Times Open Letter

I sent the following email to Times executive editor Bill Keller and news editor Jill Abramson. Perhaps unsurprisingly, no response was received.

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Mr. Keller:

My name is KC Johnson; I am professor of political and constitutional history at Brooklyn College and the CUNY Graduate Center:

http://academic.brooklyn.cuny.edu/history/johnson/cv.htm

I have blogged extensively about the Duke lacrosse case, and write to express my dismay, intensified by the recent Wilson/Glater article, at The Times' coverage. As Times columnists David Brooks and Nicholas Kristof have expressed profound concern about D.A. Mike Nifong's wholesale disregard for legal ethics, the Times news staff appear determined to fit the case into a preconceived storyline of racial injustice even if doing so requires ignoring the facts of the case and minimizing the extent of Nifong's misconduct.

The Wilson/Glater article, as in previous Times coverage:

• neglects to mention that Nifong's early comments on the case almost certainly violated Rules 3.8(f) of North Carolina's Code of Professional Responsibility, which forbids prosecutors from from making extrajudicial comments that have "a substantial likelihood of heightening public condemnation of the accused." Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did. He was successful enough that his relentlessly repeated—and almost certainly false—accusation of racial rape has defined this case and The Times' coverage of it to this day.
• declines to state that Nifong's pre-indictment refusal to meet with defense lawyers who claimed to possess evidence of Reade Seligmann's innocence violated two other sections of Rule 3.8, comments 1 and 2. The first comment says that "a prosecutor has the responsibility of a minister of justice and not simply that of an advocate . . . This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice"; the second holds that "a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." Nifong's action was about as outrageous an abuse of power as any prosecutor can exercise. Think of one of your own children facing false indictment and a prosecutor refusing even to look at evidence proving their innocence.
• never explains that Nifong explicitly ordered Durham police officers to violate their own department's procedures regarding eyewitness identifications—an extraordinary action for any district attorney to take. The authors vaguely suggest that the lineup violated "generally accepted guidelines," not revealing the source for these guidelines.

These were not minor procedural errors—they revealed a pattern of misconduct that strikes at the heart of our legal system. But don't take my word for it. Duke Law School professor James Coleman remarked, "Up to now, virtually everything that Nifong has done has undermined public confidence in the case . . . Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case." Coleman's Duke Law colleague, Erwin Chemerinsky, recently said he couldn't "think of any" comparable examples of a prosecutor first assuming control of a police investigation and then disregarding multiple standard procedures in order to secure indictments. USC Law's Susan Estrich wrote that Nifong demonstrated "a failure to follow standard procedure that is rather mind-boggling." She said this case should never have gone forward.

Estrich, of course, is a leading feminist who served as Mike Dukakis' campaign manager. Coleman and Chemerinsky are two of the most prominent legal liberals in North Carolina, recipients of multiple awards from the ACLU and NAACP.

The reasons for this "mind-boggling" procedural misconduct were not hard to understand. In two rounds of discovery, Nifong turned over what seemed like his whole file. There was nothing there. As items that should have formed the heart of his case (statements of the second dancer, the neighbor, the accuser's "driver," the DNA evidence) instead undermined Nifong's claims, everyone was bailing out—even the Black press in Durham. It was clear he had no case, even before Seligmann's lawyer publicly presented the essentially air-tight alibi that the district attorney had ignored.

And then along came Sgt. Mark Gottlieb's written-from-memory, four-months-after-the-fact report, supplemented by few if any contemporaneous notes—in effect going in after every apparent hole in the case, changing facts, coming up with information contrary to what was already known, desperately trying to put some meat on the threadbare bones of this case. His report contradicted or differed substantially from the contemporaneous notes or written reports of, at a bare minimum: (1) his partner; (2) a female police officer; (3) the SANE nurse; and (4) doctors at Duke Medical Center. Most outrageous was his obvious lie about the accuser's March 16 descriptions of her alleged assailants. His partner's report made clear the accuser's descriptions totally ruled out Collin Finnerty, who bears zero resemblance to any of the three identifications she provided. Yet in his recapitulation of the exact same meeting, Gottlieb four months later claims the accuser detailed what amounts to a dead-on description of Finnerty. How could The Times print this with a straight face?

I'm stunned that that any reporter at The Times, much less an editor or group of editors, could look at Gottlieb's document with so little skepticism—indeed, to view it as the spine of a major story. What kind of reporter could accept such a document at face value? What kind of newspaper accepts such shoddy goods as gospel? I've read The Times my whole life. I've always viewed it with the utmost respect. But to read your coverage of a case I know a lot about leaves me utterly shaken. I don't know if your reporting is driven by incompetence, laziness, or an agenda, but it's an embarrassment.

Finally, have you no sense at all of the political dimensions of what's going on? Nifong embraced this case when he was desperate for black votes in a closely contested Democratic primary. He promised DNA would identify the guilty. When it matched no one on the team, he plowed on with his tainted lineup and then got indictments the week before his election. One of those accused, Seligmann, was on the phone or away from the house virtually the entire time the alleged rape took place. The other, Finnerty, bore no resemblance tothe accuser's description of any of her three alleged attacker. Nifong got those black votes and won. He's now in what amounts to a recall election—a contest, amazingly, unmentioned in The Times' nearly 6,000-word article. There is one other name on the ballot, a local politician who says he won't serve if elected. But if he wins, the Governor gets to pick a new D.A. So Nifong needs to keep this case alive at least until November, and he desperately needs someone to come out and say he has a reason to go forward. I would have expected the Durham Herald-Sun to do that for him, but not the New York Times.

It seems, by the way, I am not alone in my astonishment and dismay. I invite you to look at the posts below, which come from blogs of varying ideological persuasions:

• http://liestoppers.blogspot.com/2006/08/enough-from-duff.html
• http://news.yahoo.com/s/realclearpolitics/20060825/cm_rcp/the_duke_lacrosse_files_1
• http://talkleft.com/new_archives/015581.html
• http://www.reason.com/hitandrun/2006/08/the_question_of.shtml#015292

And I've also included a few of my own blogs that might be worth your consideration:

• http://hnn.us/blogs/entries/28086.html
• http://hnn.us/blogs/entries/29040.html
• http://durhamwonderland.blogspot.com/2006/08/nifong-tarnishes-naacp.html

Thanks so much for reading this. Please let me know if there's any further help I can provide.

KC Johnson