In Duke rape case, deep questions about prosecutor's discretion (DukeLax AP Story)

DURHAM, N.C. -- There's not much middle ground in the legal community when it comes to opinions of local prosecutor Mike Nifong's most famous case.

His law school classmate Patricia McDonald, citing "an utter lack of evidence that a crime even occurred," wrote to Gov. Mike Easley and urged him to pressure Nifong into stepping aside in the Duke University lacrosse rape case.

"Mr. Nifong has lost his moral compass despite his claim that he is a `committed advocate for the truth,'" wrote McDonald, a former assistant in the Maryland Attorney General's office.

The criminal defense lawyer has faced off against Nifong hundreds of times over the past three decades. He's seen the prosecutor drop a weak case the day before trial.

Despite the supposed flimsiness of the evidence in the Duke case, Bourlon keeps coming to the same conclusion:

Untold hours of television air time and countless drums of ink have been spent parsing what the Duke case -- with its three white, private-college defendants and the poor, black stripper who accused them -- says about race and class in our society.

More recently, the question has been: What does the case say about the fairness of our justice system -- and the power of those who run it?

If the American legal system is a machine, the prosecutor is the On/Off switch. The prosecutor decides whether a person should be charged with a crime and, if so, which among a wide array of statutes should be used. Ultimately, it's his choice whether to go to trial or drop the case.

These are decisions, of course, that can upend a person's life, says Joshua Marquis, a vice president of the National District Attorneys Association. "Accusing a man of sexual misconduct ... is just about the worst scarlet letter you can paint on somebody. And there is enormous responsibility that comes with that."

Nifong's critics say he has abused his discretion, prejudicing the case with unethically loose talk, stubbornly refusing to acknowledge contradictions in the accuser's statements and ignoring strong exculpatory evidence. The players' defense lawyers accuse Nifong of using the case to woo black voters in a tight election.

"What happens if he decides, `I'm not going to present it to the grand jury. I'm going to play judge and jury, and these guys are going to walk'?" says Charles M. Hatcher Jr., a former West Virginia prosecutor who successfully overcame a misconduct complaint. "Damned if he does and damned if he doesn't."

Black accuser, white athletes. Southern town, walled campus. Racial epithets. Protest rallies. National media.

In the weeks following the March 13 party where the alleged rape occurred, Nifong referred to the players in interviews as "hooligans" used to having "expensive lawyers" get them out of trouble. He denounced the "blue wall of silence" that had supposedly formed around the perpetrators and said DNA would reveal exactly who had committed the rape.

Even after DNA tests failed to establish a link between the players and the woman, Nifong took the case to the grand jury, which returned indictments against three men: Dave Evans, Collin Finnerty and Reade Seligmann.

The alleged victim -- a single mother who attends historically black North Carolina Central University -- has told at least a dozen different versions of her story, by one defense lawyer's count. Toxicology tests failed to show she was given a date-rape drug, as Nifong suggested in one article. Seligmann's attorney says Nifong refused to look at cell phone logs, ATM video and taxicab receipts that supposedly prove his client couldn't have committed the crime.

Nifong's public statements "almost certainly" violated a state bar rule that forbids prosecutors from making comments outside court that have "a substantial likelihood of heightening public condemnation of the accused," wrote K.C. Johnson on the Web log Durham-in-Wonderland.

"Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did," wrote Johnson, a Brooklyn College constitutional history professor.

Suggesting that Nifong was grasping at anything to keep his case alive, critics noted that the second dancer at the party allegedly changed her story after the prosecutor personally intervened to have her bail reduced in an old embezzlement case. Others faulted the supervising detective's 33-page report -- which was handed over to the defense four months after the alleged attack, and which contradicts what the rape nurse and others remembered about the accuser's early statements.

"There is almost no evidence that could be construed as corroborating the alleged victim's accusations," says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. "The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary -- evidence that does not fit into their theory."

Chastened by the attacks, and by a judge's order to limit "extrajudicial" comments, the 56-year-old prosecutor has ceased giving interviews, though he has used court appearances to rebut his critics.

During a recent evidentiary hearing, Nifong shot to his feet when Evans' attorney Brad Bannon suggested that the prosecution had "very little evidence" other than the accuser's word.

On his campaign Web site, alongside photos of his wife, son, and Australian shepherd, Tillie, Nifong defends himself against allegations of misconduct.

"I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant," he wrote, saying he began giving "open-file discovery" to all defense attorneys 20 years before the state legislature required it.

