I'm not going to run the clearing house for all news about the Duke Lacrosse rape case, but I've been following it all week and thought I'd post a follow-up to my earlier post. First, a few links. The Duke Basketball Report (the premier fan site on the internet) has been following the story, and collects the latest links here. I'll point especially to this AP story and this one from ESPN. The Red State Feminist blog has had a couple of thought-provoking posts here and here and here. And, that blog points me to a new blog called Justice 4 Two Sisters, which is intended to be the information station, so there are plenty of links there.

The Red State Feminist also dropped by here to ask, "[C]an you please explain why they wouldn't be able to use the DNA as evidence in court?" I noted in my previous post that forty-six Lacrosse team members had submitted DNA samples and said that "I'm curious about whether they'll be able to use those in court." I ought to defer here to someone who practices criminal law, but I'll offer a few thoughts.

First, my "curiosity" was simply based on my ignorance of the specifics here. At the time I wrote the post, I wasn't sure whether the police had a court order demanding the DNA samples, or whether the players gave them voluntarily. Initially, I had seen news reports referring to a "non-testimonial order" for the samples, and I wasn't sure exactly what that was. Generally speaking, the Fifth Amendment right against self-incrimination only applies to testimony, and courts have ruled that things like blood samples, lineups, and other investigative techniques aren't "testimonial" even if they're used against you in court. But you do have a Fourth Amendment right against unreasonable searches, and that's what can get those DNA samples excluded from a trial.

Now, the players may have volunteered to give the samples, and in fact their lawyers say that they expect the DNA test results to exclude the players. But if the players contest the later use of the samples in court, I think they have a pretty good argument. This is a pretty broad order, and probably includes some players who weren't even at the party. Even if they all were there, I haven't seen anything to indicate that all forty-six players were suspected of being actively involved in the alleged rape. The allegations I've seen are limited to three players. Unless the police have some reasonably specific suspicion as to each tested player, they have a good argument for excluding the test results at a trial. Not necessarily a slam dunk, but a strong argument.

Some folks are already preparing for the possibility that the DNA tests might not be conclusive. Of course, someone can commit a rape without leaving DNA (and someone can leave DNA without committing rape). There may be other evidence indicative of rape. But, two thoughts. First, the fact that police sought DNA tests so soon suggests to me that some kind of comparator was recovered. Second, if none of the players' match that comparator, and the sample remains unidentified, I think it would take some powerful evidence to prove beyond a reasonable doubt that one or more of the players committed a rape.

A few other thoughts.

I've seen some criticism of the way Durham County District Attorney Mike Nifong is handling this case. He's declared that he is personally taking charge of it, instead of the usual course of having assistants who try more cases handle the matter. Nifong has also been making the rounds on several talk shows, including Bill O'Reilley's. Some people suspect that both of these moves have some connection to the upcoming May primary in the D.A. election. While I think it's important that the investigation be transparent and public, I don't want the case to be tried in the media or used for political grandstanding. Even if those aren't Nifong's motives, I note that every minute he spends on television is one which he isn't using to personally handle the case. (I didn't follow the Michael Peterson case, but this isn't the first time the Durham D.A.'s office has been criticized for political grandstanding in high-publicity cases.)

Also, Nifong has said that players in attendance at the party could be charged if they don't come forward. There may indeed be some basis to charge them for aiding and abetting if they helped, encouraged, or facilitated a rape or its coverup (like destroying evidence). It's simply way too speculative at this point to suggest what someone else at the party may or could have seen or known or done, so I won't get into the possibilities there. But I will point out the tough position this puts someone who might be in a gray area regarding aiding and abetting liability. Everyone is saying that players at the party should come forward and tell what happened, but the D.A. says, in essence, "We're going to charge everyone there." (For instance, they tested everyone there, apparently indiscriminately.) If there was a rape, there may still have been players present who weren't aiding and abetting the commission of the crime. But that's a heck of a chance to take when the D.A. is painting everybody with the same brush. I'll say this: If I had a client who was there but didn't rape anyone, I would strongly urge him to blaze a trail to the police to tell his story, but only if the D.A. agreed not to pursue aiding and abetting charges. To do otherwise would be bad lawyering. And you don't have to be a "Law & Order" junky to know that the best chance for a conviction rests on one of these guys flipping on his teammates in exchange for just such a deal.

