One of the most entertaining little sideshows to the ‘08 election was the one about Bill Ayers writing Barack Obama’s memoir Dreams from My Father. All the shouting about how Barack Hussein is really a Muslim was (and is) revolting and stupid and the birth certificate business was (and is) unimaginably tedious, and of course stupid as well. At least with Ayers and Obama there’s a real story. Plus I lived in Hyde Park in the early 90s and I like to imagine that I was just a few blocks away while past terrorist and future president were busy palling around.

Jack Cashill is the man behind the theory. In the last few weeks of the campaign he produced a steady stream of articles about it for WorldNetDaily.com (there’s a handy list on his website — it seems to be growing, too). Each one is written in perky little paragraphs, many of them nearly identical to the perky little paragraphs in an earlier post, but there’s usually something new, too. Cashill is quite the salesman — his pitch has the mesmerizing feel of an infomercial, and almost as much depth.

As he reaches out to the media and to experts who might help build his case, the literary quest — a diligent search for Ayers’ fingerprints in Obama’s book — becomes a story within a story. There’s a turning point on Oct. 23 and you, dear reader, are practically a co-conspirator. Cashill “despaired of breaking this story beyond the Internet and talk radio” but then “a seriously can-do congressman intervened,” and suddenly “we are running sophisticated data-driven tests at two separate sites.” Maybe there’s a real chance to “somehow penetrate the battlements the mainstream media have built around Obama.”

Cashill returns time and again to his correspondence with Patrick Juola, an expert in literary forensics. What he learned from Juola was that no “data-driven computer analysis” would give him a definitive result, and so his best hope was to persevere with the “good old-fashioned literary detective work.” There is, as Scott Eric Kaufman points out, a rich tradition there — thanks to just that sort of sleuthing we know that “the plays of William Shakespeare were written by Roger Bacon, Christopher Marlowe, William Stanley, Walter Raleigh, Edmund Spenser, or Edward de Vere.” (Kaufman has had a great time with this story. If you want a good laugh you should read his posts — this one links to most of the other ones).

Ultimately, though, Cashill decided the old-fashioned detective work wasn’t going to do the trick: “there was a general feeling among people interested in this story that the public would need the confirmation of science, and not just from one source.” And of course what he found, as the title of the post says, is that “Science points to Ayers authorship of Obama’s ‘Dreams’”. This is what science sounds like:

“Using the chi-square statistic,” observes one professor, “Obama’s and Ayers’s books were indistinguishable, while Obama’s book was easily distinguishable from books by other authors.”

[…]

“Under the Q-value statistic,” argues one university-based analyst who tested “Dreams” against Ayers’ 2001 memoir, “Fugitive Days,” “segments of ‘Dreams’ consistently compared as well with ‘Fugitive’ segments as it did with other segments of ‘Dreams’ itself. In contrast, ‘Dreams’ compared poorly with other documents.”

Like Mark Twain said, there are “three kinds of lies: lies, damned lies, and statistics.”

As if the work of the “systems engineer,” the “professor,” and the “university-based analyst” weren’t enough, Cashill mentions “a fifth stylometric analysis, soon to be released, this one from a British scholar of international repute…,” and that’s where the story starts to get really interesting. With the election approaching and the Obama juggernaut still cruising out front, a man named Bob Fox with $10k in hand approached Peter Millican, a Fellow in Philosophy at Oxford University. Negotiations fell through when Millican and Oxford University Consulting insisted that the results be made public no matter how they came out. A couple of days before the election, Millican told his side of the story in The Sunday Times. He pronounced Cashill’s “science” to be extremely unimpressive and added that “[he] was left with the impression that payment for propaganda was fine; but payment for objective research was quite a different matter.”

As he went down in flames, Cashill shook his fist and shouted, in so many words, “Curse you, Oxford don!” It was about 2500 words, actually — half of them blustering through his version of the Millican-Fox transaction (“No, bro, you have dissed too many of my homies to get away that easily”) and the other half regurgitating the “literary” pitch one more time. Like they say, there’s no such thing as bad publicity.

Besides the bad taste in his mouth, Millican got the results of the analyses that had already been done. He’s set up a page on his web site to go over the details. At the beginning and the end he considers some of Cashill’s literary and impressionistic observations, dismissing each one in an understated, donnish way. Near the end he takes up Cashill’s offer to “bet my house against Millican’s mailbox that the gifted writer Ayers wrote” two passages in Dreams he singled out. Millican responds, “I hereby accept the bet. Let him put up, or shut up.” I don’t know if Cashill ever put up, but he certainly hasn’t shut up.

The really good stuff is in the middle of Millican’s exposé, when he looks into the “science.” There are all sorts of obvious and fatal flaws, but the most blatant problem is the controls — the things that Cashill breezily refers to as “books by other authors” and “other documents.” The specifics are a whole lot less impressive:

Second stylometric analysis.
Claim: “The Ayers-Obama matching shows a measurable and substantial effect. It is easily and objectively distinguishable from comparison to a third document. … the initial data presented is highly suggestive that these two documents share large portions of authorship.” (that’s Cashill via Millican)
Control: Memoirs of Ulysses S. Grant, published in 1885.
Millican’s bottom line: “[T]he word-length frequency correlations are not remotely close enough to be ‘highly suggestive’ of co-authorship…. Nor does the ‘easy and objective distinguishability’ from Grant’s Memoirs count for anything: it isn’t the least bit surprising that two memoirs written at the end of the 20th century have more in common than one written over a century before.”

Third stylometric analysis.
Claim: Comparisons of word frequencies on a small and a large set of words, using software written by Millican, shows that Dreams is more like Fugitive Days that like the control.
Control: Free Air, by Sinclair Lewis, published in 1919.
Millican’s bottom line: “These analysts found that Dreams was more like Fugitive Days than Free Air in some respects, but that of course isn’t surprising at all (given the difference in genre and vintage). If we add more realistic controls, then the apparent similarity — which isn’t even impressive to start with — entirely disappears, as shown by the following “Principal Component Analysis” graph….” (the graph is about 2/3 of the way through Millican’s web page). “Again there is nothing to link Obama with Ayers. And all the evidence so far examined if anything points against there being any close link between them.”

So, thanks to science you can rest assured that Obama’s book is more like Ayer’s book than it is like a novel written in 1919 or the 1885 memoir by the man supposedly buried in Grant’s tomb. In his Sunday Times piece, Millican notes that the Sinclair Lewis novel was used as a “‘random control’” because it “just happened to be easily available on the web.” He also describes Bob Fox as “sincerely interested in getting to the truth” — I don’t think he’d have gone to Millican if he wasn’t. I suspect that for many of the people involved, the project wasn’t cynical and calculating as much as it was starry-eyed and inept. As far as Cashill himself is concerned, I don’t know.

Whether it’s the number-crunching or the old-fashioned detecting, a lot of Cashill’s sleight of hand is a matter of context, or the lack of it. For instance, he makes a big deal about the way both Ayers and Obama riff on the difference between “education” and “training.” If you can’t think of any similar passages from another writer, well, it’s hard to say why it’s not significant. So maybe it is, and if you really want to be convinced, the door is wide open. On the other hand, if you did a search and found all sorts of other writers making a similar point in similar terms, the Ayers-Obama parallel would quickly lose its charm. But who’s going to take the trouble to do that? (Kaufman, of course, though not on this particular point) Cashill sure as hell isn’t — he needs to keep your head in a little fishbowl with just the incriminating texts, where all sorts of things are plausible. In the stylometric analyses, the control is the context. It’s a reference point, and the trick is to put it outside the fishbowl — way, way outside, so from there the bowl is just a dot on the horizon, and boy is it hard to see any difference between those fish!

More than that, the essential trick — the secret to Cashill’s success, such as it is — is to write for people who really, really, really want to believe. If you’re in the target audience, keep in mind that the analysis by Chris Yavelow is quite a bit different from the others. Millican finds nothing impressive about it, but he does allow that it’s “the only one of the four that stands any chance of providing any basis for a more substantial case.” So keep the faith!

In fact, I know what you need to do. Head on out to Highway 61, where I’m sure you can be very easily done. Look for Mack the Finger or Louis the King, over by the “forty red white and blue shoe strings/And a thousand telephones that don’t ring.”

Kaufman’s first piece about the Cashill hypothesis generated one of the oddest flame wars I’ve ever seen (keep in mind, though, that I mostly live under a rock). In it he mocked Jeff Goldstein, prime mover of Protein Wisdom, for taking up Cashill’s hypothesis and running with it. Goldstein’s vehement response is so strange and embarrassing that I can’t resist picking it apart. Here’s a quick recap:

1. Goldstein muses over the implications of the Cashill hypothesis. He notes first off that “[t]he charge of having one’s memoir molded into literary shape by an unrepentant domestic terrorist… is a serious one — and I do not wish to present the accusation lightly.” And he doesn’t. He writes “disinterested observations that flow from an exploration of language, the narrative process, and the differences in gradation between the author as historical figure, the author as author, and the author as ‘author.’” It’s like some late-night undergraduate effusion of fermented carbohydrate wisdom — very, very heavy:

   For if Bill Ayers has indeed ghostwritten at least portions of Barack Obama’s memoirs, as some are alleging, then it is fair to say that the “Barack Obama” of those memoirs is more even than a construct: he is at least partially a fictional character, given that it is “his” words that ostensibly create “him” — making it follow that, if the words creating him are not his own, then “he” is really a kind of living literary portmanteau, a blend of influences, an ontological hybrid insofar as he exists publicly.

   […]

   If the charges are true, and Obama’s memoirs were in fact written by Bill Ayers, at least in part, than it is clear that at least in part, Barack Obama is a creation of Bill Ayers….

   On that meta level, “Obama,” as we’ve come to know him through his memoirs, is more Ayers than he is Obama.

2. A few days later, while he was having some fun at Cashill’s expense, Kaufman took a quick swipe at someone else. If you follow the link, you find that the someone is Goldstein:

   If, however, you only use Cashill’s juvenile musings as a hypothetical which, if true, suggests all the unsavory things you already believe about Obama, then you’ve fully embraced the Cashill Doctrine.

3. Fun ensues when Kaufman’s post is picked up by Ta-Nehisi Coates. Goldstein is affronted that he has to “deal[] with readers of the online Atlantic” — these are people who clearly don’t appreciate his “rather academic exhortation on the various beings of agency” as a weighty work of pure literary criticism, and not only that, they have the gall to doubt the sincerity of phrases like “as some are alleging” and “if the charges are true.”

   Worse, though, is that thanks to Kaufman he was getting “unsolicited, uninformed letters” like this one, from “someone calling himself George.” Here’s the first third of George’s letter:

   He can’t be shook bitches…keep it coming. Behind closed doors he is laughing at all you pathetic needle dick motherfuckers. In your eyes he couldn’t possibly be smart enough to write his book. However, there is no denying that he is still slowly squeezing the life out of that grimy, decrepit, fish belly white, warmonger. What’s next—Obama did not graduate from Columbia, or Harvard Law. Obama was not president of the Harvard Law Review. It’s all a sham Harvard and is lying on his behalf. He is not really running for president. It’s really some white dude in black face.

It’s presumptuous of George to finger Goldstein as a person who wants to turn Obama into “some white dude in black face.” The ghostwritten-by-a-terrorist story would surely be just as attractive as a political land mine and, for Goldstein, as an opportunity to crank out some scare-quoted profundity, even if the “author” was white. And the politician as a figurehead controlled from behind the scenes is an old plot line that doesn’t need any racial subtext.

But Goldstein’s gripe isn’t really with George, it’s with Kaufman, who wrote that Goldstein “fully embraced” something when really all he’d done was to flirt ostentatiously with it. In particular, he hadn’t said anything about the evidence, except in the comments on his first post, where he was skeptical about one point. It’s a legitimate complaint that’s hard to pick out of the turgid rhetoric — I didn’t really get it until I scrolled way down to where Goldstein explains it to an especially conciliatory commenter.

Whatever the reason, Goldstein goes to extraordinary lengths to foist onto Kaufman the full responsibility for George’s email and any other ignorance inflicted on him by Atlantic readers. To do that he has to make assumptions that are wilder and more insulting than any of George’s (SEK = Scott Eric Kaufmann).

I also noted that SEK, rather than excerpting any of the post in which I purportedly suggest “all the unsavory things” I “already believe about Obama,” merely provided the link and his inaccurate and dishonest description, knowing, as he must by now, that those predisposed to read his political hackery are similarly predisposed to avoid confronting primary texts, especially those from villainous “right wingers” who, by the Atlantic’s lights, are the kinds of “low-info voters” who have no business pretending to engage in literary criticism. On my preparedness to do so I’ll let my record stand — while noting that I don’t miss the irony of those who have long been in favor of “democratizing” interpretation and sounding the death knell of authorial control in favor of an ascendancy of “interpretive communities” suddenly pretending that one needs some kind of special political sensibility in order to properly engage in textual pursuits.

The best part of that is the irony he doesn’t miss, which sounds like the answer to a final exam question in a freshman survey class. Goldstein, in a fit of really highfalutin’ foolishness, is confusing Kaufman with a whole school of thought, one that’s betrayed its own bomb-throwing manifestos. Further along in the post we learn that this insufferable pedant is Goldstein’s inner “literary critic.”

But because leftists like George are driven by outrage, emotion, and a decided lack of intellect — and are steered in a certain way by betters like SEK, who, after the revolution, will assume the role of the elect — I am in fact confronted by such idiocy and self-righteousness, which, were I to allow the literary critic in me to come out once again, is suggestive, I’d argue, of a kind of hamfisted paternalism and projection, much as one might expect from those who pretend to champion the Other (the unspoken acknowledgment being that the poor dears can’t be expected to champion themselves!) while not even fit to wipe their own asses.

Goldstein had already described “the likes of George” as “people who haven’t the capacity to read and understand on their own, but who rather rely on ‘specialists’ like the folks at the Atlantic, or SEK, to do their misreading for them.” So he may not be convinced that Obama is the creation of Ayers, but he’s definitely convinced that the likes of George are the creation of the likes of Kaufman.

In the post Goldstein mostly writes around both George and his obnoxious email — perhaps Goldstein figured his readers already knew what to think. There are a few comments that are a little more direct, and they take up a theme that’s near and dear to the hearts of culture-war conservatives: their brave defiance of the PC lynch mob. Goldstein pops up to say, “I’m as guilty as George for pointing out George’s guilt. WAIT FOR IT!” Protein Wisdom deputy blogger Darlene Click seconds: “Criticizing him makes you a racist/sexist/genderist/yadda yadda yadda.” I don’t think she read very carefully, though. It’s true that George sounds kinda black, but Goldstein criticizes him as a leftist, which is not a race, sex or gender. Does Click really think that Goldstein is so hypocritical that he’d write George off as “some white dude in black face,” an idiot being led around by the nose by his betters?

Goldstein does seem to want to prove that he doesn’t take a backseat to anybody when it comes to genital references. After all, “Needle dick motherfuckers” is so conventional. He’s got something much more original, and while he’s at it he throws in a racial stereotype that’s as bizarre as it is gratuitous. Check out this PC-mob-defying bravery:

“GEORGE DOES NOT REPRESENT US! HOW DARE YOU USE HIM AS AN EXAMPLE!” — SEK, forthcoming.

preemptive answer: he represents one part of “you”. And you, as the intellectual vagina to his Asian gal’s ping pong ball, represent another. Deal.

I’m sure it’s just because I’m being too literal, but my mind boggles at the metaphor of a male vagina giving birth to part of himself. You have to admire the double-layered insult, though — Kaufman is not only a feminine body part, he’s a pathetic one. No doubt a real manly intellectual, when he becomes a metaphorical vagina, can pass an Aryan broad’s bowling ball.

Anyway, no abuse from the PC police was forthcoming, or at least it’s not in the comments. And there was no “HOW DARE YOU” from Kaufman, though he dropped in several times for some textual slicing and dicing.

In the end Goldstein does a fine job of making George look like a class act. Both of them indulge freely in mindless generalizations about the opposition, but George is at least forthright about it. He’s gleeful but not particularly vindictive and his insults are generic, though I guess you’re always free to take it personally if you want. He’s fairly specific about who he’s talking about, too — “Talk Radio, Fox News, … your right wing blogosphere and … your professional liars like Bill Kristol [and] Glenn Beck….” The usual suspects, in other words. For Goldstein there’s just “the likes of George” and their “betters.” The idiots like George also “seem to think themselves entitled to hurl their venomous, imbecilic rants at any who displease them.” When it comes to venomous, imbecilic rants, though, Goldstein is peerless.

Top, David Martin on CNN. “Anderson, excuse my informal attire. We’ve been out checking cows. … And tell me your question again?” Below, Willingham’s house after the fire (source). Pour lighter fluid on carpet, set it on fire, and it looks just like this picture.

OK, one more on the Willingham case — go back to the first post for an introduction to the case and disclaimer about how little I really know. The plot so far: Almost a year ago (!) I read David Grann’s fascinating article in the New Yorker. “Junk science” is the main subplot in the article and the main reason that the case has become so controversial, but it’s not the only thing that sent Willingham to death row, perhaps not even the main thing. What I’ve found going over the investigation and then the prosecution is that it took a lot of malicious ignorance to turn the faulty forensics into a witch trial.

The justice system is supposed to be able to cope with narrow-minded, overzealous authorities, though. That’s what the defense is for, and it doesn’t seem like Willingham’s defense has come in for its fair share of criticism. The problem is that there wasn’t much to it, so there’s not much to hang your criticism on. The fire inspectors produced page after page of old wives’ tales and other nonsense (answered years later by page after page of debunking), the prosecution added a healthy dose of rhetoric and innuendo, and the defense responded with… the babysitter.

Apparently Willingham’s defense was judged to be technically adequate during the appeals process. As I understand it, all that means is that no egregious errors were made. Willingham’s defense may have been error-free but it was still worthless — I’ll do my best to explain why in a bit. First, I want to take a quick look at another case. In an editorial I’ve brought up before, Duke law professor Jim Coleman suggests that there are effectively two justice systems in the US. If so, I think the high-functioning, principled one is epitomized by the arson case against Texas Supreme Court Justice David Medina and his wife, just like the Willingham case epitomizes the low-functioning, hypocritical one. Needless to say, Medina didn’t settle for a defense that was merely adequate. His is to Willingham’s as a tank is to a BB gun. The charges against Medina were a bit of an ironic reversal — as Gov. Rick Perry’s general counsel he had a role in denying Willingham a last-minute stay of execution. Did he give a minute’s thought to the enormous difference between the defense the soon-to-be dead man got and the one he’d insist on for himself? I doubt it.

In June 2007, a fire that started in Medina’s detached garage destroyed his house and caused significant damage to neighboring houses as well (my main source an article the Houston Chronicle ran on Jan. 18, 2008). Inspectors claimed that accelerants were used. I can’t tell how their evidence compares to the evidence against Willingham, but at least there was a plausible motive. Medina seemed to be having financial trouble and foreclosure proceedings had been initiated — a “red flag,” according to investigators. Medina’s wife Francisca was charged with arson and he was charged with fabricating evidence.

Texas Supreme Court Justice David Medina faces the press with attorney Terry Yates by his side.

The theatrical high point of the Medinas’ little flirtation with the wrong side of the bar was in January 2008, when a grand jury handed down indictments against the couple and the DA’s office dropped them like a hot potato. The foreman and assistant foreman of the grand jury were so mad they went to the press. The assistant’s acid comment was that “I’ve just never seen anything like the vigor with which these two defendants were defended by the Harris County District Attorney’s Office….” The foreman said, “If this was David Medina, comma, truck driver, comma, Baytown, Texas, he would have been indicted three months ago.” I think that’s a safe bet, and it’s hard to believe that the Medinas were really treated just like you and me would be.

On the other hand, connections aren’t the only thing that David Medina, Texas Supreme Court Justice, had that David Medina, truck driver, probably wouldn’t have. The real Medina also had the wherewithal to hire top-notch attorneys who in turn hired their own investigators. When Francisca Medina was re-indicted, the defense experts did their thing and the charges were dismissed.

Steve Baldassano, the assistant DA handling the case since January, says his office didn’t have sufficient evidence to prove arson. “We couldn’t eliminate an electrical malfunction,” says Baldassano. Francisca Medina’s attorney, Dick DeGuerin, says that last week he provided the DA’s office with a report prepared by independent fire experts who found that the evidence did not prove arson. “Our experts believe that it could not be called an arson fire,” DeGuerin says. Baldassano says the fire investigators DeGuerin hired are often used by the DA’s office, and “you have to keep an open mind to see if new evidence comes up.”