"And that is why I have never had a conviction overturned for violating a defendant's right to discover the State's case against him."

Television may conjure a "gladiatorial" image of the justice system -- "two fevered champions of the truth as they see it ... going into battle," says Marquis, the National District Attorneys Association official. The reality, he says, is less noble.

"I've been a defense lawyer," says Marquis, a prosecutor in Astoria, Ore. "Your job is to protect the guilty. ... Vigorous defense of a defendant is never sanctioned. Overly vigorous prosecution is."

Until a recent state Supreme Court decision limiting their power to control the court calendar, North Carolina prosecutors were considered among the most powerful in the nation. Even with the change, district attorneys retain broad discretion.

"The prosecutor is the de facto law after an arrest, deciding whether to charge the suspect with committing a crime, what charge to file from a range of possibilities, whether to offer a pretrial deal, and, if so, the terms of the deal," wrote the authors of "Harmful Error," a 2003 study on prosecutorial misconduct by the Center for Public Integrity.

Researchers found more than 2,000 cases from the previous three decades in which judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences.

They found thousands more cases in which judges labeled prosecutorial behavior inappropriate but "harmless," and upheld convictions.

Of the 44 cases the center found in which prosecutors were brought up on disciplinary charges, 12 had their licenses suspended and two were disbarred.

Going after a law license is the only way to punish prosecutors' harmful missteps, says Warden of Northwestern's wrongful-convictions center.

"Our law makes prosecutors immune from civil liability in these cases," he says. "So no matter how egregious their misconduct, basically they can't be sued. And so there's no price to pay."

Hatcher's case was dismissed, but not without a price, he says. A former assistant DA in Cabell County, W.Va., Hatcher was accused of failing to disclose exculpatory evidence in a kidnapping and sexual assault case -- specifically, that the accusers had been hypnotized. Although a disciplinary board dismissed the charges for lack of evidence, Hatcher says defending himself "cost me as much as I'd made" in 20 years as a prosecutor.

Insisting that true prosecutorial misconduct is rare, Marquis argues the prosecutor is the only member of the legal profession whose "sole allegiance is to the truth" -- even if it means "torpedoing" his own case.

"One of the luxuries of being a prosecutor is the ability to look at a case at any stage of the proceedings and say, `You know what? Ixnay.'"

To believe that Nifong is blindly forging ahead with a bogus case simply to get elected to a job he had to be nudged into taking (he was appointed when a previous D.A. became a judge) goes against what colleagues and even courtroom adversaries have said about him: That he's fair and apolitical.

Bourlon says Nifong, a former math teacher and social worker who went to work in the DA's office 28 years ago as an unpaid assistant, is not that kind of prosecutor.

"He doesn't hold cards back and play games," says Bourlon. "It's just not his way."

And he does dismiss cases; his office last year dropped 44 percent of all felony charges it filed, before they went to trial.

While Warden doesn't think Nifong can win a conviction in the Duke case, he concedes that the district attorney is under no ethical obligation to drop it "if he thinks the person is guilty."

After an indictment has been returned, it can be tough to walk away from a case, notes the prosecutor in another high-profile rape case, Mark Hurlbert of Eagle County, Colo., who brought charges against NBA star Kobe Bryant in 2003.

"Your ethical burden does not outweigh this feeling, that you put the time and effort into this case. You want to see it through," says Hurlbert, who dropped the charges against Bryant when the accuser, battered by defense leaks and media scrutiny, withdrew her cooperation.

"We were ready to go to trial," says Hurlbert, who adds he hasn't seen anything yet that makes him think Nifong should drop his case or appoint a special prosecutor.

Gov. Easley, meanwhile, has no intention of asking Nifong to step aside, spokeswoman Sherri Johnson says.

Nifong, facing election in November, says he expects to go to trial next spring, and he intends to prosecute the case himself -- if he's still in office. URL for this article: http://www.heraldsun.com/state/6-776437.html

Experts: Lacrosse IDs likely tainted
Psychologists say flaws in police procedures create doubts about who the defendants should be

Joseph Neff, Staff Writer, N&O

Published: Oct 08, 2006 12:30 AM
Modified: Oct 08, 2006 07:44 AM

Psychologists Gary Wells and Brian Cutler helped design a procedure in 2003 for witnesses to identify crime suspects. Police departments across North Carolina embraced the procedure. The Durham Police Department adopted it almost word- for-word in February.

