Sixty Minutes aired a segment Sunday night on the Duke Lacrosse case. The piece, by Ed Bradley, appeared to lay to waste the prosecution’s case, and that case was already badly damaged in the eyes of the public. There were two notable features of the story Sunday night. One, that Bradley interviewed the three accused players – David Evans, Reade Seligmann and Colin Finnerty. Two, Bradley also interviewed Kim Roberts, the second dancer the night of the alleged rape. While it’s unsurprising and not revelatory that the three former players would deny they were guilty, it was noteworthy that Roberts largely refuted key elements of the accuser’s story. Roberts did suggest to Bradley that the atmosphere at the party was unpleasant and bordered on threatening, when an unidentified party-goer suggested he could use a broomstick on Roberts in lieu of a sex toy. Roberts said that she did not specifically fear being sodomized with a broomstick, but was uncomfortable with the tone of the remark.
Roberts also said that after the women left the house for a second time, at the end of the evening, a racial epithet was directed at her after she made a disparaging remark to another party-goer. But, Roberts rejected the accuser’s allegation that after the women returned to the house, when the rape is supposed to have occurred, the two women were clinging to each other and forcibly pulled apart prior to the assault. Roberts also repeatedly suggested that the accuser, known variously as Nikki and Precious, was either drunk or otherwise intoxicated and kept falling down. Sixty Minutes, in fact, showed photographs of Precious lying face down on the back porch of the house in which Evans lived and the party took place, presumably passed out from whatever had intoxicated her.
Sixty Minutes cast doubt on elements of the prosecutor’s conduct as well, especially the use of a lineup that omitted filler photographs. According to North Carolina guidelines, lineups ought to include photos of people in no way connected to the case, so that the witness would have to make a positive ID. In the Duke case, only members of the Lacrosse team were in the photo lineup. In other words, as Duke law professor James Coleman told Bradley, the accuser could not make a mistake. As the New York Times reported in its extensive examination of the case file back in July, this was the equivalent of a multiple choice test with no wrong answers.
Sixty minutes noted that Durham DA Mike Nifong was up for re-election and may have felt pressure to aggressively pursue this case. In addition, Nifong was repeatedly accused by the players, particularly Evans, of refusing to receive potentially exculpatory evidence from the defense. For example, the accuser ID’d Evans on a third pass through a photo lineup, but said that he’d had a mustache at the time of the alleged attack. But, Evans and his family say that he never had a mustache and that he could furnish proof that he wore no such facial hair immediately prior to the party. Nifong, according to Evans, wasn’t interested.
As has been widely reported for months now, Seligmann appears to have the clearest alibi – a log of eight or nine phone calls he made beginning at shortly after midnight. A video of him withdrawing money from an ATM at about 12:25, after a taxi took him from the party and finally proof that he keyed into his dorm at just after 12:40.
Most of the above, except some of the comments by Roberts, have been previously reported in many media venues, leading to the presumption that this is a dead case. And, the conduct of Nifong is very disturbing, from the war he initially waged in the media over this case before going suddenly silent, the above-mentioned improper lineup, the repeated charge that he has been apparently uninterested in meeting with the accused or hearing their side in full detail. Furthermore, if politics motivated his decision to press ahead with this case (and that is, of course, speculative) his hands are now tied. Even after he is re-elected in November, there’s really no way Nifong can now drop the case without appearing to have confirmed everything his critics have said about why he went forward with this case in the first place. And, finally, the accuser appears to be unreliable, even if she isn’t simply lying about what happened.
But, the Sixty Minutes report is itself disturbing, having chosen to ignore what is already an established record that, while not shedding a flattering light on Nifong or the accuser, puts the March 13 incident in a more complex context than Sixty Minutes allowed.
