Eyes Wide Shut

The Durham Herald-Sun’s Bob Ashley is presiding over the biggest trial in his city’s history. Yet his “eyes wide shut” approach to coverage has gotten so one-sided that he is now the subject of internet lampoons (and quite clever ones, at that).

In recent weeks, the Herald-Sun has seemed to go out of its way not to provide basic information about the case that conflicts with the editorial page’s line that regardless of the extent of D.A. Mike Nifong’s procedural misconduct, a trial must occur. Some typical examples, based on a recent Lexis/Nexis review, of what anyone who exclusively reads the Herald-Sun would not know:

• That Durham city procedures contain General Order 4077, which requires all eyewitness ID lineups to contain five fillers per every suspect, an independent investigator to run the array, and the eyewitness to be informed that the suspects might or might not be in the array. The News&Observer revealed the information; the Herald-Sun has contented itself with repeating claims that defense attorneys have suggested Nifong’s April 4 lineup doesn’t pass constitutional muster.
• That Nifong sent a bizarre e-mail to members of the Animal Control Advisory Committee, saying that “was truly dismayed at the number of my fellow board members who signed the Lewis Cheek [petition].” He added, “Since it is apparent that many of you do not have confidence in me, I intend to reassess the position of my office with respect to representation on the board and to inform you of my decision about whether we will continue to participate within the next two weeks . . . Animal control is a very important issue in Durham, and it is crucial that the [committee] be comprised of people who can work together in an atmosphere of mutual respect and trust.” Again, the News&Observer broke the story; the Herald-Sun followed up a day later mentioning “reports” of Nifong’s displeasure but never saying that Nifong started the controversy by sending an e-mail.
• That Duke law professor James Coleman, a former chief counsel to the House Ethics Committee (when the Democrats controlled the House), publicly demanded appointment of a special prosecutor because of Nifong’s myriad procedural irregularities; and that Coleman commented, “I don’t think he’s showing detached judgment. I personally have no confidence in him.” Yet again, the News&Observer broke the story; the Herald-Sun has never mentioned Coleman’s position, which he reiterated in an interview for Sports Illustrated.
• That, contrary to city procedures and elementary principles of due process, the police conducted a photo ID lineup with the accuser whose results they then ignored. Take a guess which paper revealed the information, which, like Coleman’s demand, has never been mentioned in the Herald-Sun.

Omitting obviously relevant framing information is another Herald-Sun tactic. Twice this summer, the paper has featured strongly pro-prosecution comments from Irving Joyner. On June 15, Joyner dismissed documents released by defense attorneys showing gaping holes in Nifong’s case: “In the public view, it probably seems like this is a big deal and that the police were caught doing something wrong. It plays well in the theater, so to speak. But at this point, I don’t think it’s all that strong. A lot will depend on the fortitude of Mike Nifong and his faith in his case. If he believes in what he is doing, it could go all the way.”

Then, on August 1, Joyner weighed in about the fact that Dave Evans’ DNA, along with that of another person who wasn’t the accuser, was discovered on a towel—from his own house. “It would tend to support the prosecution’s case,” Joyner said. “Of course, the prosecution will need to establish how the semen got there and its relevance to the young lady. There are still some hurdles, but this will help the prosecutor. The defense will have to go some lengths to explain it.”

Both of those stories identified Joyner as a law professor at NCCU. Neither, however, mentioned that he was a de facto party to the case.

As the Herald-Sun’s own pages (though not reporter John Stevenson, author of the above-referenced articles) revealed on April 19, Joyner is one of two men “organizing an NAACP panel to monitor the subsequent proceedings in the case.” The other? NAACP legal redress chairman Al McSurely, who indicated in the same article that “my sense is that the district attorney and his investigative arm, the Police Department, have done a good job.” Given that the NAACP has served as a reliable ally of Nifong’s for the past several months—even to the extent of filing a pro-prosecution gag order—surely the Herald-Sun should have identified Joyner’s position as the NAACP-designated case monitor, just as any reporter would identify a defense lawyer as someone representing the accused.

What sort of pieces has the Herald-Sun produced? Articles like this one, labeled by blogger John in Carolina as a “fake story.” Not exactly inspiring journalistic confidence.

Ashley, of course, can take any editorial position he desires, but the increasing signs that his “trial-at-any-cost” belief is shaping Herald-Sun news coverage raise concerns. So, too, does Ashley’s rationalization for his position: “One point I’d like to stress, though, is that given the sentiments in this community, I believe the best hope we have for closure is for these questions to be decided in a courtroom.”

As Ashley fully understands, criminal trials in this country do not exist to provide “closure” to a “community,” even in cases where, unlike this one, the state has not elected to charge a demonstrably innocent person.

We don’t have political trials in the United States. So if the “community” wants “closure” by trying a demonstrably innocent person, presumably the “community” will eventually have to pay for that “closure” through a massive civil settlement. Since Ashley seems unwilling to explore Nifong’s procedural irregularities in his newspaper, perhaps he might want to examine what’s happened in other cases when cities have been held liable for improper prosecutions. Then, at least, he could prepare his readers for the likely results of his blindly pro-Nifong approach.