Justice Delayed From AJR, (American Journalism Review) June/July 2007 issue
Many in the media jettisoned caution--and the presumption of innocence--in their coverage of an alleged rape by Duke lacrosse players, and were too slow to correct the record as the case unraveled. But some journalists distinguished themselves with skeptical and incisive reporting.
By Rachel Smolkin
Rachel Smolkin (rsmolkin@ajr.umd.edu) is AJR's managing editor.
As Reade Seligmann choked back tears on the witness stand, the 21-year-old Duke University lacrosse player dubbed "Flustered" by teammates was poised, compelling and clearly hurting. He told of a world turned "upside down" and of experiencing "as lonely of a feeling as you can ever imagine" after he was indicted for allegedly raping a stripper at a team party on March 13, 2006. He described the stinging slights from former friends, the terrifying death threats--and the inescapable media horde.
On April 18, 2006, Seligmann and teammate Collin Finnerty were arrested on charges of first-degree rape, first-degree sex offense and first-degree kidnapping. After posting bond, Seligmann hurried out the back of the Durham County Jail, but there was no hiding from the media. "We pretty much had to run to our car to get there," he told a hushed courtroom and a disciplinary panel of the North Carolina State Bar on June 15, 2007. "From that initial bum rush to our car, that was the beginning of just a media frenzy for an entire year, and it continues now."
Michael B. Nifong--the district attorney who pursued Seligmann, Finnerty and teammate David Evans even as evidence of their innocence mounted and his case imploded--was held accountable for his actions. Hours after Seligmann testified, Nifong announced his intention to resign; the next day, he was disbarred.
The media incurred no such penalties. No loss of license, no disciplinary panels, no prolonged public humiliation for the reporters, columnists, cable TV pundits, editorial writers and editors who trumpeted the "Duke lacrosse rape case" and even the "gang-rape case" in front-page headlines, on the nightly news and on strident cable shoutfests.
Of course, Nifong had information and power the media did not. His failing in the case cannot be overstated, nor can it be equated to that of a throng of journalists and pundits, however odious some of their reporting and commentary. But the media deserve a public reckoning, too, a remonstrance for coverage that--albeit with admirable exceptions--all too eagerly embraced the inflammatory statements of a prosecutor in the midst of a tough election campaign. Fueled by Nifong, the media quickly latched onto a narrative too seductive to check: rich, wild, white jocks had brutalized a working class, black mother of two.
"It was too delicious a story," says Daniel Okrent, a former New York Times public editor, who is critical of the Times' coverage and that of many other news organizations. "It conformed too well to too many preconceived notions of too many in the press: white over black, rich over poor, athletes over non-athletes, men over women, educated over non-educated. Wow. That's a package of sins that really fit the preconceptions of a lot of us."
The lessons of the media's rush to judgment and their affair with a sensational, simplistic storyline rank among journalism's most basic tenets: Be fair; stick to the facts; question authorities; don't assume; pay attention to alternative explanations.
"The outcome of this whole story is square pegs can't be fit into round holes, and we saw the dangers of what happens when modern media attempts to do that," says Duke senior Ryan McCartney, who for much of the saga was editor of the Chronicle, the independent student newspaper. "Hopefully this case will kind of go down in the books as a lesson to media organizations on all levels to...second-guess themselves any time they think a story is clear-cut."
Too often, the preconceptions--rather than the facts--dictated not only the tone of the coverage but also its volume and prominence. "I think that you begin by being prudent," Okrent says. "And that's not the way that the American press began on this story. You begin by being prudent and, as things develop, that determines whether you amp up the volume or not. Here it began with a roar at the very start. It went in the wrong direction. If it had begun calmly and prudently, it never would have become a roar."
The roar began on March 24, 2006, when Raleigh's News & Observer broke the news on its front page that "all but one member of the Duke lacrosse team had reported to the Durham police crime lab" for DNA testing. "Police think at least three of the men could be responsible for the sexual assault, beating, robbery and near-strangulation of one of two women who had an appointment to dance at the party March 13, according to a search warrant," the story said.
As the shocking allegations ricocheted across the nation and a media mob descended on Durham, the district attorney served up salacious sound bites affirming a certain crime with chilling racial overtones. On March 31, 2006, Nifong told the N&O that he'd given "in excess of 50" interviews; he also spoke publicly on the case. He called the players "hooligans." He told MSNBC, "I am convinced there was a rape." He proclaimed, "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham."
Following the Nifong playbook, many in the media abandoned the possibility of innocence. "I'm so glad they didn't miss a lacrosse game over a little thing like gang rape!" CNN Headline News' Nancy Grace exclaimed March 31, during a broadcast in which she portrayed the athletes as rich, privileged jocks.
