The recent accusations of gang rape against three members of the Duke Lacrosse team present a vexing dilemma for any thoughtful member of the public seeking to determine what happened that night. In the age of instant polls, newspaper editorials, twenty-four hour cable news network commentary, and blogs, it is tempting for a curious observer who was not a witness to what happened, or a participant in the legal process triggered by the rape accusation, to formulate conclusions. The publicly available evidence is simply too incomplete. Even the participants themselves are likely to have divergent recollections. How then should we evaluate the conflicting narratives, selectively leaked information, and media commentary?
The story of Rashomon, a 1950’s classic film by acclaimed Japanese director Akira Kurosawa, reminds us of the fragility of human memory and the inevitable subjectivity of human testimony about traumatic events. In Rashomon, we hear from four witnesses to a rape and murder, including the murder victim, and the rape victim. The film intercuts four separate eye witness testimonies, using the director’s cuts to structure a human puzzle. Each witness tells a convincing, internally consistent story. Yet, only at the end is it clear that each story contains a lie at its heart, a lie intended to protect the self-image of the narrator. From Kurosawa’s Oscar-winning reflection on the structure and temptations of human self-representation, we learn that outside observers must be patient, persevere and exercise a near superhuman self-discipline to locate that kernel of truth at the base of a mountain of predictable distortion in the stories told by those who have witnessed crime, either as victims or perpetrators.
The most dangerous period for those of us who are distant observers of the media coverage of a sensational story is the period between the accusation and the jury verdict. This is precisely the period when the most distorted, unmediated versions of facts that will eventually be tested at trial are flowing freely in the media.
How then should we approach this period in which a factual vacuum is filled first with stories leaked for the purpose of intimidating the opposition; next with counter-leaks; then, if a powerful defendant is the accused, with cultivated opinion writing from sympathetic members of the press? See, for example David Brooks of the NYT here and here. Court filings themselves become the tools of intimidation. See, for example smokinggun.com. The work product of private investigators is spilled into the headlines as fact. The innocent and the guilty fight the charges with the same ferocity. Wealthy defendants such as Kobe Bryant, Michael Jackson, and O.J. Simpson fought their accusers and prevailed in a court of law. But are they innocent? We can only say for sure that they have been found “not guilty”. Yet, opinion polls show that many disbelieve the jury verdicts. That leads to the question of what standard of measurement we should apply to the various narratives and opinions we encounter on the way to a verdict.
We should be skeptical of any information given in a press conference by either side of the dispute. A defense press conference is intended to do two things: first, to avoid mentioning anything that suggests that the defendant may be guilty; and second, to release anything that suggests that the accuser may be either lying, or is psychiatrically unhinged. The role of a defense lawyer is not to be fair to the accuser. Unfortunately, a skilled defense lawyer will seek to undermine the credibility of the accuser with leaks, innuendo, and disclosure of sensitive private information. The psychiatric records, the sexual history, and any other damaging personal information—much of which could not be admitted at trial—will find its way into the hands of members of the media who are hungry for any inside information. Prosecutors are often just as driven by the desire to win the fight for favorable public opinion. We have seen prosecutorial leaks that rival those of the most bare knuckled defense attorney. We have become so accustomed to this partisan leaking in political prosecutions that a prosecutor like Patrick Fitzgerald (the special prosecutor in the CIA leak investigation) becomes noteworthy for not leaking, and for not indicting the targets of his investigation without a strong case.
As difficult as it may be, those of us on the sidelines should ignore the faux evidence making its way, often repeatedly, into the press from media based legal experts as disparate as Nancy Grace of CNN and Stuart Taylor of The National Journal. I represented Anita Hill during her testimony in the Clarence Thomas Confirmation hearings, and have written about the problems of race and gender discrimination in our society, However, I will refrain from using my research on the history of lynching, racial violence, gender bias, and the sociology and economics of inequality in America to make a judgment about the guilt or innocence of the accused or the credibility of the accuser in this highly charged case. I have tried to remember that this is not merely a legal hypothetical, and that the human foibles of real people are on display, in all their complexity.
For every person accused of a serious crime, the legal presumption of innocence is scant comfort indeed, at the end of the day; the presumption of innocence is all that we can offer. In the meantime, the most helpful commentators will refrain from taking sides. In the Duke scandal, however, we have CNN Commentator and former prosecutor Nancy Grace on one side who seems sure that the 3 indicted Duke Lacrosse team members are likely to be found guilty, and on the other side legal commentator Stuart Taylor who concludes that the “available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie".
The prudent commentator will remember the tale of Rashomon and remain 100% convinced that we do not yet know, and that we may never know, what really happened in that plain, white, one story, student athletes’ house on the edge of the Duke campus on that March night in 2006. We should wait for the verdict, and accept it, whether we like it or not. That makes for boring television, but responsible citizenship.