More than one side to the story.

When I was a child, my mother and father used to say to me: "There's always more than one side to the story." I have remembered that saying a lot in the last few weeks. First there was the UVA rape story that was woefully one sided in its presentation by the Rolling Stone.  That story has since collapsed. I won't go into that in detail in this post.

Now, the December 5, "peaceful protest" story in Durham is coming unraveled. Right after the "peaceful protest" several people took to facebook and at least a couple of preacher took to their pulpits to excoriate the Durham Police Department's handling of that so called "peaceful protest." They would have drawn the disdain of my parents. I, frankly, am ashamed that I did not call my own preacher to task for her sermon that blamed police for the violence at the "peaceful protest."

WNCN our local NBC affiliate is reporting that the protest was far from peaceful. According to the WNCN report, DPD was expecting a large protest that might turn violent on Friday December 5. They based that conclusion on social media postings threatening violence. A reasonable conclusion, I might add. According to DPD and the City Manager, the protest began at CCB Plaza and moved toward the Durham County Jail. Once at the jail, fireworks were launched at the jail into the air and paint was thrown on the street. Things went downhill from there. Ultimately, 31 people were arrested by 120 police officers. It seems that those who were claiming a totally peaceful protest were, at the least, uninformed. They failed to get both sides of the story. And in doing so they presented a version that was far - far from the complete truth.

Walt-in-Durham

More on rape and false accusations.

Lena Dunham has decided to respond to the criticism of her book: Not that kind of girl. The book makes two allegations about Ms. Dunham being raped. Most of the criticism has been directed at those two sections of the book. They are the most provocative. In her response to critics, Ms. Dunham says: "When I finally decided to share my story, it had ambiguities and gray areas, because that’s what I experienced, because that’s what so many of us have experienced. As indicated in the beginning of the book, I made the choice to keep certain identities private, changing names and some descriptive details. " Unfortunately, Ms. Dunham and her publisher did not make clear when she was using pseudonyms and when she was not. That lack of clarity lead to someone who had never had any contact with Ms. Dunham being identified as her rapist. After all, the real Barry was a well known conservative around Oberlin College when Ms. Dunham was there. She should never have been so sloppy as to not tell us when she was using a pseudonym. 

Thankfully, Ms. Dunham has now clarified the situation. She wrote: "To be very clear, “Barry” is a pseudonym, not the name of the man who assaulted me, and any resemblance to a person with this name is an unfortunate and surreal coincidence. I am sorry about all he has experienced." She should be sorry. Her trauma is no excuse for inflicting trauma against an innocent person completely un-involved in her experience. Her conduct was and is unacceptable. Her apology is a good first step. But, now she must atone and more importantly, she must never ever do this again. 

Walt-in-Durham

Mangum appeal briefs are filed.

Readers may recall that on the night of April 2-3 2011, Crystal Gail Mangum stabbed the man she was living with. A few days later, Reginald Daye passed from this life as a result of Crystal's stab wound. She was indicted in April 2011 and after many machinations, went to trial in Superior Court on November 12, 2013. Trial lasted several days and a guilty verdict was finally returned on November 22, 2013. Judge Ridgeway sentenced Crystal to a term of not less than 170 months to not more than 216 months in the custody of the North Carolina Department of Corrections. Readers may also recall that it was Crystal Gail Mangum who falsely accused three men of a rape that never took place. Readers may also recall that Crystal Gail Mangum assaulted her previous live in boyfriend and set fire to his clothes and shoes.

After her conviction, Crystal filed the Record and her Brief with the N. C. Court of Appeals. In her brief, Crystal raises only one issue: WHETHER ADMISSION OF EVIDENCE THAT DEFENDANT CRYSTAL MANGUM ALLEGEDLY ATTEMPTED TO ASSAULT MILTON WALKER IN FEBRUARY 2010 WAS ERROR WHEN IT HAD NO PROBATIVE VALUE TO PROVE ANY
MATERIAL FACT OTHER THAN THE DEFENDANT'S BAD CHARACTER?

