Criminal justice journalists need the public’s trust as much as the criminal justice system operators they cover.
And both can jeopardize that trust, in the same way, by yielding to the same temptations.
That is among the lessons of the analysis published by the Columbia Graduate School of Journalism (CGSJ) of Rolling Stone‘s disastrous and eventually retracted story of an alleged gang rape at a University of Virginia fraternity party. Rolling Stone has published the full report.
The CGSJ analysis is a review of a wrongful conviction—even though it is a media conviction, not a courtroom conviction, the crime may never have occurred, and the convicted “defendants” may not even exist.
The CGSJ focus wasn’t prosecutorial; it aimed to analyze an event, not to hang an erring person. Using an approach much like that advocated in the National Institute of Justice’s recent Special Report about the review of actual exonerations, Mending Justice, it strives to mobilize a “forward-looking accountability” that prevents repeated catastrophes.
These so-called “sentinel event” review efforts don’t end their search for answers with blaming the rogue reporter or the dishonest prosecutor who hides exculpatory evidence; they identify the sources of error in the system as system, not in a lone culpable individual.
That isn’t to say that the CGSJ reviewers flinch from criticizing the work of Sabrina Erdley, the Rolling Stone reporter who wrote the article, “A Rape On Campus.” The tone is civil, but the analysis is clinical.
The CGSJ review chastises Erdley for failing to interview (or even identify) the alleged ringleader of the gang rape, for failing to provide a full account of derogatory evidence to the individuals mentioned in her piece (for example, the fraternity leadership) who should have had a chance to make considered comments disputing allegations; and for foregoing the opportunity to carefully interview the three friends of the “victim” whom she had identified as “fresh complaint” witnesses, and to whom she had described her traumatic experience soon after it occurred.
And the review also makes it clear that Erdley wasn’t the only one who failed. Her editors at Rolling Stone also failed by not insisting that Erdley honor well-known best practices in journalism, such as double-checking sources and confronting people who are subject to derogatory reports with the substance of those reports.
But the most interesting aspect of the CGSJ analysis when it is read with criminal justice errors in mind is that it does not simply point out best practices that should be, but were not, followed. After all, these particular practices have been around for a long time.
The CGSJ report does not simply suggest, in effect, that “the best practice, and one required of reporters and prosecutors by the rules is to turn over evidence of innocence to the the readers or the defense.”
Rather, it assumes that best practices will sometimes be ignored—that people will sometimes zig when they should zag—and asks “Why?”
That’s an important question.
Why did it seem like a good idea to this prosecutor or reporter to avoid looking for contradictory evidence? Why did it seem like a good idea to this prosecutor or reporter to keep quiet about the contradictory evidence when it was uncovered? Why did these editors (or this judge) acquiesce in the vacuum this created?
Unless those questions are addressed, the same motivating factors will lie in wait for the next prosecutor or reporter who comes along.
It is often easy to see how the faulty work of “upstream” actors like detectives or reporters can cripple the work of “downstream” inspectors like editors, prosecutors, or jurors. When the reporters or prosecutors don’t uncover, or don’t pass along, the information from contradictory witnesses, downstream fact-finding is starved.
But the Rolling Stone episode illuminates something less obvious. The failings of the “upstream” reporters and detectives are often shaped in anticipation of the needs of—and the incentives manipulated by—downstream prosecutors and editors.
When reporters and prosecutors decide to protect a story rather than challenge and investigate it, they are often doing it because they think that in the eyes of others that is what they are supposed to do. Erdley decided to streamline her narrative in part in order to satisfy her source, who allegedly insisted she needed to protect herself from embarrassment or reprisal; the list of exoneration cases bulges with prosecutors who did the same. But Erdley was also trying to please her editors, who wanted an emblematic tale of college misconduct.
In one of his “London Letters” to Partisan Review during the Second World War, George Orwell complained that the local authorities were tearing down the iron railings around squares in working-class neighborhoods for scrap, but leaving the railings in upper-class neighborhoods untouched.
When his wife pointed out that he only had to look out his own window to see that this statement was demonstrably false, Orwell wasn’t shaken.
“It’s essentially true,” he replied.
Orwell, for all of his courage in taking unpopular positions, admired Dicken’s talent for “telling small lies in order to emphasize a big truth.” He would have endorsed the decision of the New Yorker’s great non-fiction writer Joseph Mitchell to make his superb stories of the Fulton Fish market: “truthful, not factual.”
But the Rolling Stone catastrophe shows just how dangerous this mindset can be for criminal justice journalists and criminal justice operators.
It also shows why this approach is a constant temptation. Erdley had to pitch her story to the editors. They didn’t want a highly individualized scrutiny of a lone case; they wanted, she believed, “a single, emblematic college rape case that would show “what it’s like to be on campus now … where not only is rape so prevalent but also that there’s this pervasive culture of sexual harassment/rape culture.”
The goal was not to learn something; it was to find a perfect example of something you (thought you) already knew. Detectives trying to persuade a prosecutor to bring a charge often face the same requirements: some prosecutors just don’t want to deal with a mess.
So. . . .detectives learn that you don’t provide one.
This may not be admirable, but it shouldn’t be surprising. Leave the incentives in place, and it will happen again. Create disincentives for behaving otherwise, and you will virtually guarantee repetition, especially where important “essential truths” are at stake.
The problem the Rolling Stone fiasco outlines can’t be dealt with by instituting more elaborate checklists of “best practices.” As the contributors to the Mending Justice volume produced by the National Institute of Justice’s (NIJ) suggest, what is required in the criminal justice area is a cultural shift to a new environment: one in which all stakeholders, at all levels, are working continuously to provide complete factual accuracy, not “essential truths.”
It seems unlikely that this cultural shift can be accomplished simply by producing reviews by journalists for journalists (or prosecutors for prosecutors) on the model of the CGSJ report.
As Douglas Starr shows in his account of the early efforts to employ NIJ’s “sentinel event” model, a review that wants to move toward a culture of accuracy should include not just the journalistic (or prosecutorial) professional specialists, but all of the stakeholders. The perspectives of the school administrators, of rape victims, of accused students who had been through the process, and of psychological specialists in trauma should have been at the table.
It isn’t impossible that at the end of that sort of review of this destructive event actors other than the journalists would have found reasons to change their practices, and to dismantle the barriers that prevent those best practices from being carried out.
At that point, a journalistic defect might have provided a useful insight into the very genuine problem of campus sexual assault and its aftermaths.
James Doyle is a Boston author and defense lawyer, and a frequent contributor to TCR. He was a 2011-2014 Visiting Fellow at the National Institute of Justice, where his explorations of the Sentinel Event concept led to the publication of “Mending Justice.” The opinions expressed here as his own. He welcomes your comments.