[Duke Lacrosse] Nifong and the NYT
- From: "Michael Snyder" <msnyder@xxxxxxxxxx>
- Date: Wed, 30 Aug 2006 22:17:08 -0700
http://www.slate.com/id/2148546/nav/tap1/
Witness for the Prosecution?
The New York Times is still victimizing innocent Dukies.
By Stuart Taylor Jr.
Posted Tuesday, Aug. 29, 2006, at 5:22 PM ET
Imagine you are the world's most powerful newspaper and you have invested
your credibility in yet another story line that is falling apart, crumbling
as inexorably as Jayson Blair's fabrications and the flawed reporting on
Saddam Hussein's supposed WMD. What to do?
If you're the New York Times and the story is the alleged gang rape of a
black woman by three white Duke lacrosse players-a claim shown by mounting
evidence to be almost certainly fraudulent-you tone down your rhetoric while
doing your utmost to prop up a case that's been almost wholly driven by
prosecutorial and police misconduct.
And by bad journalism. Worse, perhaps, than the other recent Times
embarrassments. 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 at a time when
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.
The Times took its stand in a 5,600-word, Page One reassessment of the case
on Aug. 25, written by Duff Wilson, a sportswriter responsible for much of
the paper's previous one-sided coverage, and Jonathan Glater. The headline
was "Files From Duke Rape Case Give Details But No Answers."
Like the headline, the piece cultivates a meretricious appearance of
balance. But its flaws are so glaring that it was shredded by bloggers
within hours after it hit my doorstep. They were led by a Durham group
called Liestoppers and by KC Johnson, an obscure but brilliant New York City
history professor of centrist political views. Johnson alone has produced
more insightful (if sometimes one-sided) analysis and commentary on the Duke
case-about 60,000 words-than all the nation's newspapers combined.
The Wilson-Glater piece highlights every superficially incriminating piece
of evidence in the case, selectively omits important exculpatory evidence,
and 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.
This memo was concocted from memory, nearly four months after the underlying
witness interviews, by Durham police Sgt. Mark Gottlieb, the lead
investigator. Gottlieb says he took no contemporaneous notes, an
inexplicable and indefensible police practice. Gottlieb had drawn fire
before the alleged Duke rape-perhaps unbeknownst to the Times-as a
Dukie-basher who reveled in throwing kids into jail for petty drinking
infractions, noise violations, and the like, sometimes with violent
criminals as cellmates.
Gottlieb's memo is contradicted on critical points by the contemporaneous
notes of other police officers, as well as by hospital records seeming to
show that the accuser did not have the injuries Gottlieb claims to have
observed. The Times blandly mentions these contradictions while avoiding the
obvious inference that the Gottlieb memo is thus unworthy of belief.
It is almost entirely on this Gottlieb memo that the Times rests its
summing-up fifth paragraph:
[A]n examination of the entire 1,850 pages of evidence gathered by the
prosecution ... shows that while there are big weaknesses in [District
Attorney Mike] Nifong's case, there is a body of evidence to support his
decision to take the matter to a jury.
A sly formulation. Whoever thought it up chose to focus on the legalistic
question of whether Nifong can avoid having his case being thrown out before
trial, while glossing over the more important question as to whether any
reasonable prosecutor could believe the three defendants to be guilty and
force them through the risk, expense, and trauma of a trial.
With all or almost all of the key prosecution evidence now public, the
answer to that latter question is no. What we have here is an alleged
30-minute gang rape, plus brutal beating, taking place in a small bathroom
by three men without condoms, at least two of whom supposedly ejaculated; a
rape in which police found none of the defendants' DNA on the supposed
victim and none of hers in the bathroom. 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.
The accuser first claimed rape while in the process of being involuntarily
committed to a mental-health/drug facility as a danger to herself or others.
Soon after her release to the hospital for a rape exam, she recanted the
charge. Then she re-recanted and offered a succession of wildly inconsistent
stories.
The other exotic dancer at the lacrosse party initially told police that
they had been apart no more than five minutes and the rape claim was a
"crock." (She later hedged after Nifong gave her favorable treatment for a
probation violation.)
The 23 pages of hospital reports by two doctors and four nurses show no
vaginal or anal tearing, no significant bruises or signs of beating, and no
visible injuries other than minor scratches on her knee and heel and a mild
swelling of the vaginal walls that could have come from consensual sexual
activities, including performing with a vibrator.
She identified none of her alleged attackers in two photo viewings. Then, on
April 4, Nifong arranged an outrageously suggestive,
pick-any-lacrosse-player session that grossly violated local and state rules
and (in my view) the U.S. Constitution. She picked three, of whom at least
one since-indicted defendant, Reade Seligmann, has an airtight alibi,
including a video showing him at an ATM a mile away at the time of the
supposed rape.
