Writing in New York Magazine, Kurt Andersen joins the emerging consensus that the Duke lacrosse case is a farce:
[T]oday, the preponderance of facts indicate that there is an injustice—committed, as it turns out, against those perfect offenders. Yet at the epicenter of bien-pensant journalism, the New York Times, reporters and editors—although pointedly not the paper’s columnists—are declining to expose it. “The only thing we can look forward to now,” says Dan Okrent, who was the Times’ ombudsman until last year, “is what the Times will say to the accused once the charges are dropped, or once acquittals are delivered.”
In this age of CSI, we understand DNA tests to be a silver bullet that exonerates the unjustly prosecuted. As the Durham, North Carolina, D.A. assured the judge when he asked to test the lacrosse players: “The DNA evidence … will immediately rule out any innocent persons.” His first round of tests found no matches. And yet a week later came his first two indictments, of the New York suburbanites Reade Seligman and Colin Finnerty. A second set of ostensibly more sophisticated tests was conducted. Again, no match; and again, a few days later, a third indictment.
We also all know how police lineups are supposed to work: a suspect mixed in with several people of the same physical description. Yet just after the alleged rape, the accuser was shown photos of 24 members of the lacrosse team, period. She identified none as her rapists. Five days later, another lineup with only players’ photos—and again nothing. Finally, after days of street protests, the prosecutor told cops to try a third time, to show her all 46 white players at once. This time she picked out Seligman and the two others.
The accuser said her rape lasted 30 minutes. But her fellow stripper said that she’d been with her for all but five minutes, and knew nothing of any attack. Then it turned out that various players’ time-stamped digital photos of the accuser account for all but eleven minutes of her hour and a half at the party house. So last month the D.A. refashioned the allegation to fit the facts: “If I had to speculate,” he told the judge, “I’d say this whole event took five minutes, maybe ten minutes at the outside.”
The D.A. said last week he absolutely still believes the accuser’s story, even though he has never actually heard her tell it. Not unlike the way he has refused to let Seligman’s lawyer show him exculpatory evidence.
And that evidence—cell-phone records, surveillance video at an ATM, an I.D.-card swipe at his dorm—looks rock-solid, accounting for his whereabouts minute by minute for the hour during which the rape supposedly occurred. The Law & Order episode could write itself.
So why on earth does a heretofore well-regarded prosecutor push so … crazily to bring indictments? The Occam’s-razor answer seems compelling: politics. Mike Nifong was appointed district attorney last year, but he has to win elections to keep the job. The peak of the Democratic primary campaign coincided with the rape allegation, and just after the DNA tests came back negative, Nifong, who’s white, told a black crowd at the accuser’s college, “I assure you by my presence here that this case is not over.” Two weeks later, he won the election, narrowly, after racking up big margins among black voters.
But by then, the tide of informed opinion had started to shift dramatically. Stuart Taylor, the National Journal’s legal columnist, published two pieces excoriating Nifong. Newsweek, which had put the Duke students’ mug shots on its cover in April, ran a long piece in June making clear that the case was a travesty.
Unfortunately, as he points out, the New York Times recently printed a major cover story that continued to take the prosecution’s case at face value:
Among his 5,600 words are only a vague 17 about how the D.A.’s political situation seemed to drive the prosecution—a theory of Nifong’s behavior, Wilson told me, he doesn’t buy. He thinks the D.A.’s just stubborn—even though, as he also mentioned, he’s never interviewed Nifong. 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.
…”I’ve never been a source for anyone on any story ever written about the Times,” one reporter at the paper told me. So why on this one? “I’ve never felt so ill over Times coverage.” That’s ill at a paper that published Jayson Blair’s fabrications and Judy Miller on WMD. “It’s institutional,” said one of the several editors to whom I spoke. “You see it again and again, the way the Times lumbers into trouble.”
Meanwhile, the accused players and the other stripper at the party will appear tonight on “60 Minutes,” and published reports indicate that the other stripper contradicts the accuser’s account in her interview:
In an interview set to air Sunday on 60 Minutes, Kim Roberts, who danced at the same party where the alleged Duke lacrosse sexual assault took place, directly contradicts a statement the accuser gave police.
“In the police statement, [the accuser] describes the rape in this way: ‘Three guys grabbed Nikki.’ That’s you,” correspondent Ed Bradley said to Roberts, who goes by the stage name Nikki. ” ‘Brett, Adam and Matt grabbed me. They separated us at the master bedroom door while we tried to hold on to each other. Brett, Adam and Matt took me into the bathroom.’
“Were you holding on to each other?” Bradley asked Roberts. “Were you pulled apart?”
“Nope,” replied Roberts, who added that she was hearing that account of events for the first time.
Roberts also denied that she had tried to help dress the accuser after the assault and said, “She obviously wasn’t hurt … because she was fine.”
