A Comment on the Herald-Sun

Careful (or even not-so-careful) readers of the Herald-Sun cannot help but notice its recent pattern of inserting unexplained editorial judgments into “news” articles that reference either Durham-in-Wonderland or Until Proven Innocent. (Curiously, the articles in question do not mention the title of either the book or the blog.) In a way, this development represents a welcome change from the paper’s approach during 2006, when its “news” articles concealed an almost comical pro-Nifong spin behind a pretense of faux objectivity.

The most recent instance came in a Ray Gronberg article that described Bob Ekstrand’s resisting Duke’s efforts to compel testimony from him regarding exchanges he had with non-lacrosse players, including President Brodhead, Tallman Trask, Stuart Taylor, and me. (Ekstrand represents three of the former players suing the university.) In his article, Gronberg—without citing even one piece of evidence—describes Until Proven Innocent (again, without referencing its title) as “a 2007 book sympathetic to the players.” It’s quite true that both the book and the blog exposed ways in which Duke, Nifong, the Durham PD, and certain media sources (including the Herald-Sun, in behavior for which the paper’s editor very belatedly issued a half-hearted apology) mishandled the case, but Gronberg’s article doesn’t suggest that any relevant statement made in the book or blog about the lacrosse case that was incorrect. As even the H-S is fully aware, critical commentary about one side’s behavior does not necessarily constitute a “sympathetic” portrayal of the other side.

Gronberg then insinuates—but carefully does not specifically allege—collusion. In writing about how the book and blog portrayed Sgt. Mark Gottlieb, the H-S reporter notes that “Ekstrand’s most prominent contribution to the case is a theory—embraced by Johnson, Taylor, and all three of the legal teams now pursuing lawsuits against Duke and the city—that the police sergeant [Gottlieb, whom Gronberg doesn’t name] who supervised the investigation of Mangum’s claims was a rogue cop pursuing a vendetta against Duke students.” [Emphasis added]

Leaving aside the dubious claim that this “theory” constituted “Ekstrand’s most prominent contribution to the case,” I gladly would have told Gronberg had he asked me (for the record, he did not do so, nor did he contact Stuart) that I found all the evidence I needed to conclude that Gottlieb was a rogue cop in summer 2006, solely by reading the Gottlieb “notes”—the straight-from-memory report typed months after the fact by the ex-DPD officer. The document, which Gronberg doesn’t mention in his “news” article, conveniently plugged many of the holes then existing in Nifong’s case, often by contradicting contemporaneous written notes from other police officers.

And I reached the conclusion that Gottlieb was targeting Duke students by reading of his behavior in the newspaper. In September 2006, the N&O exposed the existence of and the Chronicle fleshed out the effects of the separate-but-equal arrangement in which the Duke administration and the DPD agreed that Duke students would be treated more severely than any other Durham residents for similar allegations of alcohol-related crimes. Gronberg doesn’t mention the N&O’s or the Chronicle’s reporting as my sources, even though I cited both; doing so, of course, might have reminded H-S readers of how late the paper came to this major story from its own backyard, or even of Gronberg’s own ineffective efforts to discredit the reporting of his rivals.

Both the book and the blog devoted considerable space to exposing the Herald-Sun’s shoddy reporting on the lacrosse case. As UPI noted, “When the police and Nifong demonized the lacrosse players and canonized the ‘victim,’ the media were happy to provide unskeptical coverage, as the Herald-Sun did in its March 25 front-pager quoting Cpl. Addison. And when an opportunity presented itself for journalists to do their own demonizing and canonizing, they seized it with relish. Among local papers, the Herald-Sun, the only Durham-based newspaper of significant circulation (about 45,000 in spring 2006, but falling fast) was incomparably biased in the more than 300 articles and 20 unsigned editorials it churned out in 2006, savaging the lacrosse players and downplaying or omitting altogether the ever-growing evidence of innocence.” The blog provided specific occasions of this behavior, while singling out for criticism the consistent bias of the Herald-Sun’s editor, Bob Ashley.

Ashley, by the way, returned to the H-S as editor a few months ago, after he had left the paper in January 2011.

A cynical person might suggest a relationship between the Herald-Sun’s lacing its “news” articles with unsubstantiated editorial judgments and the criticism both the book and the blog made of its (and its editor’s) substandard performance during the lacrosse case. Alas, the H-S’s new editorializing style doesn’t extend to referencing this criticism, which might give readers the context necessary to understand the publication’s current approach.

To reflect on the merits of the Herald-Sun’s record regarding the lacrosse case, it might be worth quoting from the Chronicle’s post-exoneration analysis. After struggling to find media observers who had even bothered to read the paper, Chronicle reporter Adam Eaglin interviewed with Bill Green, a former Washington Post ombudsman who then lived in Durham. Green’s analysis: “The Herald-Sun has consistently failed to presume the innocence of these three people. They leapt to judgment early and stayed with that thinking.”

Two final notes: (1) The Gronberg article did contain one potentially intriguing nugget. After falsely insinuating that Stuart and I might have concluded from exchanges with then-defense attorneys that Gottlieb was a rogue cop with a vendetta for Duke students, Gronberg reported, “Police commanders have disputed that.”