Even for reporters concerned with evenhandedness, Nifong's on-the-record proclamations complicated the coverage. When the media pursued Richard Jewell, who was wrongly suspected of the Centennial Olympic Park bombing in Atlanta, some journalists irresponsibly ran with off-the-record leaks from law enforcement sources (see "Going to Extremes," October 1996). In this instance, Durham's DA condemned the team for attribution. Journalists who ignored the horrific allegations or the inflamed racial and class tensions in the community would have neglected what seemed to be an important story.
A fast-shifting set of facts and the team's reluctance to speak publicly also flummoxed reporters early on. "The ground was moving underneath your feet," McCartney says. "It was true for the administration, it was true for the lacrosse players, it was true for the media, it was true for us as student journalists. We were just trying to get our bearings... It takes a very bold person to step back and say, 'They're getting it wrong.'"
National and international coverage tended to focus on strains between "town and gown," depicting an elite, largely white university colliding with the working-class, racially mixed city that surrounds it. The privileged nature of Duke's students, particularly its athletes, was frequently invoked; references to Duke's "Gothic" architecture and the schisms of the Old South were also popular. Several accounts noted that Duke was thought to be the model for the hard-partying, elite institution portrayed in Tom Wolfe's 2004 novel, "I Am Charlotte Simmons," which also featured rich lacrosse players.
"University rape highlights racial divisions in South," proclaimed London's Sunday Telegraph on April 2, 2006. "Lax Environment; Duke lacrosse scandal reinforces a growing sense that college sports are out of control, fueled by pampered athletes with a sense of entitlement," said a Los Angeles Times headline on April 16, 2006. A March 31 USA Today story weighed in on the divisive atmosphere: "The racially charged lacrosse team sexual assault scandal that is roiling Duke University has also exposed deep divisions between the elite private school and the more humble Tobacco Road community that surrounds it."
The New York Times, which would publish more than 100 pieces on the case, first weighed in on March 29, after Duke suspended the team's season. The page-one story headlined "Rape Allegation Against Athletes is Roiling Duke" contained no reference to Nifong's heated campaign for district attorney (he'd initially been appointed to the post), which many observers later said motivated him to hurtle forward with a disastrous case.
Times Executive Editor Bill Keller says criticism of his paper's performance has "in some instances been unfair to the point of hysteria." But he also says, "I think we were a little slow to get traction on the story, frankly. Partly we were slow figuring out who had custody of the story: sports, national, investigative. It took us awhile to get specific people focused on this as their responsibility."
Keller says the Times tended to cover the saga episodically "rather than early on focusing a lot of investigative energy on the story. It took us longer than it should have for us to give the holes in the prosecutor's case the attention it deserved." He adds that reporters' jobs were complicated initially because the defense wasn't talking.
Nifong showed no such restraint, accusing the players of hiding behind "this stone wall of silence." He told CNN, "[i]t just seems like a shame that they are not willing to violate this seeming sacred sense of loyalty to team for loyalty to community." In reality, the co-captains had voluntarily given statements and taken DNA tests; they also offered to take polygraph tests.
Nevertheless, some in the media seized on Nifong's statements as gospel. A popular early theme for columnists was excoriating the players--in pieces often laden with a presumption of guilt--for their alleged conspiracy of silence. "There's something disgustingly wrong when a Duke University men's lacrosse team...puts some skewed code of silence ahead of telling Durham, N.C., police everything they know," Johnette Howard, a sports columnist at Newsday, wrote March 31. Howard asserted that "not one" of the players "has broken ranks and spoken to investigators about what happened at the house that night. The code is that strong."
New York Times columnist Selena Roberts railed against the "code of silence" that same day, declaring, "At the intersection of entitlement and enablement, there is Duke University, virtuous on the outside, debauched on the inside...a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings."
Keller says assessing morality "taught and practiced in the theater of college athletics" is a fair subject for sports columnists. But without naming specific columnists--the Times' Harvey Araton also jumped in to upbraid the women's lacrosse team for writing "innocent" on their sweatbands--Keller says, "I did think, and I told the columnists, that there was a tendency in a couple of places to moralize before the evidence was all in, and not to give adequate weight to the presumption of innocence... As a generalization, I'm not dismissive of the people who think that what appeared in the sports columns kind of contributed to a sense that the Times declared these guys guilty. I think that's a false impression, but I can understand where people got it."
In the News & Observer, metro columnist Ruth Sheehan also produced an early conspiracy-of-silence rant. Her March 27, 2006, piece began: "Members of the Duke men's lacrosse team: You know. We know you know. Whatever happened in the bathroom at the stripper party gone terribly terribly bad, you know who was involved."
