A Switch in Times?

The Times published three articles on Mike Nifong’s latest manipulation of evidence—dropping the rape charge, changing his theory of the crime, maintaining the other charges. The first of the three listed “Duff Wilson and David Barstow” as authors. The other two flipped the names, with Barstow designated lead reporter. The difference in quality as a result of the shift was notable.

The Wilson-led piece appeared on the Times website on the afternoon of December 22. The article noted that Nifong had dropped the charges after Linwood Wilson had interviewed the accuser; it contained no mention that, for inexplicable reasons, this discussion was the first between the accuser and a representative of Nifong’s office about the alleged events of the evening.

The article also seemed to violate the Times’ own policy regarding the use of anonymous sources, granting anonymity from a source “close to the investigation” to offer legal analysis. (I had speculated the source was Linwood Wilson, but someone whose knowledge of the case I trust disputed this guess.) In addition, Duff Wilson included a lengthy quotation supporting the prosecution from Victoria Peterson, who was described as “active in the black community in Durham and . . . a friend of the accuser’s family.” Amazingly, the article never mentioned that Peterson had served as citizens’ committee co-chair for Nifong.

By what possible journalistic standard could noting that Peterson is “active in the black community” be more important than mentioning her intimate connection to Nifong’s campaign?

In the next morning’s article, an interesting change had occurred: Barstow was now listed as the lead reporter, as he would be in the piece that appeared December 24. This article stated that Nifong “has faced relentless and rising criticism for his handling of the case.” After Wilson ignored the effect of Nifong’s action beyond a quote from Joseph Cheshire, The Barstow-led piece stated that the manipulation of the charges “intensified questions about Mr. Nifong himself” from “defense lawyers, defendants’ families and friends, bloggers and many experts.” [emphasis added] In his August magnum opus, Wilson had gone out of his way to avoid any mention that numerous legal experts, wholly unconnected to the case, had criticized Nifong's misconduct.

The Barstow-led articles also, fairly, listed critical aspects of Nifong’s procedural misconduct:

• The fact that the only player twice identified with 100 percent accuracy wasn’t even in Durham the night of the party.

• The fact that Dave Evans, despite the accuser’s claims, never had a mustache.

• The fact that even the normally sycophantic Irving Joyner, Woody Vann, and Herald-Sun editorial page had criticized Nifong (if mildly) in recent days.

• The fact that Nifong had repeatedly (and, as it turned out, falsely) assured the court, during the spring and summer, that the Meehan tests contained nothing more than what was disclosed.

The piece also, fairly, summarized the depth of defense anger with Nifong’s tactics.

The Times obtained a three-hour interview from Nifong, no doubt a reward for Wilson’s previously fawning coverage. In contrast to earlier Wilson articles, the Barstow-led piece presented the Nifong quotes in an unvarnished fashion, without a pro-Nifong spin. And Nifong unvarnished doesn’t look good. Times readers learned that:

• Nifong cares little about prosecutorial discretion: “If she came in and said she could not identify her assailants, then we don’t have a case,” but “if she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”

• Nifong believes in-court IDs months after the fact are superior to contemporaneous photo lineups: “You can’t always tell from a photograph,” since “the only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

• Constructing a lineup confined to suspects was OK, because, Nifong mused, “What is a lineup? What if I have no idea who did the assault?”

• Nifong referred to the accuser as “my victim.”

• Nifong contended that, summarized the Times, “the defense attack on the DNA report revealed a ruthless strategy aimed at vilifying him and intimidating a victim of a brutal assault. ‘The whole point was the vilification of the district attorney, I believe.’”

• Despite having the file for months, Nifong pled ignorance about the file’s contents: “When you’re going through these pages,” he said, “and you’re numbering them and making copies, you’re not reading and understanding what’s on every single page.”

• An excessive workload explained Nifong’s failure to turn over the exculpatory DNA evidence: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (The Times didn’t mention that this excuse was the third different one offered by the D.A.)

Emily Bazelon of Slate considered just one of these quotes (Nifong’s claim that the accuser, rather than the DA, would effectively decide whether the case moves forward) “so basic a misunderstanding of his own job that it raises questions about whether he is even qualified to hold it.”

A few months ago, Bazelon’s colleague at Slate, Jack Shafer, held up the Times’ Wilson-led, transparently biased coverage as an example of flawed coverage, and offered suggestions as to how a paper could acknowledge that it got the early story wrong and then move on. The Barstow-led articles continued the Times practice of ignoring the interplay between politics, Nifong’s strained finances, and the decision to bring the case, and the pieces could have offered quotes from critics of Nifong unrelated to the defense. But the two articles at least ended the Times’ position on this case as a journalistic laughingstock.

As the Times shifted from a pro-Nifong bias to appropriately neutral articles, two other newspapers with national reach hit Nifong hard. USA Today published a biting editorial stating that the case “shows the danger in making snap judgments and should give pause to anyone who cares about fairness in the legal system.”

The editors accused Nifong of having “shamelessly exploited the racially charged atmosphere in the middle of an election campaign,” bringing charges on flimsy evidence, and withholding exculpatory DNA evidence.

As a result, “Nifong's performance raises so many troubling questions that it's time for the North Carolina Bar Association to investigate and for Nifong to step back from the case. If he won't go voluntarily, a judge should replace him.”

Meanwhile, the Washington Times--a paper with considerable influence among conservative circles in the Capitol--unequivocally endorsed a federal investigation into the case. It concluded that Nifong is “losing a case and, if he's not careful, potentially his career.”

From the beginning, the editors noted, the “case seemed odious.” They cited the procedurally flawed lineup and Nifong's refusal to drop charges against Reade Seligmann even after Seligmann produced evidence that proved his innocence. Then came the Meehan testimony, coupled with what the Times considers Nifong's absurd claim that he forgot to turn over the exculpatory material.

Before the February 5 hearing, the editors observed, “Mr. Nifong might come under investigation himself. There have been several ethics complaints filed with the state's bar association and now Rep. Walter Jones is asking the Justice Department to step in. As opposed to Mr. Nifong's case, there seems to be enough evidence for that investigation to move forward.”

Let's hope AG Gonzales was listening.

[Note: For those in the Boston area, I'm scheduled to appear from 5-6pm on WRKO, to discuss the case.]