You have to keep an open mind to see if new evidence comes up. Of course. Who could argue with that, or with what the prosecutor, Vic Wisner, told the New York Times? “We have an ethical duty to seek justice.” And not only that, “it would be unlawful, unethical and irresponsible for me to proceed with a case that I do not think has the ability to get beyond a directed verdict of acquittal, let alone beyond a reasonable doubt.” Amazing how the principles kick in when a state supreme court justice and his high-powered attorneys come knocking at the door. It’s certainly possible that the Medinas burned down their house and their crimes were whitewashed. But as far as I can tell it’s at least as likely that it was another case of overzealous and under-informed fire inspectors. So maybe the special treatment was just that the system worked the way it’s supposed to. Or pretty much that way, except maybe just a little bit more, ummmm… efficiently.

As general counsel to Rick Perry, Medina was involved in the decision to shrug off the last-minute report from Gerald Hurst debunking the forensic evidence against Willingham. Needless to say, it’s deeply ironic that Medina’s wife was cleared of arson charges because the evidence was challenged by an independent expert hired by the defense, or as Perry would say, one of those “latter-day supposed experts.”

We worry a lot about the differential outcomes caused by inequities in the quality of schools or health care (and we should!), but does anything produce starkly differential outcomes like inequities in legal representation? (That’s not exactly a rhetorical question, because I really don’t know). Would Willingham have been convicted if he had an attorney like Dick DeGuerin and access to independent investigators and experts? If he’d gotten a “dream team” retrial like Alan Gell? I seriously doubt it. Who am I to say, of course, but surely his odds would have improved enormously. Looking in the other direction, I doubt that Medina would trust Willingham’s attorneys to defend his dog.

Willingham had two court-appointed attorneys, David Martin and Rob Dunn. I’ll concentrate on Martin, since he played the lead role. Every indication is that he and Dunn saw eye to eye, anyway. Martin has been by far the most outspoken of the two. When reporters were asking questions last fall, it seems that he was always available to badmouth his former client. In the process he made it abundantly clear that his defense of Willingham was an empty formality.

Martin wasn’t one of those infamous drunken defense attorneys of last resort, though — I wonder if it wouldn’t have been better for Willingham if he had been. Before his media blitz it was probably fair to conclude that he was basically competent and put on as good a defense as could be expected. The hackwork in the Corsicana paper makes him out to be positively heroic. Peel away the misrepresentation and it becomes clear just how unheroic he was (second prize for credulous fawning over a crappy lawyer goes to AP reporter Jeff Carlton, who in effect blames Willingham for his attorneys’ weak performance).

From his seat at the defense table, attorney David Martin’s job was to fight tooth and nail for Willingham. Once it was over, though, Martin became convinced his client was guilty. He dismisses the Beyler report as propaganda from anti-death penalty supporters.

“The Innocence Project is an absolute farce,” Martin said. “It’s a bunch of hype, in my opinion.”

The defense team couldn’t locate an arson expert back then willing to say the house fire was accidental.

“We never could find anybody that contradicted Vasquez,” Martin said.

In other interviews there’s no pretense that Martin ever believed Willingham. CNN’s Randi Kaye, for instance, reported that “Martin told me that he thought Willingham was guilty from day one.” He’s made it a point, in fact, to disabuse people of the unrealistic notion that defense attorneys believe in their clients’ innocence — “Most of the time, [our clients are] guilty as sin” is what he said to Grann.

It’s strange, though, that Martin couldn’t find a single expert to dispute the investigators’ findings. In recent years the situation is exactly the opposite — one expert after another has looked at the forensic conclusions from Willingham’s trial and declared that they are totally indefensible. It’s true that standards have evolved, but the trial happened a year before the current standards were published and they didn’t come out of nowhere.

It turns out that the explanation Jacobs elicited from Martin is disingenuous. Martin consulted exactly one outside expert. It’s not a fact he’s kept to himself, though he doesn’t seem to mind giving the impression that he searched high and low. He told Kaye that “We couldn’t find [an expert] that said it wasn’t arson,” but then explained:

As a court-appointed attorney, Martin said money was hard to come by and he only had enough funds to hire one expert. And it turned out that the expert ended up agreeing with the prosecution’s experts about the fire being arson so he never put him on the stand.

“You’re just going to abracadabra an arson investigator up to put on the stand? You have to get money,” Martin said.

The point about lack of money is well taken — that would have been an issue no matter who the attorney was.

It’s not just that Martin didn’t look very hard, though. Grann introduces him as “a former state trooper” and from the way he dealt with Willingham you’d think he was still a state trooper, and not a very good one at that. Establishing Willingham’s guilt to his own satisfaction was apparently a high priority, so he did a little science experiment. He described it during a live interview with Anderson Cooper on CNN. This was not a man preparing to “[fight] tooth and nail” for his client. It looks more like a man preparing not to fight.

COOPER: You say — you say you couldn’t find an expert to refute the testimony of the expert you…

MARTIN: Hey, let me tell you what we did. Rob Dunn and I, who tried this case with me, we went and bought carpet. We bought lighter fluid. We poured the lighter fluid on the carpet. We set it on fire. And when it finished burning, it looked just exactly like the carpet did in Todd Willingham’s house.

(It’s funny how the lead prosecuting and defense attorneys from Willingham’s trial turned into the Odd Couple when the media was all over the case last fall. They saved the priceless moments for TV. Prosecutor John Jackson went off the deep end on Nightline, and Martin played the cowboy buffoon — perhaps a drunken one — on CNN. Maybe the special strength of TV journalism is that it gives fools a chance to really be fools. And you can sure see how junk science would flourish if these guys are at all typical. Jackson, completely oblivious to the way fire burns and fluid flows, thinks Willingham used accelerant to burn the shape of a pentagram into his floor. Martin, on the other hand, goes out back like a kid playing with matches and proves to himself that burnt carpet looks like burnt carpet. In the interview he even urges folks to try it at home.)

Like any good Monday-morning quarterback, I’m convinced that the prosecutor’s case against Willingham was far more vulnerable than the trial suggests. For instance, the conflict that Craig Beyler pointed out between the eyewitness observations and the inspectors’ theory seems like something that could be presented in a compelling way to a jury. But it would be silly of me to try to convince anyone that Willingham would have walked if only the defense had made this argument or introduced that evidence. And what I think I’ve learned browsing defense attorneys’ blogs is that the way Martin approached his role and his client was hopelessly narrow. That’s a more fundamental problem, and a more interesting way to look at what went wrong.

On CNN, Martin described an approach to defense that’s purely reactive.

The role of the defense attorney is to test the state’s evidence. Vigorously cross examine their witnesses, and can they prove their case beyond a reasonable doubt? If they cannot, even if the person is guilty, he is found not guilty. That’s the role of the defense attorney.

It’s no wonder Willingham ended up with only one witness testifying on his behalf, and that was the family’s babysitter, not a fire expert or some other heavy hitter. To be fair, if the defense had gotten their way, they would have put two witnesses in front of the jury — they had an inmate lined up to refute the prosecution’s jailhouse snitch. His testimony might have had a little more impact than the babysitter’s, but not much. It was ruled out as hearsay, anyway.

In one of the indignant reactions to Martin’s CNN interview, a blogging public defender wrote that she would “never think that my job as a trial defense attorney was ONLY to challenge the state’s evidence through vigorous cross-examination.” It does seems like a losing recipe, since it lets the other side set the terms and do all the framing. Willingham’s prosecution gave the jury a compelling narrative backed by expert authority, and without a coherent alternative I don’t see how they could reject the charges. Martin picked at this and that, but according to a juror who spoke to the Dallas Morning News, it didn’t make much of an impression.

[Deputy state fire marshal Manual] Vasquez, who died in 1994, “was very important” but not the only factor in their decision, juror Dorenda Brokofsky said recently.

Jurors also were moved by the image of Willingham standing outside, near the windows of the room in which his daughters were burning up. “He didn’t do anything,” Brokofsky said.

The defense, she added, never suggested that the fire could have started accidentally. Martin did propose that 2-year-old Amber might have knocked over an oil lamp and started the fire while playing with a cigarette lighter, but “none of us could see how that would work.”

(Brokofsky was the media’s first-call juror last fall. On CNN she was the juror with doubts and then a few weeks later, in the Dallas Morning News, she was the juror who didn’t have doubts but was pressured to say she did by “some news organizations that seem to have decided that Willingham is innocent.” She did have a remarkable revelation for CNN, though — her father had been a local fire marshal and Doug Fogg, one of the fire inspectors who testified at length, was an old family friend. In the interview she said, “I told them I knew Mr. Fogg but they didn’t care.”)

It could be that effectively undermining the State’s forensics would have been enough to get Willingham acquitted. It certainly should have been enough. The prosecutor, the jurors, and others invested in the verdict have played up Willingham’s suspicious behavior as a significant factor, but that’s a little hard to take seriously because it’s done against the backdrop of wholesale doubts about the forensics. We do like a good witch trial, though, and the appeals court didn’t blink at the far-fetched and creepy suspicions that passed for evidence in this one. So a successful defense would probably have to take on the nonsense about Willingham’s behavior and the prosecution’s general effort to paint him as a monster.

On Scott Greenfield’s blog Simple Justice there’s an great post about common sense, which according to Greenfield is “one of the most insidious threats to justice imaginable.” I don’t know if the prosecution invoked common sense at Willingham’s trial, but the assumptions about his behavior have exactly the quality that Greenfield wrote about — jumping to conclusions, based on your own everyday experience, about an extraordinary situation in another person’s life. Willingham, so the story goes, “didn’t do anything” to rescue his children. He “cared more about his car than his kids.” Chances are good that you’ve never tried to march barefoot into a burning house, but of course you would if you had to, right? You most certainly wouldn’t just stand around yelling. (Shortly before his execution Willingham had this proposal for all the folks who were so quick to judge him: “Let me drop you in a burning house and you show me what you’d do.”) What I’ve noticed about these judgements is that without fail they’re about as thoughtful as a stone wall — there are other reasonable interpretations of Willingham’s behavior, but I haven’t come across a single attempt to explain or justify the one that proves him guilty.

I got to Greenfield’s post through a more recent one on Defending People, where Mark Bennett blogs about “the art and science of criminal defense trial lawyering.” He pitches his blogging as shop talk. Nonetheless I feel like I’ve learned a lot from it. This is what he says about “Fighting Back Against Common Sense.”

[T]he antidote to a specious argument in trial involves pulling back the curtain and showing the jury what your adversary is trying to do…. We don’t like to be tricked, and the “common sense” argument is—at least in Texas—a trick.

Would Willingham’s jury have seen through the trick if someone pulled back the curtain? I’d like to think so. And in general I like the idea that if a jury is treated like they have some intelligence they’ll act that way.

There’s a sharp contrast between Martin and Bennett on how to deal with clients that lie — this seems like an issue that’s good for separating the genuine article from cheap imitations. When pressed on the air about what he actually did for his client, Martin responded, “Here’s a gross misconception about… criminal defense trial lawyers. When a client tells you his story, you don’t just stupidly accept everything he says” (I guess if you can, you go out and do a stupid experiment instead). Here again Martin sounds like a cop. (*)

Bennett has the same problem, but his reaction couldn’t be more different: “Our clients lie to us; it’s our job, as often as not, to save them from themselves.” As I’ve already written, Willingham needed this kind of help badly. He told at least one big, foolish lie when investigators questioned him. People, especially when they’re under duress, lie for all sorts of reasons. They also get confused, respond to suggestion and change their minds, fish around for the “right” answer, pretend to be more certain than they are, etc. etc. The investigators who questioned Willingham had already divined their own fanciful version of events, so even if they wanted to they weren’t in any position to differentiate any shades of falsehood coming from Willingham. And apparently when Willingham told friends, family, and others about the fire, key details were inconsistent — what woke him up and what door he went out of, for example. For the authorities there was an easy explanation for every discrepancy and inconsistency — they were the fabrications and lies of a murderer. If anyone was going to pop this bubble of self-righteous common sense it was Willingham’s attorneys, but they were apparently no more inclined than anyone else to question the obvious explanation.

So, two attorneys faced with a client’s foolish lies. One’s not gonna be anyone’s dupe, the other’s not gonna let his clients shoot themselves in the foot. It’s two very different mindsets — one represents criminals and the other represents people. Reading any falsehood as a guilty lie and otherwise reducing humans beings to one-dimensional criminals is something that the cops and prosecutors can handle just fine on their own, isn’t it? Bennett’s online reviews give a good sense of how it looks to a client to be treated like a person — they note that he’s smart and forceful but also that he’s respectful, he’s available, he listens, and he explains. With that kind of representation you might come out at the other end of your ordeal talking the way Duke lacrosse player Dave Evans did about his attorneys — “They’ve become family and we owe them our lives.”

None of that for the likes of Willingham, of course. Martin did what had to be done and nothing more. And if the way he handled the plea bargain offer is any indication, Martin figured he knew best and didn’t need to do much listening. Jackson has written that Willingham rejected his generous offer “in an obscene and potentially violent confrontation with his defense counsel.” He’s made some wild claims about this incident, so who knows, but from Grann’s account, it sounds like Martin was determined to get Willingham to accept the offer, one way or another. So maybe, just maybe, there were good reasons for Willingham to be angry with an attorney who was so determined that he should admit his guilt.

According to [Willingham’s stepmother] Eugenia, Martin showed them photographs of the burned children and said, “Look what your son did. You got to talk him into pleading, or he’s going to be executed.”

Last fall, Eugenia told CNN that her son “did not have any defense. …[H]e told me his trial was a joke. That was his exact words.” He was right. Hopefully these days Martin is too busy with his cows to be messing around with criminal defense.

Maybe the communication and moral support that Bennett’s reviews mention are a luxury. But it’s not a luxury to be understood and defended as fully human. Willingham was reduced to a caricature and it cost him his life. The “proof” that he was a “monster” and a “sociopath” is a few scattered pieces of overhyped malicious nonsense, and it’s sickening that it could stand up in court. The prosecutor is still peddling outrageous theories about Willingham’s inhumanity.

Without the trial transcript I don’t know how Martin responded to the prosecutor’s evidence and insinuations, and maybe I’m not giving him enough credit for putting up a good fight in court. But in his comments to reporters, Martin has made it abundantly clear that on both the forensic evidence and Willingham’s character he was on the same page as the prosecution, and that page was the whole story. He could spout all the argumentative rhetoric he wanted but there was very little chance it would lead anywhere — he had no conception of another place to go. He and Jackson were already the Odd Couple, bickering while they herded Willingham down the chute, making sure all the formalities were observed. Martin did a fine job of serving the narrow interests of law and order, but he sure as hell never represented Todd Willingham.

A premise of the inferior justice system that Coleman wrote about is that people like Willingham don’t deserve to be represented any more than they deserve to be presumed innocent. That’s why I’m bothered by the story Jim Cooney told about how he decided to represent one of the Duke lacrosse players. It boils down to something like this: I had to represent these people! Look what pain they were in! And not only that, they were innocent! It’s as if they were doubly entitled to the defense that a rich person gets, by their pain, which proves that they’re human, and by their innocence. The ethos of criminal defense, as I understand it, is that everyone charged with a crime is entitled to a strong defense, period. And if an innocent human is most entitled then it follows, rhetorically if not logically, that a guilty monster is least entitled. It’s painfully obvious from the Willingham case how easily that premise justifies itself.

And talk about pain, what could be more painful than losing your three beautiful little girls in a fire, and then having to live with the memory that you didn’t save them? Imagine that and then compound it with the deadening pain that Cooney was so moved by, the kind that comes from being at the mercy of petty authoritarians who can make up whatever they want and call it truth. Of course I don’t know for sure whether or not Willingham felt that kind of pain any more than I know for sure that he was innocent. Nobody’s given me a good reason to doubt that he was an ordinary person with ordinary human feelings, though.

The suggestion that Willingham was anything less than a monster is deeply offensive to many of the people who sent him off to rot on death row and then on to his execution. But to them he was just a piece of trash, and they wanted to know just enough about him to throw him away and no more. Their self-serving ignorance is still paying dividends. Their camp is well stocked with contemptuous suspicion and doubt to throw back at their critics. And the people most responsible for the whole travesty — John Jackson and David Martin above all, but also Rick Perry and David Medina, and presumable some others who “have an ethical duty to seek justice” and/or serve rather than murder the public — get another ignorance dividend. They’ll never have to feel the shame. They sure earned it, though.

Ernest Willis on Hardball soon after his release in 2004

The approach to cases like Willingham’s — the ones with throw-away defendants — reminds me of the loathsome warrior’s slogan “Kill ‘em all and let God sort ‘em out.” Depending on the crime and the jurisdiction, I guess the appeals courts sometimes do a fair amount of sorting. Texas is pretty committed to the principle that the dead should stay dead, though. In North Carolina, as Joe Neff points out, it was ultimately good luck that Alan Gell was sentenced to death. It triggered a mandatory appeal, and the appeal brought in the high-powered lawyers who ultimately set him free. No such luck in Texas, at least not back in the mid-90s. Willingham’s direct appeal was filed by none other than David Martin, the same attorney who lost his case so efficiently. He didn’t even dispute the verdict, only the sentence. (I don’t know whether that was or still is a typical difference between the two states.)

Every now and then there’s a resurrection, even in Texas. Ernest Willis showed that it could happen to someone in much the same situation as Willingham but also that it was extraordinarily unlikely. For me, one of the most effective passages in Grann’s article is the brief summary of the Willis case. The parallels are remarkable, even down to weird details like moving the car and getting out with bare feet. I’ll add one more, though to some extent it’s implied already. Both men were basically outsiders. Willis most obviously — he really was just passing through when the fire happened. Willingham was known enough to be disliked. But both of them were more or less blank slates, and the authorities found it easy to project whatever they wanted on them.

Another inmate, Ernest Ray Willis, had a case that was freakishly similar to Willingham’s. In 1987, Willis had been convicted of setting a fire, in West Texas, that killed two women. Willis told investigators that he had been sleeping on a friend’s living-room couch and woke up to a house full of smoke. He said that he tried to rouse one of the women, who was sleeping in another room, but the flames and smoke drove him back, and he ran out the front door before the house exploded with flames. Witnesses maintained that Willis had acted suspiciously; he moved his car out of the yard, and didn’t show “any emotion,” as one volunteer firefighter put it. Authorities also wondered how Willis could have escaped the house without burning his bare feet. Fire investigators found pour patterns, puddle configurations, and other signs of arson. The authorities could discern no motive for the crime, but concluded that Willis, who had no previous record of violence, was a sociopath—a “demon,” as the prosecutor put it. Willis was charged with capital murder and sentenced to death.

Willis had eventually obtained what Willingham called, enviously, a “bad-ass lawyer.” James Blank, a noted patent attorney in New York, was assigned Willis’s case as part of his firm’s pro-bono work. Convinced that Willis was innocent, Blank devoted more than a dozen years to the case, and his firm spent millions, on fire consultants, private investigators, forensic experts, and the like. Willingham, meanwhile, relied on David Martin, his court-appointed lawyer, and one of Martin’s colleagues to handle his appeals. Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation.

Willingham did get a better lawyer, Walter Reaves. The enormous difference between him and Martin is clear in his reflections on the case and his comments about Martin’s unprofessional performance on TV. But Reaves didn’t have the deep pockets of Willis’s bad-ass lawyer’s law firm, and apparently it takes a whole lot of time and money to get resurrected in Texas. The 12-year-long pro bono effort on Willis’s behalf would have billed at something like $5M — an obscene figure. And without some luck, even that wouldn’t have been enough. They found a district court judge who was willing to reverse himself, then a federal court judge who was willing to override the obstructionist Texas Court of Criminal Appeals. In the end they even had the good fortune to find a DA, Ori White, who took his obligation to “see that justice is done” seriously and freed Willis without a retrial.

Willis somehow managed to come out of the whole thing unembittered, which is remarkable. He got a modest settlement and went on with his life. There was a nice interview and an article about him by Michael Hall in Texas Monthly last December. The backdrop was the Willingham controversy. In the interview he talked about the reforms that would be necessary to make the death penalty fair — holding prosecutors accountable and funding adequate defenses. He also talked about what a “dirty deal” the whole thing was:

Most people—they believe in the death penalty; they don’t know anything about it. But once in a while it strikes close to home. And then they realize this is really a dirty deal. Anyone can be walking down the street and be in the wrong place at the right time. And they can put—just like on mine—everything was circumstantial evidence. The district attorney gets up there and says, “This is the way we think it happened.” And that’s not the way it happened. How can a civilized country like America sentence men to death on circumstantial evidence like that? It’s not right.

(*) Martin’s attitude towards the stupid stories that clients feed to him reminds me of the inimitable RRH, an erstwhile commenter on this blog. He wrote about lawyers like himself that they’ve heard “every cockamamie story there is,” so they’ve “developed internal ‘bullshit-detectors’ that are so finely tuned that they are probably exceeded by only those of cops.” The claim is quite plausible, and in the context of the Duke lacrosse case it wasn’t a bad point. I had some fun with it.

