Unfortunately, Jolly’s analysis proved off-base. The race/privilege/gender prism through which the Times–and, with it, the mainstream media–approached the Duke lacrosse case blinded journalists to evidence of prosecutorial misconduct on a massive scale. Over the past five months, events in Durham have featured a district attorney who:
- ordered police to violate city procedures in multiple ways regarding eyewitness ID lineups, after the accuser couldn't identify any suspects in an earlier lineup that loosely conformed to procedures;
- blatantly ignored varied ethics guidelines of the State Bar, most particularly an obligation to consider exculpatory evidence, which led to the indictment of a demonstrably innocent defendant, Reade Seligmann, who had proof he was either on the phone or not even at the house for virtually the entire time in which an attack could have occurred;
- issued misleading (or outright false) public statements, which seemed designed primarily to inflame sentiments in the African-American community, whose votes he desperately needed to win a primary against a rival who he had fired in his first week in office;
- announced that he had evaluated the case before most of the evidence was delivered despite an obligation that he serve as "minister of justice," not an advocate.
- Duke law professor and former House Ethics Committee Counsel James Coleman wrote, “Virtually everything that [Mike] Nifong has done has undermined public confidence in the case.”
- USC law professor and former Dukakis campaign manager Susan Estrich lamented a “failure to follow standard procedure that is rather mind-boggling.”
- Duke law professor and longtime ACLU stalwart Erwin Chemerinsky said he couldn’t think of any case in the last 15-20 years where the public had learned of this extent of procedural irregularities by this stage of the process.
Flawed procedures beget flawed results, as this case certanly has suggested. After all, we now know that, even though the accuser alleged a violent rape in which her attackers ejaculated, no DNA matches to the lacrosse players were found. The accuser gave multiple, mutually contradictory, stories of what happened; the second dancer initially deemed the charge a "crock." One defendant, Seligmann, has an airtight alibi; a second, Collin Finnerty, didn't even come close to resembling the descriptions the accuser initially gave of her alleged attackers. And the investigation was overseen by a D.A. desperate for black votes and a police sergeant with a documented record of disproportionate arrests of Duke students.But as evidence mounted that Nifong effectively manufactured a high-profile case out of whole cloth–and benefitted politically from doing so–the mainstream media started steering clear of Durham.
This wasn’t always the case, of course. The avalanche of early coverage operated under an unspoken, if powerful, presumption that a rape occurred. A late March article in USA Today read like an op-ed: featuring a photo of the campus vigilante poster–“40 faces of young men, smiling smugly for the camera”–it noted of the team members, “Their fellow students want them to come forward about what happened in a shabby off-campus house March 13.” The Washington Post served as a hotbed of one-sided, intellectually dubious, commentary about the case. After the first two indictments, Newsweek splashed mugshots on its cover, under the prejudicial title of “Sex, Lies, and Duke.”
With few exceptions, cable TV’s talking heads initially reflected this journalistic consensus, sometimes in stunningly extreme fashion. Former prosecutor Wendy Murphy explained away Nifong’s lack of DNA evidence by asserting, “The real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim– . . . watch ‘CSI.’” (Murphy later compared the indicted players to Hitler, arguing, “They’ve all done very bad things. Maybe they’ve all not been convicted of rape, but they have a very ugly history of bad behavior.”) Nancy Grace repeatedly committed herself to “talking about gang rape at Duke University”; Pam Bondi denounced the “escalating pattern” of “very frightening” behavior by “these young men, [who] were using each other's names and fake names, which really shows their intent and their premeditated intent.”
The Times, however, set the tone for coverage. Between late March and late April, it ran more than 20 stories on the Duke lacrosse case, often on the front page or the firs page in the Sports section. Opinion and news analysis columns, based on very limited (and, as it turned out, inaccurate) information, framed the case in stark moral terms; while a pattern of incomplete claims and transparent pro-Nifong bias appeared in articles penned by Duff Wilson–who, for reasons that remain obscure, replaced Joe Drape as the Times’ lead reporter on the story in early April.
Writing only a week after the first reports about the incident, sports columnist Selena Roberts indicated that, “According to reported court documents, [the accuser] was raped, robbed, strangled and was the victim of a hate crime. She was also reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.” (Roberts oddly deemed an affidavit for a search warrant a “court document” revealing uncontested facts, while her description of the medical evidence proved wildly overstated.) “To the dismay of investigators,” Roberts asserted, no players “have come forward to reveal an eyewitness account,” all part of the “lacrosse team’s code of silence” in which offering “any whisper of a detail [is] akin to snitching.” (This claim continued Roberts’ pattern of uncritically accepting Nifong’s version of events, and as a result making factual errors: the three captains voluntarily gave authorities lengthy statements and even access to their e-mail accounts.) In an April 9 op-ed, Alan Gurganus expressed an even more sanctimonious–and, in retrospect, even less defensible–moral tone. All but sneering at the mantra of “innocent until proven guilty,” he lectured, “When the children of privilege feel vividly alive only while victimizing, even torturing, we must all ask why.”
Times news coverage parroted Nifong’s version of events and therefore made (still uncorrected) factual errors. In his first story on the case–April 6–Duff Wilson asserted as fact,
Other details surrounding the incident emerged with the release of the search warrant affidavit Wednesday, including an attempt by the lacrosse players at the party to disguise their identities by using different names and by calling one another by their jersey numbers. The accuser told the police that the men told her they were members of the Duke baseball and track teams.In fact, all three of these claims proved untrue. The police have produced no evidence that lacrosse players at the party were “calling one another by their jersey numbers.” Nor is there any evidence of “an attempt by the lacrosse players at the party to disguise their identities by using different names”–as Wilson himself would implicitly admit in an August story. And the accuser never seems to have told the police anything about the players’ athletic identities–indeed, long after the fact, she believed that, as she had initially been told, she was dancing a bachelor party.
