Gray Lady Down Read online

  The result was yet another editor’s note, which ran on March 23 and admitted, “For its profile, The Times did not conduct adequate interviews or public record checks to verify Ms. Fenton’s account, including her claim that she had lived in Biloxi.” An accompanying article, also written by Confessore, admitted that “The Times did not verify many aspects of Ms. Fenton’s claims, never interviewed her children, and did not confirm the identity of the man she described as her husband.” Her children were not even in her custody; they had either been placed in foster care or adopted.

  The shoddy, sometimes yellow journalism in New Orleans after Hurricane Katrina was just a warm-up for the unseemly haste in declaring lacrosse players at Duke University guilty of a heinous rape, which in the Times’ script reflected a pattern of white supremacy deeply embedded in American culture. In reality, it was another fraud. The reporting on the case stands as the most unjust example of an obsession with race and an insistence on spotlighting racism as the quintessential American evil.

  The case began in late March 2006 when one of two local black exotic dancers hired to perform at a lacrosse team party claimed she was raped, hit, kicked, strangled and sodomized by at least three players that evening, in a brutal assault that took place over a thirty-minute period. The Duke campus was convulsed with racial rage, egged on by the media as it played out a narrative of overprivileged white men abusing a poor single mother who was compelled to strip in order to support her child. Wanted posters went up on campus with pictures of the accused and calls for their castration. Eighty-eight members of the faculty sponsored an ad in the college paper effectively supporting the protesters. The university’s president suspended two of the accused upon their indictment (the third had already graduated), cancelled the rest of the season for the lacrosse team, and forced the coach to resign. Racial unrest flared throughout the town of Durham, with black activists and militants creating so threatening an environment that some students left campus.

  Within a few weeks, however, the case was exposed as a malicious fiction. The stripper’s accusations were dismissed as utterly false, and the indictment itself was shown to have been the result of investigative irregularities and prosecutorial lies. Durham’s district attorney, Michael Nifong, was forced to step down and ultimately disbarred for ethics violations; he also served a symbolic one-day jail sentence. Meanwhile, Duke University settled with the students for an undisclosed sum.

  KC Johnson, a historian who ran a blog documenting the case, “Durham-in-Wonderland,” called the Duke rape saga “the highest-profile case of prosecutorial misconduct in modern American history.” Shortly after the case imploded, Peter Applebome, a New York Times columnist and Duke alumnus whose son was attending the school, asked: “How did college kids with no shortage of character witnesses become such a free-fire zone for the correct thinkers in academia, the news media and the socially conscious left? . . . Why did denouncing them remain fair game long after it was clear that the charges against them could not be true, and that even most of the misbehavior originally alleged about the team party was distorted or false?”

  The question was a good one, but the answer was readily at hand: Applebome’s own newspaper. The Times had plenty of opportunities to save itself as the story developed and the discrepancies in the accuser’s version became clear, as did irregularities in the investigation. But the Times was committed to the lacrosse players’ guilt from the beginning and refused to budge as the evidence accumulated. Even after North Carolina’s attorney general declared, in an unprecedented press conference, that the suspects “were innocent of these charges” and that “we have no credible evidence that an attack occurred in that house on that night,” the Times—its editors, ombudsman and some columnists—continued to defend its own coverage. The Times also failed to do the follow-up reporting it should have done, exempting the politically correct Duke faculty, the university’s cowardly president and the corrupt Durham police department from the sort of inquiry that would have made them accountable for their actions. According to Stuart Taylor, a legal journalist and the author of a book on the case, the New York Times along with other media “seemed to have a powerful emotional need to believe.... A need to believe that those they classify as victims must be virtuous and those they classify as oppressors must be villains.” The Times treated the story as “a fable of evil, rich white men running amok and abusing poor black women.” As the former Times public editor Daniel Okrent told a reporter, “It was too delicious a story. It conformed too well to too many preconceived notions of too many in the press: white over black, rich over poor, athletes over non-athletes, men over women, educated over non-educated.”

  The Times’ coverage of the Duke case began with a front-page story on March 29 headlined “Rape Allegation Against Athletes Is Roiling Duke.” In the following two weeks, the paper ran seventeen different news articles, five columns and four letters on the case, according to an account that Okrent gave to Harvard’s Neiman Foundation. This fast-and-furious coverage was marked by serious mistakes made on the wing, which the Duke administration tried to get the Times to address. Regarding op-eds, “There was one two-week period where we asked for about 10 corrections in the Times and probably got about five,” recalled John Burness, a Duke spokesman.