The other reason RRH comes to mind is that I’ve come across comments he’s made here and there about the Willingham case. There’s a long exchange with Chris Halides and then a shorter one, in which he makes a wonderfully ax-grinding link between the two cases: “I can find no difference between professors who believe Cameron Willingham’s myriad of lies and those professors who believed Crystal Mangum’s myriad of lies.” And he also dropped in on Michael Landauer and his Texas Death Penalty blog (scroll down to the end of the comment thread), where he found a certain Dudley Sharp and thanked him for “fighting the good fight.” RRH’s contribution to the good fight starts with a disparaging comment about the intelligence of journalists like Landauer. Then he turns to one of the sloppiest and most one-sided articles that any journalist has written about the case, which happens to bolster his opinion. On that one he’s as unskeptical as can be. So it seems that he has a very ordinary, unidirectional, agenda-driven bullshit detector. Big surprise, huh? (back)

Judge John Jackson and the pentagram he found on Todd Willingham’s floor. Satan or just ventilation?

One of the things I find most disconcerting about the Willingham case is how little anyone knew — how little anyone cared to know — about him when he was on trial for his life (see my last post for an introduction to the case). Over and above the generic description — 22-year-old unemployed mechanic and father of three baby girls — it takes just a couple of sentences for David Grann to say just about all there was to say about Willingham’s recent life and times in Corsicana, TX: “Willingham, who was unfaithful, drank too much Jack Daniel’s, and sometimes hit Stacy—even when she was pregnant. A neighbor said that he once heard Willingham yell at her, ‘Get up, bitch, and I’ll hit you again.’”

Investigators interviewed several dozen people and were able to add one thing to his personality profile — he was a liar. Lying unfaithful wife-beaters are not a particularly rare breed, sad to say. Very very few of them murder their children. What set Willingham apart? Apparently it’s the fact that he murdered his children. It’s funny, though. The guy had been in town for a couple of years, neighbors heard what he was up to, but he never came to the attention of the police or child protective services — if he had it surely would have come out at the trial. I’ve looked through all the articles about Willingham in the Corsicana paper and found no soul-searching about the authorities’ utter failure to serve and protect those three little girls. Maybe the leap from drunken wife-beating to horrific infanticide is so routine in that part of Texas that it wasn’t worth a second thought. More likely, though, there was a run-of-the-mill ignorant rush to judgment. Folks who didn’t know and didn’t care how Willingham actually behaved with his children were absolutely convinced that he was a vicious, inhuman father. That I find stunning.

Early last September, Corsicana Daily Sun reporter Janet Jacobs canvassed many of the original investigators and prosecutors. Craig Beyler’s report for the Texas Forensic Science Commission had come out a few weeks earlier, and David Grann’s epic piece was in the current issue of the New Yorker. Despite the back-to-back beatings their work had just taken, the title of Jacobs’ article — “No Doubts” — perfectly captures the sentiment of the old-timers she spoke with. Their reactions are classic — non-stop defensiveness punctuated by ad hominem jabs at the busybody outsiders and their fancy liberal causes, with a few red herrings thrown in for good measure. A few points in Beyler’s report are raised and dismissed, but mostly the interviewees dwell contemptuously on the things they’ve always known. And there’s nothing they’re more certain of that what kind of person Willingham was — a “sociopath,” a “monster,” and according to one of the prosecutors, “one of the most evil people I’ve ever come in contact with in my life.” What rankles most isn’t the way their evidence and methods had been questioned, it’s what they see as an effort to make Willingham into a “poster boy” and a “martyr.” No decent person would want to know more about that creep than it took to get rid of him. It’s an attitude that served them well, and they’re stickin’ to it.

John Jackson is a bit of an exception. He was the lead prosecutor at Willingham’s trial, and went on to be a district court judge. He doesn’t have any doubts, either, but he did manage to respond to some of the substance of the criticism with equanimity. In an op-ed published in late August he acknowledges “the undeniably flawed forensic report” and then lists evidence that’s independent of that report and still, in his opinion, supports the guilty verdict. None of his points are very good and some are truly awful, but at least he wasn’t dismissing Beyler as just another expert who’ll say anything for a fee or slamming the Innocence Project as an “absolute farce.”

A few weeks later, Jackson was interviewed for a Nightline piece about the Willingham case. His tone is still moderate but his claims are a good bit wilder — there’s nothing like TV to get people to take leave of their senses, I guess. The bombshell is his belief that Willingham was “obsessed with Satan-like figures and that sort of thing” and even burned a pentagram into the floor of his childrens’ bedroom. Jackson isn’t exactly stating a personal opinion, he’s just pointing out “one factor that a finder of fact could consider,” presumably while keeping in mind other factors like Willingham’s Iron Maiden and Led Zeppelin posters and the scary tattoo on his arm. (I bet the shape burned in the floor has nothing to do with accelerant or devil worship. I have my own theory — I think it reflects the availability of oxygen after flashover, when the fire was at its peak and air was coming through the windows and the front door. Of course I’m no fire expert, but I’ll put my theory up against Jackson’s any day.)

Jackson is, if anything, more dependent than his colleagues on a broad reading of Willingham’s personality, or else he’s just more open about it. Nothing comes across more clearly in the Nightline interview than his absolute certainty that he knows what made Willingham tick. Early in the piece, Terry Moran asks him if the flawed forensics gives him “pause at all about sending a man to death?” “Not a man like Todd” is the answer. Jackson doesn’t explain how he got to know Todd so well during the short, antagonistic ritual they went through together. I can see how it would suit a prosecutor to believe that the defendant’s personality is perfectly captured by the crime — it’d be a useful but obnoxious kind of ignorance.

What Jackson and the rest of the crew are sure of, really, is that Willingham was exactly the kind of person who would commit the crime he was convicted of. That may be how they think about any of the riff-raff they investigate or prosecute. In a case that offered no compelling motive, though, it was a definitive assumption. It supports an airtight line of reasoning: The fire inspectors know he set the fire so he must have been the kind of person who would set the fire, so let’s go out and find some things to confirm that he’s the kind of person who would and probably did set the fire, and of course once that’s proven then it’s obvious he’s a sociopath, which makes him just the kind of person who would set a fire to kill his children, so… If it’s charged up with enough self-righteousness and nobody challenges the premise, you have a bulletproof case. It seems like something the defense would want to challenge, but in this case there’s no indication that they did. In fact, David Martin, one of the court-appointed defense attorneys at Willingham’s trial, has emerged as one of the most enthusiastic apologists for his former client’s execution. In “No Doubts” he gets the last word, and he boils the core assumption about Willingham down to its essence: character equals motive.

As for motive, Martin agreed with investigators about Willingham’s character.

“He had no conscience,” Martin said. “Why do monsters kill? They like killing.”

Martin has to be taken with a Texas-sized grain of salt, but there’s no sign that the prosecution was any more subtle. Other motives were floated before and during the trial. At first the authorities told reporters about a small life insurance policy, but it turned out Willingham wasn’t a beneficiary. The jailhouse snitch testified in court that Willingham was trying to cover up the effects of violent child abuse. The autopsies didn’t turn up any signs of abuse, though. One of the strikes against Willingham is that, as someone says in “No Doubts,” “none of the stories he told us panned out.” None of the State’s stories about motive panned out, either, but the unfounded speculation and blatant fabrication had no discernible effect on the prosecution’s credibility — an appeals court even cited some of their nonsense as legitimate evidence.

Jackson has a placeholder motive for interviews — “the children inhibited [Willingham’s] lifestyle.” When Willingham was arrested, county attorney general Pat Batchelor had the same general idea but he was more specific. He told reporters that “[t]he children were interfering with [Willingham’s] beer drinking and dart throwing.” No doubt the comment sent a useful message to voters and jurors about what a creep he’d just hauled in. But there are no anecdotes about Willingham ditching his children to drink and play darts. To suggest that he did anything that normal might have undermined the prosecution’s portrait of the defendant, which owed absolutely nothing to his everyday life. The case against Willingham proposes that you can find out all you need to know about him and his children from a few extreme incidents when he wasn’t actually with them. Whether he loved them, played with them, beat them, or neglected them is irrelevant.

In practice, it’s Willingham’s supposed indifference during the fire that seems to define him is a father who wanted his children to die. For Jackson, though, there’s another crucial piece of evidence. In his op-ed he claims that “[Willingham] had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages” (the ruling on Willingham’s direct appeal mentions only “one time he beat his pregnant wife in an effort to cause a miscarriage,” so if police heard about another incident it apparently wasn’t presented during the trial). On Nightline, Jackson calls this “the best evidence that I believe I presented” — better, even, than the forensic evidence of arson. He also describes it as “the prior attempts of Todd Willingham to kill his children,” which in my opinion is a stretch. But according to the usual pro-life logic I guess attempting to force a miscarriage would be the same as trying to kill a child (and what better place for “pro-life” logic than arguing for an execution?).

It’s even more repulsive to beat a woman when she’s pregnant than when she isn’t, and I don’t see any reason to doubt that Willingham did both. Did the behavior intensify or change when she was pregnant? If not, he was probably hitting her for the same stupid reasons either way. And if the way he treated his pregnant wife suggests deep antagonism and violent intentions towards the children, how did it manifest when he was confronted with living, breathing children? We don’t know and I guess we’re not supposed to care. It could be that he sat on the feelings for a couple of years and woke up one morning with the uncontrollable urge to get rid of the kids once and for all. When a man is on trial for his life, though, proof beyond a reasonable doubt should come with a more plausible explanation. Might as well claim the devil made him do it (what’s that, Judge Jackson? You say maybe the devil did make him do it?).

There’s an excellent reason for Jackson to make a grand but empty claim and then move on — his evidence collapses under any kind of scrutiny. The raw material is the testimony of a woman described as a friend of Willingham’s wife Stacy, who claimed that Stacy said that Todd beat her while she was pregnant with the twins. It’s a second-hand account of one side of an angry fight between partners in an abusive relationship — classic material for self-righteous or malicious gossip because practically by definition it’s one-sided and fueled by outrage. I don’t understand why it wasn’t dismissed as hearsay (read the details first if you think you can explain). Stacy denied the story, anyway. Her line both in and out of court has been that her husband wasn’t violent or neglectful towards the children.

It seems that the prior attempts didn’t impress the jury — it’s not something they mention in interviews, anyway. To the judge who ruled on the direct appeal it was just an incidental point, too. I’d like to think they saw through the pretense, but it seems more likely that they preferred to focus narrowly on the fire and its aftermath — after all, things are so clear cut that way. It’s also possible that Jackson’s blockbuster evidence wasn’t even presented during the guilt phase of the trial. I can’t tell for sure when Stacy’s friend testified, but there’s no doubt that Stacy herself didn’t take the stand until the punishment phase — according to the daily newspaper write-up she was the first witness in that phase. There’s a fairly detailed account of her testimony, which included a rebuttal of her friend’s claims (if claim and rebuttal are split between the two phases of the trial, doesn’t that complicate the issue of hearsay?).

Anyway, this is a borderline example of a problem that defenders of the verdict get into when they try to bulk up their meager case. In “No Doubts,” Jacobs has Alan Bristol rattling off a litany of reasons that Willingham “would have been convicted whether we had the arson evidence or not.” Bristol assisted in Willingham’s prosecution, and for the most part his list of prime evidence is a quick rehash of Jackson’s op-ed. The problem is that a lot of it couldn’t be used in court to prove Willingham’s guilt.

“The guy was a sociopath,” he said. Willingham refused a polygraph, tortured and killed animals as a child, abused his wife repeatedly, thought more about losing his car than his children, and clearly lied about what happened in the deadly fire, Bristol said.

“None of the stories he told us panned out,” Bristol said. “He tried to make himself out to be a big hero, that he tried to go in and save the children, but there was no smoke in his lungs and he had only minor injuries.”

Some of these things were key points in the punishment phase of Willingham’s trial, when the question wasn’t whether or not Willingham was guilty of a crime but whether or not he could be executed. As I understand it, the crux of the prosecutor’s case was that Willingham’s was a “sociopath.” That was the diagnosis of their questionable psychiatric expert, James Grigson (“Dr. Death”). Willingham’s supposed animal abuse was a bullet point supporting Grigson’s foregone conclusion. I can see how spousal abuse would be a sentencing factor but I don’t see how it would be relevant to guilt since the spouse wasn’t the victim of the crime. Perhaps the incidents during pregnancy are a special case — I don’t have the expertise to say. Refusing a polygraph is not useful evidence of anything — the point just makes Jackson and Bristol look desperate.

The lack of injuries and smoke inhalation might carry some weight if there was some expertise behind the observations. Beyler explains in his report why Willingham’s injuries were “entirely consistent with being exposed to a room fire environment” and the prosecutors counter with exactly nothing. I’m sure there’s some useful suggestion of guilt in Willingham’s lies and inconsistencies, but Brisol milks the point for suspicion and contempt instead of evidence. Manuel Vasquez certainly painted Willingham as a wild fabricator, but that goes in the category of flawed forensics.

There’s one thing left and it gets the full endorsement of both the jurors and the appeals court. A reporter noted that the way Willingham moved his car “chilled jurors, who inferred Willingham showed more concern for his car than his kids.” The car was a vivid detail that reinforced the general opinion that if Willingham really cared about his children he would have tried harder to rescue them — one juror was “moved” by the image of Willingham standing just outside the girls’ bedroom, where “[h]e didn’t do anything.” I’m unmoved, but I can see why the jury would be so receptive. In an interview with the Dallas Morning News a juror noted that the defense “never suggested that the fire could have started accidentally.” Willingham was the only person who could plausibly have set it. If they followed their instructions and stuck to the evidence presented in court, jurors had no choice but to hold him responsible for the fire and also for the deaths it caused. I imagine it was easier to dole out the verdict and all its consequences if it seemed clear that he acted guilty. Even easier, I suppose, if he acted like a monster.

The experts who looked at the case for the Chicago Tribune “didn’t put any stock in the claims that Willingham’s behavior was damning.”

Prosecutors… often rely on such circumstantial evidence, especially when children die in a fire and a parent survives. “When you are building a case of arson on the attitude of the survivor, that’s when things can go really wrong, particularly if the victims are children,” said [John] DeHaan, a consultant based in California who testifies for both prosecutors and defense lawyers.

Maybe there’s a primal compulsion to judge the parent in a situation like this. Grann describes how the eyewitness accounts of Willingham’s fire changed once it became clear that Willingham was suspected of setting it and then touches on research that has revealed how subjective our recollection of events can be. Even the way we remember the basic facts — how fast, how long, how hot — may change to suit the overall narrative. But there’s nothing subtle or buried about the subjectivity of the eyewitness testimony at Willingham’s trial — the behavior that seemed so damning to jurors is wide open to interpretation. It wouldn’t have been hard to shrug off Willingham’s failure to reenter the house if the inspectors had found evidence of a massive electrical short and immediately pronounced the fire accidental. People might have gossiped about how cold-hearted or cowardly he was, but I doubt they would have concluded that he was an infanticidal monster.

Even if the cause of the fire wasn’t obvious, observers could easily have settled on a different story. In Willingham’s case the key eyewitnesses were a woman and her 11-year-old daughter. They were sure that he could have gone back into the house if he’d wanted to, but they were never as close to the fire as he was and I doubt they had a lot of experience with burning houses. They had plenty of leeway to imagine conditions in the house to be more or less severe. If they thought the man on the porch was brave and loved his kids, they could have settled on a very different story. You couldn’t see any fire, just smoke, but man was it hot! You could tell he was trying to work up the nerve, even with nothing on his feet. And then the windows blew out and you should’ve seen him pushing that car out of the way before it went up, too!

The dubious conclusions about Willingham’s behavior during the fire are compounded by some really foolish and foul presumptions about his behavior afterwards. A firefighter encountered Willingham going through the house a day or so after the fire and thought the way he complained about his ruined dart board was unseemly. Neighbors reported that on the day after the fire Willingham and his wife were “going through the debris while playing music and laughing.” Those folks ought to get the prize for Most Community Spirit During a Witch Trial — it’s a wonder they didn’t hear the monster asking where the hell the crispy little bodies were because he was starving. The judge who ruled on Willingham’s direct appeal cited these two points and the moving of the car as proof that “appellant neither showed remorse for his actions nor grieved the loss of his three children.” For anyone, let alone a high court judge, to gauge a man’s grief and remorse from such poisonous narrow-minded witch-trial claptrap is sickening. Jackson used his op-ed to add some more malignant gossip to the mix. It’s no surprise that he finds comfort in Judge White’s ruling on the direct appeal — the two men are birds of a feather.

Poor Janet Jacobs. Late in October she wrote a column reflecting on the weird and unpleasant couple of months she’d spent covering the Willingham beat for the Corsicana Daily Sun. She’d been just minding her business, writing local coverage for a local paper, and then she was being attacked by “the fellers at the New York Times, Chicago Tribune, and any number of Web sites.” If her high-falutin’ critics thought her reporting was biased, they were mistaken — it wasn’t her, it was the folks she was talking to. “The people we cover may have a bias, but it’s a legitimate one — just as legitimate as the one held by folks in New York, Chicago, Austin and Dallas.” In fact, she was so respectful of the bias of the people she interviewed for “No Doubts” that she might as well have been their press agent. She spins their mindless suspicion and contempt as common-sense skepticism, stokes it up with some good old middle-American resentment and insecurity, and throws it right back in them big-city fellers’ faces.

It’s surreal to me that so many people have gotten on this bandwagon without anything more substantial than someone’s opinion one way or another. They haven’t even tried to give the investigators the same benefit of the doubt that they gave Willingham and his supporters.

After reading the third or fourth of Willingham’s conflicting stories, I was starting to go “Whoa, who is he kidding?” But I’m a skeptic, and the rest of the media, including all those self-important, head-swollen, horse-hineys at larger papers and magazines who have forgotten what objectivity means, should be skeptical, too.

I’m struck by the idea of giving investigators the benefit of the doubt. Aren’t they supposed to produce a convincing body of evidence that speaks for itself? Jacobs is onto something, though. The case against Willingham demands the benefit of the doubt at every turn (I can’t sort out how much of the credit for that goes to the investigators and how much goes to the prosecutors, so I’ll have to lump them together). The fire inspectors were sure that Willingham doused his floors with lighter fluid in a path running down the hallway to the front door and set it alight. The prime eyewitnesses were sure that there wasn’t a flame in sight when Willingham was standing on the porch putting on a show of not rescuing his babies. Beyler flags this conflict and even claims that “The eyewitness observations are sufficient to cause the failure of FM Vasquez’s hypothesis about the fire.” Nobody close to the investigation has seen fit to respond. But give them the benefit of the doubt if you want — they haven’t answered any of the hard questions raised by their critics, but that doesn’t mean that they couldn’t if they really wanted to.

And maybe it’s a moot point, anyway. The prosecutor has assured us that just because Willingham was charged with the murder of children who were killed by fire, there’s no reason to get all wrapped up in the arson evidence. After all, we’ve got the shocking revelations of the wife’s friend, so we know this guy wanted to kill his children before they were even born. The National Enquirer wouldn’t turn up its nose at that kind of evidence, so who are we to doubt? And it was obvious that he didn’t want to save his kids, either. Any 11-year-old could see that. Oh right, one of the best witnesses was an 11-year-old! We better give her the benefit of the doubt, too.

That’s the strong evidence. The other stuff — the padding — demands even more indulgence. Animal abuse, we’re told, is a key indicator of sociopathy. Lo and behold, it turns out Willingham was an animal abuser. We know because some guy said that once upon a time, Willingham told him a story about brutally killing a dog. Willingham might have been a bad guy, but at least he wasn’t a liar, right? And don’t forget that the neighbors heard him desecrating the scene of the disaster with loud music and laughter. An innocent person would surely have been doing something more… appropriate and ummmm… innocent, right?

I’d have to have an awful lot of faith in someone to accept so many dubious points. Nothing I’ve read about the people who constructed the case against Willingham inspires any confidence. It was the lead fire investigator, Manuel Vasquez, who laid the foundation of the case both in and out of court. He was apparently full of confidence and a very compelling witness but in practice it seems that he was unclear about the difference between a house fire and a campfire (i.e., the effects of ventilation and radiation in an enclosed space), and by his own testimony he had declared virtually every fire he investigated an arson. The one thing to be said for the rest of the crew is that they weren’t as delusional, but there’s no sign they were more careful or competent. The ones who spoke out about the recent controversy have made it clear they’re absolutely sure that Willingham was monster who committed a horrible crime. Did they ever ask a difficult question or risk finding an inconvenient answer? If so, there’s not a sign of it. So I’m afraid I’m made of doubt on this one — the benefit is long gone.

