Friday, September 21, 2007

Suppose the Jena Six played lacrosse?

For a case that "galvanized" the nation and that, according to George Washington University law professor Jeffrey Rosen, will rank with the railroading of the Scottsboro Boys in the early 1930s and the imprisonment of Clarence Earl Gideon -- who, as an indigent, was denied an attorney before successfully appealing his case to the United States Supreme Court -- for a felony theft he did not commit in the late 1950s, remarkably few people will remember Durham district attorney Mike Nifong's relentless prosecution of three members of Duke University's lacrosse team in the spring and summer of 2006 for alleging raping a stripper hired to perform at a party.

What happened on the night of March 13th, 2006, will never be entirely clear. What is fairly uncontested is that approximately 35 members of Duke's lacrosse team were gathered in a house where several players lived for an afternoon and evening of drinking and carousing. The boys decided to order two strippers to come over close to midnight. The entertainment would cost them $800 and last for two hours. At some point in the evening, one stripper would allege that she was raped by three men -- all lacrosse players -- at the party. Her partner never fully corroborated her story. She did say, however, that many of the lacrosse players were extremely drunk and obnoxious towards the both women. One partygoer asked the strippers if they brought sex toys as part of their act. When they were told no, the revelers offered the strippers a broomstick. There is much more on the staggeringly idiotic behavior of the Duke boys, but that ultimately proved irrelevant to the main point.

Over time, the physical and eyewitness evidence against the three Duke players accused of raping the stripper fell apart for the simple reason that no such evidence existed. DNA evidence demonstrated that the stripper making the accusations had sexual contact at some point that evening, but before arriving at the party. The inconsistency of her statements to police, as well as outright fabrication of some parts of her story, with the alleged rape at the top of the list, ultimately led the charges to be withdrawn and the lacrosse players' claim to their innocence born out.

Between March 2006 and the case's dissolution in the late winter and spring of 2007, the Duke case was on the front-burner of most major East Coast news organizations. The New York Times gave extensive space to the story, and focused on the race-driven narrative of a poor, uneducated African-American stripper who summoned the courage to call out privileged white boys on their bad and allegedly criminal behavior. Prosecutor Nifong spared no expense in what turned out to be a baseless prosecution of the Duke boys on the rape charge. And there is no doubt that the elite media -- and numerous sympathetic voices in academia and the professional commentariat -- sided with the stripper over the lacrosse players. How ironic that reporters, pundits and professors who labor -- if you can call talking and writing "labor" -- at the elite levels of journalism and academe would rush to judgment so quickly about the boys' guilt. But was a reaction rooted in their all-too-familiar knowledge of the sense of entitlement that rich kids and their parents have about their place in society. The reason they believed the Duke boys were guilty -- conclusive evidence be damned -- is that they have taught them, lived next to them, employed them or had their children attend school and/or socialize with them.

I will admit that when the story broke my first instinct was to believe the stripper's account. I live about a mile and a half from the Landon School, an elite private school for boys in Bethesda that places a strong emphasis on athletics, with lacrosse at the apex of the jock kingdom. In 2002, ten Landon students were caught cheating on the SAT. Two were expelled and eight were suspended. Several members of Duke's lacrosse team at the time of the stripper incident were Landon graduates, who, like most of their teammates, come from privileged backgrounds. You can psychoanalyze the motives of privileged kids who attend a school where the average SAT score in 2003 was 1355 to cheat all you want. You can wonder what would lead 35 boys, 34 of whom were white, to come up with $800 to hire two African-American strippers to entertain them for two hours, and, although not raping or sexually assaulting them, treat them like circus animals. I helped empty out more than one keg on a Saturday night in college, but I can tell you that the kind of behavior attributed to the Duke boys was not something that ever crossed the minds of the people I hung around. Then again, the kids I considered "rich" in college were the ones who could eat out on Sunday night rather than forage for macaroni, soup and tuna at home. These were not boys being boys. These were spoiled mini-men who have been cushioned from every bump in their lives by privileged parents and the institutions that support them.

Ultimately, what it comes down to is that the parents and children who represent the Landon demographic really, really believe that they are better than everyone else -- with the possible exception of their peers in other elite Washington, D.C. and Montgomery County private schools -- and that they do not have to abide by the rules they expect those below them on the socio-economic pecking order to follow. One day, they will govern and instruct the rest of us, manage our retirement accounts, get us out of tax problem, be featured in Bethesda and Washingtonian magazines as one of the area's top something-or-another's or have their new 1,000 square foot "basement" built to resemble the Uptown movie theater or Fenway Park featured for the rest of us to envy and proceed apace with their lives oblivious to their own privilege. Reporters like Stuart Taylor will write books about the Duke lacrosse team, trumpeting their innocence while attacking unscrupulous prosecutors who are more concerned about winning black votes and pleasing "left-wing" professors hell bent on imposing their "politically correct" cultural orthodoxies on the work-a-day Americans who just want to keep what they earn and provide for their children than following the evidence. Dr. Dial-a-Quote professors like Jeffrey Rosen will offer gushing reviews of books like Taylor's because that is what the professional commentariat in Washington does for each other. Their colleagues will praise them as two of our most original and insightful legal commentators when neither one would make my Top 50. I have read Taylor and Rosen throughout the years and, while finding Taylor a good reporter, have never found anything they have ever said or written original or insightful. A legal academic who can say without irony that the "plight" of the Duke lacrosse team will be remembered with the Scottsboro Boys or Gideon cases cannot have a real knowledge of either one.

