North Carolina journalist and television commentator Cash Michaels' latest article is titled "How '60 Minutes' Failed the Fairness Test."
North Carolina journalist and television commentator Cash Michaels' latest article is titled "How '60 Minutes' Failed the Fairness Test."
I agree that, like every other news program and every newspaper and news magazine, "60 Minutes" has not always passed "the fairness test" (which is a subjective test). But, I thought "60 Minutes"' "Duke Rape Suspects Speak Out" two-part segment broadcast on October 15 was about as fair as circumstances (including time constraints, court orders and accuser Crystal Gail Mangum's refusal to be interviewed) permitted.
I agree with Mr. Michaels that more time should have been devoted to the story. Broadcasting the out takes of the interviews of the Duke Three would have made the broadcast even better (and further helped the Duke Three combat the highly improper and blatantly prejudicial public relations campaign that Durham County, North Carolina District Attorney Michael B. Nifong conducted against them and their lacrosse teammates until he won, barely, and by a plurality, the Democrat district attorney primary last May 2.
Mr. Michaels obviously believes that '60 Minutes" should have interviewed North Carolina Central University Law Professor Irving Joyner. I agree. Professor Joyner is monitoring the case for the North Carolina NAACP and his opinions could be illuminating, particularly his opinion of Judge Titus accommodating the North Carolina NAACP by gagging potential witnesses in the Duke case, including the Duke Three. Police and prosecutorial misconduct may not be the only kinds of misconduct fueling an unwarranted prosecution.
I urge "60 Minutes" to interview Professor Joyner as soon as possible
I also urge it to interview Stuart Taylor, Jr., America's top legal commentator and the author of an upcoming book on the Duke case, and Mr. Michaels, who is covering the case for America's black press.
By Mr. Michaels' standard, "60 Minutes" DID fail the fairness test: it did not present a spokesperson for the pro-prosecution side in the Duke case, such as Professor Joyner..
A court order and rules of professional conduct discourage both prosecution and defense lawyers from making public statements about the case, so it is not surprising that neither Mr. Nifong nor any of the attorneys for any of the Duke Three accepted an invitation from "60 Minutes" to comment.
I expect Ed Bradley would have demonstrated in short order that those who still support the prosecution either assume or hope that there is evidence of guilt, not that they are aware of any.
"60 Minutes," it's time to follow up. Please have Mr. Bradley interview Messrs. Taylor, Michaels and Joyner as soon as possible and broadcast a follow up on October 29, in time for the Durham County voters to give it due consideration before voting.
"60 Minutes" in its expose acknowledged the assertion that Mr. Nifong had used the Duke case to pander to black votes to win the Democrat primary on May 2, but ignored the upcoming election. The follow up should cover it, because there is a viable Anybody But Nifong candidate, Lewis Cheek, a Democrat and a Durham County Commissioner (as well as a Republican spoiler, Steve Monks, who failed to get enough signatures to have his name put on the ballot, then became a write-in candidate and is seeking votes by claiming that a vote for him is the best thing those who realize that the Duke Three are innocent victims of a rogue prosecutor--NOT THAT THE DUKE THREE SEE IT THAT WAY!).
Mr. Michaels began by stating the obvious (and acknowledged that he was doing so): "There is no question that the Oct. 15 two-part expose’ on the infamous Duke lacrosse alleged rape case by the CBS newsmagazine 60 Minutes, helped to solidify the defense’s most salient points so far – that there has been little, to no evidence publicly revealed proving that three indicted members of the Duke University men’s lacrosse team raped and kidnapped a Black exotic dancer at a wild off-campus party March 14; and that Durham District Attorney Mike Nifong, who is personally prosecuting the case, knew early on that his evidence was weak, but exploited the racially explosive case anyway to win Black votes in last May’s Democratic primary."
Actually, it is WORSE than that: Mr. Nifong refused to consider evidence of innocence and reject offers to take a polyugraph test: mortal sins for a prosecutor who is supposed to be a fair and impartial minister of justice, not a political panderer who plays the race card to save his job.