  One major mistake in the coverage was to set the “incident” in a context of racial victimization, using loaded rhetoric where the facts as then determined made it journalistically reckless. In a March column headlined “Bonded in Barbarity,” the sports columnist Selena Roberts almost choked 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.” Roberts also parroted false prosecution claims that all team members had observed a “code of silence,” likening them to “drug dealers and gang members engaged in an anti-snitch campaign.” (A correction ran six days later.)

  Harvey Araton, another sports columnist, took the Duke girls’ lacrosse team to task for wearing sweatbands declaring their male counterparts “INNOCENT.” Araton asked, “Does cross-team friendship and university pride negate common sense at a college as difficult to gain admission to as Duke? Has anyone—from the women’s lacrosse coach, Kerstin Kimel, to the Duke president, Richard H. Brodhead—reminded the players of the kind of behavior they are staking their own reputations on?”

  Another journalistic sin was to give credence to the Durham DA’s claim that the lacrosse players were stonewalling. Nifong said, “There are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward.” In fact, the players had all given their DNA, and the team captains had met with the police for several hours, voluntarily, without legal counsel, and had cooperated with the police as they searched the house. The players volunteered to take a polygraph, though none was administered.

  The Times also emphasized the lacrosse team’s reputation for poor character. In “A Team’s Troubles Shock Few at Duke,” reporters Warren St. John and Joe Drape claimed that “students, professors and members of the Duke community said they were not surprised to hear that trouble had found the lacrosse team, a clubby, hard-partying outfit with roots in the elite prep schools of the Northeast.” A similar piece, “New Strain on Duke’s Ties with Durham” by Rick Lyman, described neighbors complaining about the lacrosse players “screaming at the top of their lungs at 2 in the morning, urinating on lawns, throwing beer cans around, driving fast, that sort of stuff.”

  At the same time, the paper gave undeniable short shrift to the lynch-mob mentality that pervaded the campus in the weeks following the party incident. Protesters on campus and in the city waved “castrate” banners, put up Wanted posters with pictures of the forty-six players on the lacrosse team, and threatened the physical safety of the players. Houston Baker, a radical professor of English, called the lacrosse players “white, violent, drunken men veritably given license to r
ape,” men who could “claim innocence . . . safe under the cover of silent whiteness.”

  A letter signed by eighty-eight faculty members and published in The Chronicle, the Duke student newspaper, rejected President Brodhead’s calls for patience in determining guilt. The letter spoke of “the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with every day.” The faculty letter added, “We’re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait.”

  As race relations grew tense in the town of Durham, the Times saw confirmation of a deeply embedded racism that was spreading violence into the community like a bloodstain. In a piece headlined “With City on Edge, Duke Students Retreat,” Juliet Macur reported on rumors of planned drive-by shootings of the lacrosse house. Neighbors had been yelled at by people driving past, and some had left the city or relocated at nighttime. Macur attended a vigil for the accuser at North Carolina Central College, a historically black school nearby, where she was said to study. (In fact, she had taken only one course.) In a piece headlined “3 Miles and World Away, Vigil for the Accuser,” Macur quoted a student government leader who spoke before a crowd, saying, “We want the woman to know that we’re not going to let this issue just slide by. We’re not going to let Duke keep sweeping this under the rug just because they want to save their lacrosse team’s season.” Macur closed her piece with a statement by Jami Hyman, a freshman from Winston-Salem: “There’s a lot of potential violence once Central students really grab hold of this. I wouldn’t be surprised if someone got shot or something.”

  The Times made hay out of an outside report charging that Duke University officials had failed to see the gravity of the initial rape report. In his independent report, William Bowen, a former president of Princeton and a crusader for affirmative action, concluded that Duke’s senior leadership—five white men, an Asian American man and a white woman—had been “handicapped by its own limited diversity.”

  A telling sign of the extent of the Times’ institutional investment in DA Nifong’s irrational persecution of the Duke athletes, as it would come to seem, was what happened to Joe Drape, a reporter who in late March filed a somewhat mitigating report headlined “Lawyers for Lacrosse Players Dispute Allegations.” Drape gave space for the players’ defense attorneys to attack the accuser’s story and to predict that the DNA evidence would exonerate their clients. The piece closed with a sympathetic comment by one of the attorneys: “We’re trying to prove a negative here that they didn’t do it. That’s not supposed to be the way our system works. The state is supposed make a case. If all 46 are exonerated, they’ve still been branded as racists and rapists.”

  Soon after filing this piece, Drape was taken off the story. According to Stuart Taylor, Drape had told friends and his editors that the case looked like another Tawana Brawley hoax, and later claimed that the editors wanted a more pro-prosecution line and also wanted to stress the race-sex-class angle without dwelling on evidence of innocence.