It also seems like a lot of the protestors want the university to somehow force the players to come forward and spill the beans. I don't know if the school can do that. I think it's a foregone conclusion that the Lacrosse season is over. Obviously, Duke could take away scholarships or expel students. (I don't think Duke's power to do that is unfettered, but let's assume for now it's sufficiently broad.) The school has said that it will allow the police to do the investigating and deal with the results. To those who think this is foot-dragging or inaction, I wonder what they would say if the school tried to investigate. Would they accuse the school or trying to co-opt the police investigation and set up a whitewash? The university has some compulsory power over students, but I think the best course here is for the police and District Attorney's office to bring their considerably greater power to bear on the matter. Duke can penalize its students once it has a better idea of what happened.

And that's the thing I hope no one forgets -- maybe they didn't do it. I don't know what happened at that party, but neither do any of the protestors or bloggers who have already convicted the whole team and branded them rapists. The players say they've already come forward and are co-operating with police, but that nothing happened. Maybe they're lying, but if they're not, repeated calls for them to talk become less about "Tell the truth" and more about "Tell us what we want to hear."

Before people jump all over me for being part of the problem, let me say this. First, I'll be the first to admit that Durham's history of race relations isn't always great. Durham has long had a thriving black community. One part of town was known as the "Black Wall Street" for its many prominent black-owned businesses. One of these was the North Carolina Mutual Life Insurance Company, at one time the largest African-American-owned company in America. The historically black North Carolina Central University, where the woman at the center of this case is a student, has been an important part of Durham for a century. Still, Durham can be divided at times between the very rich and the very poor, and a lot of those poor are minorities. Racism, of course, still exists. Last year, someone burned some crosses in Durham (although the motive may have been anti-gay rather than racist).

And in the middle of all this is Duke University. The most recent admitted class of 1638 students was 34% minority (11% African-American). It's important to remember that the school is pretty small -- only about 6000 undergraduates and 6000 grad students -- in a city of some 187,000. (The Raleigh-Durham-Cary metro area has more than 1.5 million people.) That fact, and the mostly self-enclosed layout of the campus (when I was there, more than 90% of students lived on campus), leads to something of a bubble mentality -- we called it "the Gothic Wonderland" -- and a real disconnect with the rest of the city. At times, it's a mutual animosity that's very typical of the old "town vs. gown" notion.

I'm speaking very broadly here, but in reality I think it only applies to a certain segment of the school's population who don't engage with greater Durham either due to cluelessness or condescension. Yes, there are some Dukies who would probably view Durhamites as disdainfully as "the help." But I think it's wrong to paint Duke as solely the country club of the upper crust. Some 40% of Duke undergrads are on financial aid. I wrote a check today in my monthly effort to repay the loans I had to take out to go there. So I get a little defensive when I hear someone say that all Duke students are rich snobs.

But yes, of course, there are certainly some rich, white, racist Duke students who act like jerks or worse, especially towards women. (When I was there, there was one particular organization that might as well have made that their mission statement.) And I acknowledge that that's true, and a problem for Duke, whether or not a rape happened at the Lacrosse team party. For what it's worth, I really do believe the problem is a very small subset of the school, and not at all indicative of most people associated with Duke. I will be disgusted and embarrassed and enraged if it turns out that some students have in fact committed such a horrifying crime. I'm not trying to marginalize and minimize the allegations here (for example, by saying "Oh, it's just a few bad apples"). But I think it's important to keep the perspective that the vast, vast majority of the Duke community wants to find the truth here and are utterly repulsed by the thought of racists or rapists on campus. I know some people who knew Duke President Richard Brodhead well during his tenure at Yale, and I'm completely confident in him and his ability to handle this matter forthrightly and appropriately based on whatever the facts turn out to be.

I guess the only points I want to make in this post are that I think it's too soon to pass judgment yet on what happened, and while Duke isn't perfect, it's likewise too soon to judge its response to the case. I'm as eager as anyone to find out the truth, but I'm not going to let that impulse lead me to jump to conclusions.

