I WENT last week to see "Lucky Guy," the new play by Nora Ephron about the journalist Mike McAlary, in previews. The decision to cast Tom Hanks in the lead role was brilliant. Mr. Hanks cannot be anything but endearing, almost cuddly, even though the man he is portraying was complicated and deeply flawed.
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The second act of "Lucky Guy," which opened Monday on Broadway, describes a low point in McAlary's career, when he falsely accused a rape victim of perpetrating a hoax, and was then sued for libel.
For all her artistic gifts, Ephron, who died last June, does not tell us anything about Jane Doe, the rape victim. The victim, whom I represented in the libel suit and spoke with again this week, was devastated by McAlary's work. "I have had the misfortune of being raped twice — once in the park and again in the media," she said shortly after the attack.
A child of a schoolteacher and city planner from Ohio, she'd gone to Yale, where she majored in African-American studies and helped organize protests calling for university divestment from apartheid South Africa. She was 27 and pursuing an acting career in New York — she had appeared recently in an Ibsen play — when, on the afternoon of April 26, 1994, her world changed forever. As she walked in Prospect Park after a grocery run, she heard a man's voice behind her and turned around. He grabbed her around the neck in a chokehold. He forced her up a hill and raped her. He ordered her not to look back until he'd left.
She immediately reported the assault, flagging down a police cruiser in the park.
Two days later, on April 28, a story by McAlary ran in The Daily News under the headline "Rape Hoax the Real Crime." The article instantly conjured memories of the sensational, racially charged case of Tawana Brawley, a black teenager who, in 1987, falsely accused a gang of white men of raping her. (Jane Doe is African-American, and described her assailant as black. He was never caught.)
In the ensuing uproar, Police Commissioner William J. Bratton apologized for police leaks that had cast doubt on the woman's account, which was backed up by undisputed medical evidence, including severe bruising. Undeterred, McAlary, stubbornly recycling a good story — a copycat rape hoax made for a better story than the horror of a real rape — proceeded to write two more columns, under the headlines "No Easy Task Exploring a Lie" and "I'm Right, but That's No Reason to Cheer," insisting Jane Doe was a liar. This falsehood was spread far and wide as other news media picked up on the controversy. While McAlary did not reveal her name in print, he did out her as a lesbian to bolster his case. After all, the only person less trustworthy than an African-American woman was an African-American lesbian woman.
"I sealed my mind off, as if it happened in a dream," Jane Doe told me at the time. "I wanted the media to go away. I did not understand the back and forth between the police and McAlary. I thought it would end."
A longtime First Amendment lawyer, I took on Jane Doe's case and found myself suing the press, for the first time in my career. During our deposition of McAlary, he admitted that he never once contacted Jane Doe or any witness to the crime. He also admitted that — despite describing in detail the location of the rape in one of his articles, to argue why it was impossible for Jane Doe to have been raped and not seen by nearby joggers — he never went to the rape site. He also admitted that he never read the police, lab and hospital reports whose findings he incorrectly described.
As McAlary was writing his columns, several of his colleagues warned their editors that some of their police contacts were disputing the accuracy of his accounts. During the weeks after McAlary's articles, about 30 members of the Daily News staff gave the newspaper's editors a petition labeling the columns "a disgrace" and demanding that the paper apologize to Jane Doe and to "all of our readers." It did not happen. In fact, McAlary bragged about his courage in sticking to his story.
In fairness to McAlary, evidence emerged during the depositions that he'd been misled by police sources who initially disbelieved the victim's account, including a high-ranking commander who inappropriately and incorrectly described the results of a lab test. But McAlary was inflexible as more facts emerged, and his editors were clearly negligent in not asking him tough questions about his sources, their reliability and their motives.
Martin Garbus is a trial lawyer and the author, most recently, of "The Next 25 Years: The New Supreme Court and What It Means for Americans."
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