http://www.dukechronicle.com/article/judge-lets-duke-lacrosse-suits-proceed
Re-posting
8 November 2012
RICHARD H. BRODHEAD: FACING THE CHARGE OF "CONSTRUCTIVE
FRAUD"--HABITUAL CONSTRUCTIVE FRAUD, I SEE NOW
On 31 March 2011 in Duham, North Carolina, Judge Beaty threw
out some accusations against Richard H. Brodhead, President of Duke University,
but deemed two others strongly supported enough to proceed to DISCOVERY, which
would include Duke emails early in 2006 when lacrosse players were falsely
accused of raping a stripper. The conspiracy charges were among those dropped.
Remaining are two very serious charges. One is “obstruction of justice.” The
other is a term I did not know, “constructive fraud.” I sorted through several
Internet definitions and tried to visualize applying them. It’s a somewhat
elusive term, but I am fascinated by it as possibly a Hawthornesque master key
to Richard H. Brodhead’s character and career.
As readers of this blog know, Richard H. Brodhead lied in the most conspicuous imaginable place, the New York TIMES about my being the only person ever to have heard of Melville’s 1860 collection, POEMS. This was or became part of a relentless campaign—who knows whether collusion was involved—by New York critics to discredit my biography as unreliable. Brenda Wineapple first said I had written a book like Edmund Morris’s DUTCH, the fantasy biography of Reagan. Then Brodhead implied that I had invented THE ISLE OF THE CROSS and POEMS. Then Andrew Delbanco said I could not be relied on anywhere because I had merely surmised THE ISLE OF THE CROSS and POEMS. Then, from the Midwest, Elizabeth Schultz echoed Brodhead and Delbanco with an added twist of venom.
I imagine that few of you readers have ever attempted so gigantic a task as I did and few of you have ever been as scrupulous as I was in moving from document to narrative. In 2002 when the second volume of my biography appeared I already knew that Delbanco would trash it, as he had done the first volume, but I hoped against hope that other reviewers would say, “Thank you.” Some did, but not the powerful New York reviewers, all of whom united to savage it as unreliable. That was the one place where I had been invulnerable, I thought, Hayford thought, Sealts thought. And of course if the reviewers could convince their readers (and the Pulitzer committee in particular) that I had exerted vast effort in a waste of shame, they had won. They won. Wineapple, Brodhead, and Delbanco won.
I was weak already, having postponed surgeries so I could complete the book, and had to undergo surgeries while weakened. Of course I sank down, seeing that my life’s major work had been trashed. For the first time in my life I gave up working, and at the start of November 2002 said, “I will take off some weeks, maybe the rest of the year, to find out if anything is known of my American ancestors. I won’t join any pay sites, but I will search the Internet.”
No decision could have been healthier for me. I had thought that no written record would survive from people so impoverished but I was astonished, week by week, to see just such records and to learn that my folks were strong people, amazingly tough people. I was interested just in those on this continent, the Choctaws and Cherokees and the Scots and the Pennsylvania Dutch and a few scattered English folks, not their ancestors, but one line went directly back to an ancestor of Jane Austen, my, what is it?—8th cousin 9 times removed? I should have known! But the fun was in the stories about my ORNERY PEOPLE on this continent, including stories in Schoolcraft, Longfellow’s source, of all things, about how Grandpa Coker ate no vegetables.
So I pulled myself together and went back to work early in 2003, but I lived under the shame of Internet articles defaming me. Finally in 2006, after I saw what Brodhead was doing to the lacrosse players and the coach at Duke, and recognized a pattern in the way he had trashed me and the way he had trashed the coach and the players. I wrote an article that NINETEENTH-CENTURY LITERATURE published in the June 2007 issue (out in July) and in early June 2007 talked to (emailed, that is) Michael Gaynor, who posted this article which is still up.
http://www.renewamerica.com/columns/gaynor/070607
After that online article appeared I never once lost a night’s sleep over Wineapple, Brodhead, Delbanco, and Schultz, although I had not had one good night’s sleep after first Wineapple and then Brodhead published their attacks. And that fall I began speaking out on LieStoppers, where I now have a pinned series of articles on Brodhead.