Much has been made by Sid Harr at the Justice4Nifong blog about defense counsel's date errors. In fact, Sid missed more errors of counsel when it comes to dates. For example, defense counsel alleges Crystal was indicted on March 18, 2011. Three weeks before the stabbing took place on the night of April 2-3 2011. After reading the defense brief, I must conclude that the drafter was none too careful with dates. None of these issues are fatal to the brief, they just go to a lack of careful drafting. All in all, the state's recitation of the facts in its Brief is more accurate.

The defense raised one issue and one only, that is the prior bad acts admitted under rule 404(b). Hereafter, I will refer to this as the 404(b) evidence. Specifically the defense complained about Milton Walker's testimony about Crystal's threat to harm him with a knife on the night she burned some of his clothes and shoes. Walker's testimony is particularly damaging as it shows a violent temper and a eerie similarity to what she did to Daye. There is no doubt this is why the state offered Walker's testimony. Walker, despite Crystal's attitude toward him, considers himself a friend and did not want to testify. None the less, Walker was compelled to do so and he gave some damning testimony. Testimony that was, for the most part, backed up by a couple of Durham police officers.

In her argument, Crystal's lawyer is really at her best. She does a good job of highlighting why 404(b) evidence is so difficult for a defendant. More importantly, Crystal's lawyer does a good job of hitting all the limits to 404(b) admissibility. What she does not do is argue to overturn the precedents that allow so much 404(b) evidence into the record in North Carolina.  Frankly, this is not the best set of facts to make that argument. The state, as expected, did a good job of countering the argument. After all, the state has the weight of precedent on its side. The one thing going for Crystal is the Court of Appeals review de novo 404(b) rulings by a trial court. De novo is a latin phrase that literally means from the beginning. In law, we understand it to mean the Court reviews this ruling as if the court below had never ruled at all. However, that does not end the 404(b) analysis.

Once the trail court, and the Court of Appeals determine if 404(b) evidence is admissible, then the court must turn to a Rule 403 analysis. Rule 403, in short, says that a court may not admit evidence even if otherwise admissible, if its probative value is outweighed by the prejudice it is likely to cause. However, Rule 403 review is not de novo, but for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). As you can see, this rule is from the N.C. Supreme Court. Thus it cannot be overturned by the Court of Appeals, or even disregarded. The COA has to follow the Supreme Court's precedent. In an abuse of discretion analysis, the trial court will be affirmed if it has a reasonable basis for the ruling, any reasonable basis. I doubt the COA is going to overturn Judge Ridgeway on this issue.

Don't pay attention to Sid's effort to misdirect your attention. He claims that somehow Duke University had something to do with Daye's death. Crystal does not make that argument. the only argument she makes regards the 404(b) evidence. Sid is just attempting to keep his tiny band of followers distracted from what is really going on. A band that is both easily distracted and wants the distraction.

Of final note, Crystal does not raise any error regarding self-defense or her demonstrative evidence of the door which goes a long way toward the self-defense angle. It appears that she is pinning her whole hopes on 404(b). That's her strongest argument. Unfortunately, by not challenging the self-defense conviction as being unsupported by sufficient evidence, Crystal openly invites the court to engage in a harmless error analysis. That is exactly the opening the state jumped at in the later stages if their brief. Even if the COA is inclined to give her some relief on the 404(b) issue, they will most likely rule it harmless error.

Walt

Police misconduct.

Food for thought. I spent the weekend with my family and the question of Michael Brown came up. As the only lawyer in the group, several people asked me what I thought. I have posted elsewhere that I thought the Grand Jury did a good job over going over the record and making a decision. I have also posted that I do not think the DA had a conflict of interest as we understand it within the Rules of Professional Conduct.

However, Michael Bell, a retired USAF Lt. Colonel writing in Politico raises a very good point about police and prosecutors investigating themselves. Wisconsin has a law, thanks in part to Michael Bell, that calls for an outside investigation of police shootings. Lance the intern wrote at Justice4Nifong about his concerns about the prosecutor's perceived conflict of interest. While I still think the prosecutor had no conflict as it is recognized by the Rules of Professional Conduct. Lance and Michael Bell have very good points. What we really need, not just if Ferguson, but in the country as a whole is a system of holding police accountable. At the very least that means we need an independent review of police involved shootings.