Unlike many columnists, however, Sheehan reassessed as evidence of the players' innocence deepened. Her April 13, 2006, piece, published three days after defense attorneys announced that DNA tests found no links between the accuser and the athletes, invoked the specter of Tawana Brawley, the black girl whose 1987 account of a gang rape by white law enforcement officers quickly unraveled. "There is no punishment on the books sufficient for a woman who would falsely accuse even the biggest jerks on campus of gang rape," wrote Sheehan, who then divulged that she had been raped 20 years ago that week. At the time, she told no one.
Sheehan's deepening skepticism was reflective of the News & Observer's coverage as a whole. A McClatchy paper with a weekday circulation of 177,361, the N&O would quickly lead the media with probing, tenacious reporting that revealed numerous infractions in the investigation. But its "early coverage contributed to the narrative of racial/class/gender victimization that the local community and the national media seized upon," the paper's public editor, Ted Vaden, wrote on April 15, 2007.
A front-page, March 25, 2006, interview with the accuser, headlined "Dancer gives details of ordeal," did not name the woman, in keeping with the paper's policy on alleged victims of sex crimes. (The N&O did publish the accuser's name after the players were exonerated.) The one-sided, sympathetic portrayal, which several times referred to the accuser as "the victim," allowed her to make blind accusations. It wasn't made clear until deep into the story that the athletes could not be reached for comment.
A page-one story on March 28, 2006, disclosed that during the past three years, about a third of the men's lacrosse team had been charged with misdemeanors related to drunken and disruptive behavior. A similar front-page story on April 9 was headlined "Team has swaggered for years."
But the accuser's criminal record--stemming from a "2002 incident involving drunken driving, a stolen car and an attempt to flee from police"--was not mentioned until April 7, low in a story on A14. No details were included. "It seemed to me there was some imbalance in publishing misdemeanor offenses of the students, but taking longer to publish the accuser's more serious offenses," Vaden says. "And it was in a longer story about something else."
Executive Editor Melanie Sill calls the Duke case "a reminder of the need for skepticism when dealing with official sources and police and prosecutors... It's kind of a case study of a lot of things that you know can go wrong in crime reporting if you don't heed that maxim 'innocent until proven guilty.'"
This spring, Sill and her senior editors assembled the staff to talk about lessons learned from reporting on the case. "A lot of the coverage held up," she says. "I think there was a sense, though, that some stories were overplayed or lacked that sense of proportion." For example, "In reporting that storyline on the players' conduct, that's where we think that we overplayed things a bit and played to storyline a bit."
Sill notes the firestorm began as a local police story for the paper's Durham bureau, and "we likely didn't have as many person-to-person conversations as [we] would have if it had broken here." Like Keller, she cites challenges regarding initially taciturn players and their representatives. "The first three or four days of coverage that was a real hole in the reporting," she says. "In hindsight, we should have been much more emphatic much higher in the stories that we didn't have that other side."
Sill's reporters also watched in frustration as national media vied for their sources. "It was a messy story, and the outside media coverage, especially the cable television shows, the presence of every national media outlet here, made it much harder to report," she says. "People we would normally just go interview were having press conferences, or wouldn't talk, or would only talk in a leaking situation." But top editors told the staff that quoting unnamed sources was unacceptable.
Concerned about saturation coverage and the case's fluidity, senior editors also temporarily halted columns on the issue after Sheehan's second one, an April 3, 2006, piece demanding the firing of lacrosse coach Mike Pressler. The respite gave staff a few days to get a better handle on emerging facts; when the ban was lifted soon after, columnists were told to use care, and top editors vetted all columns.
The hometown paper, Durham's 36,815-weekday circulation Herald-Sun, has been vilified by defense attorneys and media observers for coverage that they say tended to be superficial and unsophisticated on its best days, biased, misleading and even flat-out wrong on its worst.
An April 25, 2007, story in the Chronicle, the Duke student paper, probed the Herald-Sun's more than 400 articles and editorials on the case and detailed sensational commentary, omissions and inaccuracies, including misrepresenting North Carolina Attorney General Roy Cooper's comments on CBS' "60 Minutes" shortly after he declared Seligmann, Finnerty and Evans "innocent" of all charges. In the headline and lead of a page-one story April 16, the Herald-Sun reported that Cooper had said the "racial strain" on the community factored into his declaration of innocence; Cooper, however, had said nothing of the sort. (A subsequent correction downplayed the magnitude of the error.)
A March 28, 2006, Herald-Sun editorial declared: "There's no question the student-athletes were probably guilty of all the usual offenses--underage drinking, loud partying, obnoxious behavior. But the allegations of rape bring the students' arrogant frat-boy culture to a whole new, sickening level." The next day, a particularly inflammatory column about the "victim" by John McCann asserted: "I don't fault the girl for not keeping up with the news and the history of rich brats who get drunk and don't know how to act... Those animals reportedly kicked her around like a dog."
