In light of recent coverage involving the alleged rape of a teenaged girl by two Steubenville, Ohio high school football players and the alleged rapes of two 13-years old Torrington, Conn., girls by four high school football players, the impetus to cover the story faithfully and unbiasedly has never been so important.
Recently, the consequence of biased reporting has been revealed. Former Syracuse University assistant basketball coach Bernie Fine has filed a defamation lawsuit against ESPN for the network’s reporting of two former ball boys’ claims that the long-serving coach sexually abused them.
A “summons with notice” was filed in the New York State Supreme Court in Onondaga County Nov. 12, 2012. It sat unnoticed by the media until the Associated Press requested a copy Thursday. In the paperwork, Fine is claiming defamation and is seeking undefined damages from ESPN’s owners, Hearst Corp. and the Walt Disney Company, and from reporter Mark Schwartz and producer Arthur Berko.
The initial ESPN report argued that Bobby Davis and his stepbrother Michael Lang, two former Syracuse ball boys, came forward and accused Fine of sexually handling them when they were teenagers. Davis said that the contact continued for years.
Unprosecutable allegations
The situation was brought to the attention of the former Syracuse City Police Chief Dennis DuVal in 2002, who chose not to pursue further investigation as the statute of limitation on these cases has already expired. “It should be noted that the first time the Syracuse Police Department ever met face to face with any victim in this case was on November 17, 2011, when two victims came to the Syracuse Police Department, along with new evidence,” current police chief Frank Fowler said in a statement in 2011.
“Right now, in the state of New York, the age for a civil lawsuit, and that’s just against the perpetrator and for the most serious sex crimes, is 23 years old,” said Marci Hamilton, a Cardozo School of Law professor. “It’s 21 years old against third parties — organizations that act negligently.”
There is no age limit for a criminal prosecution, but as the case would most likely yield a charge in the third degree or a misdemeanor due to the lack of physical evidence, state law permits such a case to be summarily dismissed if the term between the actual assault and the accusation is excessive.
Onondaga County District Attorney William Fitzpatrick found the two men’s allegations to be credible, but not actionable, due to the men’s ages, when the accusations were levied.
“The bottom line being is that in ’02, ’03, ’04,’05 and in 2011, Bobby Davis and Mike Lang would be judged to be credible,” Fitzpatrick said. “But for the obvious problem of the statute of limitations, their allegations would have resulted in the arrest of Bernie Fine, at least for the misdemeanor charge of sexual abuse in the 3rd degree.”
A third man, Zachary Tomaselli — who was 23 when he made his accusation — went public with an accusation that Fine molested him in a 2002 Pittsburgh incident. The day of the accusation, ESPN released an audiotape on which Laurie Fine — Fine’s wife — allegedly acknowledged knowing about the alleged molestation. Laurie Fine is currently suing ESPN for this, as she alleges that the recording was edited, taken out of context and used without her consent.
Based on the release of this tape, Syracuse University fired Fine. Syracuse’s men basketball head coach Jim Boeheim angrily and verbally defended the honor of his longtime friend, accusing the accusers of trying to cash in on the publicity circus that was caused by the Penn State scandal, in which former assistant football coach Jerry Sandusky was charged and convicted of the sexual abuse of several minors.
A fourth accuser, Floyd Van Hooser, was found to be lying. Tomaselli was caught changing his story and lying to investigators in regards to the Fine case. Tomaselli was convicted of sexual abuse of a minor in 2010 and was sentenced to prison.
After a yearlong investigation, the Secret Service and the Federal Bureau of Investigation (FBI) have dropped their investigation into the Tomaselli allegation, claiming that the case is hearsay and that not enough tangible evidence is available to support a criminal charge.
Trying a case in “the court of public opinion”
Much of the problem in ESPN’s coverage of the Fine case was its attempt to turn this story into “multiple news cycles.” Davis supposedly recorded the telephone conversation with Laurie Fine in October 2002 and released the recording to the Syracuse Post Standard and ESPN in 2003. ESPN chose not to release the tape because it was impossible to verify if the speaker on the tape was actually Laurie Fine.
“When we had the audio in the past we had never been able to confirm that it was Laurie Fine,” ESPN Senior Vice President & Director of News Vince Doria said. “Part of it was we had no independent video of her and her voice — something we could look at and say, ‘Yes, that’s her and yes, that appears to be her voice.’ This time around when we re-engaged on the story we did in fact have a video we found on-line of her serving a meal to Bernie and a number of young men who may or may not have been Syracuse players. In this video you could clearly hear her. This allowed us to submit the audio to a voice recognition expert, which we did last week.”
The Post Standard never released its copy of the tape, citing verification difficulties. “The refusal of The Post-Standard to publish an article about Davis’s allegations — charges it could never corroborate — now looks like responsible journalism rather than a dereliction of duty,” said Joe Noerca, a columnist for the New York Times that covered the Fine case. “The university hired the law firm of Paul Weiss to review its actions in 2005. The firm concluded that, while the university had made mistakes, it had investigated Davis’s allegations diligently and had come to the same conclusion as the newspaper: there was simply no proof.”
Journalistic ethics
The use of voice recognition or voiceprint analysis have been ruled inadmissible as evidence in many courts, due to the technology’s unreliability, tendency to point toward false positives and capability to be fooled by other technologies, such as voice masking or audio dubbing.
As the origin and timeline of the collaborating video is unclear, it is an invalid basis for judging the audio tape. Even if the video was made in the same span of time as the audio — there is no evidence to suggest this — Laurie Fine must have been in the same state of being during both recordings for a valid analysis to be made, that is, she was in the same state of health, she was under the same level of emotional stress, she was situated in the same environment with the same reverberation both times, etc.
This creates an uncomfortable realization about the way ESPN covered this story, as first argued by Jason Link of Big Lead Sports. On one hand, they knew about this story and had tangible, independent evidence to collaborate it eight years before they actually broke the story. On the other hand, if ESPN did feel morally-bound not to release the audio tape without secondary collaboration, why did they release it when they did without a stronger basis of verification? Evidence would suggest that ESPN tried to “corner the market” with its release of the story, despite the vetting of the evidence.
In light of the Penn State scandal, which ESPN contributed in breaking, the network was desperate to sustain the viewership it received from its coverage. As the Sandusky story wound down, ESPN moved to keep the molestation angle current, and in doing so, may had tried a man in the court of public opinion.
According to Schwarz’s article for ESPN’s Outside the Lines: “‘Outside the Lines’ investigated Davis’ story in 2003, but decided not to run the story because there were no other victims who would talk, and no independent evidence to corroborate his story. In recent days, a second man, Lang, contacted ‘Outside the Lines’ with information alleging that Fine had also molested him. Lang said he was inspired to talk after seeing news coverage of the Sandusky case.”