I would go farther though. The Duke lacrosse fiasco shows the need for an effective system of outside review of police actions. In the fiasco, the State Bar of North Carolina provided an outside review of Nifong's disreputable prosecution. But, there was nothing like that for the Durham Police Department. The innocent men wrongly accused filed a civil lawsuit seeking an outside overseer for the DPD. The city fought that notion tooth and nail, ultimately prevailing on procedural grounds. In NC, we have been the victim of too many cases of police and prosecutorial malfeasance. Allen Gell, Darryl Hunt and Eric Daniels come to mind immediately. But, there sadly others. An outside review board in these cases would have saved us a lot of grief. These cases have cost taxpayers around NC millions of dollars that could have been put to productive use. If prosecutors and police knew that they were accountable, we would not have had to put up with these fiascoes. Nor would the innocent men involved had to be charged, and in some cases imprisoned for crimes they did not commit. Yet in no case has any police officer been disciplined. Not one!

I do not think that good police officers would oppose such a board. They want to do a good job. Good police officers do not want to be sullied by false prosecutions. Most of all, they do not want to be associated with unaccountable killers.

I do not know that an independent review of the Brown case would have reached a different outcome. As I wrote earlier, the Grand Jury did a thorough job and it looks like a good "No Bill" was returned. However, if the Ferguson Police knew that every police shooting would be referred to an ouside agency and the department as well as the officer would be subject to accountability, perhaps Officer Wilson would have not shot in the first place.

Walt-in-Durham

UNC vandals at work.

UNC student athletes vandalized the visiting locker room at Wallace Wade Thursday night following UNC's victory over Duke. Apparently, this was an extension of the celebratory painting of the victory bell. Worse, none of the coaching staff saw a thing and did nothing to stop the damage. Nothing? No, not a thing. Saw nothing did nothing. Well friends, where are the adults? I played football in high school. From the moment we left school on the bus to go on  a road game, through the whole game and the entire ride home, we were under the constant supervision of our coaches and staff. There was also a school official, usually the Principal or the Assistant Principal along too. I did not play football in college, but I did spend enough time around the athletic department as a tutor to know that football players never were left alone on game day. There was always a coach, a graduate assistant, or a football staffer with the players from the time the bus left until it got back. It simply boggles the mind that no responsible adults were present when this was going on.

Larry Fedora, it's time for you to step up and take responsibility. Find out which coaches were "not present" and find out why. Then dismiss them. Find out which players were the ring leaders. Coaches always know who their leaders are. For good or ill, coaches know. Dismiss the ring leaders from the team for the rest of the season. I know it's just the NCSU game and that's a big game for you. But, it's not as big as the school's reputation. Which is in tatters if you haven't noticed. Third, find the participants and make them run the stairs at the stadium, and run and run and run. Run them until it hurts or they are doing physical damage to their bodies. Teach them that doing stupid things have consequences.

Rebuilding UNC

Don Eggleston has an op/ed piece at the Greensboro News & Record today proposing how to rebuild UNC. Don is significant because he is "one of the family." He played and lettered in basketball under Dean Smith. He was a Morehead scholar and he received his law degree from UNC.

Don, a fellow attorney and all around good guy, proposes a scorched earth policy for UNC. Fire or retire everyone who is not clerical staff in any department that touched the scandal. That includes basketball coaches (Roy Williams, Sylvia Hatchell and a hose of coaches you and I have never heard of.) Don would close up the AFAM department along the way. As a side note, two very respected and very liberal college professor friends of mine both questioned how and or why AFAM could survive as a department. Both noted the scarcity of published works as an indication of how little scholarship was really going on. Both said that without scholarship, there is no point in a department because there is no one to teach. Don wants to clean out top administration too. He didn't call for Carol Folt's early departure, but I will add her to the list. Her treatment of Mary Willingham, who was right about everything she wrote, is deplorable. To that list, I would add Tom Ross. He was there for the end of this fiasco. He did nothing. Ross gives empty suits a bad name. It's time for that empty suit to leave the building.

Don's piece is reprinted below:

By Donald P. Eggleston

This open letter to the UNC family is both a reaction and response to the recent investigation and report by former Assistant Attorney General for National Security Kenneth Wainstein. I offer it in the hope that the university can apply appropriate remedies to recapture its academic credibility.