The conduct of the Durham police in the Duke lacrosse case, however, is a case study in violating the new policy, the psychologists said. And as a result, police have injected doubt into a woman's selection of three lacrosse players whom she accused of rape.

Police violated two fundamental rules for running an identification procedure, said Wells, a professor at Iowa State University, and Cutler, a professor at UNC-Charlotte.

First, the psychologists said, police did not have an independent investigator administer the process. Second, they neglected to include photos of nonsuspects, known as fillers.

The procedures used can yield only uncertain or misleading results, Wells said, and that's bad for everyone.

If the woman was raped, Wells said, the botched lineups undermine the prosecution and the search for justice.

"And if she wasn't sexually assaulted, or was assaulted by someone else, [the players are] in a position of guilty until proven innocent," Wells said. "It really shifts the burden to the person identified to prove it wasn't them. That is a profoundly difficult and very unfair situation."

Compounding the flawed procedures are the accuser's attempts to pick out her alleged assailants. She selected 20 players when she viewed their photographs in March and April. Every choice contained flaws or contradictions, according to an analysis of police records turned over to defense lawyers by District Attorney Mike Nifong.

The woman recognized 15 players at one viewing but didn't recognize them at another.

She picked out only one player with certainty at both the March and April viewings. He, however, was in Raleigh, not at the lacrosse party.

She wrongly identified the player who made a rude comment about a broomstick.

The woman, a dancer for an escort service, picked out four assailants in April after telling police that three men gang-raped her March 14 in a bathroom at a lacrosse team party.

There are problems with her identification of the three men who have been indicted. She said David Evans had a moustache; his lawyers say he never had one. She identified Collin Finnerty as an assailant; Finnerty did not match any of the initial descriptions she gave police. In March, she was 70 percent sure that she recognized Reade Seligmann but couldn't recall where she saw him at the party. In April, she was 100 percent certain he had orally raped her.

Arranging lineups

Cutler, the UNC-Charlotte psychologist, said a witness may identify a suspect for the correct reason: The suspect is the perpetrator.

But, he said, there can be other reasons: The witness could be guessing; the witness could be lying; the witness could be influenced by police behavior to pick a suspect; the witness could be influenced by repeated questioning or by having seen a picture on television or in the newspaper.

"A well-conducted test will maximize the possibility that the reason for identification is recognition and will rule out the other nuisance or extraneous results," Cutler said.

In the lacrosse case, Durham police conducted several ID sessions with the accuser. On March 16, she viewed 24 photos of lacrosse players printed from the goduke.com Web site. On March 21, she viewed 12 more.

She recognized five of the 36 players, but police records of the March lineups are unclear whether she identified the five players as assailants or merely as partygoers. According to forms filled out at the time by Investigator Richard Clayton, he showed the accuser a series of photographs and asked whether the person had sexually assaulted her.

In an undated typed report released to defense attorneys in June, Clayton said he asked whether she recognized the player. Clayton did not return phone calls for an explanation of which question he asked, or both.

On April 4, Sgt. Mark Gottlieb conducted a third lineup session, using a procedure suggested to him by Nifong. Gottlieb met with the accuser at the police substation at Northgate Mall. He told her she was going to view pictures of the people who attended the party. He showed her mug shots of all 46 white players. (He did not show the team's lone black player because the accuser said her assailants were white.)

How it can go wrong

As the senior investigator on the case, Gottlieb should not have been running the ID procedure, said Wells and Cutler.

Social scientists widely accept that a test administrator privy to answers can unintentionally influence the outcome of the test. A common example is a pharmaceutical trial, where some patients take the tested drug and others get a placebo, such as a sugar pill. Or some patients take an older drug, and some take the new drug being tested. In both cases, doctors don't know which drug their patients are taking.

"It's not because we don't trust the medical profession but because we know from extensive experiments that when a person giving a test knows the answer, that person tends to influence the person taking the test," Wells said.

In a criminal case, Wells said, it could mean that if a witness picks the wrong person in a photo lineup, a police officer might urge the witness to "take your time." Or if the witness picks the suspect, a police officer might congratulate the witness on a job well-done, thereby solidifying the witness' confidence in the pick.

"Not only can a lineup administrator influence who the witness picks but how they feel about the pick," Wells said.

According to Wells and Cutler, police must give a witness the chance to pick the wrong person. This is why photo lineups contain fillers -- photos of people who resemble the suspects but are demonstrably innocent.

Durham police showed the accuser only photos of Duke lacrosse players, with no fillers. The District Attorney's Office and police had declared all 46 players suspects.