(Jacobs certainly practices what she preaches about giving the inspectors the benefit of the doubt. Of the people she interviewed, fire inspector Doug Fogg is the only one who responds to any specifics from Beyler’s report. He’d be more convincing if he didn’t remember significant “facts” that somehow never made it into any other account of the case, like the “four empty bottles of charcoal lighter [that] were found just outside the front door” (that’s in addition to the one or two bottles on the porch mentioned in other reports). She might have, first of all, flagged that claim as new and interesting information and then done some fact checking. And it seems to me she might have done all her interviewees a favor if she’d encouraged them to rant less and instead take a stab at some of the serious questions that had been raised about their conclusions. Of course that’s what Terry Moran did on Nightline, and it didn’t make Jackson look all that good.)

Jackson is the odd one in the crew. He seems more thoughtful and reasonable but he’s also come up with the most incredible stuff. The pentagram theory is so far out that it’s hard to know what to make of it. Towards the end of the Nightline segment, Moran asks about something with more obvious significance — Willingham’s emphatic refusal of a plea bargain offer that would have spared him from execution. Jackson explains this away as “a response to [Willingham’s] belief that a life sentence for him would be worse than a death penalty” — another astonishing insight that seems to have no rational basis.

Moran: Isn’t it also possible that he just was telling the truth when he said that “I will never plead guilty to something I didn’t do, especially killing my kids”?

Jackson: Uh, I don’t think it’s a very good possibility that Todd Willingham ever told the truth to anybody, about anything. He’s one of the most completely manipulative individuals that you’d ever hope to find. He’s still manipulating us from the grave!

If Willingham is a devil worshipper and he can mess with us from the grave, that sounds pretty sinister. And what was the quickest way for him to get in the ground and get to work on us? To be executed, of course! Would that be reading too much into Jackson’s comments? Maybe. He said just enough to make it both reasonable and irresistable to speculate but not enough to tell what he actually believes and why (to be fair, the interview was edited by Nightline and it’s possible that Jackson offered a better explanation but key details were cut out).

But as I pointed out last time, Jackson’s pentagram theory gives new significance to his closing arguments at the trial, when he referred to “Willingham’s inadvertent ‘confession,’ burned into the floor.” In the same speech, he assured the jury that “monsters do exist and one sits in this courtroom and its name is Cameron Todd Willingham.” Its name? Either Jackson is very fussy about his grammar or he’s inclined to think that Willingham was really non-human. It’s possible that Jackson is not just a run-of-the-mill overzealous narrow-minded prosecutor-turned-judge, he’s a superstitious nutjob, too.

While devil worship seems to be Jackson’s unique insight, everyone in the Corsicana crew knows that Willingham was a sociopath. I’m inclined to think that even in more thoughtful hands the term is pseudo-scientific. I don’t know what else to believe in this case, when the prosecution had to bring in a professional stooge to make the diagnosis in court. “Sociopath” is like a magic word that that makes any wild claim about Willingham seem perfectly reasonable. As usual, though, Jackson thinks a little deeper. Everyone knows that Willingham was a liar but Jackson is the only one, as far as I can tell, to use the word manipulative. A quick tour through the online literature (caveat lector, as always) makes it clear that it’s the nature of a sociopath to be a remorseless, manipulative liar.

If Willingham was so incredibly manipulative, though, all I have to say is that he was remarkably bad at it. Wouldn’t that be the perfect way for a really manipulative person (or thing) to throw everyone off his trail? But maybe even Jackson wouldn’t pursue his argument to such absurd extremes. Maybe in regular life Willingham was a charming remorseless liar who always got what he wanted. That would help explain why he was unemployed, broke, and living with his three infant daughters in run-down firetrap. But what does Jackson know or care about Willingham’s regular life? As far as I can tell, nothing. He’s happy to pose as an authority, though, and tell whatever ludicrous story suits his purposes.

Needless to say, because somehow these things always come steeped in hypocrisy, Judge Jackson is the who comes out looking manipulative. In what I’ve read about the case, in fact, there’s one really striking example of manipulative person at work. It’s the prosecutor thumping a fire-scarred bible, calling the defendant a monster — the kind we deny for the sake of our childrens’ piece of mind — and calling down on “its” head God’s terminal punishment for “whomsoever shall harm one of my children.” It’s an image that gives the full demagogic force to the mix of hyperbole and ignorance that had been fed to the jury up to that point. Jackson sent Willingham to death row with a case that could hardly be less substantial or more manipulative. Apparently that’s just a prosecutor doing his job.

I hate to embed video with a commercial but this episode of Church Chat is too good to resist. Al Franken and Phil Hartman are both fantastic — Franken as an extremely jovial Pat Robertson and Hartman an utterly despondent Jimmy Swaggart.

Cameron Todd Willingham with his daughter Amber, manipulating us from the grave.

Well, never mind how many weeks months it’s been, I’m gonna try to pick up the thread from my last post. The theme is still the criminal justice system — how it fails and who it fails. It’s quite a can of worms, and for someone like me who’s had the good fortune to avoid much contact with the cops and the courts, it’s quite an education. What I’m writing should be read in that spirit, as notes on a continuing education.

Last time the eye-opener was Alan Gell — how little it took to railroad him onto death row and how much it took to get him out. But eventually the built-in safeguards worked. They worked and worked, in fact, for about 10 years while Gell relaxed in jail. But hey, it could’ve been worse. He could’ve been in Texas and ended up like Cameron Todd Willingham.

Until his house burned down a few days before Christmas 1991, Todd Willingham lived with his wife and three young daughters in Corsicana, a small town in northeast Texas. He’d gone back to sleep, he claimed, after his wife left the house that morning. About an hour later a shout from the two-year-old woke him up. The house was full of smoke. He yelled for her to get out and made his way to the childrens’ bedroom but couldn’t locate the twins, who were about a year old. All three girls died.

In “Trial By Fire,” the masterful account of Willingham’s case that ran in the New Yorker last September, David Grann describes how injustice was piled on top of catastrophe. Fire inspectors quickly concluded that the blaze was arson and that Willingham’s story of waking up and getting out of the house was a fabrication. He had no compelling motive for either arson or murder but the authorities decided that he was nonetheless “a man without a conscience whose serial crimes had climaxed, almost inexorably, in murder.” At his trial the prosecutor portrayed him as a monster. A jury agreed and sentenced him to death.

As time was running out for Willingham, a scientist and inventor named Gerald Hurst agreed to look at the forensic evidence used to convict him. Hurst’s work had been instrumental in freeing Ernest Ray Willis, another Texas death-row inmate, and he was amazed at how closely the two cases paralleled each other. He rushed out a report debunking the evidence against Willingham. This time it didn’t do the trick — Willingham was executed in Feb. 2004 — but his reports on both cases found their way to a couple of reporters at the Chicago Tribune. They consulted with several other fire experts and at the end of the year published the first exposé on Willingham. The Innocence Project and the Texas Forensic Science Commission followed with detailed reports analyzing both the Willingham and Willis cases. The unanimous opinion of the nine fire investigators who’ve reviewed Willingham’s case is that the forensics is riddled with scientific misconceptions and that no legitimate proof of arson was presented to the jury. It’s a sobering result, but in a way not so surprising. Comprehensive scientific standards for fire investigators weren’t published until 1992, and on many points those standards contradicted the conventional wisdom that had long circulated in the field.

The Willingham case got a burst of attention last fall in the wake of Grann’s article and the release of a report prepared for the Forensic Science Commission by Craig Beyler. It turned into a campaign issue for Texas Gov. Rick Perry, since back in 2004 he signed off on Willingham’s execution in spite of the report from Hurst. At the end of September Perry staged a heavy-handed intervention to rein in the Forensic Science Commission and push any serious consideration of the Willingham case off its agenda. It was a sleazy move, but it seems to me that the governor’s opponents were about as indifferent as he was to the commission’s actual purpose, not to mention the folks most likely to benefit from it — the poor saps who might otherwise be railroaded by “junk science” (there’s a fine post on Grits for Breakfast about the gap between what the committee was prepared to do and what everyone wanted to argue about).

Gerald Hurst: “The proof that they used for arson… is in the report and in the testimony and that is not proof. So yeah, Willingham was innocent.”

The unavoidable hot-button question is the subheading of Grann’s article — “Did Texas execute an innocent man?” I like the way Gerald Hurst answered it on Nightline: “The proof that they used for arson… is in the report and in the testimony and that is not proof. So yeah, Willingham was innocent.” The evidence that the fire was intentional was the foundation of the case against Willingham, and if that evidence was grossly misinterpreted and misrepresented, then his guilt was not proved and he was legally innocent. No doubt it would be quite a coup if Texas was forced to acknowledge that. It’s only the admission that would be a breakthrough, though, since any argument about the innocence of a convict is, like the lottery, heavily rigged in the State’s favor. Ernest Willis managed to win the argument when the stakes were his life, and what he showed was that the courts in Texas are quite capable of sending an obviously innocent man to death row and of fighting like hell to keep him there until the bitter end. If Willingham was the first innocent man (or woman) they managed to execute, it was just dumb luck.

Nothing suits the law-and-order machine and its apologists better than a debate focussed on something so easy to doubt and impossible to prove as Willingham’s factual innocence. The physical evidence is long gone. The only thing that the original forensic work proves is that the investigators were, at best, misinformed and irresponsible — it would be giving them way too much credit to imagine that they proved anything about the fire. I don’t know what kind of evidence might be filed away in the archives, but most of the other evidence at the trial was part of a narrow-minded effort to scare up suspicion and loathing. One thing that it’s good for is undermining any claims that Willingham was factually innocent. Otherwise it stinks, and it always has — it’s never been necessary to get into the forensic details to pick up the foul smell this case gives off. That’s the argument I’m going to try to make, anyway.

It’s true that the legal system is way outside my area of expertise (whatever that is), so I might be missing something big. Maybe I fundamentally misunderstand what counts as proof or what counts as justice. I’d worry about it more if the authorities who built and prosecuted the case didn’t act like justice was just a matter of tossing out a piece of human garbage in the quickest and most self-righteous way possible. They seem incredibly narrow-minded, and as far as I can tell they were completely untroubled about compounding the misery of a family that was already deeply traumatized. The ultimate risk, if they made a false charge stick, was that a man would be executed merely for surviving the horrible accident that killed his children — a truly obscene miscarriage of justice. So it seems like they’d embrace their burden of proof beyond a reasonable doubt, if not out of common decency then because of the prosecutor’s statutory obligation “not to convict, but to see that justice is done.” They couldn’t honestly expect Willingham’s meager defense to hold them to it. But no, they did their very best to make all the reasonable doubt just go away — they put on a witch trial.

The fire inspectors set the whole process in motion and they gave the proceedings a veneer of rationality. Actually, though, they were priestly figures, and when they conjured up the crime and the defendant’s guilt, it was presented and accepted as a matter of faith. The crime was horrific, too — little children intentionally burned alive, which happens to be the kind of thing witches do. To make it seem plausible, the jury was offered a lot of highly suggestive testimony that was supposed to show that Willingham wanted to kill his children and that he stood by while they died their gruesome death. It was, in effect, a portrait of the defendant as an evil and abnormal person — the kind that does horrific things for no particular reason. Of course in modern-day Texas a man like that isn’t a witch, he’s a monster or a demon, but same difference.

It was a banal little bush-league witch trial, but not a purely metaphorical one — there’s a real undercurrent of superstition. Grann describes how the lead prosecutor, John Jackson, gave the faith-based forensics a bible-belt twist:

During his closing arguments, Jackson said that the puddle configurations and pour patterns were Willingham’s inadvertent “confession,” burned into the floor. Showing a Bible that had been salvaged from the fire, Jackson paraphrased the words of Jesus from the Gospel of Matthew: “Whomsoever shall harm one of my children, it’s better for a millstone to be hung around his neck and for him to be cast in the sea.”

On Nightline last fall, Jackson was more specific about what Willingham burned into the floor — it was, he said, “perhaps a pentagram kind of a figure that some people associate with devil worship.” In a letter to the local paper a few weeks earlier, Jackson pointed out that Willingham refused the “opportunity” he was offered to “eliminate himself as a suspect by polygraph examination.” A more fitting way for him to prove his innocence, which wasn’t in any meaningful way presumed, would have been to offer him a millstone and a body of water. He would have either sunk to his death or, if he was really a devil-worshiping monster, maybe he would have floated. That would have been the same kind of justice he got, just quicker and more humane. But the general sentiment was that Willingham had already failed his life-or-death test when he didn’t go back into the burning house for his kids.

Inside and outside the house after the fire (pictures from the Texas State Fire Marshal’s office, by way of the Dallas Morning News).

I’ll get back to the trial, but I want to stick with the inspectors for a while. Unless their critics are completely misrepresenting the science of fire, their gross scientific misconceptions are undeniable. That’s gotten plenty of coverage already, so I won’t get into the specifics (here’s an overview and some links, though). The poor understanding of fire was apparently fairly typical of inspectors back when Willingham was tried. The culture within the field must have been good at explaining away challenging information, unfortunately at the expense of the people who came under investigation. I suspect that an attitude like that is one thing that makes junk science so pernicious and hard to stamp out.

As the lead inspector in the Willingham case shows, it’s just the attitude for witch hunting. A local firefighter, Doug Fogg, did the initial inspection. Based on what he saw, a specialist named Manual Vasquez was sent in from the Texas State Fire Marshal’s Office. Craig Beyler’s bottom line on Vasquez is that “[his] opinions are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.” Fogg had pretty much the same beliefs, but arson investigation wasn’t his main gig, so it’s not so alarming that he relied uncritically on the conventional wisdom he’d been taught. Vasquez’s personal beliefs about fire had been reinforced by over a thousand investigations. They were articles of faith and all indications are that his close-minded self-assurance made him quite persuasive.

For the science-minded reviewers Vasquez’s testimony raises one red flag after another, and not just because of all the misconceptions about fire. Early in his testimony, as he was describing his experience and qualifications, he said that almost every fire he’d investigated had been arson. The expert reviewers have been uniformly incredulous of the claim — at the time his peers were finding about half of the questionable fires in Texas to be arson. Although he made it clear that most any burned-out building whispered “arson” in his ear, Vasquez’s conclusions were never seriously challenged in court.

Later in the testimony Vasquez presents himself as a kind of clairvoyant and the red flags go up again. A line of Beyler’s that’s gotten a lot of play describes Vasquez’s attitude as “hardly consistent with a scientific mindset” but “more characteristic of mystics or psychics.” The Lentini report criticizes the same passage as a dangerously deceptive performance of expertise in the courtroom (my emphasis):

Mr. Vasquez indicates that he understands the nature of expert testimony: that of interpreting fire artifacts for the jury. At page 244 [of the trial transcript], he states:

“The fire tells the story. I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells me the truth.”

Unfortunately for Mr. Willingham, while the fire may not have “lied,” Mr. Vasquez misinterpreted what it was telling him. Such willingness to offer “expert” testimony, while lacking the knowledge to present accurate information to the jury, may excuse Mr. Vasquez’s many serious errors. The judicial system that allows such testimony to be presented, however, is clearly flawed and in need of reform.

The fire told Vasquez an awful lot. Not just that it was started in three places with a liquid accelerant but that it was Willingham who started it and that he did so in order to kill his children. The fire told Vasquez that it wasn’t the cause of Willingham’s injuries so he concluded they must have been self-inflicted — Beyler calls the diagnosis “remarkable” and concludes that “Vasquez seems to be wholly without any realistic understanding of fires and how fire injuries are created.” Because it was so “aggressive,” the fire even told Vasquez that it “was not a planned fire. It was a spur-of-the-moment fire.” That, for Beyler, is a degree of “mysticism” that’s “beyond belief in the context of fire investigation as an applied science.” It seems to me that’s putting it pretty tactfully.

As Vasquez was uncovering the tell-tale signs of arson he was also unmasking the arsonist. Grann describes the moment when Vasquez’s quasi-mystical certainty encountered Willingham’s confused and defensive attempts to explain himself. The inspector knew what he knew and had no qualms about dismissing Willingham as a liar. It’s a moment that epitomizes how ignorant and unprofessional the whole investigation was.

During the interrogation, Vasquez let Fogg take the lead. Finally, Vasquez turned to Willingham and asked a seemingly random question: had he put on shoes before he fled the house?

“No, sir,” Willingham replied.

A map of the house was on a table between the men, and Vasquez pointed to it. “You walked out this way?” he said.

Willingham said yes.

Vasquez was now convinced that Willingham had killed his children. If the floor had been soaked with a liquid accelerant and the fire had burned low, as the evidence suggested, Willingham could not have run out of the house the way he had described without badly burning his feet. A medical report indicated that his feet had been unscathed.

Willingham insisted that, when he left the house, the fire was still around the top of the walls and not on the floor. “I didn’t have to jump through any flames,” he said. Vasquez believed that this was impossible, and that Willingham had lit the fire as he was retreating—first, torching the children’s room, then the hallway, and then, from the porch, the front door.

This might be a good thing to remember if you’re ever tempted to explain yourself to the authorities without an attorney. In court, the story must have weighed heavily against Willingham. It left the jury with a memorable image — Willingham’s unscathed feet — and it also burnished Vasquez’s cleverness and his authority. To the Lentini committee, though, the simplistic assumptions behind his little trap were sadly familiar.

Fire investigators who reach false conclusions, then hear descriptions of events from fire survivors that do not comport with their conclusions, frequently have testified that only the killer or the arsonist has a motive to lie. The undersigned investigators, having been involved in cases of fires misattributed to arson, are familiar with this phenomenon. Mr. Vasquez first formed the conclusion that the fire was intentionally set. Then he was allowed to tell the jury:

“I’ve talked to the occupant of this house and I let him talk and he told me a story of pure fabrication.”

Mr. Vasquez’s only basis for reaching that conclusion was his own misinterpretation of the meaning of the fire artifacts that he observed.

Willingham did lie, there’s no doubt about it. Not about getting down the hall in bare feet — that was Vasquez’s fabrication. But shortly before he was killed Willingham admitted that he hadn’t really gone into the children’s bedroom as he claimed. It’s the kind of lie an ordinary man might tell out of fear or pride, knowing he’d been scrutinized and judged from the moment he was spotted outside of his burning house. As far as I’m concerned that’s a lot more plausible than the outrageous lies he supposedly told to hide his monstrous guilt. It was a foolish lie, of course, and I’m sure it cost him. A decent advocate might have helped him get his story straight and saved him from himself.

If Willingham had an advocate it might have saved the investigators from their own worst instincts, too. Willingham was the only person alive who could have seen what was going on inside the house during the early stages of the fire, so when Vasquez wrote Willingham off as a liar he wrote off one of his strongest reality checks. It was Vasquez’s job to be skeptical, of course. Healthy skepticism is a two-way street, though, and there’s no sign that Vasquez had any for the story the fire was telling him — if he did, he didn’t act on it in any useful way. Instead he decided, in effect, that the chances he and Fogg were wrong were less than the chances that their prime witness — a man they knew very little about — was a liar who woke up and for no apparent reason torched his house while his children were inside. My sense is that it’s much more likely for a run-of-the-mill expert to be wrong than for a typical or even a questionable witness to be an infanticidal monster. You can see what a great racket junk science is, though. Don’t let anyone challenge your precious theory just because they saw what happened! Call ‘em a liar, send ‘em to jail, get ‘em executed! That’ll take care of ‘em, huh?

Willingham’s story wasn’t the only serious challenge to the investigators’ theory of the fire. Laboratory tests found no traces of the all-important liquid accelerant anywhere but the front threshold, where there was an alternate explanation. The prosecutor if not the investigators was bothered by this. Jackson told Grann that “he ‘never did understand why they weren’t able to recover’ positive tests” from other places that were supposedly doused with lighter fluid. Apparently he was unwilling to draw the obvious conclusion, though. Also, Vasquez’s scenario was contradicted by the first eyewitnesses, who looked straight at the porch and through the front door and saw no flames. These are not small problems.

It’s also hard for me to believe these investigators had a good case because I haven’t come across a single word from them about how Willingham went about setting the fire and how it progressed from there. There was no way they could say exactly what happened, but if they had a robust theory they should have been able to say something concrete. There was an hour or so after Willingham wife left before neighbors saw him on his porch — plenty of time to douse some carpet with lighter fluid and light a few matches. But where did he get the lighter fluid? How much would it take to make the puddle shapes the inspectors found? What would happen when he lit those puddles and how long would it take to develop to the stage firefighters observed when they got there? When (if ever) would someone look at a house set on fire that way and say it was just “smouldering”? One inspector suggested that the entryway was set on fire in a way that’s “typically employed to impede firemen in their rescue attempts.” How did he know to do that?