Since Gronberg doesn’t cite the police commanders to whom he’s referring, it’s not clear if he based that sentence on his analysis of Durham’s legal filings (which were never quite that definitive) or from background conversations with unnamed police commanders. If the latter, this revelation would be important indeed, since it would constitute Durham’s admission that a police officer who: (a) blindly followed orders to set up a photo array in violation of DPD policies; (b) produced a highly suspicious typewritten report months after the fact that wasn’t based on his contemporaneous written notes; and (c) behaved (at best) dubiously toward non-lacrosse students wasn’t, in fact, “going rogue” (the explanation most favorable to Durham) but instead was behaving as Durham thought a DPD officer should under these circumstances. Will Durham embrace this admission in court?

(2) Stuart passes along this comment:

I agree completely with everything in KC’s post. I would add that the only sense in which we were “sympathetic” to the lacrosse players is that we were very glad to cite the overwhelming evidence that they were completely innocent of the monstrous crimes of which they were so widely presumed guilty; that they were a very decent group of young men; and that their accusers—including many in the media and at Duke as well as Durham law enforcement officials—behaved disgracefully. We also included in our book all relevant evidence of which we knew that reflected unfavorably on any of the lacrosse players.

Updates

One of the most important themes of the lacrosse case was the almost complete lack of accountability among anyone not named Mike Nifong. Professors who flagrantly violated the terms of the faculty handbook or student bulletin (much less basic ethics)? Not punished, and in some cases even promoted or offered better jobs. Reporters who appeared to see their job as carrying Mike Nifong’s water (so as to better advance a politically correct agenda) rather than pursuing the truth? Not punished, and in some cases even offered new and more prestigious jobs. “Experts” whose performance revealed their utter lack of expertise, at least if we define expertise as based on facts? Not declared figures without credibility, and instead many continued to be consulted on the very same topics about which they illustrated their ignorance.

The effects of this non-accountability: those who engaged in misconduct (or worse) in the lacrosse case are free to offer repeat performances. Take, for instance, so-called sex crimes expert Wendy Murphy. Fresh from being deemed not merely an expert but an appropriate instructor for a Poynter seminar—even after a Poynter representative was informed of Murphy’s fabrications—Murphy was interviewed by AP education writer Justin Pope, who labeled her a “victims’ advocate who has filed numerous Title IX complaints on behalf of victims.”

The article focused on how universities should respond to allegations of campus sexual assault. Without even mentioning Murphy’s comments about the lacrosse case (the highest profile claim of campus sexual assault in the past decade)—much less her history of fabrications when discussing the issue—Pope quoted Murphy as if her views merited credibility. “Colleges must protect victims, [Murphy] says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they'd enjoy in a criminal trial. ‘You can't run a school that way,’Murphy said. ‘If every once in a while a school has to be sued at the cost of being fair to all students, so be it.’”

Set aside the astonishing nature of Murphy’s statement in a society that values (or at least professes to value) due process. Can anyone imagine an AP reporter turning again for expertise to a scientist, or a businessman, or an attorney exposed as a fraud in a high-profile case? And even if in the highly unlikely event that the AP did so, is it imaginable that the reporter would have not mentioned the grave doubt about the credibility of his “expert”?

By the way, AP isn’t the only national news bureau that could be faulted on the no-accountability standard. Late last year, Reuters hired away Duff Wilson from the New York Times to join the organization’s investigative team. Let’s hope Wilson’s bosses steer him clear of criminal justice issues—at least when any amount of skepticism of the prosecutor is warranted. Let’s also hope that Reuters employs better fact-checkers than does the Times.

Another article for the non-accountability file: this piece from the Times, penned by a former national correspondent for the newspaper. How many readers of the article, I wonder, had any idea that one of the (two!) Group of 88 members quoted, Eduardo Bonilla-Silva, had views such as these? While it’s not the job of the media to report every view a source might have expressed, when interviewing an extremist on the topic of his or her “expertise,” surely some requirement for context exists. Or, to phrase it differently, if most Times readers knew that Bonilla-Silva had termed our country “gringoland” and the “United States of Amerikkka,” and had conceded that even some of his own students considered his course material to be “anti-white,” would they have paid any attention to his comments in the article?

(Providing such context, it seems to me, should also occur on the rarer occasions when media members interview extremists of the right. Perhaps the best example is Tony Perkins, the head of an SPLC-designated hate group who regularly appears on all three major cable networks without his hosts referencing his extreme statements.)

Finally, a lawsuit update: the cases continue to inch their way through the judicial system. There’s no word on the fate of Duke’s appeal of the Beaty motion-to-dismiss ruling, which Judge Beaty has allowed to indefinitely delay discovery. Duke, meanwhile, is battling attorneys for the unindicted players, in the hopes of blocking any discovery from Duke’s p.r. firms. Given that a central element of the unindicted players’ case is that Duke violated their rights to protect the university’s reputation, this information would seem relevant.

In the Ekstrand case, Duke has demanded a protective order regarding discovery material—the university clearly doesn’t want any more embarrassing Brodhead e-mails to be attached to Ekstrand motions.

And regarding the FERPA matter (the university’s inexplicable decision to turn over FERPA-protected keycard information to the authorities, and then to wait for weeks before informing the students or their parents about what the university has done): ignorance is bliss appears to be the Duke litigation strategy. During the discovery process, Dean Sue Wasiolek spent more than six hours discussing the issue, yet—based on the filings—appeared to claim that she knew little of what occurred. Duke’s comment: Wasiolek is the university’s expert on the matter.

It’s good to know an apparent violation of the federal law to protect student rights generated such concern among Duke’s upper administration.