Stuart Taylor, a National Journal columnist who was among the first to proclaim a miscarriage of justice in the case and is now writing a book, "Until Proven Innocent," due out in September, describes the Herald-Sun's coverage as "absolutely wretched just about every single day for the past year." His coauthor, KC Johnson, a history professor at Brooklyn College and a "procedure wonk," tracked the case exhaustively on his Durham-In-Wonderland blog (durhamwonderland.blogspot.com). Johnson wrote that the Herald-Sun "combined plodding pro-Nifong editorials with 'news' articles whose one-sided nature borders on journalistic fraud, topped off by a pattern of simply ignoring newsworthy items that can't be framed in pro-Nifong terms."
Asked to assess his paper's coverage, Editor Bob Ashley replies: "Overall, I thought it was pretty good. We were operating in a very difficult environment with media from all over the country... It was pretty much down the middle and pretty thorough. We got beat on some stories I wish we'd had first, but we beat others...on some others."
Ashley, a 1970 Duke graduate who came to the Herald-Sun in January 2005 when the Kentucky-based Paxton Media Group took over, also oversees the editorial page. "Some of the criticism has probably focused as much on our editorial positions, which we continue to think was appropriate," he says. "We think it was important for the judicial system to handle this case rather than bloggers and network pundits." Ashley's staff took Nifong at his word. "We weren't prepared for what turned out to be the enormously nonexistent case of the district attorney," Ashley says. "It was a veteran prosecutor. He'd been here for a while. We kept arguing we needed to wait and see."
The editor says his paper "always noted there was a presumption of innocence in a case like this. Given the context and the context of what we knew at the time, we were fair. We were opinionated, but we were fair."
National TV news reports also adopted the storyline of race, class and privilege.
On March 31, 2006, ABC's "Nightline" described the conflict between an "elite school" packed with outsiders and the "southern city that surrounds it. The question: Did a group of privileged white athletes commit a racially tinged and violent crime?"
Reports on network nightly newscasts tracked closely with breaking news and peaked in April 2006--the month Seligmann and Finnerty were indicted. The networks' combined total of 42 minutes that month on the Duke case exceeded their 35 minutes on the Iraq war, according to an analysis for AJR by Andrew Tyndall, who monitors the nightly newscasts. Alone among the networks, CBS devoted more time to the war that month (23 minutes versus 17 for Duke).
The case was especially popular on the cable news networks, where anchors and their guests chewed over every development. "These are shows which basically function only if you have sort of a phony debate, if you have people willing to take both sides," KC Johnson observes. "They shouldn't be considered journalism in any respect at all, but it's alarming because most of the public probably does consider it journalism, or journalism in some way."
CNN's Nancy Grace particularly distinguished herself, in a negative sense, with her mean-spirited comments about the athletes. Every piece of defense evidence that established innocence, "she spun as further evidence of guilt," Taylor says. "Or as, 'That just goes to show you how defense lawyers lie.'"
Grace declined interview requests. In an e-mail, spokeswoman Janine Iamunno included transcript excerpts to demonstrate that "Nancy's coverage of the Duke case should and could not be fairly characterized as 'out to get' the Duke players--there are a number of examples here where she actually rails against guests on her show who seem to be convicting the players before due process."
Yet the first excerpt Iamunno e-mailed, from June 9, 2006, underscores perceptions of unfairness. Kevin Miller, then news director at WPTF Radio in Raleigh, asserted that the defense had established reasonable doubt barring new information. Retorted Grace: "Well I'm glad you have already decided the outcome of the case, based on all of the defense filings. Why don't we just all move to Nazi Germany, where we don't have a justice system and a jury of one's peers?"
One prominent guest on Grace's show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, "Look, I think the real key here is that these guys, like so many rapists--and I'm going to say it because, at this point, she's entitled to the respect that she is a crime victim."
Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on "CNN Live Today" on May 3, 2006, she posited, "I'd even go so far as to say I bet one or more of the players was, you know, molested or something as a child." On June 5, 2006, MSNBC's Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: "Hitler never beat his wife either. So what?" She later added: "I never, ever met a false rape claim, by the way. My own statistics speak to the truth."
Asked to evaluate her commentary, Murphy said in an interview: "Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that's never my style." She notes that she's invited on cable shows to argue for a particular side. "You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I'm assigned," she says. "So of course it's going to sound like I'm arguing in favor of 'guilty.' That's the opposite of what the defense pundit is doing, which is arguing that they're innocent."
Broadcast news personalities did not confine their offensive comments to smearing the lacrosse players. On April 11, 2006, Tucker Carlson asserted that the accuser's "testimony about matters of sex is to be taken by ordinary commonsense people a little differently than the testimony of someone who isn't a crypto-hooker." Rush Limbaugh took a similar tack March 31, 2006, on his nationally syndicated radio program. He explained that the lacrosse team "supposedly, you know, raped some, uh, hos." Prompted by a caller, he later apologized for a "terrible slip of the tongue."