Prof. Althouse reports that beards are supposedly making a comeback. Color me dubious. I've had a full beard off and on from time to time. Usually, I grew an "exam beard" as if I were some kind of ascetic who could be bothered with nothing but studying. Truly, though, I've never had any illusions about them. I don't know of anyone who's found me more attractive when I've had the beard. I never did it for fashion, but rather for laziness and because I hate shaving and because I'm so manly. (I have to tell you, though, the new Gillette googolblade razor does a pretty good job for me.) If some society types think beards are cool, I blame Ashton Kuthcer and his weird facial hair.

Some very distressing news is coming from the alma mater's men's lacrosse team. Here are news articles from the papers in Raleigh, and Raleigh again, and Durham, and Charlotte. It's the lead story on InsideLacrosse.com (and their message boards), and there's more here and here from the Duke Basketball Report. And now it's making national news, too.

The basics are these. Duke's men's lacrosse team is currently ranked #2 in the country. They were the NCAA runner-up last year and one of the favorites for the title this year. By any measure, they are among the premier lacrosse programs in the nation. A couple of weeks ago, the team had a party at the off-campus home of a few team members. Several players have admitted that there was underage drinking at the party. They also admitted that there were strippers present. After that, things get hazy, and more and more troubling. One of the women who was there has now accused team members of gang-raping her.

The accuser is a student at North Carolina Central University, an historically black college in Durham. Most of the Duke lacrosse players are white, so there's also an ugly racial aspect to all this. The woman said that she and her associate expected to be dancing for only a handful of players, but when they arrived, thirty or forty players were present. They were drinking and aggressive. When things started to get a little out of hand, the women started to leave. Players followed them to their car, shouting and threatening. A neighbor was on his porch and saw and heard the commotion. He said he heard one player yell out, "Thank your grandpa for my cotton shirt," among other racially-charged statements.

Eventually, the woman says, the players were able to coax the women back inside. Once inside, though, she said that a few players separated the women and took her into a bathroom, where they proceeded to rape, sodomize, kick, beat, strangle, and rob her. Once she was able to leave, she called the police.

The police executed a search warrant on the house and took away several items. Forty-six players submitted DNA samples. (I'm curious about whether they'll be able to use those in court.) As of now, of course, nothing's been proven and the woman's story remains an allegation. But, in light of the incident and the ongoing investigation, Duke's Athletic Director and President have decided to forfeit the team's next two games.

I think the potential legal issues involved here are interesting, but I'll leave those aside now. As an alum, I'm glad to see the administration committed to getting to the bottom of this thing, instead of protecting a successful team. I wonder if they're using the forfeits to bring pressure on the players who weren't involved. Team solidarity is one thing, but I doubt many of these players would lose the whole season to protect rapists on the team, if the allegations are true. I certainly hope they wouldn't.

I agree with this DBR editorial, which concludes:

But whether [a rape occurred] or not -- and obviously everyone hopes that it did not -- the lacrosse team created an environment where drunken young men could ruin a young woman's life and, as they will realize in the coming days, quite possibly their own as well.

Because regardless of the outcome of the criminal investigation, Duke cannot allow this situation to simply fade away. Indeed, given the confluence of race, gender, privilege, and Durham politics, there's an excellent chance that events will prove completely unmanageable.

There is, in other words, the possibility that this will end up as a long-term disaster for everyone it touches. It is absolutely critical that Duke deal with everything honestly and forthrightly.

I was going to mention a great article in the latest issue of "The Atlantic, but I couldn't decide which one. For my money, on an issue-per-issue basis, "The Atlantic" is the best magazine in America. This month's issue is a great example. I promise I'm not getting a kickback or a discount on my subscription, but there's some fantastic content in this issue.

First, there are all the little nuggets like some thoughts on health care policy, and neat profiles on the campaigns of Lynn Swann and Newt Gingrich. Plus, there's a Christopher Hitchens commentary on Ian Fleming, a Mark Bowden commentary on Tom Wolfe, James Fallows's thoughts on camera phones and culture, and a very handy guide to new books. It's the consistent high quality of all those little items that are just filler in other magazines that really makes "The Atlantic" for me, even when I'm not as captivated by the lead articles.