The Times piece mentioned most of this exculpatory evidence but understated
its cumulative weight and gave unwarranted credence to contrary evidence of
dubious credibility, such as the Gottlieb memo.
This fits the Times's long-standing treatment of the case as a fable of
evil, rich white men running amok and abusing poor black women. Sports
columnist Selena Roberts helped set the tone in a March 31 commentary
seething with hatred for "a group of privileged players of fine pedigree
entangled in a night that threatens to belie their social standing as human
beings." All but presuming guilt, Roberts parroted false prosecution claims
that all team members had observed a "code of silence." (A correction ran
six days later). She likened them to "drug dealers and gang members engaged
in an anti-snitch campaign."
The Aug. 25 Wilson-Glater piece is more measured in tone, but ultimately
it's equally off-base. A few of many possible examples:
Accuser's inconsistent stories: The accuser told police and hospital
personnel at least five inconsistent stories of being raped by five, three,
two, and zero men (depending on the version). But the Times asserts that
"aside from two brief early conversations with police, she gave largely
consistent accounts of being raped by three men in a bathroom."
Consistent? Just about the only consistent theme was her eventual settling
on three attackers, while variously denying and then alleging that she was
hit or kicked.
On March 14 the accuser told a sexual-assault nurse that the other dancer,
Kim Roberts, had helped a lacrosse player drag her back into the party house
to be raped and "took all my money and everything." But on April 6, in her
only written police statement, she claimed that "three guys grabbed" Roberts
and "separated us ... while we tried to hold on to each other."
Identifying assailants: When Sgt. Gottlieb and Det. Benjamin Himan visited
the accuser on March 16, Himan's handwritten notes had her describing her
rapists as (respectively) "chubby," having a "chubby face," and weighing
"260-270." These descriptions match none of the three subsequently indicted
defendants and could not possibly refer to one, Collin Finnerty, who is
6-foot-4, thin, and baby-faced.
Enter Sgt. Gottlieb: In his only account of the same interview-prepared four
months later, remember-the accuser's descriptions contradict those recorded
by Himan but miraculously match the three now-defendants almost perfectly.
Again, the Times notes the contradiction but avoids the obvious inference:
Gottlieb's version was made up to fit the defendants. That's the only way to
explain another fact omitted by the Times: Gottlieb's police team did not
include a photo of Finnerty-the only team member who fits Gottlieb's account
of a "baby-faced, tall, lean" rapist-in the 36 photos shown to the accuser
later on March 16 and on March 21. Nor did she pick Seligmann and Evans
until the rigged April 4 session, when she said she would be 90 percent sure
that Evans had raped her if he had a mustache-which he has never had.
Medical evidence: The 23 pages of hospital reports described above, which
offer little or no evidence of rape, are a crippling weakness in Nifong's
case.
Enter Sgt. Gottlieb again. The Times treats as established fact his memo's
less-than-credible claim that the sexual-assault nurse told him on March 21
that the accuser had been subjected to "blunt force trauma" consistent with
a sexual assault. The piece also glosses over the contradiction between her
supposed statement to Gottlieb and her own report. Under "Describe all signs
of physical trauma," she listed only nonbleeding scratches on the accuser's
right knee and heel.
DNA and innocence: The article quotes half a sentence from Nifong's March 23
application for an order to obtain DNA samples from the 46 white lacrosse
players-"Mr. Nifong's office had written that the tests would 'show
conclusive evidence as to who the suspect(s) are in the alleged violent
attack upon this victim.' "-while omitting the first half: "The DNA evidence
requested will immediately rule out any innocent persons." Nor did the
article explain how blatantly Nifong was to contradict this assurance after
learning the DNA results.
Condoms, date rape: The Times cites Nifong's suggestion in early April that
the reason no semen had been found might be the use of condoms. It fails to
explain how deceptive this was: Nifong's own files showed the accuser saying
her rapists had not used condoms and that she had spat semen onto the floor.
The article also mentions police speculation that the lacrosse players might
have slipped the accuser a date-rape drug to incapacitate her. And Joseph
Cheshire, Evans' lawyer, noted in a recent e-mail exchange with me that the
prosecution "has suggested to the media numerous times in the past that the
accuser had been given such a drug." Another deception? "A toxicology report
that the defense was informed of last week was negative for any date rape
drug in the accuser's system," Cheshire tells me.
Cheshire adds that the Times' strong implication that defense lawyers have
deceived the public is not only false but "especially ironic in an article
about a prosecutor who has and continues to deceive the public about his
case."
Nifong must be praying for jurors as easily deceived-or as willing to see
past the evidence to what they want to believe-as Wilson and Glater of the
Times.
.
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