Although reporting became more skeptical as questions about the case deepened--a lack of DNA evidence, a solid alibi for Seligmann, a botched "lineup" that included no filler pictures of people unconnected to the case--this often occurred belatedly, if at all. "The stunning thing about the media travesty that this story was is that as evidence began to trickle out and pour out and finally become conclusive--that this didn't happen, that there was no rape--most of the media barely noticed," Taylor says.
Taylor cuts the media a little slack during the first frenzied days because prosecutors usually aren't so vocal "unless they have the goods." But he says there were serious omissions in coverage as exculpatory evidence emerged in late March and early April 2006. The media "reported episodically the things like the April 10 DNA results. It would just be sort of a tit-for-tat, 'Well, the defense struck a blow today.'" Instead, Taylor says, the media should have collectively asked: "Wait a minute, the prosecutor said the case would be over if the DNA was negative. Why isn't it over?"
Fifteen days after defense attorneys announced the DNA results, Time magazine's Jeninne Lee-St. John was still advancing the race/class storyline, positing that the black mother's accusations of rape against "generally privileged, younger white men conjures up memories of that classic American sex story: the pretty female slave being summoned up to the big house to sexually satisfy the master."
On April 19, 2006, after Seligmann and Finnerty were charged, the Christian Science Monitor published a story headlined "Duke lacrosse case: No DNA, but old-fashioned sleuthing." It stated: "Tests that pinpoint humans' unique genetic fingerprints are often overplayed as a forensic tool, experts say. Especially in violent crimes, old-fashioned gumshoe investigations, convincing witnesses, and believable testimony still rule the jury room, they add." The story did not delve into whether the Duke case had convincing witnesses, nor did it contain any response from defense lawyers.
On May 24, 2006--12 days after defense attorneys said a second round of DNA tests found no matches to any lacrosse players--the Washington Post's Lynne Duke wrote a piece headlined "The Duke Case's Cruel Truth." Fronting the Style section, it began: "She was black, they were white, and race and sex were in the air. But whatever actually happened that March 13 night at Duke University--both the reported rape and its surrounding details are hotly disputed--it appears at least that the disturbing historic script of the sexual abuse of black women was playing out inside that lacrosse team house party."
For its May 1, 2006, issue, Newsweek plastered the mug shots of Seligmann and Finnerty on its cover under the headline "Sex, Lies & Duke." Of the three newsweeklies, Newsweek devoted the most reporting power and prominence to the Duke story. An April 10, 2006, piece by Duke alumna Susannah Meadows and Editor at Large Evan Thomas was prescient in suggesting an alternative to the prevailing press perception of a "tawdry tale of pampered jocks"--that of "a tale of a prosecutor exploiting racial tensions with a trumped-up charge."
Although the May 1 cover forecast a hatchet job inside, the story by Meadows and Thomas thoughtfully examined holes in the case ahead of nearly all their national competitors. Thomas calls the cover art his "big regret," noting that Seligmann's alibi, detailed in the story, clearly established his innocence.
The mug shots reflected the indictments, Thomas says. (Evans was indicted May 15.) "But I had a twinge at the time, and I wish I'd had a stronger twinge. My advice at the time was we should think about this, but I did not--and I want to be clear about this--I did not bang my hand on the table and say, 'We can't do this.' It was merely, 'Are we comfortable with this?'" Then-Newsweek Editor Mark Whitaker, now senior vice president at NBC News, did not respond to an interview request placed with the press office there.
On August 25, 2006, the New York Times published a story that has emerged as the single-most-derided substantial look at the Duke case, criticized by bloggers, defense attorneys, Stuart Taylor and media critics including New York magazine's Kurt Andersen and the Times' then-public editor, Byron Calame.
The page-one, 5,600-word article by Duff Wilson and Jonathan D. Glater appeared after Joseph Neff of the News & Observer, Meadows and Thomas, Taylor, Johnson and others had begun to eviscerate Nifong's case. It also came two-and-a-half months after Wilson's and Glater's own June 12 story, published on page 13, describing "a growing perception of a case in trouble."
Although the Times' August story depicted a troubled investigation, overwrought summary graphs inflated Nifong's case and downplayed his blunders: "By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks," the story said. "But an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation yields a more ambiguous picture. It shows that while there are big weaknesses in Mr. Nifong's case, there is also a body of evidence to support his decision to take the matter to a jury."
Wilson and Glater relied heavily on exclusive access to 33 pages of typed notes and three pages of handwritten notes by Mark D. Gottlieb, the police sergeant supervising the investigation. Joseph B. Cheshire, an attorney for Evans, was quoted calling the belatedly filed report a "make-up document." Cheshire said Gottlieb told defense lawyers that he took few handwritten notes and relied on his memory and other officers' notes.