As I mentioned earlier this summer, a report in the New York Times in August (http://www.nytimes.com/2006/08/25/us/25duke.html?ex=1314158400&en=dbae99e86ad43e04&ei=5088&partner=rssnyt&emc=rss), based on a thorough examination of the case file to that point noted that the prosecution’s case was not as ludicrous as most commentators and media outlets had come to believe. For example, while Precious gave two conflicting accounts when she first spoke to police, within an hour of her original intake interview, she spent six to seven hours with a nurse trained to deal with sexual assault, and gave a consistent account of what happened throughout that time. Second, the Sixty Minutes piece, which noted that Precious kept changing her story including the number of attackers, from five to twenty, to three, etc. But, according to the Times, it was a police officer, recounting second hand what he thought he heard the accuser say, who reported that she said twenty people had attacked her. Third, many published reports have said that Precious had no obvious bruises and had tenderness in her vaginal area that could have been consistent with consensual sex, which she had in the forty eight hours prior to the party. But, according to notes of a police interview with the attending nurse, Precious was in extreme pain, and officers who visited her two days after the incident also believed that she was in significant pain and that bruises had started to show. Additionally, that nurse told police that Precious was acting in a manner consistent with a woman who had been assaulted.
Sixty minutes also failed to mention the now well-known conduct of the Lacrosse team in the two years prior to the night in question. As has been widely reported, fifteen of the forty-seven players on the 2005-06 team had been arrested for various misdemeanor infractions, mostly involving drinking and public loutishness. But, one player had been convicted of an assault charge stemming from an apparent gay-bashing incident in Georgetown in the Fall of 2005. That player, Colin Finnerty, was one of the three accused. (Gene Garber, in a long piece for ESPN.com this Spring, detailed the team’s ongoing conduct problems. (http://sports.espn.go.com/ncaa/columns/story?id=2456640&lpos=spotlight&lid=tab4pos1)
None of the above means the case is strong. There is no DNA evidence. There has been disturbing prosecutorial conduct, if not outright misconduct. The alleged victim has her own problematic past. But, after months of a steady stream of information about the incident, the thrust of which has tended to cast growing doubt on the validity of the prosecution’s case, I am frankly baffled that Sixty Minutes would, at this point, run a story that adds almost nothing new to what we already know and systematically ignores virtually all of the information that contradicts that general thrust. Now, perhaps Sixty Minutes reviewed the full case file, as the Times did, and didn’t find compelling the information that cast doubt on the players’ denials. But, in a twenty minute segment, you would think they would, at the least, note that information, if only to refute it. Sixty Minutes made its name by taking an often gadfly approach to journalism – challenging an official line by doing serious, careful work. In this instance, however, it’s hard not to view what Sixty Minutes did as anything more than piling on and, in the process, simply ignoring the best evidence that painted a picture different from the one that CBS portrayed last night.
I know there’s been a ton of blogging about this case, and there aren’t enough hours in a day to read it all. So, perhaps what I am about to say has already been said. But, I am surprised how little consideration has been given to the possibility that Precious was assaulted that night, but that she has made at least one mistaken ID. If she was intoxicated, she wouldn’t have been able to keep straight twenty or more unfamiliar faces. That might account for the apparent grasping nature of her behavior at various photo lineups. And, perhaps that explains Nifong’s early frustration over what he called the “wall of silence” surrounding the players following the party. Could the decision to prosecute these three have been part of a very high stakes effort to pressure the real attackers to come forward?
All of this is wild speculation, I know, and I am not actually accusing anyone of anything. But, at least according to the Times analysis of the full record, there is at least a reasonable possibility that Precious was attacked. What’s missing, however, is any clear evidence implicating any particular individual in that attack. And, while I am wildly speculating, I might as well note here a similar failure of imagination in the coverage of the OJ trial. There is no doubt in my mind that OJ killed two people. But, there is also little doubt in my mind that the police, especially Mark Fuhrman, tampered with evidence, which ultimately helped undermine the case. In the coverage of that trial, though, those two prospects were mutually exclusive – either OJ did it, or the police fucked with the evidence.
In any event, media treatments like those of Sixty Minutes appear to be trying to impose certainty on a record that is, at least, somewhat more ambiguous than they suggest. In doing so, I am not sure what larger good they serve.