Thursday, June 22, 2006

Turning on Nifong

Today’s hearing in the Duke lacrosse case did nothing to increase confidence in the integrity of the investigation. Mike Nifong admitted in open court that no toxicology report existed—despite having previously hinted to Newsweek that the accuser had been given a date rape drug. The district attorney added that, more than two months after indictments, one of the case’s two police investigators still had not prepared his notes. Nifong divulged an early meeting between the accuser and the two investigators for which no notes would be turned over (a decision backed by the judge, Nifong’s former boss). And one defense attorney stated that the new material contained reference to a third photo ID session—the first two of which, also confined to lacrosse players, yielded no identification at all, the third which violated several guidelines of the state’s Actual Innocence Commission.

With Nifong’s behavior at best explicable by incompetence and more likely by malfeasance, the press has started to look hard at the district attorney’s actions. Yesterday, the Winston-Salem Journal became the first North Carolina newspaper to demand Nifong’s removal, editorializing, “Nothing about Nifong's handling of this case indicates that the people of North Carolina and the defendants will get a fair trial so long as Nifong has anything to do with it. He should step aside, and the attorney general should take over.” On Monday, a smaller Tarheel State paper, the Rocky Mount Herald, commented with concern about how “court records in the case raise some troubling conflicts between affidavits and statements Nifong has made to the press.” A major story in Newsweek concluded, “Court documents in the case increasingly suggest that . . . the available evidence is so thin or contradictory that it seems fair to ask what Nifong could have been thinking when he confidently told reporters that there was ‘no doubt’ in his mind that the woman had been raped.” An op-ed piece lamenting “serious prosecutorial misjudgment, if not downright misconduct” appeared in the Los Angeles Times, while USA Today expressed skepticism about the prosecution. Even Ruth Sheehan of the Raleigh News and Observer, who in March 27 had penned a column determining team members guilty of rape, now believes that Nifong should be removed. “To think,” she wrote Monday, “that for a brief moment I actually pitied Nifong for the attacks on his handling of the case. What a joke.”

Sheehan cited Nifong for the rash of over-the-top early stories that earned much of the media a spot in Stuart Taylor’s “rogues’ gallery.” “Say all you want about the media's rush to judgment,” she noted, but “when a DA, especially one with Nifong's reputation for being a quiet, behind-the-scenes guy, comes out not only saying that a rape occurred, but that it was a brutal gang rape, in which the woman was strangled and beaten, you had to figure he had incontrovertible evidence. Apparently, he didn't.”

While it’s entirely appropriate to focus on Nifong’s misconduct, it’s a little too easy to blame him alone for how the media initially approached this case. At Lead and Gold, Chris Henry pointed out the timidity of USA Today’s editorial given the facts the paper had conceded: “USA Today wanted to appear fair-minded. It is bad form to ‘attack the victim.’ Unfortunately, they could only keep up those appearances by providing a partial, distorted picture of the state of the evidence. Their readers deserve better.” And John in Carolina, a must-read blog for how the media mishandled this case, pointed out that Sheehan’s worst column appeared the day before Nifong’s publicity barrage started; the News and Observer’s first story on the case described the accuser as a “victim” seven times, effectively conceding that a crime occurred; in early April, the paper, without explanation, published the infamous “wanted” poster so celebrated by Duke’s Group of 88; and the N&O public editor admitted that a March 25 interview that painted the accuser in fawning terms and presented a version of events different from at least three and perhaps all four stories she told police “really galvanized community protests and rallies”—an acceptable outcome, since “one role of a newspaper, surely, is to raise public awareness and effect change.” In this case, to borrow David Brooks’ phrase, the role was to help galvanize a witch hunt.

At the very least, however, most in the media have been willing to consider new evidence and abandon their preconceptions. While the News and Observer’s news editor continues to state that she’s “proud” of the paper’s work, one of her reporters, Joseph Neff, has published several recent articles that have broken new ground and, quite properly, have measured Nifong’s statements and actions against known facts in the case.

