I haven't commented much on the media coverage of the Duke lacrosse case, in part because several other bloggers (John in Carolina, Lead and Gold) have analyzed the topic much better than I could have. But this morning, a disturbing column appeared, penned by Bob Ashley, the editor of the Durham Herald-Sun. Ashley's remarks seemed worthy of notice--partly because of their exceedingly narrow conception of what constitutes the "legal process"; partly because they might explain the remarkably passive attitude that the local press has exhibited in this case. (The work of the N&O's Joseph Neff stands in stark relief to this pattern.) The editorial pages of both the N&O and the Herald-Sun have hardly been imitators of Ben Bradlee in speaking truth to power
Ashley hailed a column a couple of weeks back by CBS chief legal analyst Andrew Cohen, which accused the media of uncritically accepting the version of events offered by defense attorneys. Cohen's column made scarce mention of the coverage in the first six weeks of the case, nor did he note that, just maybe, one reason why there's been some turn is that many journalists no longer consider D.A. Mike Nifong credible, having learned that many of his early statements were inaccurate at best and deliberately misleading at worst. Cohen also decided not to mention that defense attorneys have, by and large, backed up their key claims with hard evidence.
Cohen complained that "we haven't had the privilege of seeing the case unfold at trial the way it is supposed to." Nothing in this case, however, has unfolded "the way it is supposed to." Nifong almost certainly violated the state bar's code of ethics in his inflammatory public statements, though this conduct served its purpose in ensuring his victory in the Democratic primary. He certainly violated Section 3.8, comment 2 of the ethics code in his refusal to meet with defense attorneys before issuing indictments, and in his decision to seek indictments before investigating the accuser's cellphone records and waiting for the second DNA tests. And, as I pointed out a while back, the photo lineup that Nifong ordered contradicted the norms everywhere else in North Carolina in at least four respects, to such an extent that he seemed to be operating under an entirely different legal system. These procedural violations were massive.
Flawed procedures beget flawed results. There's nothing that could come out at a trial, or at a later stage of this process, that could change our knowledge that these flawed procedures occurred--the record is already there. It's remarkable that Cohen, a TV network's chief legal analyst, could claim that a prosecutor can blatantly disregard procedures at every stage of the process, and that such behavior nonetheless is all part of the process as it is "supposed to" occur.
In an earlier Herald-Sun editorial (written I assume, by Ashley, judging from his sentiments in today's column), the editorial board reasoned, "Nifong's critics have questioned everything from his character to his legal savvy. We think that the 25-year veteran of the prosecutor's office must have some evidence, or he would have dropped the case long ago." Such a comment, of course, requires turning a blind eye to Nifong's unethical behavior in recent months--as Craig Henry pointed out in a fine post on the matter. But it also ignores an important fact: the lacrosse case is the state's first-high profile trial since North Carolina adopted an open discovery law, which requires the prosecution to turn over all of its material--not just evidence it considers exculpatory--to the defense, and to turn over all that evidence in a timely fashion.
As a result, we know far more about the facts of this case than would occur in most jurisdictions. Even if he possessed any evidence to substantiate his claims, Nifong couldn't hold it back to spring as a surprise at trial. Items such as the police reports containing the accuser's multiple, contradictory versions of what occurred; the initial statement of Kim Roberts a/k/a Pittman, terming the accusation a "crock"; the transcript of the procedurally flawed photo ID session; and the sworn summaries of the DNA and medical evidence all represent the sort of evidence that, in most jurisdictions, wouldn't be seen until the trial (and in most trials would represent the heart of the prosecution's case, not substantiate the defense version of events). Meanwhile, the attorneys for one of the players, Reade Seligmann, decided to publicly release the exculpatory evidence that Nifong violated the state ethics code so he wouldn't have to see--namely, the statements of two witnesses who were with him at the time of the alleged attack; records showing Seligmann was on the cellphone when the attack allegedly began; and, most damningly, an ATM video showing he was more than a mile away when the attack was allegedly occurring.