  The perception of a sinking prosecutorial case was an obvious concern in the Times newsroom, especially after it had invested so much of its authority in laying down the story line that Nifong was right and the lacrosse players were a bunch of coddled, depraved racist misogynists at best. According to New York magazine’s Kurt Andersen, who had inside newsroom sources, editors wanted their reporter Duff Wilson, who replaced Joe Drape, “to get back into the game” and restore the story line’s credibility.

  The result was a 5,600-word front-page reassessment of the case, which appeared on August 25. Written by Wilson and Jonathan Glater, the article’s central point was that “By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks. But an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation yields a more ambiguous picture. It shows that while there are big weaknesses in Mr. Nifong’s case, there is also a body of evidence to support his decision to take the matter to a jury.”

  The piece did note that the internal investigator’s 33-page memo of his findings, along with three pages of notes just made available to journalists, could be interpreted as a “make-up document,” and that one of the defense lawyers said the sergeant’s report was “transparently written to try to make up for holes in the prosecution’s case” and “smacks of almost desperation.” It also reported that the second dancer had called the accusation of rape “a crock.” And it did recite the problems with physical evidence, including the lack of DNA, and problems with the photo identification of the players. Still, it bolstered Nifong’s contention that there was enough evidence to bring a trial before a jury, giving new life to what many legal experts and close observers said was a dead case. The Times editor, Bill Keller, later said that the August story “wasn’t a perfect piece, but it was a detailed and subtle piece that left you with no illusions about the strength of Nifong’s case.” But on MSNBC, Dan Abrams called it “shameful . . . an editorial on the front page of what’s supposed to be a news division of the newspaper.”

  Stuart Taylor’s attack was probably the most stinging. Citing all the nonexistent and contradictory evidence in the article—including the huge amount of alibi evidence, the accuser’s shifting stories and the lack of confirmational DNA—Taylor wrote: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.

  Taylor later said that the August 25 piece was “the worst single piece of journalism I’ve ever seen in long form in a newspaper.”

  Other citadels of the media had no trouble treating the case more objectively. The New Yorker ran a long narrative during the first week in September that confirmed all the claims of the defense and refuted almost all the claims of the prosecution, setting the case in context of a nervous university president new to his job, a politically juvenile faculty, and a politically ambitious district attorney. The lacrosse players came across as a “cohesive, hard working, disciplined, and respectful athletic team” who had cooperated with police from the get-go. By contrast, the accuser appeared to be highly unreliable, said to have offered as many as ten accounts of what happened that night.

  More high-profile investigative journalism came from 60 Minutes. Right at the top, Ed Bradley’s report gave a devastating indictment of the prosecution. “Over the past six months, 60 Minutes has examined nearly the entire case file,” Bradley said. “The evidence we’ve seen reveals disturbing facts about the conduct of the police and the district attorney and raises serious concerns about whether or not a rape even occurred.”

  In his column for New York magazine, Kurt Andersen took both the handling of the Duke case and the Times’ coverage of it seriously to task. One reporter at the paper had told him, “I’ve never felt so ill over Times coverage.” Andersen commented that this was saying a lot for a paper “that published Jayson Blair’s fabrications and Judy Miller on WMD.” “It’s institutional,” said one editor. “You see it again and again, the way the Times lumbers into trouble.” The former public editor Daniel Okrent told Andersen, “The only thing we can look forward to now is what the Times will say to the accused once the charges are dropped, or once acquittals are delivered.”

  The Times dutifully reported the revelations of the 60 Minutes exposé. There was also a story on how the lacrosse players said the rape accusation had ruined their lives, and a story on
how the accuser had returned to dancing at her strip club within two weeks, although this story appeared almost three weeks after 60 Minutes reported the same, with video. But the Times would still not do what it should have done weeks earlier: acknowledge the absence of physical evidence behind the case, expose the accuser as a liar, and reveal Nifong to be a deceitful opportunist.

  In a courtroom motion hearing in December, the case finally fell apart with a sickening thud. The director of the forensic laboratory who did the DNA testing admitted on the stand that there was no DNA from any of the lacrosse players, but there was DNA from “several” other men. Worse, he admitted that he and Nifong had conspired not to report this information to the defense as law demands.

  Yet even here, on the biggest bombshell of the case, the Times allowed two weeks to elapse before reporting this testimony. In fact, the Times did not even have a reporter in the courtroom when the revelations were made; its account was cobbled together from reports by spectators and other witnesses. When its own reporter, a heavy-hitting investigative reporter named David Barstow—brought in to compensate for the less-than-rigorous Duff Wilson—finally wrote about the dropping of the rape charges, he did so using Nifong as an anonymous source at one point, and granting Nifong room to rationalize why he had basically told the forensic scientist not to include the exculpatory DNA in his report, and to maintain that the case for assault and kidnapping was actually stronger without the rape charge.