"It's a multiple-choice test with no wrong answers," Wells said.

Wells said he would have urged Durham police to include photos of lacrosse players from other universities.

"You mix them in, and if the witness doesn't know ... or is making it up, she'll pick the fillers," Wells said. "We'd know we have a problem. As it is, I could pick a suspect out of that lineup."

WHAT ARE THE STANDARDS?

North Carolina judges determining the reliability of an eyewitness identification consider five factors:

1. The opportunity of the witness to view the criminal at the time of the crime;

2. The witness's degree of attention;

3. The accuracy of the witness's prior description of the criminal;

4. The level of certainty demonstrated by the witness;

5. The length of time between the crime and the identification.

http://www.newsobserver.com/102/story/496369.html

* * *

Published: Oct 08, 2006 12:30 AM
Modified: Oct 08, 2006 03:11 AM

The problem with Matt

Compiled by Joseph Neff, N&O

On May 15, the district attorney issued a statement clearing all of the lacrosse players who had not been indicted.

One of those players, Matt Wilson, had been a suspect because of his first name.

On March 16, the accuser told police her alleged assailants were named "Adam," "Brett" and "Matt." The team had two players named Matt, one named Adam, and one named Bret. Police put together four groups of photos, each containing six lacrosse players. Each group contained one suspect named Adam, Bret or Matt. She did not recognize any of those four players, including Wilson.

On April 4, the accuser looked at photographs of all 46 white members of the team and was questioned by Sgt. Mark Gottlieb. As lead investigator, Gottlieb knew that the woman had failed to identify anyone named Adam, Bret or Matt in March.

When she came to the photograph of Matt Wilson, she stared at the screen for a minute.

"Did you recognize that person?" asked Gottlieb.

"He looked like Bret but I'm not sure," she said.

"Who is Bret?" asked Gottlieb.

"One of the guys that assaulted me," she said.

"One of the guys that assaulted you? OK," Gottlieb said.

"Um hum," the accuser said.

Gottlieb ended the discussion of Wilson and turned to the next photo. In subsequent identifications, he asked follow-up questions: How sure are you? How did he assault you? Gottlieb asked no follow-up questions about Wilson.

Picking Dave

The accuser had viewed David Evans' photograph on March 21 and did not recognize him, nor any of the other 11 players shown to her then. She asked to look at the photographs again: still no recognition.

On April 4, she stared at Evans' photograph on a computer screen. She squinted, leaned her head forward, and then cocked her head to one side.

After 50 seconds, she said, "He looks like one of the guys that assaulted me, sort of."

"OK. How, um, how sure of it are you on this image?" Gottlieb asked.

"He looks like him without the mustache," she said.

"OK, so the person had a mustache," Gottlieb said.

"Yes," she replied.

"Percentagewise, what is the likelihood this is one of the gentlemen who assaulted you?"

"About 90 percent," she said.

Evans' lawyers said he has never had a moustache. Evans was indicted May 15.

Tony and the broom

On April 4, the accuser looked at a photo of Tony McDevitt; she had not seen his photo in March.

"He was in the master bedroom," she said. "He made the comment about the broomstick."

On March 16, team captains who lived at the house gave handwritten statements to police which identified Peter Lamade as the player who made a rude comment involving a broomstick that upset the second dancer, Kim Roberts, and brought the dance performance to a halt. The captains said McDevitt was the player who tried to calm Roberts down and apologized to her. McDevitt is one of 43 players that Mike Nifong cleared of suspicion on May 15.

Collin Finnerty

The accuser described her three alleged assailants to police March 16, two and a half days after the lacrosse party. According to Investigator Benjamin Himan's handwritten notes, the assailants were Adam ("white male short, red cheeks fluffy hair chubby face brn"), Matt ("heavyset, short hair cut, 260-270") and Brett ("Chubby").

Finnerty, 6 feet 3 inches and 175 pounds, fit none of these descriptions. He is tall and slender, with blond hair and freckles.

http://www.newsobserver.com/102/story/496321.html

[For the record]

Rape, Justice, and the ‘Times’
“I’ve never felt so ill,” says one reporter about the paper’s coverage of the Duke lacrosse-team case. Luckily, a blogger’s on the story, too.

* By Kurt Andersen http://nymag.com/news/imperialcity/22337/ New York Magazine

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.

[For the record] http://newyorkmetro.com/news/imperialcity/22337/index.html

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.