By: Allan Wolper
The news media are the judges of the American criminal justice system. They are the kings and queens of the court of public opinion, sitting at their terminals composing 96-point he-did it, she did-it headlines.
The editors regularly send out a fleet of street sweepers to collect scraps of misinformation — rushing from one press conference to another, quoting people who hope to have roles in a soon-to-be-released reality series.
These arbiters of right and wrong don’t need any evidence, because they are always almost right. They have all the tweets they will need to publish or broadcast their stories. Who needs a trial? That’s for law school moot courts.
This is the real world: the world of media. Where opinions trump facts; where men and women can spot the truth tellers and the liars in a media minute. They don’t have to worry about appeals, just the next news cycle.
News organizations rarely ever say they’re sorry. When they’re sued for libel, they blame the people they quoted. The media landscape is littered with broken reputations, but there is no time to repair them. There are too many deadlines to meet.
Newsrooms are getting smaller and smaller, so reporters are relying more and more on handouts in criminal cases from prosecutors and lawyers. Sometimes they destroy their own reputations in the process.
The best example of how wrong the media can be is a case in which Dominique Strauss-Kahn, the 62-year-old former managing director of the International Monetary Fund, was accused of sexually assaulting Nafissatou Diallo, a 33-year-old maid, in his suite at the Sofitel Hotel in New York.
Diallo gave the grand jury a compelling account of how Strauss-Kahn allegedly abused her sexually when she went to clean his room. He was indicted on seven separate counts of sexual and criminal misconduct.
As far as the news media were concerned, that indictment was as good as a conviction. Strauss-Kahn, a French politician, has been nicknamed by that country’s media as “The Hot Rabbit” in recognition of his worldwide womanizing. He was guilty as headlined.
DNA tests confirmed they had sexual contact. Diallo said Strauss-Kahn forced her to have oral sex. To the media, his not guilty plea seemed irrelevant. They paid virtually no attention to his contention that their liaison was consensual.
All that has changed. There will never be a criminal trial. The Manhattan District Attorney’s office formally withdrew its complaint against Strauss-Kahn, because Diallo’s account of the alleged sexual assault was not credible enough to gain a conviction.
Not mentioned was the fact that it would be nearly impossible, given the twisted coverage of the case, to find jurors who would not have an opinion on what happened in that hotel room — no matter what evidence would have been presented in the courtroom.
The most intriguing aspect of the case is the fact that the District Attorney hadn’t sought a gag order to keep the lawyers from polluting the airwaves with unproven allegations. A gag order might have convinced the news media to be more responsible as well.
The case has won an international audience. Since he was arrested May 14, Strauss-Kahn resigned as managing director of the IMF and will not run in next year’s French presidential election, which he was favored to win.
This is how that happened.
Strauss-Kahn was arrested right before his plane was ready to take off from Kennedy Airport. He was escorted in handcuffs, disheveled, with unkempt hair, past a phalanx of video cameras — what cops call a perp walk.
The idea is to make sure that every potential juror with a television set, a subscription to a newspaper, or a connection to the Internet will know the man in cuffs is a crook, a swindler, a thief, or in this case, a possible rapist.
Strauss-Kahn’s lawyers complained that the perp walk was unfair. It didn’t matter. New York Mayor Michael Bloomberg, founder of Bloomberg news, showed his tabloid journalism side. “If you don’t like the perp walk,” he told reporters, “don’t do the crime.”
Then the media trial began in earnest.
The New York Daily News dubbed Strauss-Kahn “Le Perv” — a sly way to hint he was a sexual pervert without actually calling him one. A 96-point dagger so perfectly digital that people could forward it to all their Facebook friends. A front page nickname the television anchors could show to good effect on their broadcasts. The New York Post liked the Le Perv nickname so much they adopted it as their own. Then the mainstream media gleefully started using the Le Perv reference, citing the New York tabloids to get off the hook.
When Strauss-Kahn and his wife, Anne Sinclair, posted the $1 million cash bail and $5 million bond and rented a $50,000 a month townhouse to wait for his trial, the Daily News dubbed it “Le Perv’s $14m jail” and “Chez Perv.”