Naturally, coverage and criticism of the case focusses on the fire inspectors but the police were busy, too. Beyler notes in passing that they interviewed about 40 people and collected “information about Willingham’s arrest history, his relationships with others, the dynamics of the household, and his past in general.” In other words, they were digging up dirt. Perhaps that was appropriate, but it seems they did little else.

The investigators didn’t tax their brains working on this case. They didn’t have to. All they needed was enough evidence to charge Willingham with a crime and then to make him seem guilty, which is a lot easier than proving that he committed the crime. They didn’t have to worry about much of a challenge from Willingham’s bargain-basement defense. The way they approached the case, in fact, less is more. It’s best not to get too real about the details — setting a fire, for instance, or waking up in a burning house — because that might get people thinking. In a witch trial, ignorance is strength.

Above: Dave Evans, Collin Finnerty, and Reade Seligmann
Below: Cameron Todd Willingham

In the year-old editorial I was writing about last time, Duke Law professor Jim Coleman argues that the aborted cases against the Duke lacrosse players and Alaska Senator Ted Stevens were not failures of the justice system. In those two instances, “some parts of the system failed [but], in the end, justice was done through the system itself.” The real failures, according to Coleman, are the sort that come into the Duke Innocence Project, which he supervises. The students who work on them “are surprised at how little evidence it took to convict the prisoner. And students are dismayed by the widespread indifference of the police, prosecutors, judges, defense lawyers, the North Carolina Attorney General, and the public to the routine misconduct of some prosecutors and police officers and to the possibility that some of these prisoners may be innocent.”

I couldn’t help thinking about Coleman’s editorial when I read David Grann’s article about Cameron Todd Willingham in the New Yorker last September. The state of Texas executed Willingham in 2004. Grann makes a compelling case that he was innocent. If so he represents the ultimate failure of the justice system. Another case discussed in Grann’s article is an uncanny parallel to Willingham’s. What saved Ernest Ray Willis from the lethal injection that Texas had in store for him, too, was a really good attorney with deep pockets. It’s much the same story with Alan Gell, a North Carolina man whose overturned capital murder conviction helped set the legal stage for the lacrosse case.

(This is as good a place as any to let you know that I am a total layman when it comes to the law. If you’re not, don’t hesitate to tell me what I’ve missed or misunderstood. It’s possible that I know even less than I think I know, but at the same time I don’t want to tack “it seems to me” or “as I understand it” or some such thing on every other sentence. So, consider yourself warned).

At the April 2007 press conference for the three lacrosse players who had just been exonerated by the North Carolina Attorney General, defense attorney Jim Cooney’s overall assessment was the same as Coleman’s. He and his colleagues were “delighted the justice system worked,” though he goes on to stress that “it never should have misfired to begin with.” He was functioning as part of the system, and it would have been perverse of him to describe his success as the system’s failure. And in fact it wasn’t the first time he’d been a safety net for the system’s flaws. He was part of the “North Carolina legal dream team” that freed Alan Gell, and so were two other lacrosse-case defense attorneys, Joe Cheshire and his junior partner, Brad Bannon. More recently, Cheshire was instrumental in reversing the conviction of another man who was wrongfully sent to North Carolina’s death row, Jonathan Hoffman.

It was Joe Neff of the News and Observer who wrote about the “legal dream team,” in a fascinating article that quantifies the effort to overturn Gell’s conviction (the article isn’t online, so I’ve put an excerpt at the end of this post). Cooney was working pro bono, and he estimated that he and his staff at Womble Carlyle Sandridge & Rice had put in 1000 hours, or about $300,000 worth of work. That’s only a fraction of the total effort, though exactly what fraction isn’t clear from the article. Among the things it doesn’t include are Cooney’s hours. By way of comparison, Neff mentions that one of the court-appointed attorneys who defended Gell in his first trial billed for a total of 85 hours in three years. Several other defense attorneys were involved in the first round, but even though the case hinged on the victim’s time of death, they didn’t engage any expert witnesses. I imagine, and certainly hope, that with open discovery in place a smart, conscientious lawyer could put together an adequate defense without burning through half a million dollars — the problems with the state’s case were not exactly subtle. But the enormous effort that’s required to reverse a slipshod prosecution is a sobering measure of the state’s leverage. It’s my impression that the time and money that went into overturning Ernest Ray Willis’s conviction was even more out of proportion to the irresponsible but perfunctory prosecution that put him on death row. (The definitive account of the Gell case is the four-part series that Joe Neff wrote in 2002 — it’s a great read, too. This 2007 interview with Cooney and Bannon is a good source for their perspective on Gell, Duke lacrosse, and open discovery.)

One comment that Cheshire made to Neff takes on extra resonance when you bring the lacrosse case into the picture: “What Mary [Pollard] and Jim [Cooney] and I have tried to do is make sure Alan Gell gets as good a defense as a rich person” (and rich is the right word — a defense like that could bankrupt a person who was merely middle class). Ironically, as Neff points out, “Getting sentenced to death was a lucky break for Alan Gell.” It triggered a mandatory review, which put his case in front of Cooney and Pollard and set the stage for his “dream team” retrial. Since their families were able to pay, Seligmann, Finnerty, and Evans got a robust defense without first landing on death row, or even in jail, and I suspect that’s a consistent difference between a real rich person’s defense and the indigent’s equivalent.

Needless to say, none of the lacrosse-case attorneys at that press conference were talking about the great defense rich people get. They were, I believe, still on the job, which at that stage would have involved working to restore their clients’ reputations and staking a claim to damages. With respect to the players’ reputations, Cheshire took a good-natured jab at the dullards in the media who had been so fixated on guilt: “Well, [NC Attorney General] Roy Cooper said a word today. The word is I-N-N-O-C-E-N-T. And I want to make sure everybody has got that and knows how to spell it.” The other theme was pain and suffering, and I assume that was to some extent strategic. It would, in any case, have been unprofessional for the attorneys to imply that their clients’ wealth mitigated anything.

It was the players who spoke to that point — both Reade Seligmann and Dave Evans acknowledged that they would have been completely at Nifong’s mercy if they had been poor. Seligmann’s comment about how the “entire experience has opened my eyes up to a tragic world of injustice I never knew existed” has been cited quite a few times, including in Coleman’s editorial, and for good reason. Of the three, he was the most energized and outspoken about the big principles — it’s clear he thought long and hard about them (and continues to). When Evans talked about how bad things could have been he was thanking his family for making sure he was well represented. A natural approach given the occasion, and he made a strong statement.

I don’t take lightly the fact that [my parents’] hard work, their success and their sacrifice has allowed me to be represented by such fine lawyers. Many people across this country, across this state, would not have the opportunity that we did. And this could simply have been brushed underneath the rug just as another case and some innocent person would end up in jail for their entire life.

That press conference was an impressive exercise in public relations, and I’m curious about how planned and coordinated it was (there’s nothing disreputable, by the way, about a little intelligent PR on behalf of people who’ve been thrust into the media spotlight and dragged through the mud). The statements from the three young men were the centerpiece, though, and with them what really mattered wasn’t so much the message as the significance it had for speaker. There are three distinct personalities on view, and it seems to me that each of them did, in fact, speak his mind, and to good effect. What they chose to say about the justice system must have been influenced by conversations they had with their attorneys and by things they read or heard elsewhere — two of them thank KC Johnson (except it’s transcribed as “Casey”), so they must’ve been following Durham-in-Wonderland — but it was also a sincere reflection of their experience staring into the belly of the beast. They wanted to put the experience in perspective, and I admire that.

The attorneys spoke with a mixture of affection, relief, and indignation, all of which would come pretty naturally when a long and intense process ends with complete vindication. For the most part a little emphasis and embellishment is all it took to do the work they need to do on behalf of their clients. They’re forthright about what made the case such a debacle but also measured and incisive (Cooney’s take on on the “villains” in the case is especially interesting — I’ve excerpted it below). Acting as MC, Cheshire’s light touch is disarming and he’s the soul of generosity, obviously very much in his element. I do wonder, though, if all the attention he pays to his colleagues doesn’t make the attorneys a bit too conspicuous for the occasion.

It’s at the beginning of Cooney’s remarks, when he tells the story of how he came to take the case, that the lawyerly stuff gets a little out of control. Ads for luxury items tend to suggest they’re the mark of a worthy buyer — a person of taste and discernment, or else someone who’s “earned it.” Cooney’s services end up sounding like that sort of item, except that what makes the client worthy in this case isn’t their taste but their pain.

You know, I always seem to be in trial when something is happening in this case. I was arguing in front of a jury about two-and-a-half hours ago, so I’m in a little bit of a decompression.

But it reminded me that I got involved in this case when I was in the middle of another trial in the fall and Joe Cheshire called me. And I should know better than to take Joe’s calls.

And he called me and said I have a case for you — he had already tried to get me in the case once, by the way. And he told me you will never have a more innocent client than this young man. You have got to take this case.

And, of course, I was in the middle of a trial, I was tired, and I said look, let me get through this trial, I’ll go up and talk to the family. And I spent two days with Kathy and Reade and Phil — sat in their kitchen, talked to them, got to know them. And I cannot tell you the amount of pain that family was in.

The only comparison I can make was to a family who, god forbid, that had a child with a potentially fatal disease. And they woke up every morning not knowing whether their child was going to live and go on with a normal life or be taken from them [forever].

Because make no mistake about that, if Mike Nifong had had his way, Reade Seligmann would have spent 30 years in jail and he never would have seen his parents alive again outside of a prison waiting room.

And, after spending that time with them, I decided that Joe was right, as he usually is, and I needed to be in this case.

It seems to me that the compelling legal reason for someone of Cooney’s caliber to take the case was Nifong’s behavior, which indicated that he would pursue not justice but a conviction, by whatever means necessary. That, at least, is why it was imperative for the young men he’d singled out to have an exceptional attorney, wasn’t it? Cooney suggests some such logic when he raises the specter of Nifong having his way. But the overall impression is that it was the family’s pain and not their objective legal needs that made him decide to represent them.

And then there’s Cheshire’s selling point, which was that Cooney would “never have a more innocent client.” It does seem like that would be a real attraction. As a matter of legal principle, though, does being purely innocent have any bearing on how much a person needs or deserves representation? That’s a serious question — I’m not confident that I know the answer. But I believe that the answer is no, because as I understand it the system is supposed to dispense as much justice to the sort of innocent and the fairly or totally guilty as to the purely innocent.

If lawyering is the romantic occupation of riding in on a white horse to rescue decent, honorable dudes in distress and make their families whole again, Cooney is making the Seligmanns sound like a prime opportunity, for himself. And even back when he made the trip to visit them the odds of success must’ve looked pretty good, though of course there was a very real chance of failure and heartbreak. But at least this was a client who could probably foot the bill. Overall, nice work if you can get it.

No doubt I’ve blown this anecdote way out of proportion, but it disturbs me that a widely respected defense attorney would portray legal representation as if it’s a matter of sentiment and sympathy. I don’t draw any conclusions from Cooney’s story about taking the case — all he says, in the end, is that he spent some time with the Seligmanns and then made up his mind. But leaving the impression that it was the family’s pain that made it impossible to say no is a great way to dramatize how deep and compelling that pain was. And the pain is the point, obviously, but was it really worth the exercise in disengenous storytelling to drive it home? Wouldn’t the unsentimental logic of representation in an adversarial system be the last thing a person like Cooney would fudge? (Again, those are serious questions.)

I was browsing through some of the Durham-in-Wonderland posts about Mike Nifong’s disciplinary hearing in June 2007 and found a rare point of agreement between me and the loyal commenters there — the lacrosse case raised my general opinion of lawyers, too. Here’s a nice clip of Brad Bannon talking about why a defense attorney’s job, in a case like lacrosse, is get things taken care of without their client having to have his day in court.

This is Joe Neff’s article from the News and Observer, Feb. 17, 2004 — “Dream team defends Gell in murder retrial.” It doesn’t seem to be in the paper’s online archive.

At Gell’s first trial, his lawyers hired no expert witnesses to rebut or analyze the state’s case. They never asked a forensic pathologist to determine when Allen Ray Jenkins died.

Time of death is crucial. Prosecutors contend Gell murdered Jenkins on April 3, 1995. But Gell’s new lawyers say Jenkins wasn’t killed until April 8 at the earliest. For that date, Gell has a rock-solid alibi — he was out of state or in jail from April 4 until after Jenkins’ body was found.

Interpreting the clues at the crime scene was essential because the state’s main witness, Crystal Morris, has given widely differing accounts. A crime scene expert could have analyzed blood spatter and the pattern of the shotgun pellets to determine how Jenkins was shot and where the shooter was standing, but none was hired.

For this trial, Gell’s team consulted a parade of experts: a forensic entomologist who studied the maggots at the crime scene to determine the time of death; a forensic anthropologist who studies human decomposition; two engineers to model the temperatures in Jenkins’ house; and a crime scene expert from the Connecticut State Forensic Science Laboratory.

Then Neff gets into the numbers — 1000 hours from Cooney and the Womble Carlyle staff, pro bono, which would normally bill for about $300,000. Cheshire was billing $85/hour, “a fraction of what wealthy clients would pay him,” and it sounds like Cheshire’s firm was absorbing Brad Bannon’s fee. A third of the expert fees were paid by the Office of Indigent Services with Womble Carlyle taking care of the balance. That seems to be in addition to the 1000 hours, and so does this:

According to Hunter’s records, Cooney, Pollard and their investigators spent more than 1,000 hours just winning Gell a new trial. Cheshire and Pollard have not submitted invoices yet for the pretrial preparation, let alone the trial. They will each total hundreds of hours in pretrial work.

By contrast, Chuck Moore of Ahoskie worked on Gell’s case from Gell’s arrest in 1995 through his trial in 1998. According to court records, Moore billed a total of 85 hours on the case before it went to trial.

Here’s what Jim Cooney had to say about what went wrong in Durham and at Duke, from a press conference in April 2007.

I want to talk a little bit about the cowards because, as Joe said, this is a bittersweet day. We’re all delighted the justice system worked. But the reason it’s bittersweet is because it never should have misfired to begin with. And the reason it misfired is because people were afraid to speak truth to power.

And I want to call out first the newspaper in Durham, North Carolina, “The Durham Herald-Sun,” who, to this day…

It seems to me that he was being pretty charitable to describe the people who publicly supported Nifong’s efforts as being afraid to speak truth to power. It wasn’t fear that stopped them, and he makes that clear when he continues (he’d been interrupted by laughter).

… has not written a single editorial critical of the way in which Mike Nifong proceeded. If “The Durham-Herald Sun” had bothered to stand up and demand proper processes, the presumption of innocence, and doing things the way our Constitution provides, do you think Mike Nifong would have rolled forward?

Instead, they published editorials talking about how bad all the lacrosse players were, and that the lacrosse players should have to prove their innocence, and that, in addition to the crimes that night, there was a crime of a cover-up. And you will not see a word of apology from them.

In fact, as recently as two weeks ago, they were still publishing what they knew were lies, and repeating them.

Now, we will never sue them. They have got way too much money. And, as a general proposition in the law, you don’t sue people who buy newsprint by the gallon, because they always win.

But, if they had done what journalists are supposed to do and spoken truth to power, they could have slowed this train down. And there are a number of other people in Durham, some of whom teach for a living, who should have stood up and said, wait a second. Civil rights means something. We have spent careers studying civil rights. We’re not going to throw them down the drain simply because a district attorney tells us to.

One wonders what would have happened if the newspaper had stood up for proper processes and if the teachers had stood up for proper processes, whether that would have slowed the last coward of the case down. And you know who I’m talking about.

The last couple of paragraphs are especially good. Whether resistance from the Herald-Sun and the Duke faculty would have swayed Nifong is an interesting but totally hypothetical question. It could have, for sure. What more important is that it was the right thing to do both personally and, in many cases, professionally.

While I’m at it, the other standout moment (for me) is the bittersweet I-told-you-so that Cheshire laid on the press. I already quoted the end. Here’s the rest:

In that regard, I do want to remind you all of one brief thing. On March the 30th of last year, when the press was completely out of control, when these boys were the guiltiest people on the face of the Earth, when everyone in this country was pillorying them as hooligans and rapists, I called a little press conference in my office and I looked at you national media and you local media and I said — I was kind of scared when I said it — but I said you all are wrong and when this case is over, you’re going to be embarrassed if you don’t open your eyes and listen to what the truth is.

Somebody in the press said to me afterward, we’ve never had anybody speak to us like that. That’s a pretty dangerous thing to say.

Well, Roy Cooper said a word today. The word is I-N-N-O-C-E-N-T. And I want to make sure everybody has got that and knows how to spell it. These young men were, are and always have been innocent.

The analogy isn’t by any means perfect, but it captures my feeling that the lacrosse case invites opinionated people to unleash their irrational, tribalistic reflexes in a self-incriminating way. I’m sure that countless other culture-war touchstones have the same effect and this just happens to be the one I’ve paid the most attention to. The honeypot reaction is purely rhetorical. The primary source of it is the conviction that the situation is all very simple and perfectly one-sided, which means it usually comes from people who are free to reconstruct the setting and the cast of characters solely on the basis of things they’ve read and heard. Some reactions from up close are so reflexive and self-involved that they manage to fit the pattern. Houson Baker’s infamous open letter, for instance, has that tell-tale gush.

Since knee-jerk criticism isn’t exactly hard to come by, it’s especially interesting when people who are clearly capable of doing better fall into the trap. The most sobering example from the Left, for me, is the Tenured Radical, history professor Claire Potter, that is, who, over a year after the incident and in the course of writing about a completely different scandal, took some careless shots at the lacrosse team. Potter is one of the most fair-minded and thoughtful bloggers I know of, so I have to assume that in different circumstances I could easily do the same kind of thing. Looking to the Right, some of the staff at FIRE have outed themselves with overwrought commentary on the case that shows they’re not quite as nonpartisan and dedicated to principle as they claim to be. *

I have a neat little example that I saved up from last spring (a recent post sort of explains why I’m dredging this old stuff up). I probably disagree with this person on most any political question, but when he’s writing on his own blog, at least, he can be thoughtful and generous (compare his reaction to this miscarriage-of-justice story to what follows, for instance). But when he came across a Duke professor writing unapologetically about the lacrosse case, his knee commenced to jerkin’ and he cranked out a remarkably small-minded and uninformed rant. More to the point, a rant that revels in being uninformed and small-minded.

Back in April, a few days after the Attorney General decided to toss out the case against Alaska Senator Ted Stevens, Duke Law professor James Coleman wrote a piece for the Huffington Post. His point was that the justice system stumbled but didn’t ultimately fail in Stevens’ case, and in the lacrosse case as well. Parts of the system failed, but ultimately the failures were corrected. Coleman argues that the true failures are the cases, typically involving indigent or minority defendants, in which the misconduct of prosecutors is met with indifference (disclaimer).

Duke’s Office of News and Communications reposted Coleman’s op-ed a few days after it ran on HuffPost. Over at Protein Wisdom, “The Sanity Inspector” found it too much to bear, so he fired off an irate memo to the “Department of Chutzpah Studies”:

I don’t know that Duke law professor Dr. James E. Coleman Jr. had anything to do with the attempted railroading of the Duke lacrosse players. But anything on the subject of that case that appears under Duke University’s masthead ought to take the form of abject apology for years to come, if common shame were operative. …

… But most defendants don’t have a whole education institution presuming their guilt and baying for their punishment, primarily on the basis of their identity. Most defendants do not become the targets of radical, post-modern, identity politics mongering, class warfare waging inmates of a left-wing loony bin. …

Is Dr. Coleman sorry for what Duke’s faculty did to those players? A quick search of Durham In Wonderland seems to indicate that he was one of the good guys in this case. But he surely could find a better way of publicizing the no doubt good work of the Duke Innocence Project than venturing to claim that the lacrosse players had it easy.

Apparently that quick search of Durham-in-Wonderland (DIW) didn’t turn up this (“Coleman Tears Down the Wall”), or this (“one figure is of towering significance: Jim Coleman”), or this, defense attorney Jim Cooney’s statement at the time his client, Reade Seligmann, was exonerated. First on Cooney’s list of “heroes and cowards” is “the magnificent professor Jim Coleman at Duke University, one of the few professors who was willing to stand up and say, this is not right. We have procedures for a reason. We have presumptions for a reason. What is going on is wrong.” (I’m actually quoting the CNN transcript, which fills in things that KC Johnson, quite understandably, wasn’t able to catch when he was live-blogging.) Why do a lot of searching, anyway, when all you’ll learn is how Coleman handled himself in this case. Who knows, really, how many other cases there are just like it. (Kudos to Wayne for dropping in with a more informed perspective, though).

