The Duke Lacrosse Case and the Rush to a Verdict the Facts Never Supported

Folks, I want you to try something with me. Close your eyes, or at least squint, and imagine a courtroom where the verdict is announced first, the trial is held second, and the evidence is gathered third, if at all. You would call that a farce. Now notice that for about a year, in the spring of 2006 and after, a big piece of American public life ran precisely that way over a lacrosse team at a famous university in North Carolina. The only thing missing was the gavel, and the faculty lounge supplied the placard.

I will tell this story with care and without naming the accused students. They were young men who were falsely accused, and they did not ask to become a symbol. The people whose public conduct I will discuss are officials, institutions and newsrooms. That is the right line to draw, and I intend to draw it firmly.

March 2006

In mid-March 2006, members of the Duke University men's lacrosse team held a party at an off-campus house in Durham, North Carolina. Two women had been hired to dance. Later that night, one of them told police she had been raped by members of the team at the house. The police opened an investigation, and within days the story was national.

It is important to remember how it looked at that moment. It looked like a story that practically wrote itself. An elite, wealthy university. An athletic team. A party with hired dancers. A woman from a poorer part of town. A charge of a terrible crime. The story arrived in the public mind with a ready-made set of villains and a ready-made set of moral lessons, about class, about privilege, about the culture of college sports. Every one of those themes was something a certain kind of commentator was waiting to write about. When a story fits the template you already carry, the temptation to treat the template as evidence is enormous.

Hold that thought. I will call it "the fit." The fit is the most dangerous thing in a newsroom, because it feels like knowledge.

The prosecutor

The man in charge of the case was the Durham County District Attorney, Mike Nifong, who was running in a Democratic primary in the spring of 2006. In public statements, he described the incident in strong terms, spoke of the team in sweeping language, and said, in substance, that he was confident that a rape had occurred. He did this early, on television, before the evidence was in.

A prosecutor has an obligation that is older than the Constitution. The Supreme Court put it in a famous passage in Berger v. United States in 1935: the government's attorney "is the representative not of an ordinary party to a controversy, but of a sovereignty," and his interest "is not that it shall win a case, but that justice shall be done." Read that once more. It is not a sentence about winning. It is a sentence about restraint, and it is the opposite of what happened.

Indictments came in April 2006 for two players and in May for a third. By then the evidence the prosecutor had was weak, and, as later became clear, some of what he had was exculpatory. The accuser's accounts had shifted over time. A photo identification procedure had been conducted in a way that offered no real protection against error: she had been shown only photographs of team members, a procedure that practically guaranteed that she would pick someone. And the DNA testing did not match any of the three accused. The private laboratory Nifong had retained found DNA from several unidentified men in material connected to the accuser, and none of it matched the players. The results, according to later hearings, were not provided to the defence in the way the law required.

That brings us to the principle of Brady v. Maryland (1963), which holds that the prosecution's suppression of evidence favourable to the accused violates due process. The case is not obscure. It is the first thing a prosecutor learns. The DNA findings were the kind of material it exists to protect.

The faculty advertisement

While the investigation unfolded, a protest and a counter-protest set in around the Duke campus, and a part of the faculty weighed in. On April 10, 2006, an advertisement appeared in the student newspaper under the heading "What Does a Social Disaster Sound Like?" It was signed by dozens of members of the faculty, eighty-eight in total, which is the origin of the label "the Group of 88" that followed them. The ad described a campus in crisis and spoke about racism, sexism and the experience of those who were suffering from them.

Defenders of the signers later said that the ad was not about guilt or innocence. It was about a climate on campus that deserved attention, and it was not accusing anyone by name. Signers said later that the ad had been misinterpreted, and in a January 2007 open letter they declined to retract it or apologize for it. I note their view plainly.

But look at the timing and the effect. It ran on April 10, about four weeks after the accusation, before any indictment, when what was known was a claim and a set of disputed details. An institution's faculty, the people entrusted with teaching young people how to reason from evidence, published a statement that treated an accusation as the occasion for a lesson. A statement of the form "whatever the facts may turn out to be" gets published only when the speaker is confident of what the facts will be. The ad's implicit message to the accused students, who were their own students, was that their institution had already formed a view.

Duke's administration also acted before the facts: the university cancelled the team's season and accepted its coach's resignation in the first weeks. Those were public decisions by public-facing officials, and the university later reversed course, reinstating the team after the charges collapsed. A university has the right to discipline its own, but a school's first duty to a student under accusation is to treat him as a student, and that duty was breached.

The coverage

Now to the press, the part of this I am here to talk about. A great deal of the national coverage in the spring of 2006 treated the allegation as a fact. Words like "victim" and "rape" appeared in headlines and broadcasts as if the matter had been decided. Cable hosts delivered verdicts. Commentators held up the case as an emblem of a culture of entitlement and wrote essays on what it said about a class of people. Many of those pieces were thoughtful. Almost none began with the sentence that matters: no one has proven this happened.

I should be fair. Some reporters and some papers did hard work early, and the local coverage, particularly in Durham, began to question the prosecutor's case well before the national outlets did. A few national writers raised doubts in the summer and autumn. As the evidence emerged, much of the coverage changed course. In other words, the profession's self-correction did happen. But it happened as a trickle against a flood. By the time the sceptical pieces arrived, a very large audience had already formed its view.

The way a story is framed is itself the lesson. A story that begins with a theory about a culture and then lowers a case into that theory will find evidence everywhere. It will treat every ambiguous detail as confirmation, and every contrary detail as an excuse. That is not malice. It is a habit of mind, the same habit of mind that makes the fit feel like knowledge, and it is how otherwise careful people stampede.