My suggestions are drastic, but only drastic remedies offer a reasonable opportunity for recovery of the respect we have lost, both academically and athletically. Those suggestions include the wholesale replacement of coaches, administrators, tutors and faculty who were complicit in the fraud and a re-examination of the appropriate relationship between intercollegiate athletics and academics.

Inherent in this analysis is a reconsideration of the “student-athlete” model. I have concluded that this term, ubiquitous in the National Collegiate Athletics Association’s lexicon, has been so demeaned by the current atmosphere of major-college athletics as to have no realistic application to the current condition. Therefore, I suggest a total reevaluation of its relevance in real world college athletics.

Who knew when?

I hold to the principle that it does not matter if a coach or administrator or faculty member did not have actual knowledge of the “shadow” nature of the classes. All of the parties involved had a responsibility to know.

There is no doubt that signs were sufficiently apparent to put everyone on notice. If I am a coach who has recruited my players, I am aware of their often-limited academic backgrounds and natural proclivities. When I see more than 80 percent of my players are taking the same course, I have enough information to warrant an investigation.

Further, if I elect to delegate that responsibility to someone else, I must answer to the failure of my delegate to effectively investigate. Constructive knowledge equals actual knowledge, and the blame lies with all.

Coach Williams’ role

With all due respect to coach Roy Williams, it is not about whether the “kids tried to do the right thing.” The problem is not what the “kids” did, but rather what the “adults” allowed, helped and even directed the kids to do.

Deflecting the attention to the “kids” is just an escape mechanism to deflect responsibility off the adults. The really sad part is that this deflection has been present for a long time. We have aided and abetted academic fraud.

We now have a unique opportunity to use this situation as a stepping stone to address a quickly evolving major college athletic atmosphere, study it and determine the appropriate means to adjust to it. As Richard M. Southall, Mark S. Nagel and Ellen J. Staurowsky conclude in a blog post for The Chronicle of Higher Education: “While the stated tax-exempt purpose of big-time college sports is education, we all know it is about entertainment and money. ... The academic fraud at UNC was a calculated cost of doing business, one that every institution with a big-time athletic program pays in one way or another. Some get caught breaking the rules, some don’t.”

The academic/athletic paradigm has changed. In the words of Gerald S. Gurney in his fine article, “Stop Lowering the Bar for College Athletes” (The Chronicle of Higher Education, April 10, 2011): “Because of the time demands of athletics and the deficiencies in academic skills that hinder high-risk athletes from competing in more-demanding curricula, they tend to select majors of least resistance with an abundance of elective coursework: general studies, multidisciplinary studies, interdisciplinary studies. They even resort to acts of academic dishonesty to maintain their athletic eligibility.”

My recommendations for further actions:

The athletics department. As I understand the current university model, the athletics department has been tasked with the overall management and supervision of the various individual sports programs. As such, athletics officials have the primary responsibility of overseeing the entire operation of each separate program, including academic performance. They failed in that role. I recommend the replacement of all non-clerical staff of the department who served in any capacity during the time athletes were enrolled in African and Afro-American Studies, or AFAM , classes. This should coincide with a complete review of the role and mission statement of the athletics department.

Sports program staffs. All non-clerical staff of any individual sports program in which any players were enrolled in any classes within AFAM be replaced. That includes all head and assistant coaches. As suggested earlier, they have succumbed to the disease of performance over academics that has led to the loss of all credibility, outside the community of the fanatic boosters of their respective or collective sports. No amount of finger pointing or gnashing of teeth is persuasive. We are all sorry that we were caught, but some of us are sorry that it happened. The issue is the exercise and acceptance of responsibility. Each sports program should be rebuilt upon a more integrity-based model in conjunction with my recommended restatement of academic standards and goals.

Academic Support Program for Student-Athletes. In recounting the involvement of the Academic Support Program for Student-Athletes, or ASPSA, in the scandal, the Wainstein Report describes a program that totally and abjectly lost its direction and understanding of its mission. Or, it could be said, when succumbing to the pressures applied by the various athletics programs, ASPSA chose to redefine its mission in line with that pressure. The outcome was that it accepted as its sole mission keeping athletes eligible.