But elsewhere in the article, the journalists described those notes without skepticism. After detailing serious discrepancies between the accuser's description of the suspects in Gottlieb's notes and those of another officer, Benjamin W. Himan, the Times story stated, "The difference in the police accounts could not be explained." It added that Gottlieb "is by far the more experienced" of the two.
Wilson says he went to Durham planning "to do a big story" exploring the case files, following up on a front-page, August 6 News & Observer investigation by Neff headlined "Duke lacrosse files show gaps in DA's case."
But then Wilson saw Gottlieb's notes, which had not been previously reported. "That was news, and we felt we had to lead off with that, but also point out all the many doubts and holes and concerns," he says.
Wilson wishes he had reworded his summary graph to say there was some evidence to "explain" the district attorney's case, rather than "support" it, but says his wording has been taken out of context. "The article talked about evidence Nifong was using, and that part was true," Wilson says. "The article didn't try to support his case. The article tried to cover all the evidence."
The Times published two corrections regarding the story, one about a misattributed quote, the other about the number of potential suspects whom the accuser picked out in photographs, but did not back away from the thrust of the article.
Keller says the August story "wasn't a perfect piece, but it was a detailed and subtle piece that left you with no illusions about the strength of Nifong's case." The sergeant's notes, which Keller says were not leaked by the prosecution, "were interesting not because they proved the crime was committed, which they did not, but because they showed you for the first time what the prosecutor claimed he had, what was the basis for filing his charges."
Joe Neff, a News & Observer investigative reporter who lives in Durham, read the Times' story with surprise. Neff has specialized in documenting prosecutorial misconduct; Editor Melanie Sill credits his work in a death-row case for helping to bring about the state law that requires prosecutors to share all of their evidence with defense attorneys.
Neff had seen Gottlieb's notes before his August 6 story but could not convince his source to let him report on them. "I was really struck that [the Times reporters] used this report that I had seen, but they used it basically 180 degrees from how I was planning to use it," Neff says. "The discrepancy between Himan's description [of the suspects] and Gottlieb's description was irreconcilable."
Neff was one of a handful of journalists who dug deep into the evidence--some publicly available, some shared confidentially by sources--to debunk Nifong's case. These journalists bucked the pack and burrowed beneath an enticing narrative to raise questions about the rush to judgment against the lacrosse players.
Sill assigned Neff to the story because "she had a gut feeling that it wasn't right," he says. "[W]e kept peeling back the layers of the onion. At first it just seemed like incompetence or tunnel vision on the part of the DA and cops. As we went along, it becomes less of the tunnel vision and more deceit."
He was struck by the absolute insistence of the defense lawyers, whom he'd known for years, that their clients were "innocent." He had expected to hear more routine assertions that "it didn't happen that way; it's a misunderstanding."
"In few criminal cases have the prosecution and defense stuck their necks out so far and so fast," Neff and Anne Blythe wrote April 8, 2006, on A1. On April 30, Neff, Michael Biesecker and Samiha Khanna reported that the accuser "picked out her alleged attackers in a process that violated the Durham Police Department's own policy on identification lineups." Neff's August 6 story revealed that the "accuser gave at least five different versions of the alleged assault to different police and medical interviewers and made shaky identifications of suspects. To get warrants, police made statements that weren't supported by information in their files."
National Journal's Taylor weighed in April 29, 2006, to assert "accumulating evidence strongly suggests that the charge may well be a lie." He then listed that evidence, including a timeline based on digital photos taken at the party. Three weeks later, Taylor declared, "the available evidence leaves me about 85 percent confident" that the three athletes "are innocent and that the accusation is a lie."
Taylor's coauthor, Johnson, was intrigued by the Duke case because of the vociferous faculty response, which he regarded as "incredibly improper." On April 6, 2006, 88 Duke faculty members placed an ad in the Chronicle thanking protesters--some of whom had branded the lacrosse players "rapists" and distributed "wanted" posters of them--"for not waiting and for making yourselves heard."
When Johnson launched his blog in August 2006 (he first blogged about the case on a historians' group site), he committed to at least one daily post of "good enough quality that it wouldn't harm my reputation academically." His research included a July 13, 2006, analysis of lineup procedures elsewhere in North Carolina and whether they followed the recommendations of a state commission. By early July 2007, he had blogged more than 800,000 words and attracted more than 2.6 million unique visitors.
With "this case, more than any other, there seemed to be a lot of Internet activity," says Jim Cooney, an attorney for Seligmann. The defense team monitored bloggers' work. A few "were doing just incredible research, finding documents we didn't even know existed," Cooney says. Reading Johnson's efforts "was like having a PhD paralegal."
