The Duke Lacrosse Rape Hoax: Witnessing a Media Train Wreck

2006 is turning out to be another anillus horribilis for many of the companies that publish major American Newspapers. The multi-year stock chart for The New York Times Company ( NYT ) tells part of the tale. In some measure, this unhappy story is a consequence of trust withheld by increasingly skeptical subscribers. Many Winds readers are familiar with one recent episode, Reutersgate. A smaller domestic scandal may be--in one sense--in its final week: The Duke Lacrosse Rape Case. It offers lessons in the vulnerability of individuals to abuses of authority, and in the reluctance of some members of The Fourth Estate to let go of a story line they've become attached to--facts be damned.

Coverage of the Case

From the onset, much newspaper and wire service coverage has favored the prosecution, as has Time (Newsweek stands out for its fair coverage). "60 Minutes" is scheduled to air a piece on the case next Sunday (9/24/06). The authors of numerous blogs have speculated that the show will assume a "contrarian" position, and outline the accumulated body of evidence exonerating the accused (yes, some might find irony in "60 Minutes" playing this role). Thus, this week may be the last chance to view this affair from the "before" vantage point.

Complete and factual coverage of the Duke case has been compiled by a few outstanding web-loggers. Two of them are K.C. Johnson and John in Carolina; the hyperlinks in their posts and sidebars will carry the reader to a wealth of other resources.

The Lacrosse Team's Party on March 13th

From Wikipedia:

The alleged victim is a 27-year-old African-American woman... She served in the United States Navy, is a single mother, and a student at North Carolina Central University, a state-owned and historically black college located in Durham, North Carolina. She claims that, on March 13, 2006, three white members of Duke University's lacrosse team beat, strangled, and sexually assaulted her anally, vaginally and orally.

What is widely accepted is that over 30 members of the Duke lacrosse team gathered for a party at the off-campus house where its three co-captains were living. There was underage drinking, and enough noise to bother the neighbors. The highlight of the party was to be a strip-tease show put on by two dancers hired for $800 from a local escort service. The alleged victim and another woman arrived at 11:30 pm, started dancing around midnight, but drove off around 1:00 am, after ugly verbal altercations during and after the truncated show. At 1:30 am, Durham police were called to assist the seemingly-intoxicated alleged victim in the second dancer's parked car (with the latter driving), about a mile from campus. Police took her to a halfway house/emergency room, where she told the staff nurse that she had been raped.

Print Coverage

The unfolding of this case has been marked by changing stories, ambiguities, deviations by police investigators from standard operating procedures, inflammatory and misleading statements by the prosecuting District Attorney. This contributed to a rush to judgment by law enforcement, by prominent Duke faculty, by the Durham community, and by the local and national news media. In early May, D.A. Mike Nifong secured the indictment of Reade Seligmann and Collin Finnerty for forcible rape, followed two weeks later by the indictment of David Evans, a third player. The three men are free on bond pending a 2007 trial.

The narrative presented to the public by the Durham Herald-Sun, the NYT, the Washington Post, Time magazine, and other publications is replete with errors. Notable print media exceptions are the Durham(Raleigh) News & Observer (but see here) and Newsweek.

• In my opinion, the evidence that no rape occurred is overwhelming. The accuser's story changed repeatedly. The timeline does not match any of the accuser's rape accounts. The second dancer's story also changed, and is inconsistent with the accuser's account of rape. Physical examination of the alleged victim did not show evidence of the sort of trauma that would be associated with the rape she described; she could not definitely ID her supposed attackers. With the cooperation of the lacrosse team, D.A. Nifong took DNA samples from all possible suspects [see 9/28/06 Update]. None matched any of the forensic samples, although DNA from the accusser's boyfriend did.

• If, arguendo, a rape did occur, there is no evidence that Seligmann, Finnerty, or Evans were involved. Seligmann has an ironclad alibi for the entire duration of the alleged rape, including video taken at an ATM a mile from the co-captain's house.

• If, arguendo, a rape did occur, police misconduct has been so grievous that a durable conviction is impossible. For example, the accuser identified her attackers based on a photo lineup that was made up entirely of head shots of the lacrosse team. This is in violation of common sense, the Standard Operating Procedures of the Durham Police Department, and North Carolina law.

• In May, D.A. Nifong faced a tough re-election challenge in the Democratic primary. With the aid of the Durham news media, he spun the case in terms of Gown versus Town, White versus Black, and Privilege versus Working-Class. Thus, in addition to Means and Opportunity, Nifong had Motives to politicize the Duke Rape Case. He won his primary, and now faces a de facto recall vote in the general election in November: Motive to prolong an unjust and unwinnable case for a few more months.

The sources of my assertions in the preceding four bullet points are:

• Links to primary sources in the blogs Durham In Wonderland, John in Carolina, and Liestoppers.
• Articles in The New Yorker, Slate.com, and Newsweek.
• Analysis by the listed bloggers, especially K.C. Johnson at "Durham in Wonderland."

