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Rape, Justice, and the ‘Times’

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.

Coverage in the Times followed the same arc. Huge, prosecutor-driven news stories about the case early on, one almost every day, along with full-bore revulsion from two sports columnists, an op-ed contributor, and David Brooks. Then a surge of revisionism, led by columnists. Brooks contritely summarized the flimsiness of the prosecution case and said it amounts to a “witch hunt.” And Nick Kristof went further, depicting the case as a mirror image of the 1931 Scottsboro Boys case.

“David Brooks is a conservative,” an editor at the paper told me, so his apostasy “didn’t count” for much in the newsroom. “But then they really paid attention when Kristof reversed.”

Duff Wilson, the investigative reporter who had written many of the news stories, was by then back on the anabolic-steroid beat. “Duff is fundamentally a very good guy, a longtime straight newspaper investigator,” says a Times colleague. Over the summer, the colleague says, Wilson “was getting a lot of pressure from somewhere up above to reenter the [Duke] story in a big way. At a moment when he’s under a lot of pressure to get back in the game, he gets this one thing, which appears to reverse the narrative of the news flow.”

What he got was an exclusive chance to look at the prosecutor’s whole file, in particular a typed 33-page memo by the lead police investigator that had curiously surfaced in July—just as the prosecution’s case was reckoned to be falling apart. Taken at face value, the memo’s new claims (that the accuser had been hurt somehow, that her descriptions of her attackers did match the indicted men) were helpful to the prosecution, but only slightly, since they disagree with hospital records and other cops’ contemporaneous handwritten notes.

One might think: Suspicious deus ex machina, but Wilson must have thought Scoop! And so it would have been, in its modest way, if the Times had published an article on page A22. Instead, Wilson and another reporter wrote a mammoth front-page opus, clearly The Considered, Authoritative, Long-Awaited New York Times Assessment of the Duke Case.

“One area the academy, especially since McCarthyism, is supposed to stand up is cases where due process is denied.”

“The way they presented it was fatal,” a Times editor told me. But Wilson, whose manner is oddly soft and tentative for an investigative reporter, says he’s happy about the mega-amped piece. “It’s thorough.” About the case overall, he told me, “I don’t have a strong opinion on it.” And the strange thing is, I believe him.

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.

In other words, as I was told by Craig Whitney, the paper’s “standards editor,” “the thrust of this August story is that there’s more to the prosecution case than the defense would have you believe.” But there’s always more to every prosecution case than any defense would have you believe—and in this instance there’s shockingly less than the Times and the rest of the media led us to believe at first. And what about Seligman, the plainly innocent defendant from New Jersey? “It would’ve been fine to throw in the fact that there’s a photo of him at the ATM machine,” Wilson told me offhandedly. “I don’t know whether the men who’ve been accused are guilty,” Whitney said. “That’s what trials are for.” Like, say, the racially charged trial that acquitted O. J. Simpson.

“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.”