But this month's crop is sterling. There's this one about the NSA and its ability to spy on absolutely everything. This one about the chance "to wring stability out of chaos" in Iraq. And this one about pharmaceutical sales reps and their role in modern medical practice. All of these are insightful, informative, balanced, nuanced, and thought-provoking.

And on top of those is the article I was originally going to mention, this one about British army infiltrators in the IRA. It could work as a movie treatment. It's stunning and gripping. The British infiltrators -- local Irish lads or disillusioned IRA vets, often -- helped beat the IRA by sinking to their level. The trick, they said, is to not mind killing. British spies were able to thwart some terrorist attacks, but not all. And there's the thing -- they took part in some of them. They killed people, including other British agents and innocent civilians. As one spy put it, "You can't pretend to be a terrorist." The only way to successfully infiltrate was to go all the way. Eventually, though, along with other factors, the spies helped break the IRA because no one knew whom to trust any more. It's a hell of a read. And it raises a lot of questions about whether American officials would be able to stomach the same choices, whether they're police infiltrating the mob or spies infiltrating foreign terrorist organizations.

Anyway, I've gushed enough. I highly recommend at least grabbing this issue (April 2006) off the newsstand. I finally subscribed, and I think it's worth it. I'm sorry that all the links in this post require a subscription. Maybe you can go halvsies with someone and share a password. If you ask nicely, maybe I'll send one of these articles to you.

I've been kicking around some thoughts about metadata for quite some time now. Metadata is, literally, "data about data." It's the bundle of information that swims along with your emails, including the IP address of the computer it was sent from and when it was opened. It's the data you never see on your spreadsheet that can tell someone when an input was changed. It's the behind-the-scenes junk embedded in your word processing program that can tell you who edited a document. It's all that and much more.

Your metadata can tell someone more about what you're doing than you can, even if you don't know everything that's included in your metadata. With that much information comes power. And that power can be used in all sorts of ways. For example, imagine you're involved in a lawsuit, and your opponent sends over some electronic records. And by looking at the metadata, you're able to tell who saw the document, who changed it, and what it was changed from. Imagine that document reveals something about what your client knew and could prove your case. Imagine it contains your opponent's actual bottom line in a negotiation, which is much lower than the number they've been telling you. You could do a lot with that kind of knowledge.

I've been vaguely aware of metadata for a while, but didn't really think about it. Then I went to a little bar function where the guest speaker was a metadata expert (with a metadata-management product to sell, naturally). She explained the basics about it, and how it can be used, or misused. I saw a lot of lawyers get nervous that night. Several whipped out their PDA's to take notes or send emails to people at their firms. A couple got up and left and went back to the office, that night! I began to realize there might be something to all this metadata buzz.

I talked to a friend of mine who does computer consulting work, and his take on metadata is basically neutral. It is what it is; the metadata doesn't decide how it's used. I talked to a friend of mine who does a lot of litigation in the general counsel's office of a Fortune 500 company. He told me that electronic discovery is going to be a hugely expensive part -- maybe the biggest part -- of litigation in the near future, and the metadata issues that go along with that are already causing a lot of headaches.

One reason for that is the lack of guidance for how to handle metadata in litigation. Via How Appealing, I ran across this fascinating case from federal court in Kansas that was one of the few cases to deal extensively with discovery-related metadata. The state bar associations in Florida and New York have ruled that it is unethical to mine opponents' documents for metadata. Links for those via the Legal Ethics Forum. It also makes one think about the duty of lawyers to keep that metadata from being transmitted to the other side -- which is where people like that speaker I heard come in.

I geuss my plan was to write some kind of meta-metadata post, but I just never wrapped my head around it all in a coherent way. So I'm just putting this all out there as something to think about. Before long, I'm sure, if not already, professors will be talking about e-discovery in Civ Pro and metadata in Legal Ethics courses. Who knows -- maybe there will be a metadata question on the MPRE.

If you're interested in more about metadata issues, here's another resource via the folks at the Legal Ethics Forum, and check out this one and this one, too. Good luck mining your own metadata!

Oh, what an interesting picture of Islam we're getting from the Abdul Rahman case from Afghanistan. Rahman has been put on trial and faced (faces?) execution for the crime of converting to Christianity. The news isn't clear about whether he'll be released or not, but it's put President Karzai in a tough spot. He doesn't want to anger the West by allowing the execution to proceed, and he doesn't want to anger the hardline clerics in Afghanistan by stopping it.

