building rather than the cramped quarters of the old North Carolina State Bar Building. The Clerk of the Court of Appeals, John Connell, generously allowed us to use his personal office for the panel’s deliberations. Mr. Connell must have had small children at the time, because while sitting at his desk making a few notes I noticed a stack of children’s books. I pulled out one entitled “Oh, the Places You’ll Go,” which as it turns out was Dr. Seuss’ last book, a valedictory in which a narrator essentially relates to a young boy what places and wonders he can expect to experience in his life to come. I had never read it, so instead of working on what I’d say on the record about this momentous case I just quickly read through all 48 pages of the book. After finishing it, I decided that a decent time interval had passed, that Dr. Seuss was all the inspiration I needed and it was time to get back out there and tell ‘em what’s what.
I’m sure I said a lot more words in the 30 minute Nifong “sermon” (as Nifong defense attorney David Freedman calls it) that followed than Dr. Seuss wrote in the book I’d just read. It was one of the few occasions where I’ve spoken extemporaneously and actually made seemingly good sense. I think reading Dr. Seuss cleared my mind and sharpened my thinking. It didn’t feel to me like I was the one talking, but rather that I was just repeating what some other voice was dictating through me. I still don’t know where it came from, but my primary acknowledgment is to Theodor Seuss Geisel, even if I couldn’t duplicate his anapestic tetrameter.
Several weeks ago, my son and daughter in-law’s third child was born on my birthday, 63 years, three hours and 40 minutes after me. A couple of weeks later I was able to visit them one weekend at their home in an Atlanta suburb. The last thing I did before I left was to read a story to my four-year-old grandson, “Yertle the Turtle” by Dr. Seuss. It’s the tale of a turtle who rules a small pond but yearns to be king of “all that I see” by perching on the backs of other turtles in an ever-increasing stack. All goes well until the long-suffering turtle named Mack at the bottom of the pile burps and the whole structure tumbles down. The story ends thus:
“And to say the great Yertle, that Marvelous he,
Is King of the Mud. That is all he can see.
And the turtles, of course...all the turtles are free
As turtles and, maybe, all creatures should be.”
There’s a fable for you. Mr. Geisel said once that he intended Yertle to represent Adolf Hitler. You can substitute some other living person’s name for a more contemporary analogy if you prefer.
For the record, while he never won the Nobel Prize, Dr. Seuss in 1984 was awarded a Special Pulitzer Prize “for his special contribution over nearly half a century to the education and enjoyment of America’s children and their parents.” Bob Dylan, before being awarded his Nobel Prize, also got one of those Special Pulitzers in 2008. As for Leonard Cohen? Well, at least he’s in the Songwriters Hall of Fame.