The Inspector has a good reason to be skeptical, actually. A towering figure is awfully useful if you want to create a landscape of moral midgets, and all of Johnson’s building up of Coleman is of a piece with his knocking down of the so-called “Group of 88.” It’s hard to tell, just skimming the blog, where the analysis leaves off and the self-serving parable begins. Coleman really does stand out in the narrative of the case, though. As Cooney points out, he stuck to the most pressing issues and the core principles behind them. Whether he was addressing the legal situation or campus culture, his efforts were focussed, constructive, and informative, and they made a difference.

The thing is, cranking out opinions online is a pretty self-indulgent occupation — these virtual soapboxes that we’re all climbing on come with very little moral authority, and here’s a fine way to shred it: post a half-baked rant that presumes to judge, on the basis of “common shame,” a man who put his profession reputation on the line in order to help the people whose mistreatment supposedly justifies the rant in the first place. It’s an object lesson in doing vs. spewing:

• Dr. Coleman seems to believe in indiscriminate justice for all, and even if he thought that in the end the justice system wasn’t likely to fail the lacrosse players, he still spoke out forcefully against their prosecutor.

  The Sanity Inspector believes in applying indiscriminate common shame to anyone affiliated with a certain large, politically suspect institution, and he doesn’t mind saying so.

• Dr. Coleman spent hours chairing a committee that, according to KC Johnson, was scrupulously fair and “should have shamed those who blindly accepted the caricatures of the team offered in late March and April 2006.”

  The Sanity Inspector managed to skim DIW for a while before he launched into his rant.

• Dr. Coleman used quotes from the lacrosse players and their families to underscore his point that they were relatively well equipped to deal with the faults of the justice system.

  The Sanity Inspector misrepresents Coleman’s essay as callous in order to give his own parting shot some resentful bite.

• Dr. Coleman may well feel that, whatever other faculty at Duke did or said, he’s entitled to speak freely about the lacrosse case because of the public stands he took when the case were being prosecuted as well has his considerable experience with the legal system.

  The Sanity Inspector seems to feel that the offense he endured while hearing and reading about the lacrosse case entitles him to cast aspersions, under cover of glib ignorance, on someone who gave a significant boost to the players when they really needed it.

If common shame was operative on Protein Wisdom, the Sanity Inspector would have been stripped of his neckerchief and drummed off the staff (have no fear, though — PW is a truly and awesomely shameless place). Oh, and by the way, anyone know if the Inspector is still beating his wife? **

One really annoying thing that’s happened in the last few months is that both the News and Observer and the Duke Chronicle have changed their URLs. None of the old links work any more. My blog is now full of broken links (I hesitate to think about how many there are in DIW). Since I was going through the N&O archive anyway to remind myself what Jim Coleman said about the case, I thought I might as well post the new links, and while I was doing that, why not pull out some representative quotes? And now that I’ve rounded all that stuff up, I’m feeling the need to pontificate a bit.

What the collection shows is how consistent, forthright, and pointed Coleman’s commentary was. Naturally it reflects his perspective on the legal system and his experience with it — the same things he brings to his work with the Duke Innocence Project. But while the lacrosse players were in legal jeopardy, he didn’t use the case to plug the Innocence Project and he didn’t rank the lacrosse players as more or less deserving of concern and help. The thing I found most interesting is his somewhat more expansive comments after the three indicted students were exonerated. In them he talks about the public reaction as well as the legal one. Again he doesn’t downplay what happened or try to refocus the discussion on some other, more deserving victims. Instead, he points out where and why people went wrong in their rush to judgment. He also comments that he hopes the case disabused people of the notion that the legal system only screws the poor and minorities (he doesn’t put it quite that way, of course).

The contrast between Coleman and KC Johnson is every bit as striking as the contrast between Coleman and any of Duke’s tenured radicals. If they were “only too willing to advance their personal, pedagogical, or ideological agendas on the backs of their own students,” Johnson has been only too willing to use their students as rhetorical pawns in response. Not that the lacrosse players minded. On the contrary, during the April 2007 press conference he was thanked by all three of the exonerated students. He was friendly and supportive both in person and in writing, and he helped fill a vacuum left by an academic community that couldn’t manage to work through its collective horror to a more complex and humane response, something I don’t think anyone at Duke should be allowed to forget. If Johnson was to some extent frying his own fish, that just meant that he poured more effort and intensity into his blog. My problem with all that is that he worked relentlessly to fan the flames and in the process churned out reams of thoroughly nasty and uninsightful criticism.

Last summer Johnson pointed out, apropos of nothing in particular except that I’d criticized him, that I was silent while “a District Attorney violating myriad procedures in an attempt to railroad three innocent students at Prof. Zimmerman’s own institution.” It’s a fine example of what it means to use “three innocent students” as rhetorical pawns, in this case just to shrug off some annoying criticism. It also sets up an implicit standard for what we should have been doing on campus back in 2006. And by that measure, Coleman’s performance was exemplary. When he commented about the legal situation, his overriding concern seems to have been the decent administration of justice, his immediate priority was derailing Nifong and he didn’t bother with anything else. It should be pretty obvious that Johnson was doing something quite different and yet I don’t think that the Sanity Inspector is the only person to overlook it. Johnson took to writing about the lacrosse case as part of an ongoing critique of academic culture. From the beginning his attention to the railroading in Wonderland was at least as much a way to energize his own agenda as it was an effort to stop the train.

I don’t mean to suggest that there’s a meaningful head-to-head comparison here. Coleman was approached both for his legal expertise and his Duke affiliation, and what made it into the news reflects not just what he said but also the choices of the reporters who interviewed him and their editors. The comments I’ve assembled are to some extent a product of the role he was playing, and that wasn’t a role that was open to Johnson. But the comparison sheds some light on what I think is an interesting question — was all the noise Johnson was making really serving the players’ interests? And the same general question applies to partisans all around. A couple of years ago I laid out my doubts that the potbanging protesters were offering any meaningful support to the lacrosse team’s accuser, who they idealized in a self-serving way. It looks to me like they were just co-opting a stranger’s misery for the cause. On the other side, “blog hooligans” turned the lacrosse team into poster boys and ran around trash-talking the enemies of their friends and demanding apologies on their behalf. A lot of it strikes me as little more than online potbanging. I suspect that by jettisoning all the self-indulgent crap, Coleman offered a lot more of a boost.

Anyway, here are some highlights from Coleman’s interviews in the News & Observer during the criminal phase of the lacrosse case (and a little past it).

• Duke prof: Rape case needs new prosecutor (Jun 13, 2006). This is what caused KC Johnson to write about Coleman tearing down the wall — the “Duke prof’s” opinion that Nifong should be replaced was the whole point of the story.

  Coleman said he’s followed the case closely in the newspapers but hasn’t spoken with any of the lawyers involved. He said he was disturbed by the transcript of the identification procedures, where a police officer told the accuser that she was about to look at photos of everyone who attended the party.

  “The officer was telling the witness that all are suspects, and say, in effect, ‘Pick three,’ ” Coleman said. “It’s so wrong; it had to be done for a reason other than identification.”

• DA’s statements, record at odds (Jun 15, 2006):

  “Either he knew what the facts were and misstated them, or he was making them up,” said James Coleman, a Duke law professor who has publicly requested that Nifong remove himself from the case. “Whether he acted knowing they were false, or if he was reckless, it doesn’t matter in the long run. This is the kind of stuff that causes the public to lose confidence in the justice system.”

• Suspects, dancer contradict accuser (Oct 16, 2006), about the lacrosse-case exposé on 60 Minutes:

  During the segment, James Coleman, a Duke University law professor, said he thought Nifong had committed prosecutorial misconduct by speaking out before charges were filed.

  “If this case resulted in a conviction, I think there would be a basis to have the conviction thrown out based on misconduct,” Coleman said.

• Duke attack story shifts (Jan 12, 2007):

  Critics, such as Duke law professor James Coleman, said the new document was a blatant attempt to fix a flawed case and called for a criminal investigation of Durham District Attorney Mike Nifong and his staff.

  “Who would believe that a witness, nine months later, suddenly recalls facts that coincidentally negate evidence produced by the defense?” said Coleman, who led a Duke committee that investigated the lacrosse team’s culture and has criticized Nifong’s handling of the case for months.

  “These people are almost criminal. It’s making a mockery of the system. It’s like Nifong is mooning the system. It’s contemptuous.”

• Durham DA may face another entanglement (Jun 7, 2007):

  James Coleman, a Nifong critic and a Duke University law professor who has followed the lacrosse case closely, lauded Smith for leaving the disciplinary possibility open.

  “Judges should not tolerate this crap,” Coleman said. “They see it all the time. If they don’t do anything about it, that’s how it keeps going on. [Nifong’s] behavior was a total affront to the court.”

  “Prosecutors can ruin lives very easily, they do it and clap their hands and say never mind and move on,” Coleman added. “Courts have basically ignored it. I’ve seen misconduct by prosecutors in a capital case where everyone recognizes the misconduct, but the judge declares it a harmless error. Then the prosecutors show up at the execution.”

Now a couple of quotes from the Duke Chronicle:

• Campus tunes in to ‘60 Minutes’ (Oct 16, 2006):

  Bradley also interviewed Duke law professor James Coleman, who decried the line-up used to bring charges against the three players.

  Coleman, who chaired a University committee last Spring that investigated the lacrosse program, has been involved in establishing the North Carolina standards for line-up procedures.

  “[Nifong] pandered to the community by saying, ‘I’m going to go out there and defend your interests in seeing that these hooligans who committed the crimes are going to be prosecuted,’” he said. “I think in this case, it appears that this prosecutor has set out to develop whatever evidence he could to convict people he already concluded were guilty.”

• Experts: DA’s case nearing ‘implosion’ (Jan 12, 2007):

  Under North Carolina law, a man can only be convicted of rape if there is sufficient evidence that his penis penetrated the victim’s vagina, law professor James Coleman said. In her most recent testimony, the alleged victim in the lacrosse case could not confirm that the object that entered her was a penis, forcing the prosecution to drop the rape charges.

  Coleman said the increasingly contradictory testimonies given by the alleged victim provides the defense with a valuable asset in getting the remaining charges dismissed.

  “The more significant effect is that it undermines the witness’s credibility on all the charges she has made,” Coleman said. “It’s extraordinary that a witness testimony changed so drastically nine months after the incident. A jury would find it hard to believe her. That’s just not credible. It’s like the end of a bad mystery novel where all the ends are tied up.”

Finally a few pieces from here and there in which Coleman commenting on things other than Nifong’s mismanagement and procedural misconduct.

• First, a letter he wrote to the Durham Herald-Sun in Oct. 2006, as quoted in DIW.

  Your editorial about the recent “60 Minutes” report mischaracterizes both what the district attorney’s role has been in the Duke lacrosse rape case and why some of us have criticized him. Like much of the media hype that has surrounded the case, your editorial turns the case into an ugly caricature by suggesting that the decision to prosecute the Duke students was made by a valiant prosecutor on a white horse who is defending a helpless black woman who “ranks near the bottom of society.” That is what the prosecutor also suggested when he told a largely African-American audience that he personally would protect “this black girl” from the hooligans at Duke. I find that characterization of the case offensive and patronizing. Why do you say the accuser is “near the bottom of society?” She is an apparently talented student and mother who dances to support herself and her child. She is a woman, not a “black girl.” Trying to make this case about race and class has done a great disservice to Durham. From the start, it should have been handled as just an alleged rape that had to be investigated and prosecuted if the evidence warranted it. As someone who has criticized Nifong’s handling of the case, I have not called for him to dismiss it; rather, I have suggested only that a special prosecutor be appointed who can make the kind of disinterested decisions about the case that Nifong has shown himself incapable of making. If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.

• This is from a a post-exoneration interview with CBS news, Apr. 12, 2007. This was an opportunity to talk about how the lacrosse players had it easy, but that’s not at all the route he took.

  Coleman … said that the circumstances surrounding the case ended up being “something of a perfect storm.”

  “It had all kind of elements, but we know now it was based on this false notion a crime had been committed,” he said. “That generated everything. That gave energy to everything.”

  The story, as it was portrayed in the media, was about class and race in a community surrounding an elite university…. The three accused represented — at least in the eyes of their critics — the privileged white students many felt were running wild on campus. But in the end, none of it was true, Coleman said.

  “It got reported that way over and over, and then it became fact,” he said. “You know, it took a year for the truth to catch up.”

  District Attorney Mike Nifong, Coleman said, was initially motivated by the belief that a crime had occurred but also saw it as an opportunity for him to gain fame and notoriety.

  “He was in a political race,” Coleman said. “You know, he rushed to judgment….”

  During the past year, there have been several stories about race and sports, including the recent debacle with radio host Don Imus and comments he made about the Rutgers women’s basketball team. Coleman says they are all related.

  “I think what’s happening is that athletes are treated like disposable items,” he said. “We forget they are human beings, students and have feelings, and we just ignore that. They are treated like commodities.”

• Here, finally, is what he told Robert Bliwise for the story “One Year Later”, which ran in the May-June 2007 issue of Duke Magazine.

  Lacrosse-committee chair Coleman—who also serves as faculty adviser for the Innocence Project, which investigates cases believed to have resulted in wrongful convictions—says he and his colleagues talked about the case constantly. But he acknowledges that faculty members (and civil-rights organizations) have been reticent to speak out against this particular prosecutorial transgression. That reticence, he says, in part may reflect “the strange role that race was playing in the case, which is that the prosecutor said that this was a predatory crime and one that was racially motivated.”

  Just as race-consciousness constrained discussion around the case, so too, he adds, did “the notion that rich people have all the help they need,” in legal proceedings and otherwise. He says he hopes that those who saw the lacrosse case in terms of such broad categories now realize the problems with their preconceptions. “People thought that whatever happens is happening to poor people and black people; it’s not a threat to me. This case says, the system isn’t functioning and it’s a threat to all of us.”

Disclaimer: I don’t know James Coleman, haven’t ever communicated with him, and have no inside information on him. He’s not responsible for anything I’ve written here.

* The TR post that stirred up the hornets nest was about Don Imus’s crack about the “nappy headed hos” playing basketball for Rutgers. Potter has since taken it down, but you can get a sense of the post and the controversy in her follow-up (go to the first comment for quotes from the problematic post).

** This is a loaded question, not a serious or factual claim. How could it be? I don’t even know who the guy is, much less how he treats his wife.

I should have made it a point to spend more time with higher quality work. This upcoming batch of posts won’t do much to correct the balance, but I want to at least give a nod to a couple of really fine crime articles I came across during my unplanned hiatus, both in my current periodical of choice, the New Yorker. One, written by David Grann and published back in September, is about a man executed by the state of Texas in 2004 who was almost surely innocent. The other one is a bit more recent, from December — Jeffrey Toobin’s article about Roman Polanski (“The Celebrity Defense,” but all that’s online is an abstract).

In fact I don’t have a whole lot to say about the articles themselves. A good analyst tends to disappear offstage so he can busy himself shining light on the subject. Polemical analysis is a much more selfish project. The writer has to constantly impose himself on the material to turn it into something that’s useful for his polemic, so his greasy fingerprints are all over the final product and they’re easy to single out and criticize. Toobin’s piece on Polanski is a fine piece of work but I’m finding that nothing I have to say about it as a piece of critical journalism is remotely as interesting as the subject matter. So, here’s my gloss — opinionated but hopefully not polemical.

It’s a journalistic cliché, I know, but Roman Polanski has had a truly remarkable life. What he’s seen and done ranges from the very best to the very worst that life has to offer. His preteen years were spent in the Krakow ghetto during the Holocaust. Both of his parents were sent to Auschwitz. His father survived but his mother was gassed. He’s had tremendous artistic success and some commercial success, as well. He’s worked and played with the rich and the fabulous, in bed and out of it. When his wife Sharon Tate was 8 1/2 months pregnant with their child, she was murdered by the Manson family. They stabbed her 19 times and used her blood to write “PIG” on the front door.

In 1977, 8 years after Tate was murdered, he was hired to do a feature for Vogue — photos of “young girls seen through his eyes and possibly an interview,” is what Samantha Gailey’s mother remembered him saying when they met to discuss whether her daughter might be one of them. In retrospect, it’s obvious that she shouldn’t have sent her daughter off alone with him, and in fact she asked if she could tag along on the first shoot. He said no. Sometime in the middle of the session, Polanski told Gailey to take off her top. She did and he kept shooting.

A few weeks later he picked her up for another session. Their second stop was Jack Nicholson’s house, where he plied her with champagne and part of a quaalude tablet (Nicholson wasn’t home). He suggested that she pose in the jacuzzi. She stripped to her underwear and as she was about to step in he told her to take those off, too. He took a few pictures, then took off his own clothes and joined her. When he moved in, she faked an asthma attack and asked to be taken home, where she said she’d left her medication (she didn’t have asthma). He talked her into getting into the pool instead, but she got out after a few minutes and went to the bathroom.

At this point her account and his diverge. According to her, he had her lie down and started kissing her and then performing oral sex. She asked him to stop, but she was also “kind of dizzy” from the alcohol and drugs. He found out she wasn’t on the pill and couldn’t say when her last period was so he penetrated her anally, though again she asked him not to.

In his account, “…very gently, I began to kiss and caress her. After this had gone on for some time, I led her over to the couch. There was no doubt about her experience and lack of inhibition. She spread herself and I entered her. She wasn’t unresponsive.” She was talkative on the drive home, and he “tried not to wince when she started spouting Shakespeare in a strong Valley accent.”

He was “incredulous” when he was arrested. “[He] couldn’t equate what had happened that day with rape in any form.” And it does seem that he honestly believed she was his for the taking and so, almost by definition, she couldn’t really object. He was 44 and she was 13.

I thought the petitions on Polanski’s behalf were ridiculous even before I read Toobin’s article, but now I’m thoroughly disgusted by them. Writing all this out is my own little protest, I guess (a late one, as usual). Woody Allen is a shameless lech and we already knew that. Salman Rushdie and Milan Kundera, though? What the hell were they thinking? No amount of hardship or brilliance makes it tolerable to drug a child and then treat her like a pretty piece of meat.

The punishment for something like this usually strikes me as too little and too much at the same time, which is to say it doesn’t seem to fit the crime. A year or so in a chastity belt, chauffeuring Shakespeare-reciting valley girls who were victims of sexual assault might have been about right, with large, humorless attendants riding along to smack him if he tried anything. And perhaps, since he’s a master storyteller, he should have had to make a film about the real repercussions, for a child, of being casually used by an egomaniac and then thrown into a tabloid maelstrom.

Anyway, it seems to me that Polanski was lucky he was allowed to plead guilty to statutory rape and would have served little if any time if he hadn’t fled the country. But the crime is one thing and the justice system is another. The judge was “an eccentric figure on the Los Angeles legal scene,” “a querulous, domineering presence on the bench,” and “a peripheral Hollywood player.” He liked publicity, liked to put on a show, and didn’t mind throwing his weight around. With a different judge the case would probably have concluded with some approximation of justice and finality.

One thing about good critics is that they tend to be more friendly to ambiguity than the bad ones. Toobin, in this case, is able not only to acknowledge both sides of the story but to do justice to both of them. What he concludes is that “celebrity warps the criminal process, and not always in a predictable direction. In Polanski’s case, the effect of his celebrity was doubly, and inconsistently, pernicious; it obscured both how badly Polanski treated his young victim and how badly the legal system treated him.”

I have to say, though, that it turned out to be a relief to get away from this thing. When I stopped trying to write the blog I put Google Reader aside, too — I didn’t need to follow a dozen different blogs, some because I liked them and some because I really really didn’t like them. I’ve continued to get the daily HuffPost email but mostly ignored it. Going to that site is like stepping into a high school gym where a few dozen people are up on soapboxes shouting at the top of their lungs. It turns out that it’s a whole lot more pleasant to read The New Yorker and watch a little Jon Stewart now and then, just to check in on the crazies.

Going into the summer I had a backlog of half-written things that kept not getting written, and by August that had gotten pretty discouraging. I’m an intensely slow writer and also verbose — a bad combination. I’m hoping that someday I’ll figure out how to be a functional blogger, but the idea of leaving all that unfinished stuff to lurk on my hard disk is just too depressing. So before I can move on to either some better kind of blog or no blog at all, I need to wrap up this obsessive experiment that I started over two years ago.

Back in September 2008 I noted that I’d already spent way too much time picking apart Durham-in-Wonderland, KC Johnson’s blog. I had a few loose ends to deal with, I wrote, and “a wrap-up post mostly written.” Ha! I don’t even remember what that post was going to be, but apparently in morphed into something else. I got sidetracked looking at things Johnson has written about academic-culture issues other than the lacrosse case, I turned to some other things (music, even!) and then got sucked into a lacrosse blogosphere soap opera early in the summer.

