James P. Pinkerton: Duke trial is already under way

The Duke University rape allegations will be remembered as a turning point in the history of judicial-media relations.

Lawyers in the case have been shameless in their effort to manipulate the case to their side’s advantage. And the media have been eager co-conspirators, such that the trial has, in effect, already begun. It is being conducted, not in the courtroom, but in news pages and on TV.

So here’s a modest proposal: Why not make it official? Why not just turn the trial proceedings over to the media? Trials are expensive, and courts are overcrowded. By contrast, the cable news biz is flush, and each of those cable nets has 168 hours a week to fill. Admittedly, the cable newsers won’t be interested in swallowing up all litigation, but for some trials – Duke, Scott Peterson, Enron – there’s plenty of media market.

A headline in Friday’s USA Today summed up the situation: “Prosecutors, defense ‘trying their case in public.’ ” The paper quoted one veteran prosecutor as saying that defense lawyers had gone “way, way beyond the limits of what’s fair.” But on the other hand, it was the Durham County prosecutor, Mike Nifong, who gave some 70 interviews in the weeks following the March 13 incident; Nifong even found time to appear at a “violence against women” event, held at a local black college, which could best be described as a “re-elect Nifong” campaign rally.

Even the nominally blue-chip news portals are getting in on the act. The New York Times, which sets the agenda for the rest of the mainstream media, has found itself drawn to the Duke case – even though, traditionally, the Times has seen itself as being above such tabloid-y fare.

So why these changing Times? The main reason is competitive pressure; no paper can resist the public fascination with this case. Yet blogger Steve Sailer offers another reason: The Times, he says, loves a story in which blacks might have been criminally victimized by whites, because it reverses the all-too familiar pattern. So the Times jumps at the chance to show whites acting badly, thus elevating the paper’s self-appointed status as the arbiter of social and racial justice. As Sailer puts it, “The Duke lacrosse team, a bunch of rich preppy jerks, makes a wonderful target for other whites wishing to parade their moral superiority.” Newsweek’s cover story all but announced that it had cracked the case. The magazine reported that “less than 48 hours” after one of the defendants, Reade Seligmann, was booked, “his lawyer was able to produce evidence that would seem to indicate it was virtually impossible that Seligmann committed the crime.” So there it is. Your honor, the defense rests.

Oops, there’s still the small matter of an actual trial. But surely that’s just a detail, since for all intents and purposes, the trial has already started. So, ladies and gentlemen of the jury, whom do you believe, the inculpating “second stripper,” Kim Roberts – you know, the one who sent an e-mail to a New York City public relations firm in which she wrote, “I’m worried about letting this opportunity pass … and was wondering if you had any advice as to how to spin this to my advantage” – or the exculpating cab driver, Moez Mostafa, who said he drove Seligmann back to his dorm?

A formal trial could take months to get going. In the meantime, the media are rarin’ to go. So why not get this show on the air, right now? Many of the big names covering this story on cable news – Jeffrey Toobin, Catherine Crier, Nancy Grace – are experienced trial lawyers. Why not let them divide up the work and get it rolling?

But one might ask: Will this media-fication of the Duke case make for justice? Probably not. But justice is the last thing this case is about.