Whether misled by signals, or lack thereof, from the administration and faculty, the program still failed. I am satisfied that all staff knew the difference between what was right and what they were actually doing. The entire staff of this program should be replaced. Further, the university should re-evaluate the viability and context of this program and, if it elects to continue it, redefine its purposes and policies.

If the program is to be continued, supervision and control over its operation, including the hiring of all counselors/tutors in the program, should be assigned to a division of the general administration and faculty. This program should be independent of the athletics department. Staff performance should be judged by students’ academic performance, not eligibility retention.

African and Afro-American Studies Department. I find it particularly troublesome that AFAM, now renamed African, African American and Diaspora Studies, was drawn into this scheme, given the importance of this department to the university’s diversity program. However, it is inconceivable to me, in the current climate created by this scandal, that AFAM will not struggle to retain any credibility in the academic community. Additionally, given the overwhelming breadth of the abuse outlined in the Wainstein Report, the reasonable conclusion is that no one in the department could have failed to know of or suspect the abuses. My conclusion is that the entire program needs a rebuild. All current faculty and non-clerical staff who were there at the time should be replaced.

Faculty Athletic Council. The failure of the Faculty Athletic Council is not just an athletic failure. It is clear that academic politics played a part in the failure of that group to closely supervise both AFAM and athletic performance. Wainstein suggests that the members of this committee were persuaded against close investigation of AFAM because of academic autonomy. Irrespective of the motivations, there is no doubt that it refused to exercise the very purpose of the committee. Quoting Wainstein: “Although the committee noticed that an AFAM class, AFAM 190 (AFAM Independent Studies), was one of two courses that accounted for the majority of student-athlete independent study enrollments, it ‘did not find any cause for concern in this situation.’ ... It would be more accurate to say, however, that the FAC did not try to find any cause for concern.”

Regardless of the primary justification, one must conclude that the council exercised the same “plausible deniability” defense to excuse its lack of oversight. This was once again a failure of mission. To regain credibility, the university must restate and reinforce the purpose of this committee, replace its members and recharge the replacements as to purpose.

Of course, it may not be appropriate or necessary to replace personnel who been brought in since the uncovering of the scandal, e.g. the new chairwoman of AFAM. But I agree with Luke DeCock’s statement in his recent commentary (Raleigh News & Observer): “The challenge now is whether North Carolina can become the national example of how to put athletics in their proper place going forward.”

I choose to believe that this fiasco can serve as an opportunity for UNC to lead by example. And one way to lead is to open a new dialogue as to the appropriate role of “big college sports” in the university community.

I believe we have a responsibility to every student who enrolls at the university; and we have abrogated and abandoned significant portions of that responsibility in the relentless chase for attention, athletic success and money.

If, indeed, “(W)e thought we were doing the right thing, felt very comfortable about it,” as coach Williams contended, we need to re-examine our comfort level and realign our thinking as to what is appropriate. I would like for UNC to be a leader in that much-needed examination and realignment.

Donald P. Eggleston is a member of the UNC-Chapel Hill Class of 1971. He was a John Motley Morehead Scholar, a basketball letterman under Dean Smith (1967-71) and received his law degree from UNC in 1974.

I see this on facebook and other places: ""Gas under $3 a gallon – under $3 a gallon. Unemployment under 6%, whoever thought? Stock market breaking records every day. No wonder the guy is so unpopular.” Putting aside whether the White House gets credit for any of the developments, what exactly would a country moving “in the right direction” look like? Shouldn’t current conditions meet that standard?"

I got this latest version from a friend of mine, who is both liberal and reasonably well informed. Assuming she is serious, here is my answer:

1. Median income is down according to the Census Bureau and CNN.

2. Poverty in 2013 showed its first decline in the Obama years, down from 15% to 14.5% according to the same source. 

3. At the beginning of the Obama administration gas prices were $1.89. So today's sub-$3.00 price is not an improvement. 

4.The fact that the stock market is going well doesn't benefit Americans who are not investors and most investors are going to vote GOP anyway. 

If the poster is serious, the reason people think the country is going in the wrong direction is, because it is going in the wrong direction. No amount of selective amnesia or cherry picking statistics will make people will less income feel like they have more. 

Walt-in-Durham