By Jefferson Flanders

With North Carolina Attorney General Roy Cooper declaring the innocence of the three Duke lacrosse players accused of sexually assaulting an exotic dancer at a March 2006 team party, it’s not too soon to consider the way journalists, columnists, and editorialists handled the high-profile case.

What the coverage of the Duke lacrosse case says about American journalism isn’t particularly appetizing. For the most part, the mainstream media joined in a ratings-driven rush to judgment, presuming guilt on the part of the Duke Three.

Too many news organizations, from the Durham Herald-Sun to CNN’s Headline News, were eager to embrace a narrative of white privilege (entitled lacrosse players, the “almost perfect offenders” in the words of leftish Duke associate professor Wahneema Lubiano, assaulting a single black mother and student), even as the prosecution case began crumbling within days of the initial accusation.

The continuing national interest in the story, as I noted in June 2006, made sense because the Duke lacrosse case raised “submerged questions of race, class disparity, campus cultural and sexual mores, and the workings of our criminal justice system.”

But those issues, while intriguing, should never have been overwhelmed the underlying, and simple, question: did prosecutor Mike Nifong have a credible rape case against the three Duke players—David Evans, Reade Seligmann and Collin Finnerty—and why did he pursue their prosecution when DNA evidence of their guilt did not materialize?

At the same time, there were a small number of journalists who “got it right,” largely because they focused on the facts of the case, not on the surrounding political and racial theatrics. Among them were the late Ed Bradley of CBS and “60 Minutes,” history professor and blogger K.C. Johnson (whose Durham-in-Wonderland site offered detailed coverage), MSNBC’s Dan Abrams, Peter Applebome of the New York Times, and National Journal senior writer and columnist Stuart Taylor, Jr.

Who got it wrong?

There’s a long list of journalists and commentators who too easily accepted prosecutor Mike Nifong’s framing of the case and clung to the notion of the Duke players as villains and the accuser as victim. As David Broder of the Washington Post noted, “… reporters and commentators who accepted the allegations as if they were facts and held those young men out for ridicule and abuse have a lot to answer for.”

To their credit, some who initially accepted the prosecution narrative, like columnist Ruth Marcus of the Washington Post and Fox News contributor Susan Estrich, admitted they had been misled and argued, in the words of Marcus that “the more evidence that has emerged in the case, the more it appears that there is way more than reasonable doubt that the three accused committed rape.”

Perhaps the most biased “coverage” of the case came from Headline News’ Nancy Grace (“I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”), although Grace is one of the new cable news network celebrity hosts who are performers, not journalists.

Some of the more distorted coverage came from mainstream outlets, however. Newsweek ran a cover story in its May 1st issue (available in late April) entitled “Sex, Lies & Duke,” that included mug shots of the then two indicted players Finnerty and Seligmann and trumpeted: “Inside the mystery that has roiled a campus and riveted the country.” While Newsweek softened its coverage as the case collapsed under the weight of the facts, running a story in June 2006 sharply questioning Nifong’s prosecution, to date there has been no apology for the misleading cover.

The New York Times coverage

The country’s leading newspaper, the New York Times, was also guilty of misplaying the Duke case, its failings chronicled over the past year by critics like Slate‘s Jack Shafer and New York magazine’s Kurt Anderson.

Two of the Times’ sports columnists, Harvey Araton and Selena Roberts, hammered away at the Duke lacrosse team, with Araton criticizing the Duke women’s lacrosse team for wearing wrist-bands in support of the accused players and Roberts wrongly claiming that the Duke players had refused to cooperate with the police.

While editorial page columnists David Brooks and Nicholas Kristof did write calling for a fairness in the Duke case, reporter Duff Wilson filed a front-page story on August 25, 2006 that concluded:

By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks. 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.

Those journalists closely following the Duke case were highly critical of the Wilson story; as Kurt Anderson wrote shortly afterwords:

…In a single dismissive boilerplate sentence, the piece attributes all criticism of the prosecution to defense lawyers, Duke alumni, and obsessive bloggers. What about Brooks, Kristof, and just about every other major national and local journalist and legal expert who’s looked closely at the case? Forget them. Thus the Times’ front-page news-hole takeaway: It isn’t a witch hunt, Nifong’s not so bad, these aren’t the Scottsboro Boys, the accuser may well have been raped, these Duke guys might have done it, the case deserves to go to trial.

K.C. Johnson’s criticism of the Wilson story has focused on the “body of evidence” argument; Johnson says he looked at the same 1,850 pages and concluded there were no grounds for prosecution. He further notes that in Roy Cooper’s exoneration of the Duke players the Attorney General stated “no credible evidence” ever existed to back the accuser’s claims, which, in Johnson’s words “gives the lie to the claim in Wilson’s article.”

Lessons learned?

What can journalists learn from the coverage of the Duke case?

Some of the mistakes, especially in the early stages of coverage, were quite natural ones to make. Like all of us, journalists start with assumptions about the present that are largely based on the past.

Alpha male jock culture (as I wrote after the rape allegations first surfaced) is “notorious for incidents of misogyny and violence against women ( vide scandals at Nebraska, Colorado, St. John’s).” Prosecutor Nifong seemed confident that a rape had occured. It was easy, as Ruth Marcus wrote “… to imagine that a bunch of rowdy, hard-drinking players could have crossed the line from watching a paid dancer to sexually assaulting her.”

Imagining, however, is different than concluding. No matter how unsavory or boorish the scene at that Duke lacrosse team party may have been, it proved nothing about the accuser’s claims. That point was lost as many print and broadcast journalists focused on the ugly details of the party and a vile e-mail sent by one of the players afterwords as if they somehow corroborated the prosecution story.

Only forensic evidence and/or credible witness testimony could prove whether a rape had occurred or not. Gaping holes in the case against the lacrosse players surfaced early on. Skepticism seemed to be in order when the DNA tests showed no matches with any of the Duke players on April 10. When the grand jury indicted Seligmann and Finnerty a week later on rape and other charges and Seligmann’s attorney offered a fairly convincing alibi for his client, even more doubts were raised about the accuser’s credibility.

Would Nifong have pursued the Duke players if he had confronted critical questioning from more reporters in the early stages of the investigation? If newspaper columnists and cable news personalities hadn’t cast the story as a morality tale of rich white preppies exploiting a vulnerable black woman, would Nifong have felt less emboldened to indict the Duke Three?

Had America’s news organizations approached the Duke case with fewer preconceptions and more attention to basic reporting and the sort of journalistic digging done by Abrams, Taylor and Johnson, it’s possible the travesty of the last year could have been avoided. Or perhaps not, but at least there would be a lot less embarrassment in American newsrooms today.

NOTE: For readers interested in assessing my commentary on the Duke lacrosse case over time, please see the following:

Reprinted from Neither Red nor Blue

Copyright © 2007 Jefferson Flanders

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