Now, after looking at first reports of Judge Beaty’s ruling, I see constructive knowledge defined as information that a person is presumed by law to have, regardless of whether he or she actually does, when such knowledge is obtainable by the exercise of reasonable care. A reviewer of a major biography in the New York TIMES, according to this definition, is presumed to have such knowledge as is obtainable by the exercise of reasonable care in reading the book being reviewed even if the reviewer had not known about such things before accepting the job and taking pay for reviewing a book. By this definition Richard H. Brodhead had constructive knowledge of the facts which he then misrepresented. You are guilty of constructive fraud if you gain an unfair advantage over another (as in damaging his reputation so that you look superior to him) by deceitful, or unfair, methods. Certainly by this definition Brodhead was guilty of constructive fraud in his review of the second volume of my biography in the New York TIMES. He harmed me, but ultimately he also harmed the New York TIMES and both immediately and ultimately he harmed the readers of the New York TIMES by posting false information about Melville, me, and many Melville scholars older than me.
A Dean at Yale represents himself to the New York TIMES as being competent to review a biography based on archival research. When he is not so competent or else deceitfully behaves as if he were incompetent, that Dean at Yale is breaching the TIMES’ trust and confidence in him by failing to do his duty to write a competent review.
Whether or not Brodhead intended with evil intent to injure me by the lies does not matter, he is guilty of constructive fraud by harming me in a situation where he deceitfully characterized my work. He could have been just having fun, being witty, being oh so sophisticated, and still be guilty of constructive fraud. In passing himself off as a competent reviewer to the New York TIMES Brodhead imposed upon the newspaper and went on to violate public and private trust or confidence in him, thereby depriving the paper and the public and me of an honest and fair review. Again, even if Brodhead was merely stupid or ignorant does not matter: he breached a duty to write an honest review which incorporated the knowledge that we have to assume he had access to since it was there on the pages of the book being reviewed. Brodhead’s breach of his duty to the New York TIMES resulted in a tendency to deceive the TIMES and the reading public. Brodhead committed constructive fraud when he did not disclose his incompetence to review a biography based on archival research.
Now, thinking about “constructive fraud,” I see a pattern in Brodhead’s character and career.At bottom, Richard H. Brodhead has gone through his career passing himself off as more competent than he is, and this to the detriment of others. His THE SCHOOL OF HAWTHORNE was a product of constructive fraud, since anyone taking on that project should have found out who the students in Hawthorne’s classes really were, and he has damaged others since anyone who wanted to do a serious book of the subject will be denied a contract. Any publisher would say, “There’s already a book on the subject by the man who is now the great President of Duke University.” Now, this is aside from the big group that got damaged, anyone who bought the book thinking it really was a guide to writers who put themselves to school with Hawthorne (through his writings): the book was NOT such a comprehensive study, and the buyers and other readers were the victims of Brodhead's constructive fraud. And this is aside from Oxford University press being the victim of Brodhead's constructive fraud.
Only James Van de Velde could tell you the baseness of Brodhead's treatment of him; his lawsuit was reinstated in December 2007 but still is pending. His life was ruined he said, by Brodhead's firing him; he made a new life for himself, but it is not the grand life he was moving into in 1998, before a student of his, Suzanne Jovin, was murdered. Van de Velde was not "one of them" at Yale, and Brodhead seized on the hapless announcement by the New Haven Komedy Kops that Van de Velde was a murder suspect because he knew the victim. This was enough for Brodhead to cancel Van de Velde's Spring 1999 class, saying that knowledge of the murder was "in the air as a matter of speculation," but, nevertheless, "cancellation of the course doesn't follow from a judgment or a prejudgment of his hypothetical involvement in the Jovin case." A case of Constructive Fraud?
Brodhead was a dean at Yale. A dean at Yale was presupposed to know how to deal with New Haven policemen with low professional standards and to give advice to teachers working under him, to guide Van de Velde in ways of dealing with the reckless rumor-mongering by the incompetent local police and to protect his good name from assaults. A manly dean would have walked into class with Van de Velda, holding his arm, since he was too short to put an arm around his shoulders, and addressed the class openly and honestly, saying the students could get over any uneasiness: here was a great young teacher who was being tied to a stake by the local police. Brodhead, instead, weaseled his way through the weeks after the murder sheltering himself in the role as dean. By not protecting Van de Velde but on the contrary sacrificing him for his own interests, Brodhead was committing constructive fraud. Whatever his motives were in depriving Van de Velde of his occupation and his reputaton we may never know, but the parallels are strong between his treatment of Van de Velde and his treatment of the lacrosse players (and Coach Michael Pressler). This constructive fraud also was fraudulent, willful and wanton, and malicious, and Van de Velde may yet have his chance to prove this in court, if the reinstated case ever comes to trial.
Look at Count 11 in the Carrington case, "Constructive Fraud through Abuse of Confidential Relationship." The complaint is against Defendants Richard Brodhead, Tallman Trask, Sue Wasiolek, and J. Wesley Covington. All are asserted to have held relationships of trust and confidence with the students,the lacrosse players.