Back in July, as the soap opera was in full swing, “One Spook” very helpfully pointed out my problem:

When you began commenting on the lacrosse case professor Zimmerman, I think Johnson and others, myself included, rightly or wrongly concluded that you as a faculty colleague of the Group of 88 might offer some new insight or new information in order to explain or even justify their unprecedented, craven, and tortious actions directed against their own students.

In all of your very wordy commentary, that has never happened and to me (and I believe Johnson and others) you’ve become a “One Trick Pony,” or, to strike a musical metaphor, “Johnny One-Note.”

It’s funny looking back at that, actually — it reminds me of how much fun it was to pop Spook’s sanctimonious bubble, and then Debrah’s, too. Not that either of them has the wit to realize it. But anyway, what I wrote then is still apropos.

I have to admit that Spook gets a few things right here. There’s no question that I’m wordy and that I’ve wasted way too many of those words on KC Johnson, to an extent that most sensible people think that either there’s some ulterior motive or there’s something seriously wrong with me (I’m leaning towards the latter).

I’ve kind of painted myself into a corner where every new post I write about KC Johnson makes me look more and more like a obsessive crackpot or stalker or something. But what the hell — the damage is pretty much done already. The stuff I have ready to post is about Johnson being treated, by people who should know better, as a serious and conscientious critic rather than a polemicist and self-appointed prosecutor. That’ll serve as a good wrap-up, I think.

But before I get to that, some miscellaneous odds and ends. Most of it is ancient history, I’m afraid.

Silly me! Last Wednesday I was getting ready to go to the coast and who should I hear from but the victim’s father. We ended up having a pleasant (given what we were talking about) phone conversation, and I learned a lot. The main thing he wanted to clear up was that he really has been in touch with Bill Anderson and Larry Moneta really did brush him off with that “very busy man” cliché. There’s plenty more I’d like to say about the situation but it will take me a while to put it together — I need to go over some things with Mr. Rouse again and see what else I can find out. But those are the essentials.

This is more a placeholder than a post. You can leave comments, if you want, but I won’t be clearing any. I welcome input from anyone with solid information or perspective. For instance, why was bail only $50k? (It seems, from this article, that $50k was what state guidelines dictated at the time, but there must be some latitude and discretion involved.) It would also be helpful to hear about cases that were handled well. I’m thinking especially of the academic side — it’s clear what law enforcement is supposed to do, but not quite as clear what a college should or can do. In this case Duke didn’t do what was needed to retain an excellent student even though she very much wanted to stay. That’s not the worst aspect of the whole story, but it looks to me like it was completely avoidable, and I find that very sad.

For background, here are some links. Refer to the comments I linked in the first paragraph for more caustic perspectives.

• “Victim from Bellmore gets on with her life” (Newsday, March 17, 2009).
• From the Duke Chronicle: Initial reports, Arrest, Summer 2008 court date set, Suspect jailed after second rape, Guilty plea.
• From the News and Observer: Initial report, Initial investigation, Arrest made, Details of the investigation, Suspect arrested for another rape, Muted reaction (compared to lacrosse), Guilty plea.

I will not be posting comments, but you can use the comment form to leave a message for me (you can also just email it — reharmonizer at an-earful dot com).

After connecting the dots, it looks like the unspoken complaint behind all that vehemence is that I’ve been terribly unfair to KC Johnson. And I thought it was about me! Or, if not, it was about students who were hounded by an unethical prosecutor and betrayed by their professors. But no, when Johnson strikes back at my criticism, the issue that comes up again and again is how harsh and unfair I’ve been to him. It’s an unseemly complaint, especially coming from a man who regularly puts other people down for acting like they’re “the victim.” So he writes around it. In the past he’s played up what he sees as an unreasonable discrepancy between my criticism of him (too strong) and my criticism of other more villainous figures (too mild). This time he invokes the whole lacrosse-case catastrophe in its tried-and-true Durham-in-Wonderland (DIW) packaging — students railroaded by a rogue DA while a rush-to-judgment faculty thanks protestors, etc. In relation to the points of mine he was responding to, it’s like swatting a fly with a sledgehammer. But that tableau has always been a weapon, and he’s used it so many times against his enemies that it really has become little more than a flyswatter. It seems that at this point no purpose is too trivial or self-serving to give it a whack. That makes me feel just fine about criticizing him so harshly.

Before I get into Johnson’s weirdly self-centered way of dealing with criticism here’s a quick and more current example of his habit of flirting suggestively with facts and issues without taking a stand. The bulk of his post about “‘Diversity’ and Duke Admissions” is a table of data collected at Duke, from an academic study relating to affirmative action. Johnson takes no position on the significance of the numbers in his handy table, but he does urge readers to “Recall that under federal law… private universities (such as Duke) that receive federal funds cannot use racial quotas in admissions policies.” Given a study attempting to shed some empirical light on the subtleties of a complex and thorny issue, it’s impressive how Johnson whittles it down to some “quite striking totals” that he leaves uninterpreted and a mealy-mouthed suggestion that Duke is breaking the law. It’s a textbook example of partisan hackery and also a warm-up for the exposé on Duke’s Campus Culture Initiative (CCI) that he recently finished. He has a cache of documents that he apparently picked up on the sly, and he’s been grinding them through the mill of his willful ignorance. Every now and then he packs the result into a little poison pill marked “in other words” or “Translation:” or “i.e.” (1). The CCI warrants close, critical scrutiny and the assumptions about diversity that informed it should absolutely be fair game for debate. Johnson has nothing constructive or intelligent to contribute on either level, though.

What Johnson writes about the CCI might, conceivably, have some real-world impact. What he writes about me, on the other hand, is inconsequential, and Johnson seems to put even less thought into it than he puts into the hatchet jobs he does on the bigwigs of the so-called “Group of 88.” It’s reflexive and so, I think, quite revealing. Since my post goes on way too long, I’ve divided it into sections. Hopefully that will make it easier to scan and to browse. And I’ve moved some of the digressions into notes (2).

If some people jumped off a cliff, would KC Johnson end up with a broken leg?

According to Wiktionary, ad hominem is “a fallacious objection to an argument or factual claim by appealing to a characteristic or belief of the person making the argument or claim,” or, in plain English, “an attempt to argue against an opponent’s idea by discrediting the opponent himself,” and there’s no denying that KC Johnson did exactly that when he ended a comment rebutting an earlier post of mine by pointing out that, back in 2006, bad things happened at Duke and I was silent. Our exchange is embedded in a sprawling controversy that’s relentlessly focussed on people’s characteristics and beliefs, so a little ad hominem is really no big deal. Still, when he gets around to really unloading on me, it’s entertaining to see him reiterate the same point about my silence, not once but twice, in order to show how hypocritical it was of me to accuse him of ad hominem in the first place.

Finally, Prof. Zimmerman’s new material in the post faults me for engaging in ad hominem attacks against him and the Group of 88, by writing that the DA was trying to “railroad three innocent students… [while] Prof. Zimmerman… was silent about their fate….”

I note that Prof. Zimmerman—while labeling my statement “lazy and cowardly,” an approach that “is especially effective with the thoughtless and bigoted,” part of a seeming tendency to write “bullshit” (some people might consider that an ad hominem attack!)—doesn’t in any way challenge the factual accuracy of what I said: [Zimmerman was silent, etc. etc.].

In those two paragraphs of fussing and fuming it seems like Johnson is criticizing me in no uncertain terms, but really he isn’t. It’s a collection of facts and references delivered in a tone of righteous indignation — it puts me in a bad light, for sure — but the closest he comes to actual criticism is the weasel-worded suggestion that “some people might consider that an ad hominem attack!” Is he one of those people? Does he really believe that it’s ad hominem when I describe things he’s written as bullshit? Is he saying that I’m wrong when I “fault[ him] for engaging in ad hominem attacks”? What does it matter that I haven’t “challenge[d] the factual accuracy of what [he] said” about the circumstances three years ago? What does it say about me that I didn’t speak up for those students? And what does my silence back then have to do with anything that I’d put on the table in my post? I doubt that he’d deny making a countercharge of ad hominem, but otherwise those are all open questions, and he’s free to accept or disavow any answer you come up with.

This kind of writing, full of implication and insinuation with few if any explicit statements about the meaning or significance or seriousness of things, is not at all unusual on DIW. The folks who read their prejudice and spite into it get a lot out of it, and I really am convinced that it’s “an approach that ‘is especially effective with the thoughtless and bigoted.’” I’ve explained that opinion at length. Johnson can take it personally if he wants, but to suggest that it’s ad homimen is ridiculous — the point of it is not at all to direct attention away from his writing and onto his person. It’s possible that he’s intentionally sending ill-defined signals that are open to all sorts of interpretations. My assumption, though, is that he has a fairly specific message in mind and he’s beating around the bush. And whatever his intentions are, his failure to be upfront while writing about me is my license to interpret. Same with the ridiculous stories he’s concocted about my criticism to make himself look good.

I am put in my place

In the post that set the stage for our little war of words, I described a story he’d passed on about Karla Holloway as a foolish rumor. She emailed me and called it “an absolute and patent falsehood.” Adding that quote to my post was enough to prompt Johnson to leave his first comment here in about a year and a half. He starts it by urging Holloway to drop by DIW and air her “‘views’” there. No doubt he’d be thrilled if she took him up on the invitation, but mostly he’s grandstanding — the scare quotes give it away. In the rest of the comment he addresses a couple of points I’d made about an interview with him in the Duke Chronicle and then, apropos of nothing in particular, turns back to 2006 and my silence.

Two other points. Prof. Zimmerman claims that I used a “moderator’s veto” regarding his comments. It is not clear to me when I did so; I have regularly posted his comments at DIW. Indeed, I have publicly pointed out that, as the Group of 88 has consistently refused to defend their actions in and positions about the case, his stance as a public apologist for the Group is an important one, in that it allows neutral observers at least some insight into what might be the Group’s thinking.

Second, Prof. Zimmerman asks why I did not engage in “critical self-reflection” after a hostile Chronicle letter from Jim Coleman. While, as I noted at the time, I was curious why Prof. Coleman had chosen not to raise his rather harsh criticisms in any of the 21 personal exchanges (including a lengthy interview) I had with him before fall 2007, he and I had a lengthy email exchange following his letter. To the best of my knowledge, Prof. Coleman has never cited one specific item in either DIW or the book to corroborate his claims; he did not do so in the private email exchange, either. I should also note that he did not endorse my subsequent call for a Coleman Committee-style inquiry into how the faculty responded to the case.

Finally, a general point: this case featured a District Attorney violating myriad procedures in an attempt to railroad three innocent students at Prof. Zimmerman’s own institution. During the time those students were in harm’s way, Prof. Zimmerman, to the best of my knowledge, was silent about their fate, while 88 of his colleagues signed a public statement which (even in the peculiar claim of Charles Piot that it referred only to protesters at a March 27, 2006 campus gathering) thanked protesters who had presumed the students’ guilt. To the best of my knowledge, none of the signatories of this document have ever publicly apologized for its issuance; the two signatories who privately apologized subsequently retracted their apologies.

That final paragraph is what he cites and then rehashes in the first passage I quoted. His remark after that is, “Somehow, Prof. Zimmerman’s disinclination to challenge that assertion doesn’t surprise me.” I have to wonder, first of all, what kind of fool he takes me for, and then more to the point, what’s to challenge? It’s no secret that I was disengaged from what was happening on campus when the lacrosse case broke, since I said so in my first post about the case. I don’t blame anyone for wondering what, exactly, was going on with me when the shit hit the fan, and the main thing is simple enough — a last-ditch push to finish my doctorate. But there’s never been a good reason for me to dwell on personal details that have nothing to do with the case. There’s nothing I need to explain away or be excused for.

Putting people in their place is a constant and ongoing project on DIW, and those three paragraphs are a pretty good sample of the approaches Johnson has taken in my case. Rebuttal is one option, either of my criticism or, more likely, a pale imitation of it. The question he answered in his second point isn’t the one I asked but something more like, “how did you justify it to yourself when you shrugged off Coleman’s criticism?” (3) Another approach is to package me with the “Group,” which at this point is just a matter of applying “Group apologist” as an epithet (or maybe it’s a title). Johnson must think he’s identified one of my key characteristics with respect to the case, and the only purpose that’s served by doggedly sticking the label to my name is to influence the way my criticism is read. Isn’t there’s a Latin term for that?

That load of “factual accuracy” seemed to come out of left field when Johnson dropped it on me, but now I see that it also fits into a pattern that goes back to his earliest responses to my criticism. It’s clever the way he slips it in as a “general point,” though, and also clever to say nothing about why it’s there or what it’s supposed to signify. There must be several plausible ways to interpret it. It looked to me like an invitation to pass judgment that Johnson extended without risking an opinion on what that judgment should be. Furthermore, putting the whole weight of the scandal behind it struck me as both excessive and petty. So my first reaction was to call it lazy and cowardly — not, in retrospect, a very insightful way to put it, but I don’t think it was out of line, either. When he was challenged in his comment thread he finally managed to narrow down the implications. The business about my silence in the face of a railroading DA, it turns out, “does shine some light on [my] priorities.” It’s still up to you to figure out what’s being illuminated, but he’s left some pretty good clues.

Whatever I say, all it means is that I’m mean

In fact, now I can see that he’s been questioning my priorities for a long time, with one thing firmly in mind — my criticism of him. At first the main focus was certain harsh terms I’d used to describe DIW. In his December 2007 post about me and the “Group of 88 rehab tour,” he spends a lot of time wondering how I “reach[ed my] conclusion about the “insidiously polarizing,” “irrational,” and “anti-academic” [nature] of DIW.” He’d already suggested in an email that those descriptions might really apply to me. In the post he tried them out on a few others who, he seemed to think, deserved the harsh treatment much more than he did. First the potbangers — not only did I neglect to apply the same harsh terms, I even looked “benevolently” on their motives (but then I wasn’t criticizing Johnson’s motives, was I?). And I didn’t apply them to Clare Potter, despite her comments about “students from Zimmerman’s own university [that] were demonstrably false and arguably defamatory.” Zeroing in on a passage from a review of his book that I’d quoted with approval, he wrote in a comment on my blog that “Some people might consider calling members of the faculty ‘crackpots’ to be ‘insidiously polarizing,’ ‘irrational,’ and ‘anti-academic’.” So true, and they’d all be hacks! In context the word is completely innocuous, so once again weasel-wording is key. Finally, he asks whether I’d apply the same three terms to the lacrosse players’ defense team. I wouldn’t — unlike Johnson, I know the difference between a defense attorney and a critic.

In all the attention he gives to those noxious terms of mine, his overriding concern is who they’re applied to. There’s no sign in what he writes that I might be using them to mean something — it’s as if I picked them out at random just to make him look bad (I didn’t, by the way, and I think they’ve held up well). If they don’t have any meaning when they’re applied to him, they don’t have to have any meaning when they’re applied to anyone else, either. So, for instance, while I do fault the potbangers for their definitive contribution to all the divisiveness that followed, there was nothing insidious about them — their protest was blatantly provocative, not to mention foolish and self-defeating. Johnson acknowledges my willingness to criticize the potbangers as a welcome development, but beyond that bare fact he notices nothing in all that I wrote about them except the unfairness of it, to him.

At the end of our first email exchange he did some weasel-worded questioning of my “veracity.” I’d left a comment on Claire Potter’s blog agreeing that he deserved the turkey award she’d given him (it was Thanksgiving). He found the comment hard to reconcile with the rash claim I’d made in one email that I wasn’t describing him in unflattering terms, I was describing his blog that way. A couple of weeks later I put up a long post that portrays him as the “other prosecutor” in the lacrosse case. “Most people,” he points out, without pinning himself down one way or another, would say that “suggesting that someone [is]… scarcely more principled than Nifong is describing that person in unflattering terms.” So they would — I found the irony irresistible, and maybe I got carried away. But my main point was that, writing about the situation at Duke, Johnson was acting much more like a prosecutor than an analyst, so his blog was long on incrimination and very short on insight. He chose not to notice the analogy but instead to dwell on the unflattering nature of the criticism, not directly but by way of an apparent conflict with one prickly line in a prickly email exchange. That, I think, says a lot about his priorities, namely that creating the impression he’s suffered abuse ranks very high — well above explaining or defending his criticism.

It’s more of the same when he takes up ad hominem in his post a couple months ago — he sets aside the primary meaning of the term and instead plays up the connotation of an unfair personal attack. He seems to imply that there are three things I wrote that are “ad hominem attacks” but only one has any traction. It’s true that there’s some irony to the way I describe his “pure ad hominem” as “a lazy and cowardly response.” What I was calling attention to, though, is the “general point” at the end of his comment, which willfully shifts the focus away from my criticism and onto my actions and character. Ad hominem is exactly the right term to describe that move. The characterization I threw back may have been petty, but it wasn’t taking the place of a more substantive response, since his point didn’t warrant such a response in the first place.

I’ll give full credit to Johnson for one thing — he’s found the greatest way ever to duck criticism. It’s especially suited to narcissists with a persecution complex. All you have to do is notice nothing except how inappropriately harsh your critic has been to you. If that’s the only issue, the counterattack is dead easy. You skim off the tone and a few unflattering implications and leave the rest alone — in this case, he doesn’t even have to read all this verbose stuff. The only trick is that you can’t be upfront about what you’re doing or you’ll look like a whiny lightweight.

Anyway, the most recent message about my priorities is not how dare Prof. Zimmerman not speak up for those students being railroaded, it’s how dare Prof. Zimmerman criticize me, KC Johnson (another excellent reason for me to keep it up). This message isn’t reserved for me, of course. When he and Stuart Taylor responded to the Coleman-Kasibhatla letter with their own letter to the Chronicle, their general reaction was that the criticism coming from Coleman is puzzling. You can still see the puzzlement in the quotes above. Why had Coleman “chosen not to raise his rather harsh criticisms in any of the 21 personal exchanges,” etc. etc.? Why me? Why now? (4) That’s a natural reaction — if I was in their shoes I would probably have felt the same way — but as the basis for a reply it’s pretty feeble, especially when the critic you’re answering is one of your primary sources of credibility.

A most peculiar form of weasel-speak

There are a few vague, euphemistic adjectives that Johnson habitually uses when more precise ones are called for. It’s another way he has of not saying what he means, and sometimes he’ll even make a show of it. For instance, he obviously thinks I did something pretty manipulative to the text of my earlier post. But when it comes down to it, the best he can do, or the best he wants to do, is to show how very difficult it is to find the right word.

Prof. Zimmerman responded to those comments by eliminating his allegation against me from his post, without indicating that he has altered his post—an … unusual … approach to blogging.

The gesture with the ellipsis only makes sense if the word in the middle is suggestive — it wouldn’t work to write that I’d taken a … dishonest … approach to blogging. With “unusual” it’s like a line from a B-movie. We have … unusual … ways of making you tahhhhlk, Mr. Bond!. When Johnson starts a more recent post by alluding to the “two … intriguing … items” he’s going to critique, the impression is more of hands rubbing together in anticipation. Her Majesty’s forthcoming visit to my charming little island offers such … intriguing … possibilities, Mr. Bond! Unless it’s tongue-in-cheek, and I don’t see any sign that it is, this is an awfully flaky affectation to be dropping into a supposedly no-nonsense analysis. If insinuation wasn’t so constant on DIW it would stick out like a sore thumb.

The words “unusual” and “peculiar” are vastly overused on DIW. Like my approach to blogging, my decision to criticize Johnson after being silent is also unusual. The last post I wrote is about an “unusual take on the legacy of the lacrosse case.” (5) Look back at Johnson’s “general point” and you’ll see that a certain claim made by Charles Piot isn’t far-fetched or questionable, it’s peculiar. Search DIW for “peculiar” and you’ll find a post about “The Times’ Peculiar Corrections Policy,” three posts about Peculiar Motions by Duke and Nifong, and a couple more about the Herald Sun’s Peculiar Policies.

It’s not that precise characterization is beyond his grasp. Much of his writing about Mike Nifong is fairly direct — the reference to “a rogue DA [who] railroaded three innocent students” is a description that takes a stand — and so is his latest harangue about Selena Roberts. Perhaps that kind of writing is as common on DIW as the vague and insinuating kind. (6) I really don’t know, but for the record, I’m not claiming that Johnson is never forthright. When he’s not, though, it seems to be a matter of choice — there’s nothing I can see about all those unusual and peculiar things that kept him from finding more precise and descriptive terms.