Mr. Michaels: "The widely viewed report, anchored by veteran CBS News correspondent Ed Bradley, has been generally applauded by supporters of the 'Duke Three.' 'The impact of "60 Minutes" expose’ of District Attorney Mike Nifong’s hijacked hoax is readily apparent,' writes blogger Liestoppers (http://liestoppers.blogspot.com/)."
Mr. Michaels quoted from the "Liestoppers" celebratory article:
“A brief review of some of the comments the big tractor [Note: a reference to '60 Minutes'] has elicited leaves little doubt that the injustice that we, and other bloggers, have been hollering about for months, is now common knowledge across the country.
"From coast to coast, millions of people now know that Nifong is the embodiment of prosecutorial misconduct.”
Mr. Michaels noted the Liestoppers was not alone:
"Kansas City Star columnist Jason Whitlock, an African-American, agreed.
“'The charges against the Duke lacrosse players should be dropped immediately, and the people demanding the dismissal the loudest and most forcefully should be the very people who have made a living allegedly fighting against racial injustice,' Whitlock wrote Oct. 16.
“'I’ve said this before, but it’s worth saying again,' he continued. 'Jesse Jackson and Al Sharpton should be in Durham, N.C., today, promising civil disobedience until the charges are dropped and prosecutor Mike Nifong resigns.'"
Mr. Michaels let his readers know how the Duke student newspaper covered the "60 Minutes" expose:
"And not surprisingly, Duke University’s student newspaper, The Chronicle, heralded Bradley and 60 Minutes for focusing on what many believe to be a supreme injustice.
“'For an analytical and well known program such as 60 Minutes to come down so decisively on one side of a highly controversial case seems significant,' The Chronicle’s editorial stated. 'The show, anchored by Ed Bradley, highlighted several discrepancies in the prosecution’s case and exposed instances of questionable conduct on the part of Durham officials over the past six months.'"
Then Mr. Michaels shared HIS view as to the message of the expose:
"Indeed, correspondent Bradley left no doubt, from the very opening of the report, that the Duke Three were being railroaded by false charges of rape, by a prosecutor who may be up to no good, and is determined to convict them at trial next spring.
“'The evidence 60 Minutes has seen reveals disturbing facts about the conduct of the police and the district attorney, and raises serious concerns about whether or not a rape even occurred,' Bradley told his audience at the top of the show."
I share that view, and think the bulk of the people paying attention do too.
Mr. Michaels acknowledged the horrific impact of the prosecution on the Duke Three and beyond.
Example: “'This woman has destroyed everything I worked for in my life,' Evans, a co-captain of the lacrosse who graduated last spring, only to lose a Wall Street job because of the indictments, told Bradley. 'She’s put it on hold. She’s destroyed two other families and she’s brought shame on a great university. And, worst of all she’s split apart a community and a nation on facts that just didn’t happen and a lie that should have never been told.'"
Then Mr. Michaels began to made sure his article was what he considers fair, by writing:
"The CBS broadcast was certainly powerful, and yet, it didn’t convince everybody.
“'Correspondent Ed Bradley, forever immortalized by some… broke no new ground and, except for showing what was allegedly the alleged victim gyrating onstage after the alleged incident, shed no new light on any aspect of the Duke case,' Raleigh News & Observer columnist Barry Saunders, an African-American, wrote."
Mr. Saunders is wrong: Mr. Bradley broke new ground. He introduced America to each of the Duke Three and demonstrated that they are not the racist rapists some want people to believe, but innocent victims. He elicited from Reade Seligmann that neither the police nor the prosecution had talked to him about what allegedly happened at what Mr. Seligmann called a "boring" party last year. He interviewed the other exotic dancer (aka stripper) and she said that (1) none of the Duke Three had used racial epithets, (2) Ms. Mangum had not looked or behaved like she had been assaulted and (3) Ms. Mangum's version of what had happened was contrary to what she remembered. (Mr. Nifong won't be calling Ms. Mangum as a prosecution witness and has no one confirming Ms. Mangum's claim.)
