The Media Rush to Duke's Defense

By Andrew Cohen
Special to washingtonpost.com
Tuesday, June 27, 2006 12:00 AM

A collective sort of reverse insanity has descended upon the media as reporters try to cover the case of the Duke lacrosse players charged with raping a stripper at a party this spring.

Usually, reporters breathlessly take everything prosecutors and the police say at face value, often to devastating effect upon criminal defendants. The "perp walk," in which a suspect is paraded publicly in handcuffs from place to place, often after officials have told television producers where to place their cameras, is only the most visible example of this practice. The reporters get their shot. The police get to portray the defendant, innocent or not, as dangerous (i.e. guilty) in the eyes of potential jurors.

We even saw a form of this Friday, when the feds grandly and loudly announced that they had broken up a purported domestic terrorism ring in Miami consisting of seven men who allegedly told an undercover informant posing as an al-Qaeda operative (how do you get that job?) that they wanted to wage jihad against America by blowing up the Sears Tower in Chicago. Starting Thursday night, with the leaking of the news by an unidentified official, through the day Friday, potential jurors in Miami (and anwhere else) were bombarded with the official version of events.

There was no early and contrary defense spin, of course, because defense attorneys only now are being rounded up to represent the men. The government got the microphones to itself just as planned. And even in these high-profile cases when defense attorneys are able to react relatively quickly to counter prosecution spin, as they did in the Kobe Bryant sexual assault case or in the Michael Jackson molestation trial, all they are able to accomplish if they are lucky is to stem the tide of public perception against their clients -- to try to break even. Bryant's lawyers did it with a charm offensive until a judge issued a gag order. Jackson's lawyers did it softly and carefully, by attacking the prosecutor's motives rather than the evidence against their client. In both cases, media coverage of the spin from either side was relatively balanced.

Not in the Duke case. Here, journalists are tripping all over themselves to quickly and repetitively report the biased view of the young men's defense attorneys, family members, and other supporters. And the prosecutor, after saying a bit too much too early about his case, now is saying nothing at all, leaving the defense spin unchallenged and gaining both in perceived credence and volume. There is nothing wrong with this defense strategy -- I would do it, too, I suppose, if I were representing the alleged rapists -- but just because it's a good idea for lawyers doesn't meant it is good journalism. There is no balanced coverage in the Duke case. There is just one defense-themed story after another.

Take the Newsweek magazine story that helped fuel a whole new round of recriminations against Durham District Attorney Mike Nifong, who has been portrayed over the past few months as a cross between Moe, Larry and Curly. The first graphs of the magazine piece detailed the moment when the white members of the lacrosse team were told by their attorney they had to give DNA samples as part of an effort by Nifong to identify the three men accused of rape.

The lawyer for the players is named Bob Elkstrand and you shouldn't be surprised to learn that his version of events at that moment plays neatly into the defense theme that has been offered up on behalf of the young men. "Elkstrand was struck," Newsweek reported, "to see how little hesitation the players showed. After all, if the DNA of any one of those men matched DNA found on the accuser's body, it could ruin his life; disgrace followed by many years in prison. But there was no talk of hiring individual lawyers or stalling for time; the players seemed to want to get on with it. 'I was watching to see if anyone hung back,' Elkstrand told Newsweek. No one did."

Now, I do not suggest that Elkstrand was lying to Newsweek (although lawyers lie to journalists all the time in the zealous representation of their clients). But obviously Elkstrand has a deep bias in favor of the people he is describing to Newsweek -- otherwise he wouldn't be worth his weight in gold lacrosse sticks as an attorney. Of course he is going to say that all of the players came forward. Of course he is going to say he "was struck" by their portrayed innocence. What else is he going to say? "I thought that one guy in the back looked a little shady?"

Given that Elkstrand hardly is in a position to offer anything but his own spin, what is his self-serving, client-serving description doing leading off a lengthy news-analysis piece? No amount of "on-the-other-hand" attempts at objectivity by the magazine ("It is possible, almost three months later, that the players are maintaining a conspiracy of silence," the article continues after its love-fest with Elkstrand) makes up for the fact that the first impression of the long piece comes, uncontroverted, from the defense team. That happened for a reason, right? It happened because Newsweek figured the little tale got across the point of the piece, that it was a perfect scene-setter for the substance of the piece that followed.

Of course, the story by Newsweek, which often sets the news agenda for the rest of the week, was widely imitated on cable television and in the blogosphere, where experts were happy to discuss what a disaster the prosecution was, what a fool Nifong was and how unjust it was that the charges hadn't already been dropped. The case against the players didn't publicly get weaker last week -- so far as I know -- but the appearance of the case did, which is precisely what defense attorneys wanted to occur in the court of public opinion as pretrial proceedings lead us either to a trial, a deal or a dismissal.

Likewise, the endless interviews with friends and family members of the accused are equally biased and have long become pointless. Of course, the parents of an accused young person are going to rise to his or her defense. Of course, friends and family are going to vouch for his or her integrity and raise questions about the evidence and the prosecutor's motives. We see it all the time in criminal cases, all over the country, only usually no one pays attention. Why? I suspect race and money and access to the media have a lot to do with it. I have often wondered how media coverage might be different -- how the cynical, skeptical skew would turn -- if the alleged victim in the case were white and the alleged defendants black.

For years, I have railed against prosecutors and the police for taking advantage of their official stations to leak information about defendants. For years, I have considered the media a co-conspirator in the government's efforts to influence pretrial publicly. And now that the co-conspirator has moved to the defense side, I find the practice just as deplorable. The presiding judge long ago should have stepped into this case and shut up the defense teams with a gag order. Failing that, the media should have exercised more discretion in allowing advocates to dictate coverage.

Look, I don't know what happened at that house that night. And neither do you. And I wouldn't have done some of the things that the prosecutor has done to this point -- he started the media onslaught, after all. And neither probably would you. It is possible that a savage rape occurred. And it is possible that the young men who have been accused are victims, themselves, of an irresponsible accuser. The point is that we don't know. We haven't seen all of the evidence, haven't examined all of the testimony; haven't had the privilege of seeing the case unfold at trial the way it is supposed to.

Never mind quoting defense attorneys gospel. Never mind airing interviews with angry and frustrated family members who say what angry and frustrated family members always say when given the chance. The concept of not judging a book by its cover, or not declaring a winner in a ballgame before the first pitch is thrown, should be the first and last things out of the mouth of every reporter covering this sordid story. But they won't be.

Andrew Cohen writes "Bench Conference" and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.

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