Is New York Times Smearing Jameis Winston?

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Over the past year The New York Times has published thousands of words about the rape allegation against Heisman Trophy-winning Florida State University quarterback Jameis Winston, all pointing to a single conclusion: He is guilty, and the state of Florida and his school have excused his crime because of his football prowess.

But there is a large body of evidence that The Times has kept from its readers that would lead a discerning reader to another conclusion: that Winston has been cleared by three separate investigations because the evidence shows that his claim that his accuser consented to have sex is as credible as her often-revised account.

The Times' coverage of the Winston controversy (and others like it) shows the nation's most influential newspaper exemplifying bias in the Winston case in particular and on the issue of campus rape in general. It comes at a time when Winston will soon be back in the news due to the 2015 NFL draft and a forthcoming film on campus sexual assault, “The Hunting Ground,” which showcases his accuser's public campaign against him while suggesting that the NFL should shun him.

The uncomfortable truth is that whether Winston committed a rape or whether his accuser is telling a false story cannot be established with confidence. This past December Florida State announced the results of its investigation of the accusation against Winston after a two-day hearing before retired Florida Supreme Court Justice Major Harding. He reviewed over 1,000 pages of evidence and legal arguments. Under university rules, the accuser needed to prove only that it was more probable than not that Winston subjected her to "any sexual act" without her consent or any other "sexual misconduct." Harding found that the case against Winston did not meet even that low threshold. "I do not find the credibility of one story substantially stronger than that of the other,” he wrote, “or that this encounter was nonconsensual."

The New York Times has devoted enormous resources to covering this controversy - more than 40 articles, including a 5,200-word piece by three-time Pulitzer Prize winner Walt Bogdanich -- probing the legal processes that have cleared Winston. But the newspaper’s coverage has been characterized by the same selective and agenda-driven presentation of the facts it faults Florida authorities for exhibiting.

The accuser, anonymous until last month, has now publicly identified herself and told her story in “The Hunting Ground.” Her name is Erica Kinsman. In her version of events, she was not only raped by Winston but also mistreated by her university and the criminal justice system in order to protect a nationally famed athlete. This is what The Times' coverage would lead readers to believe. But The Times has excluded a large body of evidence that undermines Kinsman’s credibility and supports Winston.

Among the facts that The Times has never acknowledged are Kinsman's shifting accounts, starting with the original, recorded phone report to campus police. In that call, a friend of Kinsman’s reported that Kinsman said she was hit in the back of the head, blacked out, and found herself being raped by a stranger. A sexual assault nurse's medical exam hours later showed no sign of a blow to the head, according to the nurse's report, and Kinsman never repeated that claim. She now suggests she never said she had been hit. The evidence suggests otherwise.

The Times has never reported the significant conflicts between her versions of events and the physical evidence. It has never reported the facts casting doubt on her claim that her decision to go with Winston from a bar where he says they danced together to his apartment was involuntary and forced by fear. (Harding found this less than credible.) It has never reported that she refused to tell an investigator for State Attorney William Meggs the source of a second set of semen — not Winston's — on her pants. It has never reported the specific reasons the Tallahassee police gave for declining to pursue charges against Winston. Bogdanich strongly implied near the top of his 5,200-word article that Kinsman had been drugged—but he did not mention the fact that police toxicology reports had found no evidence of any known drug in her system .

The paper, in a rapturous report on "The Hunting Ground,” says the film “makes a mockery of Florida State’s investigation,” and reports the film’s challenge that the NFL should shun him.

Times Executive Editor Dean Baquet, in an email responding to 20 detailed questions posed to him and Bogdanich, said that "[w]e believe your premise is fundamentally wrong" and that "we took no position on whether the sexual encounter ... was rape or consensual sex."

