Media Positioning Plays Large Role in Duke Case

What's known about the alleged rape of an exotic dancer by members of Duke University's lacrosse team is murky at best. That may be in part due to the emerging media strategies from both the defense attorneys and the prosecutor.

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In Durham, North Carolina, a hearing is scheduled this week for three Duke University lacrosse players charged with rape. The three white men are accused of assaulting an African-American woman hired to perform as an exotic dancer at a team party.

The players are not expected to attend the hearing on Thursday, but the news media will certainly be there. Throughout this case, the media have played an unusually large role in the attorney's legal strategy, as NPR's Adam Hochberg reports.

ADAM HOCHBERG reporting:

It was probably inevitable that the Duke lacrosse case, with its undertones of sex and race and privilege would become a media obsession. Since that infamous team party in March, prosecution and defense lawyers have appeared on TV more than they've appeared in court. And evidence is being hashed over in newspapers months before it will be seen by a jury.

Professor ROBERT THOMPSON (Professor of Communications, Syracuse University): We may be more than half a year before this trial even begins, and you could already make the made-for-TV movie of this whole case.

HOCHBERG: Syracuse University communications professor Bob Thompson says the saturation coverage of the case has been driven by its salacious nature, but also by the lawyers' skillful use of the news media. He says attorneys on both sides have strategically granted interviews and selectively leaked evidence to try to sway public opinion.

Prof. THOMPSON: One of the biggest tricks that an attorney now pulls out of his hat is to begin to try to effect the jury pool from the very beginning, before the trial comes. And the media strategy is part of legal strategy the instant any attorney is engaged in one of these cases.

HOCHBERG: In Durham, the media torrent has been relentless. For more than 50 straight days this spring, stories about the case appeared on the front page of either the Durham Herald-Sun or the Raleigh News & Observer, two local newspapers fighting a circulation war.

The national press wasn't far behind; and in the first days of the investigation, District Attorney Mike Nifong granted dozens of interviews, expressing certainty a rape occurred, and, at one point, referring to the Duke players as hooligans.

University of North Carolina law professor Eric Muller, a former federal prosecutor, calls the early posturing in the case extreme.

Professor ERIC MULLER (Professor of Law, University of North Carolina): The prosecutor opened things up with a barrage of comments about the defendants and the evidence in the case; and then, even before there were charges filed, the defense began leaking and sharing information. So, yes, this has turned, really from the outset, into as much of a media trial - maybe more of a media trial -than a legal trial.

HOCHBERG: The district attorney eventually stopped talking about the case, leaving defense lawyers alone on the media stage, and they've used it to cast doubt on every aspect of the investigation. They've attacked the alleged victim's credibility, questioned the medical exam performed on her, and criticized the police photo line-up.

They've also used the media to talk about things they can't discuss in court, like a polygraph they say supports one of the players innocence. Polygraph results are not admissible in a trial, but made big headlines in the news, and Muller says that seems to be what defense lawyers are after.

Prof. MULLER: It may well be their strategy to sew so much doubt in the public mind that the prosecutor simply decides the case is no longer viable, in a sense, almost purposefully trying the case in the press in order to avoid the possibility that the case would actually come to trial.

HOCHBERG: In his few public comments since March, District Attorney Nifong hasn't responded specifically to the defense team's claims, though in a News & Observer interview last month, he referred to defense legal filings as fiction.

Nifong says he'll answer those filings in court and some observers are urging patience until he does. Attorney Alan McSurely is monitoring the case for the North Carolina NAACP.

Mr. ALAN MCSURELY (Attorney, North Carolina NAACP): This case begs people to just hold your horses, let this evidence play out, suspend judgment, and see what happens. You know, I would not bet one way or the other right now. I still think the whole thing is a puzzlement.

HOCHBERG: The NAACP, which is sympathetic to the alleged victim, has urged the media to ratchet down the pre-trial coverage. But that request has had little effect. Bob Thompson, the Syracuse professor, says not only do the lawyers need the media, but many reporters have grown dependant on the lawyers. He says the constant flow of news leaks and legal filings feed the daily headlines that the media hope will keep audiences tuned into the story.

Adam Hochberg, NPR News.

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