And it's put our State Department in a tough spot, too, as it tries to figure out how hard to push things. I'm not going to get into a big thing, but I think I agree with Prof. Volokh here. I think a religion that countenances killing those who leave it is even worse than a "religion" that charges money to stay in it.

Should the United States grant asylum to Rahman? In simplest terms, a refugee has to show a "well-founded fear of persecution" in his or her homeland to be eligible for asylum here. (Note that this just creates eligibility, not entitlement; ultimately, it's up to the Attorney General.) I'd say Mr. Rahman meets that criterion. Granting asylum would piss off a bunch of people, though. It seems that the opposition is based on the notion that many Muslims would convert to Christianity to get asylum. Should that be the policy of the United States -- to offer asylum to those whose conversion puts them in danger of state-endorsed execution? Should it be the policy of the United States to do nothing? Something in between? And if the U.S. decided to offer some protection to Rahman, how will that sit with the millions of other people who would like to get in the country?

I do a lot of those "Random Thoughts" posts whenever I collect a few items I want to mention but don't think are worth a full post. They're the kind of thing I need to get out of the way, like the President clearing brush at the ranch, so I usually just toss them into one post and let them go. Well, tonight I decided to chuck that model and just make posts out of all the items. So, the next several posts are sort of all associated in my brain as the underbrush.

Anyway, the first thing is Bojangle's, famous for chicken and biscuits and sweet tea. Oh, and fantastic fries. Well, maybe it's because it's basketball season, but I've had a hell of a craving lately for some Bo's. So today I decided to do something about it.

I made a sort of Smokey and the Bandit-style run to smuggle home some chicken. I don't know if that qualifies as bootlegging, but I'll play it safe just in case. State lines may or may not have been crossed. The words "Super Tailgate Special" may or may not have been uttered. I may or may not have ordered more chicken than the whole family behind me. I figured, I have to get enough chicken to make the trip worth it! And not just chicken -- fixin's, biscuits, and tea!

My three favorite Bojangle's memories, all from when I was in college. First, times like this, and maybe the reason why basketball season gets me especially jonesing for Bo's. I used to make a run every year in that half-hour between Final Four games and settle in to watch basketball with the guys and eat some chicken. Time constraints, and the urgency of the craving, led me to do it this week instead of next, but it was still a good night for it.

Second, one time I was back for Homecoming. We got up early to roast a pig all day. Early as in around 4:00. A few hours later, a couple of us made a run to Bo's for some breakfast. We were wearing jeans and sweatshirts. This guy in full-body camo was in line behind me. I assumed he was going hunting, but he kept looking at us like he couldn't figure out why we were up and getting so much food that early. Finally, he has a thought: "Y'all goin' fishin'?" "Nope," I say, "cookin' a pig." There's a long pause while he processes this. Finally: "Is it your pig?" I love that.

Third, my favorite. I loved those nights when me and semi-guest blogger Sebastian and Seb's roommate would hang out, shooting the bull and watching tv till all hours of the night. Finally, around 3:00 or so (none of us had class before 11:00 or 12:00), we'd be dragging, and barely awake, and it was just a matter of time before one of us dozed off. But every once in a while, one of us would casually, oh-so-casually, say, "You know...Bojangle's will be open in a couple of hours..." The usual response from the other two was "Aw, shit!" because you couldn't turn down Bo's. So we'd rally and stay awake long enough to go over to Bo's when it opened at 5:30. We'd get back to the dorm with hot biscuits just about the time the pre-meds and ROTC guys were waking up. And it would totally demoralize them to see us. And we would go to bed full and happy.

Thanks for the memories, Bojangle's!

Okay, it's time to close the book on this little question/answer experiment.

1. Jane asks, Do you have siblings? If so, where do you fall in the family? If not, do you ever wish you did?

I have an older brother. We're close in age but not much else. He was a year ahead of me in school. We've never really had the same friends or run in the same circles. We're really about as different as night and day. I don't mean that to sound critical of him; we're just different.

