Selena Roberts: Still Misleading

In the pre-internet world, tracking down a New York Times article from two years ago would have taken some time and effort. An interested reader would have to go to his or her library and scroll through reels of microfilm. Now, however, finding a March 31, 2006 article is as easy as clicking here.

It appears as if ex-Times sports columnist Selena Roberts hasn’t quite adjusted to the internet era. It’s hard to come up with another explanation for her offering wildly misleading remarks about her work in a recent interview with The Big Lead. She described her March 31, 2006 column in the following way: “Basically, I wrote that a crime didn’t have to occur for us to inspect the irrefutable evidence of misogyny and race baiting that went on that night . . . Obviously, some segments of the Duke lacrosse crowd did not enjoy the scrutiny of their world.”

Really? Here are some excerpts from that column:

“The season is over, but the paradox lives on in Duke’s lacrosse team, a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings.”

“Whatever the root, there is a common thread: a desire for teammates to exploit the vulnerable without heeding a conscience.”

“Does President Brodhead dare to confront the culture behind the lacrosse team’s code of silence or would he fear being ridiculed as a snitch?”

“Something happened March 13, when a woman, hired to dance at a private party, alleged that three lacrosse players sexually assaulted her in a bathroom for 30 minutes.” (This statement, as the Attorney General’s investigation subsequently discovered, was false—unless, of course, Roberts is now claiming that when she wrote “something happened,” she meant the filing of a false police report.)

“According to reported court documents, she 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.” (This statement drew a rebuke from even the Times’ milquetoast then-public editor, Byron Calame, who noted that journalists do not consider search warrants to be “court documents.” The Times ran a brief correction a week after Roberts’ column appeared.)

“Players have been forced to give up their DNA, but to the dismay of investigators, none have come forward to reveal an eyewitness account.” (This statement was false, as Roberts would have known had she read either the captains’ March 28, 2006 statement or examined the defense attorneys’ subsequent press conference. Both events, which described the captains’ cooperation with police, occurred before she penned her column. The Times never ran a correction.)

After asking, “Why is it so hard to gather the facts? Why is any whisper of a detail akin to snitching?” Roberts produced an answer from an assistant professor at John Jay College: “The bottom line is, your self-esteem is more valuable to you than someone else’s life.”

Can Roberts seriously claim that an average Times reader would take away from the quotes above a conviction that her column’s argument was based on a premise that “a crime didn’t have to occur”?

In her interview with The Big Lead, Roberts complained that she received criticism from “Duke-player supporters who felt threatened when someone, whether it was me or another columnist, started poking at the culture of affluence and entitlement.”

In fact, the criticism of Roberts’ work extended to the leadership of her former paper. In a summer 2007 interview with American Journalism Review, Times executive editor Bill Keller admitted, “I did think, and I told the columnists, that there was a tendency in a couple of places to moralize before the evidence was all in, and not to give adequate weight to the presumption of innocence... As a generalization, I’m not dismissive of the people who think that what appeared in the sports columns kind of contributed to a sense that the Times declared these guys guilty.”

More recently, Roberts’ direct supervisor at the Times, sports editor Tom Jolly, stated, “I very much regret my failure to recognize that we were dealing with a rogue prosecutor and that the university had compounded his bravado by overreacting to the initial reports about the case . . . The bottom line is that I’d do some things differently, and that knowledge gained by hindsight has informed our approach to other stories since then.”

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Duke is now attempting to have sanctions imposed on the attorneys representing the unindicted players, alleging that lead attorney Charles Cooper violated the pre-trial publicity guidelines of Rule 3.6. Cooper’s response is here; given that Duke’s filing failed to cite even one case in its favor, I’d say the chances of Duke prevailing at this stage are pretty slim.

But beyond the weaknesses of Duke’s motion overall, Rule 3.6 has a safe harbor provision regarding pre-trial publicity: it states that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.”

Most people would consider a former Times and current Sports Illustrated columnist accusing the lacrosse players of “misogyny and race baiting” as creating an “undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.” This safe harbor would apply even when the prejudicial remarks come from a figure who, for anyone who followed the lacrosse case closely, sacrificed her journalistic credibility in an attempt to advance a preconceived ideological agenda.