"Others expressed concern about how demonstratively slanted the 60 Minutes expose’ seemed.
“'I thought it was pretty one-sided, but that’s to be expected,' said Chapel Hill civil rights attorney Al McSurely, who also serves as chairman of the NC NAACP Legal Redress Committee. 'The prosecution hasn’t shown any of its whole cards yet, and I don’t think it will until trial.'
"In fact, defense attorney Brad Bannon confirms that there is still discovery evidence outstanding.
“'We have indeed received in excess of 2000 documents, but many of those documents are duplicates, and our review of them reflects, as we have noted in multiple discovery requests and as recently as last week in the attached letter to the District Attorney, that Dave and his co-defendants are entitled to additional discovery that has not been provided,' Bannon said in a statement.
"All evidence, by state law, is supposed to be turned over to the defense from the prosecution. But observers note that doesn’t mean DA Nifong hasn’t tried, or will not try, to hide what he can, as defense attorneys fear he is."
What we have here would be comical if it was not tragic: the pro-prosecution people are not admitting that they have been duped by Mr. Nifong, that abuser of prosecutorial power, NOT because they are aware of evidence that would permit any of the Duke Three to be convicted on any of the heinous crimes on which they were indicted at Mr. Nifong's request, but because Mr. Nifong may be engaging in even more prosecutorial misconduct: hiding evidence that, as Mr. Michaels' rightly stated, state law calls for the prosecution to turn over to the defense!
Let's think about this.
It would have pleased me if the defense had made public everything that the prosecution had produced in discovery, but that is virtually unheard of. I do know, however, that what has been produced by the prosecution has been made available, in various ways, to some lawyers and journalists, some who have publicly acknowledged it and some who have not. I have no reason to believe that ANY of these people would cover up for any or all of the Duke Three and full confidence that some of them definitely would not. MSNBC's Dan Abrams, whose liberal credentials are not in dispute, has admitted that he saw the material that Mr. Nifong had when he obtained the indictments and concluded that the indictments were travesties of justice. THAT is significant.
For people to want the Duke case to proceed on the hope that Mr. Nifong has evidence of guilt that he has refused to produce, North Carolina law notwithstanding, is, frankly, absurd.
There is no "there" there, and there never will be. There was no rape. There is no DNA evidence to support a rape claim. There is no witness supporting Crystal Gail Mangum's rape claim. Kim Roberts, the second stripper, disputes key aspects of Ms. Mangum's story. Ms. Mangum is an ex convict stripper who simply is not credible. If there is a trial, thoroughly impeaching her will not be challenging.
If the Duke case had arisen before DNA testing and the Duke Three had been too poor to effectively contest the case and wrongly convicted, but the material for DNA testing was available, Barry Scheck could come to Durham and have the convictions set aside based on DNA testing.
The case is not fit to try.
The prosecution of the Duke Three is an egregious abuse and people who say that they were not convinced by the "60 Minutes" expose because Mr. Nifong made be hiding evidence are unfair.
People with a good understanding of America's criminal justice system appreciate that NO ONE is supposed to be indicted without probable cause or convicted without evidence beyond a reasonable doubt and there must be competent, credible evidence, not "hope." Those people also know that the prosecution cannot introduce evidence that it deliberately failed to produce in discovery. And if those people have had access to what Mr. Nifong has produced, they know he doesn't have a case and his prosecution has been an utter disgrace. (Of course, they should state that publicly, in the interests of justice, whether or not it is popular, because (1) all of us, even journalists and commentators, have a moral obligation to promote justice, (2) justice delayed is justice denied and (3) it is unjust for the Duke case to continue.
“'Jakki,' the cousin of the alleged victim, told ABC News that the 60 Minutes piece was 'a lot of intimidation,' adding, 'I think they want to her to break, to say, "Enough is enough.'"
Ed Bradley and Duke Law Professor James Coleman are intimidators of a poor, black, stripper, ex convict mother of two?