There was talk in the media and on the airwaves that perhaps calling someone a “perv” before he was prosecuted might be grounds for a libel suit.
Not so, said Damon Dunn, a lawyer for the Chicago Sun Times. “They could use the Le Perv headline because it’s a made-up term,” he said in an interview. “It didn’t have anything to do with facts.”
When Tristane Banon, a French writer, came forward with charges that Strauss-Kahn had tried to sexually attack her in 2002, the media took note. It seemed like a gotcha moment. This year, as Strauss-Kahn was savaged in the headlines, Banon decided to file charges against him in France.
Interestingly, the New York media paid scant attention to French newspaper coverage of the case, especially to an interview he gave to Liberation, a publication linked with Strauss-Kahn’s Socialist Party, two weeks before he arrived in the U.S.
In that interview Strauss-Kahn said he was concerned about becoming set up in a “honey” or sex trap. He told the newspaper that he was worried about being targeted because of his money, Jewish heritage, and his affairs with women.
In most sexual assault cases in the United States, the news media never identify an accuser by name. It arises out of the fear that it would discourage women from bringing sexual assault cases to the police.
Diallo was described as a working woman who sought asylum in America to escape the horrors of her home in Guinea, West Africa. She was profiled as a quiet woman living in a Bronx apartment building with her 15-year-old daughter.
She had worked at the Sofitel Hotel for three years without a single complaint. Media interviews with friends and some relatives painted her as a reserved, religious woman who volunteered at a nearby mosque.
The details of her encounter with Strauss-Kahn focused on her contention that he came out of a bathroom without any clothes on, forced her to have oral sex, and tried to rip off her clothes before she could escape.
When Strauss-Kahn was arraigned in court, members of the union representing hotel housekeepers shouted, "Shame on you."
Soon, the media turned on her.
On July 1, The New York Times, relying on information from a letter the prosecutor sent to Strauss-Kahn's lawyers, reported that Diallo had repeatedly lied about her background and about some facts regarding her sexual encounter with Strauss-Kahn.
The prosecutors said that Diallo lied when she told them she had been gang raped in Guinea, had also lied on her asylum application, and discussed in a recorded telephone conversation with her boyfriend (who was in prison) the financial benefits of bringing charges against Strauss-Kahn.
The next day, the New York Post front page headline read, "DSK MAID A HOOKER," with a subhead claiming that she "took care of guests on the side." That front page also included a picture of a smiling Strauss-Kahn, giving the impression that the charges might have come from an investigation by his lawyers.
Kenneth Thompson, Diallo's lawyer, reacted with rage, but the paper said it was standing by its story. Thompson has since filed a defamation suit against the paper. It was that story that Diallo said made her decide to identify herself by name.
But after the court decision, the Post went back on the attack with this front page headline: "FRAUD! DA: Maid's lies sank rape case. Teary-tantrum act exposed."
In another attempt to influence the prosecutor's office, Diallo gave exclusive interviews to ABC and Newsweek swearing that her version of the encounter with Strauss-Kahn was the truth. Strauss-Kahn hadn't said anything except "not guilty" when he was arraigned in court. It was still his word against hers.
That kind of situation should be resolved in a courtroom, not on the front pages of a newspaper or magazine or in a lengthy television interview.
Perhaps the mainline news media ought to read the Shelter Island Reporter, a weekly newspaper published in a summer community just a short ferry ride from the fashionable Hamptons on Eastern Long Island, the home of many mainline New York journalists.
The Reporter publishes this warning, in italics, right under the lead item of its police report of alleged crimes: "Those named in arrest reports have not been convicted of a crime. In court, the charges against them may be reduced or withdrawn, or the defendants may or may not be found guilty."
Cara Loriz, the former editor of the paper, inserted that disclaimer in the paper because, she said, "We wanted our readers to know that the paper was not charging anyone with anything."
Something the bigger papers might insert from time to time.
Allan Wolper, professor of journalism at Rutgers University, is the host of "Conversations with Allan Wolper," a podcast on WBGO.org, an NPR affiliate in the New York area. He has won more than 50 journalism prizes. His ethics columns in E&P have been honored by The National Press Club and the New York chapter of the Society of Professional Journalists.
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