He said that the goal of Bogdanich's reporting was to examine "how the authorities badly botched their investigation," so that "critical evidence was not obtained, was lost, or was destroyed." Baquet also noted that the Times had reported Winston's lawyer's "denial that he had raped anyone, along with the fact that Mr. Winston's two friends witnessed the sexual encounter and backed up his account," and a statement by Meggs that even a proper police investigation might not have supported a prosecution. Baquet further stressed Justice Harding's refusal to adopt Winston's lawyers' claim that the accuser "intentionally fabricated an elaborate lie" and Harding's finding that "trauma, stress, anxiety, or the like can affect a person's memory which can possibly improve with time."

Bogdanich did not respond to any of this writer's specific questions. He did forward them to Baine Kerr, one of Kinsman's lawyers. Kerr revealed this by saying in an email to this writer that the questions were "laced with falsehoods." But neither Kerr, nor Bogdanich, nor Baquet identified a single error.

Winston is not the first - or the second, or the third - young man whom the Times has portrayed as a sex criminal by, among other things, distorting or ignoring evidence pointing toward innocence.

Among other examples are the newspaper's vendetta in 2006 against three Duke lacrosse players accused of a brutal gang rape and its smearing in 2012 of Yale quarterback Patrick Witt after he was anonymously accused of an unspecified sexual assault and subjected to a Kafkaesque process by the university.

The allegations against the Duke lacrosse players were proven false by overwhelming evidence, showing the alleged gang rape to be a fabrication. The still-secret allegation against Witt came from a completely unsubstantiated report by an ex-girlfriend with whom he had broken up. The Times' public editor, Arthur Brisbane, later wrote that the article trashing Witt should not have been published.

Even if Winston did not commit rape, Kinsman has reason to feel mistreated. Winston's roommate and teammate, Chris Casher, told police he had barged through a broken door into Winston's bedroom once in an unsuccessful effort to join in the sex and a second time to film part of it. Then Winston took her into a locked bathroom to finish having sex on the floor. (He says she had asked for more privacy; she says he carried her into the bathroom and overpowered her when she struggled.)

It was, by any standard, an ugly way to treat a woman. Kinsman's friends and her father have said that after the encounter, she was shaking, crying, hysterical, could barely talk, and her head hurt. Months later, after her rape accusation was made public, she was vilified and, she says, threatened by some Florida State fans. She left the university, which she says she loves, citing personal safety reasons in 2013 to go home and live with her parents. "She is not the same person she was," her father testified in December.

But was she raped? Or was she upset and angry about a consensual sexual encounter during and after which she felt used and badly treated? She deserves to have her story fairly heard and weighed; so does Winston. In our tradition, if not in The New York Times, a person accused of a crime is innocent until proven guilty. And there is considerable evidence consistent with Winston's account that the sex was consensual.

The Times has failed to disclose to its readers most of this exculpatory evidence. Examples follow:

Omitting the initial claim that the accuser said she was hit on the head.

The Times has to this day never reported the quickly abandoned initial account that Kinsman was hit on the head, blacked out, and had no recollection of how she got to Winston’s bedroom. One friend, Jenna Weisberg, said in the recorded call at 3:22 a.m. to Florida State campus police that "she thinks was hit on like the back of the head and then she ended up in somebody's room" and said she "kept blacking out." Bogdanich reported that Weisberg had called in the rape allegation - but he omitted the part about being hit on the head and blacking out and the sexual assault nurse's contrary finding.

Weisberg testified at the December hearing, for the first time, that her "close friend" Kinsman had not said anything about being hit, just that her "head hurt." Weisberg did not explain why she had called in an inaccurate report. And according to police reports, another Kinsman friend, Bria Henry, told police later that hours after the alleged rape, Kinsman had called Henry at her home, 250 miles away, and said that "she was at a party and got hit on the head and blacked out."

Implying falsely that the accuser was taken while drugged and helpless from the bar to Winston's bedroom.