In perhaps the shoddiest piece written on this case, New York Times reporters Duff Wilson and Jonathan Glater soft-pedaled these and other concerns in their 8/25/06 front-pager, "Files From Duke Rape Case Give Details but No Answers." (This lengthy article resides safely behind the TimesSelect wall ). Wilson and Glater's errors of comission and omission were savaged by Stuart Taylor in Slate.com, K.C. Johnson, and blogs such as Liestoppers.

An shortened form of this article was distributed by the NYT News Service to the Baltimore Sun and other papers. As a companion to the linked critiques, here is a fair-use extract of the first half of the Sun's Page A2 version. I've marked up the text to highlight passages that aid the prosecution by misleading the reader (italics) or by omitting key facts (underlines). Passages that might err in favoring the defendants are bolded.

Aug 25, 2006: "Policeman's Notes Support Accuser In Duke Rape Case; Material Is Last To Be Turned Over To Lawyers For 3 Lacrosse Players"

DURHAM, NC--On March 21, a week after a black woman charged that she had been raped by three white Duke University lacrosse players, the police sergeant supervising the investigation met with the sexual-assault nurse who had examined the woman. The sergeant, Mark D. Gottlieb, reviewed the medical report, which said little: some swelling, no visible bruises.

But Gottlieb's case notes also recount what the nurse told him in response to his questions: that the woman appeared to be in so much pain that it took "an extended period of time" to examine her and that the "blunt force trauma" seen in the examination "was consistent with the sexual assault that was alleged by the victim."

About a week later, Gottlieb met with Durham County District Attorney Michael B. Nifong to review the case. Nifong had been beseeching Duke lacrosse players to break their silence about what had happened at a team party March 13. Now, he turned up the pressure, telling Fox News that there was "no doubt in my mind that she was raped."

Whether the woman was in fact raped is the question at the center of the case.

Defense lawyers, amplified by Duke alumni and a group of bloggers who have closely followed the case, have portrayed it as a national scandal: that there is only the flimsiest physical evidence of rape, that the accuser is an unstable fabricator and that Nifong, in the middle of a re-election campaign, was summoning racial ghosts for political gain.

By disclosing pieces of evidence favorable to their clients, the defense has created an image of a case heading for the rocks. But an examination of the 1,850 pages of evidence gathered by the prosecution yields a more ambiguous picture. It shows that while there are weaknesses in Nifong's case, there is also evidence to support his decision to take it to a jury.

Crucial to that portrait of the case are Gottlieb's 33 pages of typed notes and three pages of handwritten notes, which have not previously been revealed. His file was delivered to the defense July 17, making it the last of three batches of investigators' notes, medical reports, statements and other evidence shared with the defense.

In several important areas, the full files, reviewed by The New York Times, contain evidence stronger than that highlighted by the defense: Defense lawyers have argued that the written medical reports do not support the charge of rape. But in addition to the nurse's description of injuries consistent with the allegation, Gottlieb writes that the accuser appeared to be in extreme pain when he interviewed her 2 1/2 days after the incident and that signs of bruises emerged then as well.

The defense has argued that the accuser, who had been hired to perform as an exotic dancer, gave many divergent versions of what happened, and she did give differing accounts of who did what at the party. But the files show that aside from two brief early conversations with police, she gave largely consistent accounts of being raped by three men in a bathroom.

The absence of bolding is not an HTML glitch. What would motivate the NYT to publish such dreck, even as the prosecutor's case continues a slow-motion collapse? I can't imagine.

We All Make Mistakes

On August 30, I sent the following email to The Baltimore Sun's Public Editor and News Editor (minor edits for web legibility):

This past SundayFriday, The Sun ran a New York Times news service piece on the Duke Lacrosse Team Rape story. That story was a condensed version of a lenthy Page One piece by NYT reporters Duff Wilson and Jonathan Glater.

As someone who has followed developments in this case, I recognized some quite serious omissions and distortions in the Sun's version of the Wilson-Glater piece on my first read-through. The full piece turns out to have been significantly longer and thus significantly worse. Within a day of its publication, its claims and assumptions had been reviewed on a number of the web-logs that provide commentary on this subject.

Rather than review these journalistic shortcomings, I will refer you to two web sites. The first link is to an open letter to Bill Keller and Jill Abramson of the NYT from K.C. Johnson, a history professor who has written eloquently about the irregularities of the prosecutor's office in this case.

This link is to a Slate.com piece by former Times reporter Stuart Taylor, published yesterday.

I hope that the editor who chose to cover the Duke Lacrosse Rape case by reprinting the Wilson-Glater article will review these two relatively short pieces. They, in turn, contain links to additional essays that document each claim of journalistic misconduct by Wilson and Glater.