On April 18, Wilson wrote, “Police interviews with three team captains . . . told the police that only members of the team were present.” In fact, even Nifong had conceded, several weeks before, that non-lacrosse players attended the party. (The Times’ website shows no correction for either item.) Wilson’s April 23 article asserted as fact, “A second dancer and a neighbor corroborated some of the accuser’s details.” Apart from placing the accuser at the house, the police statements of the second dancer and the neighbor contradicted, not corroborated, the accuser’s details. (No correction appeared on this item either.) And the Times considers itself the paper of record?
When critiquing this reporting in late April, Times public editor Byron Calame suggested, “The coverage has been basically fair, I think, with a few miscues mainly related to the placement and the space given articles.” He did, however, offer one significant caution: “If the rape and kidnaping charges do not hold up, the story doesn’t end. The Times should be prepared to continue covering what is done about the racial-insult allegations, given the prominence of the team and the university.”
Political correctness. Calame’s comment unintentionally explains one reason why the mainstream media has turned away from the Duke story in recent months. Even the Times can no longer seriously contend that we need additional coverage on how two or three Duke students (not, from all available evidence, any of the indicted players) engaged in an ugly, racially charged argument with the second dancer. The facts of this case, as it stands now, simply do not fit into a storyline based on a politically correct viewpoint, with a touch of Tom Wolfe for good measure.
The result: a precipitous decline in journalistic interest. A few commentators–notably Andrew Cohen of CBS and the Herald-Sun’s Bob Ashley–have rationalized this approach by claiming that it’s the media’s job to wait for a trial, as if journalists routinely ignore evidence of massive prosecutorial misconduct. Most papers have, understandably, avoided offering such torturous claims and simply scaled back coverage. Since June, the Washington Post has published two wire-service articles on the lacrosse case, while seeming to drop the inflammatory op-ed columns; the Wall Street Journal and Chicago Tribune have ignored the story altogether. A recent comment thread at TalkLeft correctly critiqued cable’s law and public affairs shows: “This case was covered extensively by all of those people, and yet now, I rarely hear anything from them.”
Ego. Ideology alone, however, doesn’t explain the media’s decision to ignore, rather than explore, the extent of Nifong’s procedural irregularities.
No one, I suppose, likes to admit mistakes, but many mainstream journalists took such an extreme line in March and April that it’s proved almost impossible for them to take a fresh look at events in Durham. On March 31, for instance, Selena Roberts concluded that reports of the players’ conduct “threatened to belie their social standing as human beings.” After suggesting that the players might be sub-human, how can Roberts’ thought process deal with Reade Seligmann? Obviously, it can’t: Roberts’ recent columns have explored such pressing issues as how Maria “Sharapova proved her game could be as intimidating as her beauty,” or how Mets’ general manager “Omar Minaya is decidedly unruffled, yet is unafraid of pushing the envelope on conventional logic.”
Duff Wilson similarly went far out on a limb, his biases perhaps best revealed in his peculiar habit of ending lengthier stories with an uplifting vignette directed toward either the accuser or Nifong. Take, for example, this April 12 item.
Some of Mr. Nifong’s friends say the extra attention he has received has not flustered him. Mr. Nifong, who had been an umpire for a local Little League for two years, is used to the pressure, they say. “He was heckled as an umpire, but he could take it because he has thick skin,” said Chuck Campbell, a league official and Mr. Nifong’s friend. “He’s handling this the same way.”If we’ve learned nothing else over the past several months, it’s that Nifong–the man who threatened to resign from the Animal Control Board(!) because two of its members signed a nomination petition for his opponent–possesses nothing resembling a thick skin. But it’s rather hard to reconcile Wilson’s avuncular portrayal of Nifong as the Little League umpire with evidence of misconduct on a "mind-boggling" scale. Perhaps that’s why, in his widely ridiculed August story, Wilson grabbed for the only life raft available. He used as his article’s spine the after-the-fact, written-from-memory notes of Sgt. Mark Gottlieb, despite their inherently incredible nature.
Laziness. Even though the documents to show Nifong's procedural improprieties are all publicly available and can be researched on the internet, it’s still a lot harder now to cover the story than when Nifong was spoonfeeding the tale most journalists wanted to tell. Anyone could (and, it seemed at the time, did) write the race/privilege/gender storyline. Now, however, journalists must display an understanding of basic North Carolina procedure and a willingness to explain why procedure matters to the judicial process--even in a case involving Duke lacrosse players.
Stuart Taylor, of course, has recognized this issue from the start, as did sports columnist Jason Whitlock. In North Carolina, the N&O's Joseph Neff has penned several masterful articles on procedural questions. So too, though he's approached the case from a different perspective, has Cash Michaels of the Wilmington Journal. In general, after early articles that haven't stood the test of time, the N&O did what a paper should do--continue to as questions--and has covered the case fairly and comprehensively in recent months, in sharp contrast to every other paper in North Carolina. Otherwise, a June 29 article in Newsweek represents the national media's only serious attempt to move beyond its initial storyline and recognize that the key issue in Durham is the misbehavior of the local prosecutor, not of college students.
How often do we see a case where prosecutorial corruption has occurred to this scale, in the open, and with such clear-cut effects on the gathering of “evidence”? In the future, I suspect that journalism schools will study the response to the Duke case, as an example of how ingrained biases, reporters' egos, and sheer laziness led the mainstream media to miss the critical elements of a story, and then turn away from the affair once journalists' initial assumptions proved unfounded. For now, however, the reticence of the national media, formerly so enthusiastic about the case, has allowed Mike Nifong's misconduct to go unchecked. The full story remains to be told. Will anyone from the national press do so?