Strangely enough -- or maybe not -- I have been unable to find a single word written by either Taylor or Rosen on the Jena Six case that finally broke in the national news earlier this week. On August 31st, 2006, a black high school student in Jenna, Louisiana, asked the principal if he could sit under a shade tree that white students had claimed as their own. The principal responded that the kids could sit anywhere they wanted. The next day, three black students arrived to find three nooses hanging from the tree. The principal expelled the white students who hung the nooses, but the school board reduced the expulsion to a three day in-school suspension, sending a message to the community that the offense was not terribly serious. In other words, boys will be boys. For the next several months, racial tensions continued to simmer until late November, when an arsonist, whose race is still unknown, set the school on fire. Less than a week later, a black student was arrested for beating up a white student he said had taunted him and been a instigator of several racially motivated acts.

A local prosecutor filed second-degree murder and conspiracy to commit second-degree murder against the juvenile defendant. Five other African-American students attending Jena High School also faced lesser charges of second-degree assault and battery. After protest from national civil rights organizations and some belated media attention, LaSalle Parish district attorney Reed Walters, who is white, reduced murder charges against the one defendant to assault. Meanwhile, none of the white students involved in any aspect of the Jena controversy, from those who hung the noose to those who fought with black students, has entered the criminal justice system.

The Jena Six naturally drew the attention of Al Sharpton and Jesse Jackson, a development that almost always makes a good number of white folks roll their eyes and look the other way in a case having racial overtones. Sharpton and Jackson have not always chosen their battles wisely, and standing between either of them and a television camera might well be the most dangerous traffic intersection in America. A friend of mine active in African-American politics who has no special feeling for either man once told me why Sharpton and Jackson end up at the front of the protest line: "White liberals are more concerned about who makes their coffee and khakis than what happens to black teen-age boys and girls. Cultural liberalism doesn't translate to the streets because white folks falsely believe they have no investment in what happens to black people."

The Jena Six defendants are being represented by court-appointed lawyers. The Duke Three, on the other hand, were represented by the best lawyers their parents' money could buy. Bethesda, Potomac and Chevy Chase represent the golden triangle of Montgomery County, and lacrosse is among the most popular sports in the area. For many students who "prep" at Landon or any of the other elite private schools here, a ticket to the Duke, Virginia or Johns Hopkins lacrosse programs represents the pinnacle of the sports-obsessed, status-conscious, affluent professional class of Washington. Reporters like Taylor are drawn to the Duke case because they live here and are steeped in the norms of the elite circles they travel in both professionally and personally. They are not drawn to the Jena Six case because they cannot relate to it. These are not the kids their children hang around the malls or attend high school sports functions with. NPR might do a story on the Jena Six at some point, stirred by conscience and the culture of its listeners. But that will probably be about it. Barring some sort of major development in the case, the Washington cognoscenti will limit their interest in the Jena Six to the "week in review" radio and television programs in which journalists exchange opinions with each about what they believe are the major issues of the day. Those major issues usually involve the color of Hillary Clinton's pantsuits or poll numbers showing that Barack Obama is having trouble making headway with conservative white voters. After that, it's off to Starbucks and perhaps the carpool line at St. Albans, Georgetown Prep and, of course, Landon -- that is, if the nanny is off that day.

The teenage African-American students who beat up the white students who taunted them are by no stretch model citizens. Mychal Bell, the 17 year-old who was first charged with murder, was convicted on the second-degree assault and battery charge in June 2007 by an all-white jury. Bell is an outstanding football player who had a stack of scholarship offers sitting on his family's kitchen table. Colleges interested in Bell include LSU, Ole Miss and Southern Mississippi, all of which take their football very seriously. Football is to the South what lacrosse is to the mid-Atlantic. Being poor and black is far different, though, than being rich and white. Living in Jena, Louisiana is much different than living in Bethesda, Maryland. All that the Jena Six and the Duke Three have in common is that they were on the wrong side of an unprincipled and desperate prosecutor.

I can't help but think, though, that if the Jena Six were rich white kids who played lacrosse on exquisitely manicured grounds for an exclusive private school in the affluent Washington, D.C. suburbs rather than football on beat-up fields in a small southern Louisiana town, the demand for justice and suspicions of prosecutorial misconduct would be far greater than they are now.

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