The Baltimore Sun has not, thankfully, been a leader in marshalling public opinion to support the extensive prosecutorial and police wrongdoing that lie at the heart of the Duke Lacrosse Rape case. On the other hand, a review of Lexis-Nexis shows that what the Sun's reporters wrote in April and May was generally reflective of Distict Attorney Nifong's stance. If that was, conceivably, a plausible stance in the Spring, that ceased to be true many months ago.

For the Baltimore Sun to end a three-month hiatus on reporting on this case with a reprint of Sunday's misleading NYT piece is a disservice to your readers. You have replaced Silence with the flawed work product of two reporters who were either credulous or driven by ideology. I refer you, again, to the Johnson and Taylor articles for the specifics of the distortions, omissions, and mischaracterizations in the wire service piece that you published.

By this point, the key question for you should be quite obvious: having erred, what amends will the Sun make?

Fortunately, this is not a case of having painted yourselves into an ideological corner. Rather, it looks like a simple and honest mistake; reasonable people might reasonably expect "news that's fit to print" rather than "agenda journalism" from The New York Times.

A suggestion: balance the distortions of the Wilson-Glater hit piece by assigning a reporter to interview Professor Johnson, who has become an authority on this case. His thoughts on the broader implications of the conduct of the authorities, Duke administrators, and the media should be of interest to many of the Sun's readers.

I would, of course, welcome any thoughts you might have in response to this email. I would ask that you consider them to be "on-the-record"--as is this letter.

I received no answer. However, a follow-on email on Sept. 7 detailing four major errors of fact in the unabridged NYT piece garnered this response from the Sun's Public Editor on Sept. 11th:

The Sun's deputy national/foreign editor has examined the original New York Times version (complete with subsequent corrections) and the version of the article that ran in The Sun. None of the problematic material appeared in The Sun's version of the article. [On the four narrow points I had raised in my later email, the Public Editor was correct--AMac] Again, as for our policy, anything that we confirm is factually inaccurate is corrected as soon as possible --- no matter if it is a wire story or staff produced.

The Baltimore Sun has not acknowledged any of the errors in the wire service piece it printed. The New York Times' corrections have been limited to two near-trivial errors.

Closing Thoughts

In the midst of witnessing this demolition-derby-style episode, it can be hard to remember that editors and reporters at institutions like the NYT and the Baltimore Sun are smart, conscientious, hard-working people. Despite that, this sort of self-inflicted damage to institutional credibility is a recurrent theme of the mainstream media.

What goes wrong?

My guess is that the worst misrepresentations of the news take place when both ideological flexibility and intra-industry criticism are needed to make sense of a story. It's hard for anybody to surrender the notion that their world-view provides the proper lens for viewing a given set of events. At the start of the Rape Hoax Case, it was easy to set up the conflict in terms of Poor Black versus Wealthy White: a culture of sleazy, lazy jock entitlement running roughshod over victims' rights and equality under the law. An unscrupulous and power-hungry District Attorney worked with the material at hand to craft a narrative that many reporters -- and at least 88 Duke faculty members -- found irresistable.

We all grasp the small-scale personal benefits of "professional courtesy." The cop who lets an 'on the job' speeder go, the physician who declines to testify for the plaintiff in a local malpractice case, the reviewer who goes easy on another author's novel: odds are, each will find their work lives were smoothed by their decisions. By calling out Glater and Wilson, Newsweek reporter Stuart Taylor may have made lifelong enemies in his field. Perhaps as important: how enjoyable will the next Newspaper Guild convention be for him? Maybe the proper posture should be grateful amazement that any reporters swim against this current.

Lastly: what happens if next week's "60 Minutes" does cause the mainstream media's herd mentality to shift the conventional wisdom from "loathsome preppies run amok" to "power-crazed prosecutor run amok"? Will the NYT and the Baltimore Sun belatedly apply their stated corrections policies ("anything that we confirm is factually inaccurate is corrected as soon as possible") so that their published record is consistent with an updated, realistic view of the case?

There is sure to be a temptation for editors to shun the unwelcome attention that would result, trusting instead that The Memory Hole will soon turn these embarrassing performances into a dusty curiosity, of interest to very few.

Thanks to the efforts of a few independent-thinking reporters and bloggers, we will probably have an answer in short order.

UPDATE September 19, 2006 05:40 PM -- In response to the concerns raised by Gib (see comments #2 through #7), I have modified the text of this entry to remove the name of the alleged sexual assault victim. --AMac
UPDATE September 28, 2006 -- On team cooperation: During the initial police investigation, the three team co-captains cooperated fully, talked to police for hours without lawyers, gave DNA samples, and offered to take polygraph tests. A week later, their teammates declined to meet to answer further questions and submit to identification procedures in the absence of counsel (3/30/06 Raleigh N&O). The police then got a (remarkably broad) warrant to collect DNA, and the players complied rather than contesting it.
On "60 Minutes": Their story on this case is now scheduled to air in October, probably Sunday, 10/1/06. --AMac