The complaint reads: "Due to this relationship of trust and confidence, the above-named defendants were bound in equity and good conscience to act in good faith and with due regard for the interests of plaintiffs, who reposed confidence in them. Defendants abused their relationship of trust and confidence to harm the plaintiffs. . . . Among other Duke officials, Defendant Brodhead contributed to this constructive fraud by reinforcing and reaffirming that the Duke administration stood in a relationship of trust and confidence with the players, and Defendant Trask contributed to it by reinforcing Wasiolek's advice to the players not to procure legal representation. This conduct was directly contrary to the plaintiffs' interest, placed them in grave legal jeopardy, and had the direct and predictable effect of prolonging and exacerbating the rape hoax crisis, and thereby harmed plaintiffs. These defendants also abused their relationship of trust and confidence with the plaintiffs by steering them to defendant Wes Covington for confidential advice and guidance, including legal advice. . . . In abusing their positions of trust and confidence, above-named defendants were motivated by the desire to serve and protect Duke University's and their own personal interests over the interests of the plaintiffs. Defendants did not disclose this conflict of interest to the plaintiffs. . . . The actions of defendant Duke officers and employees in perpetrating this constructive fraud were performed in the scope of employment. Duke's officers, directors, trustees and/or managers participated in, ratified, and condoned the fraud. This constructive fraud was fraudulent, willful and wanton, and malicious."
When Steel praised Brodhead as a scholar (not a critic but a scholar) Brodhead stood by smiling and thereby tacitly took credit for skills he never possessed; he also stood by smiling while Steel praised his responsible behavior toward students during his long career. By not disowning what Steel said, Brodhead set up the expectation that he would be a rigorous administrator who would know when works of extreme Political Correctness were not of any scholarly value and he set up the expectation that he would protect students of Duke University from anyone who would falsely accuse and abuse them. Brodhead let everyone think he was competent to be President of Duke University when he was not, and whether or not he was committing deceit does not matter: he was guilty of constructive fraud.
I can image what will happen when Robert Ekstrand takes up Brodhead’s constructive fraud?—Ekstrand, who witnessed one of Brodhead’s moral meltdowns, as the fraudulent facade fell away and the real emptiness was revealed?
Some people who have never lived with being defamed may think I am excessive in my protestations now. I guarantee you, what Brodhead did to me was worse than “giving me a bad review.” He set out to destroy my reputation for accuracy, committing “constructive fraud” in the New York TIMES. Is it not remarkable how Character Tells, just as we have always been taught?
I knew years before writing FLAWED TEXTS AND VERBAL ICONS (1984) that Richard Brodhead was blind to other people's agony. Now I am not the only one who knows.
As readers of this blog know, Richard H. Brodhead lied in the most conspicuous imaginable place, the New York TIMES about my being the only person ever to have heard of Melville’s 1860 collection, POEMS. This was or became part of a relentless campaign—who knows whether collusion was involved—by New York critics to discredit my biography as unreliable. Brenda Wineapple first said I had written a book like Edmund Morris’s DUTCH, the fantasy biography of Reagan. Then Brodhead implied that I had invented THE ISLE OF THE CROSS and POEMS. Then Andrew Delbanco said I could not be relied on anywhere because I had merely surmised THE ISLE OF THE CROSS and POEMS. Then, from the Midwest, Elizabeth Schultz echoed Brodhead and Delbanco with an added twist of venom.
I imagine that few of you readers have ever attempted so gigantic a task as I did and few of you have ever been as scrupulous as I was in moving from document to narrative. In 2002 when the second volume of my biography appeared I already knew that Delbanco would trash it, as he had done the first volume, but I hoped against hope that other reviewers would say, “Thank you.” Some did, but not the powerful New York reviewers, all of whom united to savage it as unreliable. That was the one place where I had been invulnerable, I thought, Hayford thought, Sealts thought. And of course if the reviewers could convince their readers (and the Pulitzer committee in particular) that I had exerted vast effort in a waste of shame, they had won. They won. Wineapple, Brodhead, and Delbanco won.
I was weak already, having postponed surgeries so I could complete the book, and had to undergo surgeries while weakened. Of course I sank down, seeing that my life’s major work had been trashed. For the first time in my life I gave up working, and at the start of November 2002 said, “I will take off some weeks, maybe the rest of the year, to find out if anything is known of my American ancestors. I won’t join any pay sites, but I will search the Internet.”