At the Chronicle, Duke's student journalists worked to provide fair, nuanced coverage. Johnson says the News & Observer "doesn't get the praise it deserves" and thinks Sill hasn't gotten "near enough credit" for her leadership. But he adds that the Chronicle "didn't have the initial rush to judgment that the N&O did. They were the only paper you can say had it right from the start. They were dispassionate on the coverage. This was not a sort of 'let's rah-rah for Duke.' They were willing to criticize the Duke lacrosse team; they were willing to criticize the Duke administration."
One television journalist who humanized the accused and laid bare the travesty of the case was Ed Bradley. On October 15, 2006, in his second-to-last piece before his death the following month, Bradley offered a devastating indictment of the prosecution. "Over the past six months, '60 Minutes' has examined nearly the entire case file," he said. "The evidence we've seen reveals disturbing facts about the conduct of the police and the district attorney and raises serious concerns about whether or not a rape even occurred."
He began with Seligmann, Finnerty and Evans, who granted Bradley their first interviews, and also talked to the second dancer at the ill-fated party, Kim Roberts, who refuted key portions of the accuser's story.
The piece, produced and reported in large part by Michael Radutzky, has garnered a Peabody Award and an Edward R. Murrow Award. "We went into this story thinking that it just didn't seem like it all fit together well," says Executive Producer Jeff Fager. "We like turning conventional wisdom on its head."
More than a decade ago, correspondent Mike Wallace and producer Tom Anderson helped exonerate another falsely accused suspect, Richard Jewell. Fager thought of Jewell when the DNA results in the Duke case came back negative. "There's something that goes against the American way when a pack rules," Fager says, adding that his team's Duke reporting is "a tribute to Ed Bradley, and it says something about his legacy."
On cable, Dan Abrams emerged as an early and persistent critic of the prosecution's case on MSNBC's "The Abrams Report." Abrams, a 1988 Duke graduate, scolded on April 10, 2006, that "some want to embellish the story by suggesting it was almost inevitable it would happen at Duke. They vastly overstate the tension between the Durham and Duke communities, inflate the sense of privilege at the university while exaggerating the economic woes of those in Durham. It is often nothing more than race and class baiting."
Now the general manager of MSNBC, Abrams rates the media's overall performance on the case "mediocre." In an interview, he said, "This is one of those stories where you had to be paying attention, and you had to be paying close attention. It's hard sometimes to get access to the best sources. This case was very competitive, and there was a lot of media involved."
But reporters who followed the facts got the story right. "This is really a case where people who did their homework were in the end rewarded," Abrams says. "There were some people out there who wanted to believe certain things about athletes and the university and about privilege, and some of these things may be true. But that doesn't have anything to do with whether these three young men raped a woman at a party that night."
Asked what the media should learn from the Duke case, Taylor, sounding exasperated, strikes a similar note. "Read the damn motions," he says. "If you're covering a case, don't just wait for somebody to call a press conference. Read the documents."
Taylor, who is also a lawyer, advises reporters to look beyond the rhetoric. "We should never take a prosecutor's word as fact." Conversely, don't disregard defense assertions as necessarily false. "Yes, many defense lawyers will say almost anything to get their clients off most of the time, but don't just ignore what they say," he says. "Look at what they're telling you. And do they have the evidence to back it up?"
Adds defense attorney Cooney: "The national media seems to believe balance requires them to report anything someone says, whether it's true or not." The fact-checking aspect of reporting, he says, "seems to have fallen by the wayside."
Looking back, Neff wishes he and his colleagues had paid more attention to two items available from the start. The first was a police blotter entry published in the Raleigh paper on March 22, 2006, on page B3. The brief said a woman had told police she was raped and robbed March 13 during a party at 610 N. Buchanan Blvd. It cited Sgt. Gottlieb as saying that residents of the rental house were cooperating.
"[W]hen the story blew up and it became this huge mess, we never said, 'Wait a minute. The police sergeant said they were cooperating, and Nifong said they weren't cooperating,'" Neff says. "I wish we would have caught that."
The second set of facts involved the accuser, who told an N&O reporter for the March 25, 2006, story that she had just started working as an exotic dancer. On April 7, the paper reported that she had been arrested in 2002 after stealing a taxi and trying to run over a police officer. "If we had pulled that incident report, we would have seen that she was doing a lap dance at a strip club," Neff says. "Part of the reporting is just to go, 'Oh, let's go pull this and see if there's anything there.'" In this instance, it "would have really given us pause. She's someone who's saying she only just started dancing a couple of weeks ago, when four years before she'd been dancing at a strip club and stealing a car."
Perhaps the most complex lessons about the media coverage of the Duke case involve issues of narrative. Unquestionably, the media too readily ran with a simplistic storyline, sacrificing a search for truth. Not only were the accused innocent of rape, the allegations of racial taunts that received so much media attention appear to have been exaggerated.
