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http://hnn.us/blogs/entries/28553.html
Sunday, July 23, 2006 - 18:00

Court TV Will Have the Answer


I haven't commented much on the media coverage of the Duke lacrosse case, in part because several other bloggers (John in Carolina, Lead and Gold) have analyzed the topic much better than I could have. But this morning, a disturbing column appeared, penned by Bob Ashley, the editor of the Durham Herald-Sun. Ashley's remarks seemed worthy of notice--partly because of their exceedingly narrow conception of what constitutes the"legal process"; partly because they might explain the remarkably passive attitude that the local press has exhibited in this case. (The work of the N&O's Joseph Neff stands in stark relief to this pattern.) The editorial pages of both the N&O and the Herald-Sun have hardly been imitators of Ben Bradlee in speaking truth to power.

(snip)

Neither the media nor outside observers are jurors, with a moral or legal requirement to wait until the end of a trial to form judgments. It doesn't take a Ph.D. to figure out that someone who's on a videotape a mile away from the scene of an alleged crime at the time the crime allegedly occurred is innocent.

[Well, it wasn't enough for Brodhead...]

That no medical evidence exists to support the accuser's allegations; that the ID of Seligmann resulted from procedurally dubious circumstances; and that the accuser seemed unable to come up with anything resembling a consistent story only fortifies that belief. I wonder: what, exactly, could Cohen or Ashley expect to come out at a trial that would allow anyone to believe that a college student can rape someone from the distance of more than a mile? That Seligmann has a secret twin who was actually the person at the ATM machine while the rape allegedly occurred? That normal laws of space, time, and motion don't apply in Durham, North Carolina?

The arguments of Ashley and Cohen are so intellectually peculiar as to suggest ulterior motives. It's no secret that Cohen has been manhandled on this story by Dan Abrams (NBC's chief legal correspondent) and by the legal reporters from Fox. And I wonder whether Ashley would be so blasé if Nifong's targets were Durham residents rather than out-of-staters.

This passive attitude also rationalizes Ashley avoiding asking some hard questions as to whether the revelations of this case suggest broader problems within Durham's law enforcement apparatus. News broke today that the lead investigator in the lacrosse case, Sergeant Mark Gottlieb (last seen overseeing the procedurally flawed lineup) is under investigation for assault, which allegedly included use of a racial epithet. (Can Nifong be far behind, appearing on CBS, as he did in the lacrosse case before any serious investigation had occurred, to opine,"The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible"?)

Yet, as John in Carolina pointed out, the local media has, nearly 60 hours after the incident, not asked some basic questions--such as whether Gottlieb was on-duty at the time of the alleged incident and why the initial police report of the incident hasn't been made public. I suppose we all should, as Cohen and Ashley recommend, just wait for a trial to find the answers to these questions. Under this definition of journalism, we wouldn't even need journalists--court reporters could simply type up a summary of their day and release it to the papers.

An undercurrent of the columns by Cohen and Ashley, never explicitly stated but strongly implied, is that the Duke players have benefited from selective outrage--that these sorts of things occur in our criminal justice system all the time, usually without outside notice. I disagree: Nifong and Gottlieb hardly typify the American justice system. Moreover, while I'm obviously not a lawyer, I can't recall a single publicized case in recent years where procedural violations this massive were publicly known at this stage of the process. Normally, we don't hear about this sort of prosecutorial misconduct until the appeals process. (This, of course, is what happened in the Alan Gell case, which prompted the Open Discovery law.) In this respect, Nifong is the victim of his own decision to ignore the ethics guidelines and make his 50+ press appearances. He got the outside attention that served his short-term political interests--but he couldn't stop it once the primary had occurred, even though he no longer needed the free publicity.

As Chris Richardson wrote in an excellent recent post, recent massive miscarriages of justice have occurred on scales worse than what we've seen in Durham, though normally the victims were poor African-Americans. It seems to me that Chris is suggesting (and he can correct me if I'm wrong) that Rudolph Holton and James Tollman never should have gone to jail: had we known about the improper behavior of authorities in their cases at an earlier stage, the process would have been brought to a halt. What Cohen and Ashley seem to be saying, however, is no--that like the Duke lacrosse players, in the cases of Holton and Tollman the"process" should have played out, because massive prosecutorial misconduct is effectively part of the"process," and that the improperly accused (and even convicted) should have simply waited their turn, until an appeals court had time to hear their case. That Holton and Tollmann had to spend 16 years in jail as a result of the state's misbehavior? Too bad, apparently: that's part of the"process."

For journalists, who are, in part, supposed to serve as watchdogs of government officials and expose misconduct when they find it, this attitude strikes me as nothing short of bizarre.