Yesterday the New York Times reported that the management of the New York Philharmonic has commissioned an “independent investigation into the culture of the New York Philharmonic in recent years,” in the words of the orchestra’s president and CEO Gary Ginstling. He went on to write, in a letter to musicians, staff, and board: “I am empowering Katya [Jestin, from Jenner & Block] to look at everything and to leave no stone unturned, including any new allegations as they are reported.” He also announced that Matthew Muckey and Liang Wang, the two musicians whose 2018 termination for misconduct and subsequent rehiring after arbitration, were “not being assigned to any Philharmonic activity” while the investigation was ongoing. More ominously for the two musicians, he went on to say that “a decision about their future with the New York Philharmonic will be made in due course.”
What he really meant is (I strongly suspect) that “a decision about just how we are going to ensure the absence of any future for Wang and Muckey with the Philharmonic is in the process of being made now, and we'll let you know when we've figured it out.” And the two musicians in question clearly sense that. The lawyer representing Wang
accused the Philharmonic of “yielding to the modern equivalent of a lynch mob” and “not affording him the dignity and fairness he deserves…[in 2018 the orchestra] “did not accuse Liang Wang of any misconduct arising from it” and that the “only person accused of misconduct in connection with that matter” was Mr. Muckey.
Gold medal for the colleague-hurling-under-the-bus event, by the way. Since neither the 2018 investigation or the arbitration are public, there’s no way to know what Wang was fired for. But it clearly wasn’t nothing. Wang was in way too close vicinity to the 2010 events, and Kizer essentially accused him of spiking her drink so that the assault could occur without her resistance. That would have been enough all by itself to justify a termination, if the orchestra believed it happened that way. The suggestion that there might have been even more evidence of wrongdoing than that does not look as good for Wang as his lawyer seems to think it does.
Muckey’s lawyer took a similar tack:
A lawyer for Mr. Muckey, Steven J. Hyman, said in a statement that “the allegations against our client have been investigated over and over and over again” and that “in each instance our client was cleared of any wrongdoing.”
“What the Philharmonic is doing undermines our system of justice,” he said, adding that it was important to respect due process. He did not address Mr. Lewis’s statement.
Good call choosing not to compete for the same gold medal. But it’s hardly true that his client was actually cleared of anything. The 2010 criminal case was dropped by the local DA, even though the investigating officer wanted him to prosecute; hardly a resounding “clearing.” The 2018 investigation did the exact opposite of “clear[ing] [Muckey] of any wrongdoing.” And, although it is true that the 2020 arbitration award resulted in reinstating both Muckey and Wang, it’s worth reading what the award actually said:
In April 2020, Bloch ruled in favor of Muckey and Wang, citing the fact that the “events at issue occurred some 8, 10 and 12 years prior” and the “potential degradation of corroborative evidence over time.” Because “sex acts are normally performed privately,” he wrote, “the task of demonstrating assault charges, including those resulting from the refusal to take ‘no’ for an answer, can be difficult to prove.” He went on to write that ““nothing in this opinion should be read as concluding that all doubt has been removed concerning the actions” of Mr. Wang and Mr. Muckey.”
It’s really hard to read that and conclude that Muckey and Wang were "cleared" of any wrongdoing.
I’ve written a lot about due process in this case, and I've gotten some heated pushback as a result. Is re-opening this investigation a failure of due process, as Mr. Hyman claimed?
I don’t see how. While it is true that the US Constitution enshrines the concept of double jeopardy (preventing an accused person from being tried twice for the same offense) in our criminal law, and while there is a similar concept in the Anglosphere civil law called res judicata, those concepts are not the core of due process (a concept that was first mentioned by name in the statutory codification of the Magna Carta in 1354, if anyone was curious.)
For example, there are rare instances of arbitration awards being overturned in court, despite the deference given by Federal law to the arbitration process. An interesting take from 1990 on this in cases involving public safety is here. One could argue that the public good might require the same in cases of criminal assault of a co-worker.
And a defendant in a criminal trial resulting in a hung jury (one unable to reach a unanimous verdict of either guilt or innocence) can be tried again. In a moral sense at least, that seems relevant to this case.
The final word on the due process question would need to be given by a court of law. And, if the Philharmonic tries to overturn the arbitration award that reinstated Wang and Muckey, we’ll get that final word. Of course, simply being able to defend the arbitration award in court is itself plenty of “due process.” That's good enough for my sense of justice.
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