No decision could have been healthier for me. I had thought that no written record would survive from people so impoverished but I was astonished, week by week, to see just such records and to learn that my folks were strong people, amazingly tough people. I was interested just in those on this continent, the Choctaws and Cherokees and the Scots and the Pennsylvania Dutch and a few scattered English folks, not their ancestors, but one line went directly back to an ancestor of Jane Austen, my, what is it?—8th cousin 9 times removed? I should have known! But the fun was in the stories about my ORNERY PEOPLE on this continent, including stories in Schoolcraft, Longfellow’s source, of all things, about how Grandpa Coker ate no vegetables.
So I pulled myself together and went back to work early in 2003, but I lived under the shame of Internet articles defaming me. Finally in 2006, after I saw what Brodhead was doing to the lacrosse players and the coach at Duke, and recognized a pattern in the way he had trashed me and the way he had trashed the coach and the players. I wrote an article that NINETEENTH-CENTURY LITERATURE published in the June 2007 issue (out in July) and in early June 2007 talked to (emailed, that is) Michael Gaynor, who posted this article which is still up.
http://www.renewamerica.com/columns/gaynor/070607
After that online article appeared I never once lost a night’s sleep over Wineapple, Brodhead, Delbanco, and Schultz, although I had not had one good night’s sleep after first Wineapple and then Brodhead published their attacks. And that fall I began speaking out on LieStoppers, where I now have a pinned series of articles on Brodhead.
Now, after looking at first reports of Judge Beaty’s ruling, I see constructive knowledge defined as information that a person is presumed by law to have, regardless of whether he or she actually does, when such knowledge is obtainable by the exercise of reasonable care. A reviewer of a major biography in the New York TIMES, according to this definition, is presumed to have such knowledge as is obtainable by the exercise of reasonable care in reading the book being reviewed even if the reviewer had not known about such things before accepting the job and taking pay for reviewing a book. By this definition Richard H. Brodhead had constructive knowledge of the facts which he then misrepresented. You are guilty of constructive fraud if you gain an unfair advantage over another (as in damaging his reputation so that you look superior to him) by deceitful, or unfair, methods. Certainly by this definition Brodhead was guilty of constructive fraud in his review of the second volume of my biography in the New York TIMES. He harmed me, but ultimately he also harmed the New York TIMES and both immediately and ultimately he harmed the readers of the New York TIMES by posting false information about Melville, me, and many Melville scholars older than me.
A Dean at Yale represents himself to the New York TIMES as being competent to review a biography based on archival research. When he is not so competent or else deceitfully behaves as if he were incompetent, that Dean at Yale is breaching the TIMES’ trust and confidence in him by failing to do his duty to write a competent review.
Whether or not Brodhead intended with evil intent to injure me by the lies does not matter, he is guilty of constructive fraud by harming me in a situation where he deceitfully characterized my work. He could have been just having fun, being witty, being oh so sophisticated, and still be guilty of constructive fraud. In passing himself off as a competent reviewer to the New York TIMES Brodhead imposed upon the newspaper and went on to violate public and private trust or confidence in him, thereby depriving the paper and the public and me of an honest and fair review. Again, even if Brodhead was merely stupid or ignorant does not matter: he breached a duty to write an honest review which incorporated the knowledge that we have to assume he had access to since it was there on the pages of the book being reviewed. Brodhead’s breach of his duty to the New York TIMES resulted in a tendency to deceive the TIMES and the reading public. Brodhead committed constructive fraud when he did not disclose his incompetence to review a biography based on archival research.
Now, thinking about “constructive fraud,” I see a pattern in Brodhead’s character and career.At bottom, Richard H. Brodhead has gone through his career passing himself off as more competent than he is, and this to the detriment of others. His THE SCHOOL OF HAWTHORNE was a product of constructive fraud, since anyone taking on that project should have found out who the students in Hawthorne’s classes really were, and he has damaged others since anyone who wanted to do a serious book of the subject will be denied a contract. Any publisher would say, “There’s already a book on the subject by the man who is now the great President of Duke University.” Now, this is aside from the big group that got damaged, anyone who bought the book thinking it really was a guide to writers who put themselves to school with Hawthorne (through his writings): the book was NOT such a comprehensive study, and the buyers and other readers were the victims of Brodhead's constructive fraud. And this is aside from Oxford University press being the victim of Brodhead's constructive fraud.
