Guilt vs. innocence in the Duke case

Is the New York Times biased against the accused lacrosse players?

Published August 31, 2006 8:00PM (EDT)

"The New York Times is still victimizing innocent Dukies," Slate announced Wednesday in its top story, a tirade against the paper's coverage of the Duke lacrosse team scandal. The piece was penned by Brookings Institution fellow and National Journal and Newsweek writer Stuart Taylor Jr., who took the Times to task for the long case overview it ran last Friday. The Times piece, Taylor wrote, "tone[d] down [the] rhetoric" that had characterized the paper's previous reporting "while doing [its] utmost to prop up a case that's been almost wholly driven by prosecutorial and police misconduct." What's more, he wrote, "the Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent."

This is tricky stuff. It does seem that the case has been marked by police and prosecutorial misconduct. Durham, N.C., district attorney Mike Nifong has acknowledged mishandling the early parts of the case, in which he gave 50-70 interviews expressing confidence that a rape had occurred and accusing the lacrosse team of maintaining a wall of silence. (In fact, the team cooperated with early police requests for interviews and searches.) A number of legal experts have condemned the process by which the Durham police presented team member photos to the accuser so that she could select her alleged attackers. And Taylor's beef with the Times' past coverage of the scandal has some basis; he references a March 31 column (premium content) by sportswriter Selena Roberts that appeared to presume that the team was protecting certain members by observing a code of silence. Especially in first months of the case, both police and prosecutorial statements and media coverage (including Broadsheet coverage) of the event often sided with the accuser.

As for whether the Times is "still victimizing" members of the Duke lacrosse team, though, I'm not so sure. As far back as May 28, Times columnist David Brooks wrote (premium content): "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. We know now that the Duke lacrosse players are not the dumb jocks they were portrayed to be." Brooks referenced Taylor's National Journal pieces on Nifong's mistakes, and noted the various lacrosse team virtues cataloged by a university committee review, including the team's 100 percent graduation rate, good grades, community service work and popularity with Duke staff from groundskeepers to the women's lacrosse coach. And last Friday's case roundup, written by Duff Wilson and Jonathan D. Glater, didn't suggest that accused team members David Evans, Reade Seligmann and Colin Finnerty are guilty; it called the case "ambiguous." Taylor objected, writing:

"The Wilson-Glater piece ... reports hotly disputed statements by not-very-credible police officers and the mentally unstable accuser as if they were established facts. With comical credulity, it features as its centerpiece a leaked, transparently contrived, 33-page police sergeant's memo that seeks to paper over some of the most obvious holes in the prosecution's evidence." Later, he wrote, "While the Times asserts that 'experts say it is possible for a rapist to leave no DNA evidence,' it's hard to imagine the crime alleged to have happened here leaving none."

Maybe it will emerge that the officers on the case were corrupt and not credible; maybe the memo from Sgt. Mark Gottlieb will prove to have been "contrived"; maybe the accuser will be discredited. Certainly there seem to have been instances in which police failed to follow procedure; Gottlieb's memo was written based on his recollections months after the case began; and it has been reported that the accuser has suffered a nervous breakdown. These facts are distressing. But by assuming these factors add up to the players' innocence, isn't Taylor making the same errors of foregone conclusion he accuses the Times of making? And should his own imagination of the alleged crime really outweigh the opinions of experts when it comes to DNA evidence?

Taylor bolstered his case by observing that a feminist agrees with him: "Many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution's fog of lies and distortions," he writes. And indeed, Estrich, who has followed the case for Fox News, has been blisteringly critical of the prosecution's failure to follow procedures. But she has noted, as she did on Aug. 9, that "none of this means the woman is lying." In pronouncing (rather than presuming) the players innocent before trial, Taylor leaves that part out.

Perhaps the weirdest thing is Taylor's ire at the Times' portrayal of the case as a "race-sex-class" issue. One of the sadnesses of this case is that no matter what happened -- including if the accuser made it up, if she was raped or if something in between took place -- this absolutely is a sex-race-class story. The dynamics of a town in which the university lacrosse team hired a black stripper would be a race-sex-class story even before you factored in the part about the racial slurs that were called out to the dancers. That doesn't mean that the players committed the crime, or that the Times might not have misrepresented the case by making assumptions about the event based on race and class. But in the U.S., race, sex and class play a part in most stories. Tackling the Duke scandal from that angle isn't necessarily a mistake, or an "ideological agenda."

What's unfortunate here is that it does seem that the accused players deserved better treatment than they got from law enforcement and the media. Taylor's assumptions and bombast have muddied the waters of that essential and worthy point.

The forthcoming issue of the New Yorker also has a feature on the Duke case, recounted in lyrical fashion by staff writer Peter J. Boyer. Through interviews with current Duke president Richard Brodhead, Boyer makes the crucial observation that events like the lacrosse team scandal are often mistakenly used to confirm our own preconceptions, rather than examined critically. It's a welcome reminder and a good read; check it out here.

By Page Rockwell

Page Rockwell is Salon's editorial project manager.

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