Ten Questions for Editor Ashley

This afternoon’s Duke Law School panel on the media and the lacrosse case [update: I've been told the panel is meeting in the Sanford Institute of Public Policy Bldg. Rm 05] is worth attending for those who can. (It’s interesting, however, that in a case where the blogosphere has played an important role, the panel contains no bloggers.) The panelists include one of the true heroes of the case, Duke Law’s James Coleman, and also a journalistic range from best to worst. At one end, Susannah Meadows of Newsweek co-authored what remains the best widely circulated article on the case. At the other is Herald-Sun editor Bob Ashley, who rivals the Times’ Duff Wilson as the journalist who has done the most to obscure the full effect of Mike Nifong’s conduct.

For those who attend the panel, some questions that I’d like to see asked of Ashley:

1. Why has your paper never mentioned James Coleman’s criticisms of Nifong*? Or that a photo lineup occurred on March 16 and March 21, in which the accuser failed to identify any suspects as her alleged attackers?
2. What do you consider the appropriate sanction for a district attorney who instructs the police to violate their own procedures?
3. Why did your so-called “roundtable” discussion of the 60 Minutes broadcast include only people who shared your view that the case must go to trial?
4. Do you believe that defendants in cases that have become politicized enjoy less civil liberties protections than other Americans? If not, why did you write 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”? Do you believe that the purpose of the criminal justice system is to bring “closure” to a “community”?
5. In an August 21 editorial, you expressed strong concerns about the need to uphold civil liberties (when commenting on the Bush administration’s policies). How do you reconcile your comments on protecting civil liberties with your consistent defenses of Nifong?
6. Are you afraid of exposing your readers to critiques of Nifong’s misconduct? If not, why have your op-ed pages included no such views? (The strongest remarks from the op-ed page were those of Robinson Everett, whose two op-eds called for a speedy trial and the accuser to receive a lie-detector test; Everett identified himself as a Nifong backer.)
7. Do you support Mapp v. Ohio, and the exclusionary rule that it produced? If so, do you believe that evidence obtained through a procedurally tainted lineup should be excluded from a trial?
8. Do you favor police targeting groups as a class? If not, why have you not criticized Capt. Sarvis’ admission that the Durham Police have an official policy of disproportionately punishing Duke students?
9. Given the extreme sensitivity you displayed toward homophobia—real, alleged, or imagined—in a recent editorial, why have you not condemned Nifong for saying he’s “very pleased” to have a homophobe, Victoria Peterson, running his citizens’ committee?
10. Could you cite an occasion in which a critic has rebuked you in print, on the record, or in a blog for your paper’s taking an excessively hard line on Nifong?

Ashley might want to take a look at Cash Michaels’ most recent article, which surveys reaction to the 60 Minutes broadcast. Michaels opens with quotes critical of Nifong from figures such as Jason Whitlock and Coleman; in his first several paragraphs, Michaels offers a more comprehensive view of the critiques of Nifong’s behavior than the Herald-Sun has provided in every issue it’s published since March 24. The article also quotes from two figures Michaels himself described on TalkLeft as “pro-Nifong”—NAACP attorneys Al McSurely and Irving Joyner.

In his article, Michaels faults 60 Minutes for not interviewing Joyner or McSurely on camera. Based on what they told Michaels, I’m disinclined to challenge 60 Minutes’ judgment: both men seemed to suggest that the prosecution hasn’t had a chance to present its case, and that Nifong must have something. As the duo knows, however, North Carolina has an Open Discovery Law. Based on his comments to open the broadcast, 60 Minutes, in its news judgment, concluded that the discovery file contained no material that substantiated Nifong’s case beyond what has been publicly released. It therefore would have made little sense to have subjects suggesting that a discovery file they hadn’t seen must, in some way, substantiate Nifong’s actions—when Bradley himself knew such a claim to be unsupported by the evidence.

Michaels’ article substantially advances what I consider one of the most under-reported elements of this story—the decision of the North Carolina NAACP to abandon 70 years of the national organization’s principles on criminal justice issues in its response to this case.

In their interviews with Michaels, McSurely and Joyner offered bland statements on the need to defer to prosecutorial judgment. Such remarks might seem commonplace in a discussion of criminal procedure in Alberto Gonzalez’s Justice Department, but are jarring coming from representatives of the NAACP. (Joyner, it’s worth noting, wasn’t always so blasé about the need to uphold civil liberties.)

Seeming to overlook the effects of the Open Discovery law, McSurely told Michaels, “The prosecution hasn’t shown any of its whole cards yet, and I don’t think it will until trial.” Joyner similarly speculated: “I’ve been practicing law long enough to know that what ends up in a report isn’t necessarily everything that’s there,” and “just because [evidence] has been released, doesn’t mean that’s it.” As we’ve seen in this case, everything that Nifong has delayed turning over —from the accuser’s cellphone records, to the toxicology report, to the DNA evidence—has hindered, rather than helped, his case.

One way or another, this case eventually will end. The next time McSurely, Joyner, or anyone else from the North Carolina NAACP faults a prosecutor for excessively zealous behavior, or condemns a D.A. for violating standard procedures, journalists like those at today’s panel should recall their “pro-Nifong” position in this case. But, I suspect, that’s another story we won’t ever see on the pages of the Herald-Sun.

[*--update, 10.24am: If Ashley won't mention Coleman, Coleman will take the initiative. This morning's H-S features a blistering letter to the editor regarding Ashley's editorial:

Your editorial about the recent "60 Minutes" report mischaracterizes both what the district attorney's role has been in the Duke lacrosse rape case and why some of us have criticized him. Like much of the media hype that has surrounded the case, your editorial turns the case into an ugly caricature by suggesting that the decision to prosecute the Duke students was made by a valiant prosecutor on a white horse who is defending a helpless black woman who "ranks near the bottom of society." That is what the prosecutor also suggested when he told a largely African-American audience that he personally would protect "this black girl" from the hooligans at Duke. I find that characterization of the case offensive and patronizing. Why do you say the accuser is "near the bottom of society?" She is an apparently talented student and mother who dances to support herself and her child. She is a woman, not a "black girl." Trying to make this case about race and class has done a great disservice to Durham. From the start, it should have been handled as just an alleged rape that had to be investigated and prosecuted if the evidence warranted it. As someone who has criticized Nifong's handling of the case, I have not called for him to dismiss it; rather, I have suggested only that a special prosecutor be appointed who can make the kind of disinterested decisions about the case that Nifong has shown himself incapable of making. If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.