Neither the media nor outside observers are jurors, with a moral or legal requirement to wait until the end of a trial to form judgments. It doesn't take a Ph.D. to figure out that someone who's on a videotape a mile away from the scene of an alleged crime at the time the crime allegedly occurred is innocent. That no medical evidence exists to support the accuser's allegations; that the ID of Seligmann resulted from procedurally dubious circumstances; and that the accuser seemed unable to come up with anything resembling a consistent story only fortifies that belief. I wonder: what, exactly, could Cohen or Ashley expect to come out at a trial that would allow anyone to believe that a college student can rape someone from the distance of more than a mile? That Seligmann has a secret twin who was actually the person at the ATM machine while the rape allegedly occurred? That normal laws of space, time, and motion don't apply in Durham, North Carolina?
The arguments of Ashley and Cohen are so intellectually peculiar as to suggest ulterior motives. It's no secret that Cohen has been manhandled on this story by Dan Abrams (NBC's chief legal correspondent) and by the legal reporters from Fox. And I wonder whether Ashley would be so blasé if Nifong's targets were Durham residents rather than out-of-staters.
This passive attitude also rationalizes Ashley avoiding asking some hard questions as to whether the revelations of this case suggest broader problems within Durham's law enforcement apparatus. News broke today that the lead investigator in the lacrosse case, Sergeant Mark Gottlieb (last seen overseeing the procedurally flawed lineup) is under investigation for assault, which allegedly included use of a racial epithet. (Can Nifong be far behind, appearing on CBS, as he did in the lacrosse case before any serious investigation had occurred, to opine, "The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible"?) Yet, as John in Carolina pointed out, the local media has, nearly 60 hours after the incident, not asked some basic questions--such as whether Gottlieb was on-duty at the time of the alleged incident and why the initial police report of the incident hasn't been made public. I suppose we all should, as Cohen and Ashley recommend, just wait for a trial to find the answers to these questions. Under this definition of journalism, we wouldn't even need journalists--court reporters could simply type up a summary of their day and release it to the papers.
An undercurrent of the columns by Cohen and Ashley, never explicitly stated but strongly implied, is that the Duke players have benefited from selective outrage--that these sorts of things occur in our criminal justice system all the time, usually without outside notice. I disagree: Nifong and Gottlieb hardly typify the American justice system. Moreover, while I'm obviously not a lawyer, I can't recall a single publicized case in recent years where procedural violations this massive were publicly known at this stage of the process. Normally, we don't hear about this sort of prosecutorial misconduct until the appeals process. (This, of course, is what happened in the Alan Gell case, which prompted the Open Discovery law.) In this respect, Nifong is the victim of his own decision to ignore the ethics guidelines and make his 50+ press appearances. He got the outside attention that served his short-term political interests--but he couldn't stop it once the primary had occurred, even though he no longer needed the free publicity.
As Chris Richardson wrote in an excellent recent post, recent massive miscarriages of justice have occurred on scales worse than what we've seen in Durham, though normally the victims were poor African-Americans. It seems to me that Chris is suggesting (and he can correct me if I'm wrong) that Rudolph Holton and James Tollman never should have gone to jail: had we known about the improper behavior of authorities in their cases at an earlier stage, the process would have been brought to a halt. What Cohen and Ashley seem to be saying, however, is no--that like the Duke lacrosse players, in the cases of Holton and Tollman the "process" should have played out, because massive prosecutorial misconduct is effectively part of the "process," and that the improperly accused (and even convicted) should have simply waited their turn, until an appeals court had time to hear their case. That Holton and Tollmann had to spend 16 years in jail as a result of the state's misbehavior? Too bad, apparently: that's part of the "process."
For journalists, who are, in part, supposed to serve as watchdogs of government officials and expose misconduct when they find it, this attitude strikes me as nothing short of bizarre.
[Originally posted in Cliopatria.]