As a young writer at Time, whenever I’d hear “That story’ll write itself,” I wanted to reach for my revolver. The line, delivered with bluff cheer, suggests that good material makes good writing easy, which isn’t true. Its premise is the very wellspring of hackdom: The more thoroughly some set of facts reinforces the relevant preconceptions, caricatures, clichés, and conventional wisdom, the easier it makes life for everyone, journalists as well as their audiences. Most people want to be told what they already know. And in a world of murky moral grays, who doesn’t sometimes relish a black-and- white tale, with villains to loathe, victims to pity, injustice to condemn?
Thus the enthralling power of the Duke lacrosse-team story when it broke last spring. As a senior Times alumnus recently e-mailed me, “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist.” That is: successful white men at the Harvard of the South versus a poor single mother enrolled at a local black college, jerky superstar jocks versus $400 out-call strippers, a boozy Animal House party, shouts of “nigger,” and a three-orifice gangbang rape in a bathroom.
The story appalled us good-hearted liberal metropolitans, but absolutely galvanized the loopy left at Duke. One associate professor, Wahneema Lubiano, could barely disguise her glee. “The members of the team,” she wrote in a blog, “are almost perfect offenders” because they’re “the exemplars of the upper end of the class hierarchy … and the dominant social group on campus.”
Furthermore, she wrote, “regardless of the ‘truth’ ”—that is, regardless of whether a rape occurred—“whatever happens with the court case, what people are asking is that something changes.” Lubiano’s faith-based commitment to her truth reminds me of George Bush, but also of something else journalists like to say, usually as a joke—that some juicy fragment of reporting is “a fact too good to check.”
But real facts are stubborn things. And today, 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.
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.”
In the movie, Tom Hanks would play K. C. Johnson. He’s the most impressive of the “bloggers who have closely followed the case,” in the Times’ tacitly pejorative construction. But Johnson is the Platonic ideal of the species—passionate but committed to rigor and facts and fairness, a tenured professor of U.S. history (at Brooklyn College), a 38-year-old vegetarian who lives alone in a one-bedroom Bay Ridge apartment and does pretty much nothing but study, teach, run, and write.
Johnson has no connection to Duke. (His B.A. and Ph.D. are from the Harvard of the Northeast.) His attention was grabbed in April by the “deeply disturbing” public comments of Duke faculty that righteously indulged in invidious stereotypes and assumed the lacrosse players’ guilt. “One area that the academy, especially since McCarthyism, is supposed to stand up is cases where due process is denied,” he says.
He usually posts at least once a day—not standard autoblog rim shots, but carefully argued, deeply researched essays running 1,000 words or more. “I need to ensure that it meets what I consider to be an acceptable level of academic quality.” He has traveled to Durham several times. When he wanted to find out if Nifong’s unfair photo lineups were standard provincial practice—they’re not—he spent days talking to fifteen North Carolina police departments and prosecutors.
People assume he’s a right-winger. “I’m a registered Democrat who has never voted for a Republican in my life.” Not that he doesn’t wildly speculate—he is a blogger. I wondered why, after Nifong won his primary, the D.A. didn’t start tacking away from the case, setting himself up to drop the charges. Because, Johnson argues, if it doesn’t go forward, he would be vulnerable to civil suits from the indicted players, and disbarment. “This is someone whose career is on the line. He has no choice.”
The Times has not addressed any of this. For the past few years, I’ve tended to roll my eyes when people default to rants about the blindered oafishness or various biases of “the mainstream media” in general and the Times in particular. At the same time, I’ve nodded when people gush about the blogosphere as a valuable check on and supplement to the MSM—but I’ve never entirely bought it. Having waded deep into this Duke mess the last weeks, baffled by the Times’ pose of objectivity and indispensably guided by Johnson’s blog, I’m becoming a believer.