The collapse

The case began to come apart in the second half of 2006. In December, at a hearing, it came out that the DNA laboratory had found genetic material from multiple men that did not match any player, and that the laboratory's director said he had agreed with the prosecutor to leave the other findings out of his report. The accuser's account changed again, and the prosecutor dropped the rape charges in December, though he kept others for a time. The North Carolina State Bar filed ethics charges against Nifong. In January 2007 he asked to be taken off the case, and the state's Attorney General, Roy Cooper, took over.

On April 11, 2007, Cooper announced that all charges against the three players were being dropped, and he went further than a prosecutor needs to. He declared them innocent. He said that the case had been a tragic rush to accuse and a failure to verify serious allegations, and that there was no credible evidence that an attack had occurred. A state's attorney general does not often use the word "innocent." The usual language is that the evidence was insufficient. The word here told the country that this was not a technical dismissal.

In June 2007, the State Bar's disciplinary hearing committee disbarred Nifong for violating the rules of professional conduct, finding that he had made misleading public statements and withheld evidence. In August 2007, a judge found him in criminal contempt for lying to the court about the DNA evidence and sentenced him to one day in jail. In June 2007 the university announced settlements with the three players and their families, for terms that were not made public.

The steelman

The best defence of the early reactions runs as follows. A woman had made a serious claim of sexual assault. Society spent decades learning to take such claims seriously, and to stop treating accusers as liars by default. A press and a university that took the claim seriously were behaving in line with a hard-won lesson. If they had been dismissive, and the accusation had been true, we would be condemning them now.

I accept the premise. Taking an accusation seriously is right. It means investigating it thoroughly, and it means treating the accuser with respect. But taking it seriously is not the same as treating it as true. The first is the job of the police. The second is the job of the court. And the two can sit together: a good system believes that an accusation deserves an investigation, and it declines to render judgment until the investigation is done. The error in 2006 was not that people listened to an accuser. It was that many of them skipped the investigation and went straight to the conclusion, using the accuser's account as the conclusion's foundation.

Notice how this fits the whole logic of due process. The presumption of innocence is not a belief that every accused person is innocent. It is a rule about who has to prove what, and it exists because the alternative, where the accused have to prove they did not do it, is unworkable, particularly when the evidence of a negative is hard to produce. The presumption protects the guilty on the way to protecting the innocent. We accept that cost because the opposite cost is worse. William Blackstone put the rule in his Commentaries: it is better that ten guilty persons escape than that one innocent suffer.

The numbered argument

Here is the argument in order.

1. A criminal accusation is a claim, not a finding, and only a court, after evidence tested by both sides, can turn it into a finding.
2. Officials who announce a conclusion before the evidence is in, whether a prosecutor on television or a university in a press release, corrupt the process they are supposed to serve.
3. A press that treats an accusation as established because it fits a familiar story has swapped its job, which is to report what is known, for a different one, which is to confirm what it expects.
4. The cost of that error falls on the accused, who must prove a negative before a public that has already decided, and on the accuser's real counterparts in future cases, who will find that their claims are doubted because this one was false.
5. Therefore the discipline of due process, including the presumption of innocence, the disclosure of exculpatory evidence and the patience to wait for the facts, is not a technicality for the benefit of the powerful. It is the protection of everyone.

The Founding yardstick

The Sixth Amendment guarantees the accused "a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The Fifth guarantees that no one shall "be deprived of life, liberty, or property, without due process of law," and the Fourteenth extends that to the states. These sentences are the Founders' answer to the mob. They knew from the history of the Star Chamber and of colonial controversy what it is like to be tried by rumour, and they built a structure that moves slowly on purpose. The speed of the news cycle is the enemy of every one of those clauses.

There is a particular irony here that I would like the commentators of 2006 to consider. The people who most loudly call for the criminal justice system to be reformed, to be more careful, to be more sceptical of prosecutors, were mostly on the other side of this case at first. A prosecutor who withholds evidence, who convicts on a template, who ignores a flawed identification, is the villain of the justice-reform story. In 2006 many of them applauded him. A principle that is invoked only when it serves one's side is not a principle. For more on how prosecutorial power can be abused, see Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them, and for the way a different confirmation process went wrong, see What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence.

What to take from it

Here is what I would ask you to do the next time a case like this breaks.

• Wait for the evidence and say so. "I do not know yet" is an honest sentence, and it is under-used.
• Notice the fit. If a story is perfect for an argument you already wanted to make, that is the moment for extra care.
• Read for the verbs. "Alleged" and "said" carry weight that "the victim" does not.
• Hold your own side to the standard. Conservatives have also been quick to convict when the accused is a person they dislike. The rule is the same in both directions.
• Follow the aftermath. Cases like this end quietly, in a footnote. Go and read the footnote.

The companion piece on the same failure is Richard Jewell and the Trial by Headline of a Security Guard Who Was a Hero, and the courts page on this site has a plain guide to how the process is supposed to work.

The case in brief

1. In 2006 a rape accusation against three Duke lacrosse players was treated as proven by a prosecutor, a part of the faculty, the university's administration and much of the press, long before any evidence had been tested.
2. The prosecutor withheld exculpatory DNA evidence, and on April 11, 2007 North Carolina's attorney general declared the three players innocent; the prosecutor was disbarred in June 2007 and held in contempt in August.
3. A good system takes an accusation seriously by investigating it, and does not mistake that for believing it; the presumption of innocence is a rule about proof that protects everyone.
4. The Fifth and Sixth Amendments are the Founders' answer to trial by rumour, and Berger and Brady bind the prosecutor to justice, not to winning.
5. Readers can defend the principle by waiting for evidence, noticing when a story fits too well, and applying the same rule to friends and to enemies.

What you can do: look up how your state's bar publishes discipline of prosecutors and read one decision, so you know what the public record of a prosecutor's misconduct looks like.