"We fell into a stereotype of the Duke lacrosse players," says Newsweek's Evan Thomas. "It's complicated because there is a strong stereotype [that] lacrosse players can be loutish, and there's evidence to back that up. There's even some evidence that that the Duke lacrosse players were loutish, and we were too quick to connect those dots."
But he adds: "It was about race. Nifong's motivations clearly were rooted in his need to win black votes. There were tensions between town and gown, that part was true. The narrative was properly about race, sex and class... We went a beat too fast in assuming that a rape took place... We just got the facts wrong. The narrative was right, but the facts were wrong."
If the facts are wrong, though, why explore the narrative at all? Is it fair to use the Duke lacrosse players to tell a larger story of athletes run wild--a theme that appeared not only on sports pages but also was splashed, repeatedly, on the front pages of major newspapers and amplified on cable shoutfests? Says Johnson: Once the facts are "proven not to be true, you certainly have to consider whether the narrative is relevant."
On May 28, 2006, nearly a year before Attorney General Cooper exonerated the accused, New York Times Op-Ed columnist David Brooks published a corrective account. "Witch hunts go in stages," he began. "But now that we know more about the Duke lacrosse team, simple decency requires that we return to that scandal, if only to correct the slurs that were uttered by millions of people, including me."
Brooks concluded: "[M]aybe the saddest part of the whole reaction is not the rush to judgment at the start, but the unwillingness by so many to face the truth now that the more complicated reality has emerged."
How did journalists and news organizations that embraced the case respond when it fell apart? Some chose to simply move on--abandoning the story entirely or clinging to their original storyline. As of late June, Nancy Grace had not returned to the subject since last summer, according to a Nexis search. A guest hosted her program on December 22, 2006, when Nifong dropped rape charges, and on April 11, when Cooper cleared the athletes. On June 12, as Nifong's disciplinary trial opened, Grace explored Paris Hilton's legal troubles.
In a mystifying March 25, 2007, column, the New York Times' Selena Roberts opined, "A dismissal doesn't mean forget everything. Amnesia would be a poor defense to the next act of athlete privilege."
Some news organizations continued to dig deep. Beginning April 14, 2007, the News & Observer published an exhaustive five-part retrospective by Neff examining Nifong's blunders. Each part appeared on A1; the first was headlined "Nifong's quest to convict hid a lack of evidence." On April 23, Newsweek's Meadows and Thomas offered "The inside story of the infamous evening," relying on interviews with Finnerty and Seligmann and their families as well as handwritten statements that Evans and two other team captains gave Durham police two days after the alleged rape.
Keller says media organizations should press forward with "more, better reporting," and cites a front-page story by David Barstow and Wilson that appeared December 23, the day after Nifong dropped rape charges. The article included admissions Nifong made in a three-hour interview two days earlier, including his acknowledgment that DNA results he kept from the defense were "potentially exculpatory."
To Daniel Okrent, simply continuing to report is not enough. "The one thing I'm quite certain I didn't see was an apology, which is certainly not one of the acts that the American media are particularly good at," the former Times public editor says. "It's a matter of media organizations owning up to their responsibility, and when they do something wrong, they should acknowledge that they do something wrong."
Okrent envisions a mea culpa--an editor's note, a front-page article, perhaps an "appearance on a platform in Times Square"--that would say, candidly: "'We blew it. We're sorry. We accept responsibility for having blown it.'"
On April 23, the News & Observer's Ruth Sheehan did just that. "Members of the men's Duke lacrosse team: I am sorry," she began. She noted that she had written 14 columns on the case, moving well beyond the "two Molotov cocktails" in her initial code-of-silence diatribe and her demand for coach Pressler's ouster. She had already acknowledged her errors, but, for many readers, that wasn't enough. They wanted an apology. And they got one.
"I decided I needed, just for my own conscience, really, to write the last column," says Sheehan, who regrets the damage that her first two pieces may have caused. "I will approach cases in a different manner now. I will be much more cautious. I had a visceral reaction to that case as it was being described by the prosecutor."
All too soon, the next lurid crime story will explode into the headlines. The media will have a chance to show what they learned from this fiasco. Will they remember that sometimes the accused are innocent? Will they proceed with caution, combing through the facts and avoiding sweeping generalizations? Will they remind viewers and readers, "It looks bad now, but not all the evidence is in"?
Maybe some journalists, such as Sheehan, really will apply more prudence and skepticism in the future. But the media's collective memory is notoriously short, and competitive pressures are awfully hard to resist. Official assurances--whether about the guilt of privileged athletes or the existence of weapons of mass destruction--can persuade, even when they shouldn't. Journalists, in Keller's phrase, can get "sucked into the undertow."
So does another rush to judgment await some hapless citizen thrust into the media's glare?
Almost certainly.
AJR editorial assistant Sally Dadisman contributed research to this report.
Reference:
http://ajr.org/article_printable.asp?id=4379 
