The lacrosse affair: call for an independent review

The "Lacrosse Affair" reminds us that a responsible entity should have policies, especially with respect to matters that can have a substantial impact on the entity.

Intelligent, experienced people in the Duke administration and Board of Trustees made a number of mistakes in the lacrosse case. To this they admitted. President Richard Brodhead has publicly apologized to the lacrosse players and their families and outlined some of his mistakes. Robert Steel, chair of the Board, has made it clear that the Trustees consulted with Brodhead and agreed with his actions throughout the period of Brodhead's mistakes.

How does this great University deal with similar problems that may occur in the future? President Brodhead has proposed hosting a national conference of educators, lawyers and student affairs leaders "to discuss best practices in this field." This endeavor may be helpful to develop "best practices" for universities in general, but it will not get to the heart of the matter-Duke needs a clear factual assessment and recommendation to guide the administration and Trustees in the future. While policy must ultimately come from the Trustees, such policy should not be based on an introspective study by those who participated in the affair or a "best practices" national symposium. If the Trustees seek an unbiased filter through which to examine the events to which they were a party, they should appoint an independent commission to study the case.

The root cause of the evil resulting in the lacrosse athletes' indictments was a lying alleged victim and a corrupt district attorney-for which Duke's leadership cannot be blamed. But the administration's reaction to the allegations denied the lacrosse athletes their right to fair treatment by the University, whose power exercised over them and over the lacrosse team's coach and season appeared judgmental-words of presumed innocence notwithstanding. Exacerbating this conduct was the administration's admitted failure to distance the University from the ad signed by 88 faculty members, which, most charitably put, prejudged the athletes' guilt.

"Presumed Innocence" is a courtroom rule of evidence brought to the jury's attention by the court in a criminal trial. The presumption is based on fairness principles of a just society and has become part of the due process accorded to criminal defendants. This presumption should be accorded our fellow citizens outside the courtroom as well.

All of us are at potential risk from a criminal investigation or charges-inconceivable as that seems. Why? Because putative victims do lie. They are human.

Prosecutors are human. Some prosecutors are evil, or inept, or negligent. Some simply misjudge the facts, or fail to look for exculpatory evidence. Some use theories of prosecution later rejected by the court, as in the conviction of Arthur Andersen reversed by the U.S. Supreme Court. Some prosecutors focus on "probable cause" facts to get an indictment but fail to accurately assess the evidence necessary to prove guilt beyond a reasonable doubt.

Never equate an indictment with guilt. Fifteen years ago the U.S. Supreme Court called the grand jury what it is: a mere tool of the prosecutor; a body that neither seeks truth nor weighs competing facts; and a body that prosecutors have no duty to inform of known exculpatory facts.