It is undisputed that Kinsman encountered Winston and his roommate Casher, neither of whom she knew, at Potbelly's, an off-campus bar, the night of Dec. 12, 2012. The Times has reported that. But it has not reported any of the following facts, which were established by police and the subsequent state attorney investigations, including statements by friends of Kinsman:

Kinsman danced in the bar with a black male, according to one of her friends. (Winston says he danced with her for about 10 minutes, exchanged names, got her cell number, and "mentioned something about staying in touch or getting together later." Kinsman denies dancing with him.) After the men had left the bar to socialize outside, she got a text from an unknown number - apparently Winston's or Casher's - saying "meet me outside." Kinsman’s friend, Monique Kessler, recalled to Jason Newlin, State Attorney Megg's investigator, that Kinsman showed her the text and asked if she should go. Kessler said "you can go" and Kinsman almost immediately disappeared from the bar, according to Kessler's statement to Newlin. (Kinsman says she does not recall any of this. The police were unable to find the "meet me outside" text, which would have confirmed part of Winston's account, on her phone the next day. Kinsman says she does not recall deleting it.)

Bogdanich’s 5,200-word article last April 16 reported without qualification a version of events similar to Kinsman's story, given to a campus police officer in her first interview after the alleged rape. Bogdanich wrote: "[A]fter a stranger gave her a drink, she recounted, her memory became hazy and fragmented. Soon, she found herself in a taxi with three unfamiliar men. ... After partially blacking out, the woman said, she found herself in an apartment with a man on top of her, sexually assaulting her."

The article's clear implication was that the drink had been drugged.

Disregarding lab reports and testimony showing she was neither drugged nor forced into Winston's bedroom.

Two widely publicized police toxicology reports found no evidence of any known date-rape or other drugs in Kinsman's system. Her blood alcohol content was well below the legal limit for driving. The Times itself had reported this deep in a Dec. 1, 2013 article about Meggs finding insufficient evidence to charge Winston with rape. But the Times hasn’t mentioned the lab reports since 2013, nor did it report that Kinsman's first lawyer, Patricia Carroll, asserted publicly that Kinsman had been drugged and suggested that the first lab test was of the wrong person's blood. A second set of lab work returned the same results.

The Times has also failed to report that the version of events Bogdanich set forth in April is contradicted not only by the lab evidence but also, now, by Kinsman's Dec. 2 testimony and by key details of Harding's findings. Kinsman testified that she recalled leaving the bar (to look for her friend Kessler, she claimed, contradicting Kessler's 2012 police report); then getting into a taxi (though not "willingly") without resisting or seeking help, at the urging of "three men who I've never met," Winston, Casher, and their teammate Ronald Darby. She told Harding that she recalled going with them into Winston's apartment, and then with Winston into his bedroom.

She said nothing about blacking out or physically resisting at any point in this journey, and testified that when being raped in Winston's bedroom, she "lay frozen but telling him to stop ... multiple times" without physically resisting until after he took her into the bathroom.

When questioned by Harding, Kinsman said the reason she did not seek help outside the bar or in the cab was that she was "scared." But in his decision, Harding stressed that there was no evidence that Winston "acted in a manner that would reasonably justify" her claimed fear; found that "the area outside of Potbelly's was active with other students, bar security, and cabs" who could have helped her; and said that "this lack of evidence ... is relevant" to assessing the rest of her story.

Harding also confirmed that the lab reports show there were no known drugs in her system and she had a low blood alcohol level consistent with her own testimony and witness reports that she was not intoxicated. (According to media reports of the Sundance Film Festival premiere of “The Hunting Ground,” in the film Kinsman returns to telling an account that implies she was drugged at the bar.)

Suggesting her bruises were evidence of rape.

Bogdanich stressed in the second paragraph of his long April 16, 2014 article that "[a]s she gave her account to the police, several bruises began to appear, indicating recent trauma." Bogdanich implied - as Kinsman's lawyers have asserted, including in a brief submitted to Justice Harding - that the bruises corroborated her account of a violent rape by the 235-pound Winston.

An early police report did indeed note the appearance of new bruises. But the Times has never disclosed that according to the sexual assault nurse's Dec. 7, 2012 report and the nurse’s Dec. 3, 2014 testimony , she found after a thorough physical examination that the only marks on Kinsman's body were brown and brownish bruises above her left knee and on her right forearm; "mild redness on both ... knees below the kneecap” and on the top of Kinsman's right foot; and "mild generalized vaginal tenderness and redness."