2. Blonde Justice: I wanted to know your St. Patrick's day plans (will you wear green? drink green beer? go to a parade?), whether you have any good vacation plans coming up (I always need a vacation to look forward to) or, in the alternative, a great vacation you'd recommend, and what is this San Diego Airport story all about? (Don't call me a jackass, just tell me generally what the background is on this.)

I wore a green tie for St. Patrick's Day. Nothing too elaborate, I just wanted to avoid the "Where's your green?!" hassle. But I wear green fairly regularly, so it wasn't any big deal to shift my wardrobe a bit.

I don't have any firm vacation plans, but I've been feeling like I need one. I may run down to Clerksville for a weekend and see some folks, or maybe try to see some of my friends who are expecting kids before they forget they have single, childless friends. I'm no good at recommending vacations because I so rarely do anything touristy. It seems like every vacation I've taken in the last ten years has involved a friend's wedding.

And that's the basic gist of the infamous San Diego story. I went to a wedding out there one summer, and it turned into a crazy thing. And the side trip to Las Vegas wasn't even the craziest part. I promise I will get around to telling the story here sometime, but now it's so overhyped it'll be a let-down. I think I'm going to adopt a policy of waiting longer to tell it for every time someone asks for it. That way, it will be more of a suprise when I get to it. Thanks for the patience.

3. Fitz-Hume blows his cover in the Witless Protection Program to ask, "What are your thoughts on the NCAA basketball tournament? I noticed that it started last week and I know you're something of a basketball fan. Also, didn't you once say you had a story about San Diego?"

First, as for basketball see here, here, here, here, here, here, here, here, here, here, and here. As a final thought, I'm obviously disappointed about the way Duke's season ended, but at least I can take some solace in UConn's massive flame-out.

As for the San Diego story, see above. And thanks for making everyone else wait even longer now, Fitz! Gosh!

4. "Anon" wonders, "Why did Fresh Pepper give up funny posts in favor of pathetic ones?

I think that's a little harsh. I think there are still some gems in there. If I had to attempt a diagnosis, I wonder if he's trying to post more often, and maybe forcing it with some less-than-stellar work, or if having a regular gal has turned his brain to mush. Maybe it's not the best site on the web any longer, but it's still worth reading. After all, we all know he's going to screw up something soon, and he'll have something funny to say about that. It's just a matter of time.

5. Wayne queries, "When is it too early to begin studying for the Bar exam? I'm not really all that concerned about when it may be too late to start studying for the exam. My main concern is wasting more time studying than is needed.

Question #2, what do you think my chances are of passing this thing? Better or worse than that Sullivan chick's?

Don't blame me if this plan doens't work for you -- you're a grown-up and can make your own decisions. But I didn't start studying until after July 4th. I mean, I went to the BarBri lectures and filled in the blanks in the book, but I didn't do any out-of-class studying until July. That gave me about three solid weeks of heavy-duty studying, and not much else. Oh, well, I did pack up everything in my apartment and move the weekend before the bar. I needed the distraction by then. And I know that spending those four hours a day in the lectures crammed at least a little something into my brain. But I also never took a full practice test and didn't write any practice essays. I think I (a) take tests pretty well, (b) retained a lot from the lectures, (c) felt pretty good about what I learned and remembered from the courses I took that were tested on the exam, (d) studied hard those last three weeks, (e) took the bar in not the most difficult jurisdiction in the country, and (f) didn't get freaked out about it. Depending on how any or all of those apply to you, adjust your own study time accordingly. I think your chances are good, because I think you'll put in more time than Dean Sullivan did, at least the first time. Good luck!

6. Blondie again: "Oh, and I have another question... how are those brackets going? Can't you give us an update?"

Well, the Men's tournament bracket turned into a freak show with some high-profile losses. Currently, there are a couple of Masons (but not George Masons) fighting it out. If Blondie is just asking so she can taunt, I'll inform her that she's sixth and I'm seventh as of now. And since neither one of us can win any more points, she's guaranteed to beat me there. On the Women's side, though, I'm in second and Blondie's in fourth, and I have a lot more possible points remaining. So I'm feeling good about that one, and pulling hard for the Blue Devils to win out.

Thanks, everyone, for playing along. We'll do this again sometime.

(Post title from "Mama Told Me Not to Come" by Randy Newman.)