While the media has proven to be open to new facts, the same can’t be said for Duke—a development that’s starting to attract notice. MSNBC’s Dan Abrams, a Duke alumnus who has read the entire discovery file, commented in today’s Duke Chronicle that while "Initially I was very impressed with [how the administration of President Richard Brodhead] walked a very difficult line,” it’s now clear that “they probably could have done a little more to protect the students—not because they're Duke students—but because the evidence is so weak in this case.” Last week, Randall Drain, an African-American member of the class of 2005 who played lacrosse at Duke, termed himself “revolted” as “administrators and certain faculty members have flagrantly and wrongfully hung members of the Duke men's lacrosse team out to dry.” Drain blasted Brodhead for helping “to create an audience of hypocrites that may now choose to ignore the facts or ‘yeah but’ their way out of their past impudence.” By launching a campus culture initiative that explicitly refused to address “Duke University's abandonment and abuse of the lacrosse team," Brodhead "sent the message that only the lacrosse team need show remorse for their transgressions.”

In a powerful letter in today’s Chronicle, another Duke alumnus, Greg Kidder, described how a “mere accusation set off an unforgivable rush to judgment in which the Duke faculty and administration willingly participated.” Kidder singled out the Group of 88’s statement and some of the more outrageous individual actions by faculty members: “Professor Houston Baker accused the team of hiding behind a ‘silent whiteness.’ Professor Peter Wood took the opportunity to complain about, of all things, attendance in his class. Professor Melissa Malouf suggested the ‘condoms theory’ to counter the exculpatory DNA results”—even though, of course, the accuser has claimed her attackers didn’t use condoms. This reaction, Kidder noted, “would perhaps be forgivable if the University community responded with equal vigor to defend the players after evidence on what did and did not happen was revealed. Yet instead of protests and media quotes, all we hear is silence and equivocation.”

He then asked some hard questions. “Why,” Kidder wondered, “are we in the Duke community leaving the accused players and their families to bear the burden of this injustice alone?” Only one Duke voice has answered Kidder’s plea: Professor of Law James Coleman, who in a just-published Sports Illustrated article continued to condemn the myriad procedural improprieties that have married Nifong’s handling of the case. I’ve heard from two reliable sources that Coleman’s opinions are shared by many on the Duke Law faculty—and it’s worth remembering that not one law professor signed the Group of 88’s statement, which deemed of little relevance “what the police say or the court decides.”

While Coleman continues his courageous dissent, silence, or worse, reigns among the nearly 500 members of Duke’s arts and sciences faculty, including the dozens of professors who taught members of the academically distinguished lacrosse team. Kidder wondered, given new evidence indicating that at least one of the accused, Reade Seligmann, is demonstrably innocent; highly suggestive evidence that no rape occurred at all; and “the recent accusations against the district attorney regarding truthfulness, where are the faculty members decrying the injustice that has been done to these students? Do all 88 professors still stand behind their signatures?”

I checked. The Group of 88’s statement remains proudly placed at the very top of the homepage of Duke’s African and African-American Studies program. It still contains no mention of alcohol as part of its condemnation. And not one of the 88 names has been removed.

So it seems that Ruth Sheehan has proven to be more open-minded than the Duke arts and sciences faculty. Kidder noticed: “as a proud Duke alumnus, the cowardice and opportunism of the Duke faculty and administration causes me to shake my head in disgust.”

Update, Friday, 12.51pm: NewsBuster points out that not all members of the media are willing to consider new evidence, citing the disturbing example of Harvey Araton.

And in a truly extraordinary development, even for a case as botched as this one: yesterday, defense attorney Joseph Cheshire gave a press conference stating that the newly turned-over documents contained another version of events from the accuser, this one claiming she was raped by five players, not three; and that there were four dancers at the party, not two. Cheshire was interrupted by Nifong's chief investigator, who informed the press that Cheshire was lying. The investigator, Linwood Wilson, then gave interviews to local and national media members stating, according to a Raleigh TV station, "that he personally read all 1814 pages of discovery documents and has not read that the alleged victim changed her version of the story."

This morning, Cheshire released the police report in which the accuser (as he had stated yesterday) claimed that she was raped by five players. This exchange appears to be part of a pattern profiled by Joseph Neff in one of the articles linked above, of out-and-out lies by Nifong's office.

[Originally published in Cliopatria.]

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