The nurse noted that the vaginal redness could be consistent either with consensual or with forced sex. Bruises do not become brown or brownish until they are days old, according to a Justice Department handbook. Winston's lawyers argue plausibly that the mild redness on the knees and foot was more consistent with statements by Winston, Casher, and Darby that that they had seen her on her knees, voluntarily giving Winston oral sex, than with Kinsman's account of a violent rape that included no oral sex. In short, it was clear from the start - though unreported by The Times - that, as Justice Harding later found: "[T]he reported bruises, to the extent received on the night in question, are not necessarily inconsistent with the particular evidence of consensual sexual activity in this case."

Asserting that police did "virtually no investigation at all."

The Times has claimed in at least seven separate articles that the Tallahassee Police Department had gone soft on Florida State's accused football star by conducting "virtually no investigation at all," as Bogdanich wrote. This is a stretch. The police investigative file alone is hundreds of pages long.

It's true that the police made serious errors, as State Attorney Meggs has complained. Among others, they failed to find and interview the taxi driver. They failed to obtain either the video made by Casher before he erased it or possibly relevant Potbelly's security videotapes before they were recycled. Kinsman told police on the day of the alleged rape that she did not know the identities of her alleged attacker or his friends. But the police failed to discover who they were. And when Kinsman told police a month later that she had recognized Winston in class, the police did not press in a timely way to interview him.

But The Times has never disclosed the reports showing the Tallahassee police interviewed Kinsman three times on the day of the alleged rape; put together a rape kit, a toxicology kit, clothing with semen that turned out to be her boyfriend's (as well as semen of Winston's); interviewed multiple witnesses; took photos, and more. The Times has never disclosed the December 2013 police report that "[t]his case was left in suspended status because probable cause could not be established given the conflicting statements between what the victim told her friends and what was reported to police."

Concealing Winston's detailed claim of consent.

The Times has not reported any details of the five-page written statement that Winston submitted and read aloud to Harding. In it, Winston asserts that Kinsman consented both verbally and by her actions, “by ... kissing and touching," by "willingly perform[ing] oral sex on me," by "assist[ing] me in putting on the condom," by willingly engaging in sexual intercourse, by getting "on top of me," by getting up to close the door to stop Casher from coming in, by turning out the lights, and by asking for "more privacy."

In a Dec. 24 sports column portraying Winston as clearly guilty, Juliet Macur, suggested that the quarterback’s only basis for claiming that Kinsman had consented to sex was her "moaning," which Winston had cited in response to a question from Harding. Portraying Harding's ruling in favor of Winston as an outrage, Macur also quoted a Kinsman assertion that one of Winston’s friends told him that "she is saying no" without noting that the friends flatly deny this. Macur also wrote: "Anyone who has supported the [Florida State] program for the past couple of years should feel dirty by now." (Executive Editor Baquet noted that Macur's was an opinion column.)

Finally, although The Times has not seen fit to report significant evidence exculpatory to Winston, it has found the space to detail Winston’s petty off-field misbehavior. It has covered how he was suspended for a game last autumn for repeatedly shouting a sexual obscenity of a popular internet meme while standing on a table in the student union; how Winston and Casher posted in February 2014 a tasteless Instagram video of Winston dancing and singing a rap music singer's line about not taking no as an answer from women; how they and other teammates used BB guns to shoot out thousands of dollars’ worth of windows; and how Winston has been accused of shoplifting $32.72 worth of seafood from a supermarket and filling several ketchup cups with soda without paying at a fast-food restaurant.

Such episodes, along with Winston's and Casher's own accounts of Winston's encounter with Kinsman, may suggest that the two are ignoble characters. They do not show that Winston is a rapist.

The Times has sought to prove to its readers that the clearing of Winston by three separate investigations was driven by favoritism for athletes, solicitude for accused males, and callousness toward rape victims. But the evidence casting doubt on Kinsman's credibility is too strong to support either a rape prosecution or campus discipline of Winston. By concealing much of this evidence, The Times has proved its own bias and unfairness.

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