Only James Van de Velde could tell you the baseness of Brodhead's treatment of him; his lawsuit was reinstated in December 2007 but still is pending. His life was ruined he said, by Brodhead's firing him; he made a new life for himself, but it is not the grand life he was moving into in 1998, before a student of his, Suzanne Jovin, was murdered. Van de Velde was not "one of them" at Yale, and Brodhead seized on the hapless announcement by the New Haven Komedy Kops that Van de Velde was a murder suspect because he knew the victim. This was enough for Brodhead to cancel Van de Velde's Spring 1999 class, saying that knowledge of the murder was "in the air as a matter of speculation," but, nevertheless, "cancellation of the course doesn't follow from a judgment or a prejudgment of his hypothetical involvement in the Jovin case." A case of Constructive Fraud?
Brodhead was a dean at Yale. A dean at Yale was presupposed to know how to deal with New Haven policemen with low professional standards and to give advice to teachers working under him, to guide Van de Velde in ways of dealing with the reckless rumor-mongering by the incompetent local police and to protect his good name from assaults. A manly dean would have walked into class with Van de Velda, holding his arm, since he was too short to put an arm around his shoulders, and addressed the class openly and honestly, saying the students could get over any uneasiness: here was a great young teacher who was being tied to a stake by the local police. Brodhead, instead, weaseled his way through the weeks after the murder sheltering himself in the role as dean. By not protecting Van de Velde but on the contrary sacrificing him for his own interests, Brodhead was committing constructive fraud. Whatever his motives were in depriving Van de Velde of his occupation and his reputaton we may never know, but the parallels are strong between his treatment of Van de Velde and his treatment of the lacrosse players (and Coach Michael Pressler). This constructive fraud also was fraudulent, willful and wanton, and malicious, and Van de Velde may yet have his chance to prove this in court, if the reinstated case ever comes to trial.
Look at Count 11 in the Carrington case, "Constructive Fraud through Abuse of Confidential Relationship." The complaint is against Defendants Richard Brodhead, Tallman Trask, Sue Wasiolek, and J. Wesley Covington. All are asserted to have held relationships of trust and confidence with the students,the lacrosse players.
The complaint reads: "Due to this relationship of trust and confidence, the above-named defendants were bound in equity and good conscience to act in good faith and with due regard for the interests of plaintiffs, who reposed confidence in them. Defendants abused their relationship of trust and confidence to harm the plaintiffs. . . . Among other Duke officials, Defendant Brodhead contributed to this constructive fraud by reinforcing and reaffirming that the Duke administration stood in a relationship of trust and confidence with the players, and Defendant Trask contributed to it by reinforcing Wasiolek's advice to the players not to procure legal representation. This conduct was directly contrary to the plaintiffs' interest, placed them in grave legal jeopardy, and had the direct and predictable effect of prolonging and exacerbating the rape hoax crisis, and thereby harmed plaintiffs. These defendants also abused their relationship of trust and confidence with the plaintiffs by steering them to defendant Wes Covington for confidential advice and guidance, including legal advice. . . . In abusing their positions of trust and confidence, above-named defendants were motivated by the desire to serve and protect Duke University's and their own personal interests over the interests of the plaintiffs. Defendants did not disclose this conflict of interest to the plaintiffs. . . . The actions of defendant Duke officers and employees in perpetrating this constructive fraud were performed in the scope of employment. Duke's officers, directors, trustees and/or managers participated in, ratified, and condoned the fraud. This constructive fraud was fraudulent, willful and wanton, and malicious."
When Steel praised Brodhead as a scholar (not a critic but a scholar) Brodhead stood by smiling and thereby tacitly took credit for skills he never possessed; he also stood by smiling while Steel praised his responsible behavior toward students during his long career. By not disowning what Steel said, Brodhead set up the expectation that he would be a rigorous administrator who would know when works of extreme Political Correctness were not of any scholarly value and he set up the expectation that he would protect students of Duke University from anyone who would falsely accuse and abuse them. Brodhead let everyone think he was competent to be President of Duke University when he was not, and whether or not he was committing deceit does not matter: he was guilty of constructive fraud.
I can image what will happen when Robert Ekstrand takes up Brodhead’s constructive fraud?—Ekstrand, who witnessed one of Brodhead’s moral meltdowns, as the fraudulent facade fell away and the real emptiness was revealed?
Some people who have never lived with being defamed may think I am excessive in my protestations now. I guarantee you, what Brodhead did to me was worse than “giving me a bad review.” He set out to destroy my reputation for accuracy, committing “constructive fraud” in the New York TIMES. Is it not remarkable how Character Tells, just as we have always been taught?
I knew years before writing FLAWED TEXTS AND VERBAL ICONS (1984) that Richard Brodhead was blind to other people's agony. Now I am not the only one who knows.
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