There’s a schoolmarmish quality to the way Johnson lapses into euphemism and also to his apparent aversion to strong language. (7) When he was carping about Stuart Rojstaczer’s crackpot crack, Johnson remarked that he “never used such a term to describe any faculty member at Duke.” It’s a good thing, too, if he’s really as clueless as he seems about the word’s connotations. When Debrah called attention to one of my posts late last year, he commented that I “often employ[] expletives in [my] posts” — a prim allusion to “bullshit,” though the word isn’t actually an expletive (it’s not ad hominem, either). Expletives are meaningless exclamations. It’s true that the word bullshit can be used that way, but most of the time it means something. I’ve spelled out what I mean by it, anyway (not that mere explanation will stop Johnson from acting as if I’m just flinging a dirty word in his direction). After a few years worth of hints and allegations about the moral degeneracy and dangerality of a certain contingent of professors, Johnson has shown that its quite easy to telegraph crude judgments without using any crude language. So while I assume that his sense of propriety is genuine, in practice it comes across as a way to avoid taking any responsibility for his messages he’s sending.

If he doesn’t say what he means, does he mean what he says?

Because the real problem with all that vagueness and indirection is clearest if there’s more at stake, I’m going to set aside the little squabble between Johnson and me and look at one of the most inflammatory elements of his “Group of 88” crusade — the connection he draws between those professors and the potbangers’ “Castrate” banner. It’s couched in an artfully indirect formula that goes something like this: “The 88 “said ‘thank you’ to protesters who, among other things, had carried ‘CASTRATE’ banners….” (there was only one such banner, so that time he slipped in some exaggeration). It looks to me like that slogan was not widely reported at the time of the protests, so the only legitimate connections that can be drawn to people who weren’t on hand to see it are oblique ones — naiveté or failure to investigate, for instance.

If Johnson wants the linkage to be part of his case against the 88, he should be able to translate it into more specific claims relating the professors to that particularly foolish and revolting banner. With that in mind, in my “other prosecutor” post I raised some questions about what he thought those professors knew about the banner and at what level they approved of it. The questions were rhetorical but Johnson ostentatiously took them up anyway. “My answer to these questions is a straightforward one,” he says, and then proceeds to answer none of them: “I believe… that the 88 signatories to the statement… meant what they said, and said what they meant.” Their “thank you” was unqualified, so it applied to anyone labelled “protestor.” Johnson, unlike those foolish signatories, carefully avoids saying what he means. In this case he may not have much choice, because when he recites the lines about how those professors thanked protestors who displayed a “Castrate” banner, it seems that all he means is that they can be criticized for thanking protestors who displayed a “Castrate” banner. They’re extreme left-wing race/class/gender zealots, after all — what more do you need to know?

When pictures of that banner surfaced months after the protest, Johnson put the image to work straightaway as a blunt instrument, handy for rhetorical thuggery. For it to be evidence and not just an ignorant tool there would have to be some effort to put it into context, ideally an effort that grew out of genuine curiosity about how it fit into the protest and why it emerged into the lacrosse-case discussion only after such a long delay. But the culture-war polemic is an agenda-driven enterprise that has little if any use for curiosity. Without any interest in things that don’t serve the narrowly-defined case at hand, we should at least be able to expect a self-appointed prosecutor to be forthright about the charges, and that includes making specific and meaningful connections between the accused and the evidence of their wrongdoing. I can’t point to any authority to back me up on this, but it seems like a minimal standard to meet if you’re going to hold people who aren’t public figures up to public scorn.

Moderator’s veto?! Of course not! That apologist leaves such valuable comments!

The diatribe blasting me that Johnson posted on DIW is basically an expansion of the three paragraphs I quoted near the beginning of this post, with extra emphasis on my “serious allegation” that he once cut me off at the end of an exchange of comments. One thing — maybe the main thing — that provoked him to move the complaint from my comment thread to his blog was his mistaken impression that I’d just modified my post in order to misrepresent his position and cover my tracks (that’s my “… unusual … approach to blogging.”). He has a point about misrepresentation — it was cavalier of me to read his claim that “It is not clear to me when I did so” as “he doesn’t know,” and I should have changed the characterization when his position became, “To the best of my knowledge, I have cleared every comment.” But the update he objects to was added to the post on April 22, when I cleared his first comment. He left a couple more before he noticed the update on May 2. And my line about a moderator’s veto was never part of the post — it’s always been in the first comment.

I’ve written twice before about that exchange back in April 2008. Both times I made it clear that there’s no way for me to know for sure why my last comment didn’t appear — I have no argument with Johnson’s list of five conceivable explanations. But my experience fits a pattern. Two recent exchanges on DIW ended with Johnson posting what he had decided was the last word and then cutting off the commenter. In the second one, his parting shot was basically “thank you for making my point.” The subsequent comment — the one that wasn’t cleared — politely disagrees about having made Johnson’s point and then it highlights a factual error, debunking the revisionist theory Johnson had been building on it. Whatever reason Johnson had for not clearing that comment — there aren’t any good ones — the effect is to insure that his heavy-handed reinterpretation stands as the last word. That was my experience, as well, so I think that whether or not Johnson actually rejected my comment, I drew the right conclusion — Johnson is as manipulative in his moderating as he is in his reporting (I think that, rather than the lack of “college-level comprehension skills,” is what’s behind the confusion that Johnson addressed a few days ago with this bit of world-class condescension.) That’s not, as he seems to think, a claim that he has “a disinclination to debate [me],” it’s a claim that he’s disinclined to engage in what I would consider a worthwhile debate (I never claimed that my “viewpoint was excluded at DIW,” either — that’s just a straw man).

It’s funny how he reacted to the charge that he’d offed one of my comments — he started arguing that the things I’d written about the lacrosse case had value. Not in a complementary way, of course, but still, “[Zimmerman’s] stance as a public apologist for the Group is an important one, in that it allows neutral observers at least some insight into what might be the Group’s thinking” (he claimed that he’d made the point before — if so, I can’t find it). It’s hard to reconcile that line of reasoning with the extremely sparse attention he’s paid to my blog since I finished the first batch of posts about the case back in late 2007. (8) I’ve written about “Group members” Tim Tyson, Cathy Davidson, and William Chafe without, it seems, providing any insight worth taking note of. The same goes for my long pieces about Karla Holloway and Mark Anthony Neal, which would surely qualify as “apologia” in Johnson’s book. Maybe it’s only the half-dozen comments I left on DIW that provide insight. (9) The first one I left was useful to him, for sure, and in fact it’s the only thing I’ve written that elicited an informative response from him. Or it could be that he doesn’t direct his readers to my blog for insight because he knows that there are no longer any “neutral observers” reading his.

Fighting groupthink with bullshit

He found it useful to bring me and my comments up again, a few weeks later, when a commenter asked about whether groupthink was a problem on blogs. Johnson’s answer cites the value of my perspective in a somewhat more plausible way, though the answer still doesn’t reflect very well on him.

[Bauerlein’s law of group polarization] would apply, in theory, to any entity in which alternative views are excluded or silenced (one reason I am very careful not to discriminate on the basis of content in clearing comments, even if that means clearing comments very critical of me, such as those of the Group apologist, Prof. Zimmerman).

To see what’s going on in Johnson’s comments about my comments it helps to break them down into what’s said, what’s implied, and what’s left out entirely.

• Explicit. He clears my comments, and furthermore they’re “very critical” of him. In his post he gets a little more specific the insight my comments afford — I “play[] an important role in communicating the basic mindset of Group members.” I assume this is the essence of being what I most explicitly am, a “Group apologist,” though Johnson doesn’t exactly say so.
• Implied. What I’ve written has some value, since it provides “at least some insight.” But this isn’t on the strength of my arguments, because I’m nothing but an apologist, and for a group that deserves nothing but scorn. So I’m basically a specimen of a wrongheaded mindset who happens to be more communicative than others who share it (I have always treated Johnson as a specimen, too, so in that respect we’re even). (10)
• Left out. There’s no example of an insight that was gleaned from something I wrote. There’s no description of the kinds of insight that can or have been gleaned. There is no reference to any comment or argument I’ve made. There is, in short, absolutely nothing concrete to back up his claims. And he’s never explained how it is that I’m an apologist and not a critic.

What that tells me is that Johnson’s remarks about my important role are largely bullshit. The effort and attention goes, first of all, into the explicit message (he clears my comments) then into the implicit message (those comments have value). Add the two together and you have a handy little refutation of that odious charge I leveled at him: of course I clear Prof. Zimmerman’s comments, I wouldn’t deprive my readers of valuable insight, would I? Like a senile uncle or a man who’s protesting too much, he repeats the point about my (unintentional) public service in three successive comments and a post. While it’s worth repeating, it’s not worth substantiating, not even a little teeny-weeny bit. So what really matters here is making the right impression. Establishing that there’s some truth behind it isn’t worth the bother. If Harry G. Frankfurt is right that bullshit represents a “lack of connection to a concern with truth” while “making assertions without paying attention to anything except what it suits one to say,” then Johnson’s priorities here are exactly what you’d expect from a bullshitter.

Johnson’s remark about groupthink and blogs is tangential to the topic he was supposedly addressing in a funny and revealing way. If he wanted to distance his blog from groupthink, presumably he’d point to critics who challenged his arguments in a way that sharpened them or broadened his perspective.(11) But no, he dredges up a mere apologist who has apparently never laid a glove on his analysis. I am, in fact, just another piece of evidence that Johnson has been dead right since the moment in April 2006 when he found a smoking gun covered with the fingerprints of 88 perfect offenders. That’s some priceless irony, and a fine illustration of the role alternative views play in DIW, which is to be ignored unless they’re fodder to be dismissed and attacked. So, if the message isn’t really about groupthink, what is it about? What he says outright is (a) he always clears my comments and (b) they are oh so critical of KC Johnson (and not, or instance, good or bad or sharp or dull or right or wrong). Those seven comments must have been quite a burden. The same goes for the three or so email queries I’ve sent him. (12) I would never have guessed that being a responsible demagogue was such a strain.

The victim game

One of the prefab criticisms that Johnson trots out most frequently is that so-and-so claims s/he is the victim in the case (in two recent posts, so-and-so has been first the Trinity Heights Action Committee and then Selena Roberts, in the past its been various “Group members” — Karla Holloway, for instance). With respect to my claim that he didn’t clear a comment of mine, he points out that it’s possible that “[Zimmerman] never wrote the comment, and is now presenting himself as the victim.” As a hypothetical I have no problem with that, but it’s still an indication of how ready he is to think in terms of “the victim.”

I don’t think it’s hard to understand how aggravating lacrosse-case-related complaints can be when they come from people who publicly prejudged the team’s guilt or who piled on with social and political agendas at the team’s expense. It’s fair to expect some awareness of the difference between being vilified in blogs and being charged with a felony and then thrown under the bus by the legal system and your own college. In a series of comments he recently left here, Michael Gustafson wrote about a group that undercut its credibility by “trying to use a narrow-focused presentation of the case to their advantage” without confronting its “big deals,” namely “rushes to judgment coupled with severely unethical behavior on the part of appointed and elected officials, fanned by a media unable to restrain itself from exploiting a story that was, in fact, too ‘good’ to be true.” The specifics don’t apply here, but Gus framed the general issue quite well. Johnson, on the other hand, doesn’t frame anything when he writes about how someone is claiming to be the victim. It’s just a cheap shot, reflexive if not envious.

Nobody writing about the lacrosse case has gotten more mileage out of victimization than Johnson. He’s made the lacrosse players into poster boys for a crusade — their victimization is not so much acknowledged or analyzed as it is enshrined. Johnson’s sensitivity to the injustice done to him is, in some contexts, dominant to the point of blotting out everything else. (13) The sense of victimization, which is generally an undercurrent and rarely forthright, is a great way to nurture grievance but it has nothing to contribute to rational criticism or debate — yet another indication of Johnson’s dismal priorities.

Afterthought: the May pile-on

Not long after Johnson said his piece about my criticism he took a fair amount of heat from both John in Carolina and Joan Foster — two people who are usually far friendlier to DIW than I am. I can’t resist commenting on a few things that came up in the pile-on.

The standout from John in Carolina is that he chose to call Johnson to the mat for “sliming” Wahneema Lubiano. Johnson had described an innocent passage in an interview as “[i]nformation about Lubiano’s drinking habits.” That’s typical of the way he reads anything written by a “Group of 88 stalwart” — like a drug-sniffing dog, he’s fixated on the search for incriminating evidence. John’s reaction is direct and cogent — “You took an innocent remark by Lubiano and used it to slime her at the outset of your post. A thoughtful person wouldn’t do such a thing.”

And yet, out of all the things Johnson has written about Lubiano, it’s odd to see this one singled out for such strong condemnation. It’s trivial compared to his casual suggestion that “she has used [her] position to rally opposition to her own institution’s students, the ‘perfect offenders’ whose conviction she believes will advance her pedagogical and ideological agenda” (my emphasis). That looks to me not so much like sliming as outright defamation. But we all have our sensitivities — I’m sure there are plenty of things that I’ve gotten irate about that seem silly to others (in this post, even, I bet).

Johnson also tangled with the indefatigable Joan Foster — in fact the two disputes bled into each other. Joan posted their correspondence to LieStoppers. Somewhere in the middle (would it be too much to ask for a little formatting?), he lumps her in with a collection of nefarious figures, including yours truly:

…at various points in the case, figures such as Bob Ashley, Duke administrators or Group of 88 members, and even Group apologists such as Charlie Piot and Robert Zimmerman have suggested that the opinions expressed in stray, vile, anonymous emails should be considered those of the authors of the blog on the case. I have consistently stated that this line of attack is patently unfair.

I agree with him — it’s a facile argument, and it’s unfair. Maybe that’s why he hears that particular argument whenever a critic turns their attention to his comment threads — he’s well practiced at construing things as unfair to him. Some of his critics might have claimed that his commenters’ opinions are simply echoes of his own, but I haven’t, and neither has Joan. Her complaint is about personal attacks against her that he’s cleared, despite his comment policy. Her point (as I see it, anyway) is not that Debrah’s caustic ravings represent Johnson’s opinion.

My angle on the DIW comments is that they are a window into his message, not his opinion. Knee-jerk ridicule is staple in his comment threads, and it often lapses into caricature and various shades of bigotry. The majority of these commenters are registering strong agreement with Johnson. Whether or not they share Johnson’s opinion is irrelevant. He’s had years to separate his message from their opinion and he’s made no effort to do so. Quite the opposite — at times he’s egged them on. But the real problem is more fundamental. Wonderland is a construction in black and white, so by design it caters to a knee-jerk mindset.

NOTES

1. Johnson may well be right that “the CCI already had the answers to their questions, before even going through the motions of compiling the data,” or at least what they’d answered the fundamental questions without the data and all it added was some fine tuning. He’s approached his project in much the same way. That makes for a pretty good head-to-head comparison that shows in a nutshell why I’ve been so much more critical of Johnson than of the so-called “Group of 88.” On one hand, there’s an agenda-driven initiative that, based my experience of the school, connects to real people and real issues on a real campus, even if the connections are selective and self-serving and sloppy. On the other hand, there’s someone a few states away taking small-minded, vindictive potshots at the Wonderland he’s created just for that purpose, continuing a three-year-long record of treated the few people at Duke that he notices as either heroes or pawns. Fair or not, to me Johnson’s agenda-driven analysis is the more offensive of the two — it’s really no contest. (back)

2. Like this one. (back)

3. This is exactly why I wish the student interviewer in the Chronicle had raised the question. I already knew that the only answer I’d get would be a legalistic brick wall. (back)

4. The three paragraphs of Taylor and Johnson’s response (it’s mostly Johnson’s, I think) to the Coleman-Kasibhatla letter boil down to this (my paraphrases in italics take a great deal of interpretive license, so make sure you read the real thing before you draw any conclusions):

   1. Why me? (but… but… I just said something nice about President Brodhead!)
   2. Why now? Also what seems like the most substantive response in the letter, that Taylor and Johnson had quoted the sections of the committee report that detailed the lacrosse team’s alcohol-ralated problems.
   3. The counterattack. First a mealy-mouthed line that lumps the surprise attackers from Duke with “defenders of the academic status quo.” Then a demogogic exercise in turning the tables by “invit[ing Coleman and Kasibhatla] to join us in calling for a comprehensive review… of the faculty’s response to the lacrosse case.” It’s a sincerity test that Coleman and I have both failed, and Johnson even feels that it gives him points for “critical self-reflection.” (back)

5. The response from Taylor and Johnson points out a couple of unusual/peculiar things about the criticism Coleman and Kasibhatla dished out (the peculiar word choice is one sign that Johnson did the writing). It was, first of all, “peculiar” of Coleman to criticize them for misrepresenting his committee’s report when they quoted the relevant part in their book. Also, “it seems unusual to portray a book with more than 1,000 sourcenotes as based on a ‘tragic rush to judgment’ regarding faculty activists’ behavior.” Johnson got the wrong culprit, but his word choice isn’t so bad — the judgment in question was rendered in April 2006, before a book was in the works, so Johnson’s diligent effort to sourcenote his rush may be genuinely unusual. (back)

6. Johnson’s sense that he’s nailed the extremist mindset of the “Group” means that he is sometimes much more forthright when he’s putting words in their mouth than when he’s speaking for himself. For instance, writing about the Campus Culture Initiative, he can distill the words of extremists down to forthright nuggets of bullshit (“Translation: Most male students at Duke are sexists”). The misplaced clarity is ironic but it shouldn’t be a surprise. One of Johnson’s most effective polemical techniques is to reduce “extremist” views to clear-cut caricatures. Another is to avoid taking stands that have to be defended. Together they keep the extremists in the hot seat and Johnson out of it. (back)

7. Charles Piot put it well when he wrote that, compared to the DIW commentariat, Johnson “maintains a certain decorum.” (back)

8. It’s my impression that Johnson leaves the actual reading of my blog up to Debrah, and that turns out to be a pretty good arrangement for all of us. From Johnson’s perspective the stuff I write is, I expect, either impenetrable or just annoying. It gives Debrah a way to feel useful. And it’s fine for me, too — if Johnson leaves comments I usually feel compelled to write some kind of response, but Debrah’s I can usually toss. (back)

9. At the time Johnson wrote about the comments of mine that he’s “regularly posted” on his blog, he was referring to a grand total of 6 of them. The first 4 were in one thread. The fifth and last one I wrote for that thread is the one that never showed up. That experience, as I said, cured me of writing comments for DIW, aside from a couple of short tweaky ones nearly a year apart. So, of the 7 comments I’d written, 6 appeared online — 86%. More recently I posted a correction about those “unusual” blogging techniques Johnson accused me of. He felt compelled to note at the time that it “was cleared by me—as has been, to my knowledge, every comment Prof. Zimmerman has made at DIW.” Did I ever suggest that he systematically rejected my comments, or in fact that he rejected more than one of them? No. But some of those comments are very critical of him, so let’s give the man credit — he’s done the right thing with 7 of them, and it’s a good thing he didn’t have to OK that other one because it was really mean. (back)

10. Another way to say this (that Johnson and I treat each other as speciments) is that we treat each other as part of the problem, not part of a debate — as “Group apologist,” what I write is symptomatic of the mindset behind the group, while to me, Johnson is a fine specimen of an especially adept culture-war hack. That makes it very unlikely that anything resembling a worthwhile debate will happen between the two of us. And it makes me think that, in general, ad hominem isn’t an issue we should get too wrapped up with. The lacrosse case is a scandal, not a debate — the focus of it is not a proposition but the behavior of the people involved. (back)

11. He might have brought up Timothy Burke or Scott Eric Kaufman or Claire Potter, but there’s barely a peep about their criticism of DIW in DIW. Potter figures in DIW, for sure, but like me she’s a specimen. And of course there’s a couple of paragraphs from Coleman and Kasibhatla that weren’t specific enough to be taken seriously. (back)

12. At the beginning of an email to Joan Foster, Johnson noted that “I even have been willing to respond to all email requests for information from me from figures such as the Group of 88 apologist, Duke professor Robert Zimmerman.” It’s a little odd that he puts it that way after writing about how John in Carolina might have “done me the courtesy of emailing me with his recent list of questions about my posts.” In the same spirit, before he answered my questions about the “Castrate” banner he pointed out that “[Zimmerman] did not e-mail for a response to these questions before posting them.” Looks to me like he’s having some cake and eating it too.

    Anyway, I’ve sent him two requests of information. One of them, about Kerry Haynie, generated a brief exchange. (back)

13. I’m getting very close, here, to an argument that I’ve tried to resist. Here it is in the words of the anonymous author of The Truth about KC Johnson, for instance:

    Johnson was initially denied tenure at Brooklyn College, and blamed this in part on the forces of political correctness and the supposed left-wing domination of American universities. The Duke lacrosse case gave him his chance for revenge.

    My question is, why does his motivation matter? With enough intellectual integrity even someone motivated by revenge can write an incisive critique. And what seems to have happened in practice is that people have dismissed not only the critic but some of the very legitimate issues that he’s taken up. It’s the product that matters, not the motivation. And the excessive attention to victimization is right there in the product. It’s entirely plausible that revenge is the motivation, but it really doesn’t matter. (back)