THAT is NOT something that they do.
"Others also expressed concern.
“'Through all the publicity of this case, all I wish for is justice to prevail, and hope that the media and people as a whole do not turn a blind eye to this assaulted woman,' Patrick Illes, a Florida businessman, emailed www.ourhearts world.com Oct. 16, a day after the broadcast."
Justice will not prevail until the Duke case is dismissed and Mr. Nifong and Ms. Mangum are held to account for what THEY did.
"For instance, Bradley interviewed Duke University Law Professor James Coleman - who is on record blasting DA Nifong’s handling of the case, particularly the controversial police photo lineup of all 46 white lacrosse players.
“'I think that he pandered to the [Black] community by saying "I’m gonna go out there and defend your interests in seeing that these hooligans who committed the crime are prosecuted," Coleman told Ed Bradley, further suggesting that Nifong said, '"I’m not gonna let their fathers, with all of their money, buy, you know, big-time lawyers and get them off. I’m doing this for you."'
"But the 60 Minutes reporter did not interview North Carolina Central University Law Professor Irving Joyner, whose views about the efficacy of the case have been widely reported in both local and national media like Court TV.
“'[The 60 Minutes piece] failed to present anything about the state’s case, and that’s the way it should have been,' Prof. Joyner told The Carolinian/Wilmington Journal newspapers. 'I thought it was a pro-defense theme that sought to take a shot at Nifong, and possibly impact the election, more than anything else.'
"Prof. Joyner added that the jury pool in Durham 'is already tainted and can’t get any worse' in favor of the defense; the 60 Minutes program will make more lengthy the jury selection process; and that by not revealing any negative background information about the Duke Three or Kim Roberts Pittman, 'It was pretty clear that they wanted to present these kids as being pretty pure and without sin' despite evidence of excessive underage drinking and poor judgment the night of the party.
"The NCCU law professor also agrees with attorney Al McSurely that all of the admittedly weak evidence so far seen by the media 'does not mean it is the only information prosecutors have available to them.'
"In fact, Joyner adds, there is a lot of evidence and witness testimony that simply isn’t reduced to writing.
“'I’ve been practicing law long enough to know that what ends up in a report isn’t necessarily everything that’s there, ' he said, adding that, for instance, clarification of evidence or information in a criminal case is not required to be part of the discovery package mandated from the prosecution to the defense.
“'Just because [evidence] has been released, doesn’t mean that’s it,' Prof. Joyner said.
"A look at Ed Bradley’s opening remarks on 60 Minutes, in addition to defense attorney Bannon’s indication that much of what they’ve received has been duplicate documents, seems to confirm what Prof. Joyner indicates:
Over the past six months, 60 Minutes has examined nearly the entire case file… Ed Bradley said.
“'Nearly,' but admittedly, not all, Joyner notes.
“'Just because the defense is slam-dunking during warm-ups, doesn’t mean a thing when the game starts,' he warns.
"Joyner has no doubt the 60 Minutes’ producers knew he existed. They called him while they were putting the story together, trying to enlist him in their efforts to locate the alleged victim for an exclusive interview, he says. If Joyner had been interviewed, the veteran law professor could have provided some balance to Prof. Coleman’s 60 Minutes presentation."
Professor Joyner missed the main point: there is no admissible evidence to support the charged felonies and the "clarification of evidence or information in a criminal case...not required to be part of the discovery package mandated from the prosecution to the defense" is not a substitute for competent, credible evidence.
Mr. Michaels contacted CBS and dutifully reported that CBS said it was fair:
"''We believe there was enough balance in this story,' Kevin Tedesco, spokesman for CBS News and 60 Minutes told The Carolinian/Wilmington Journal newspapers.
"When asked what was the balance, and more importantly, where was the balance, given that beyond video of Nifong’s prior statements, there was no one opposing Prof. Coleman to give differing perspective, Tedesco replied, 'We looked at the evidence, we presented…sometimes the evidence is only…we, we did look at the evidence.'
"When pressed for further clarification of the 'balance' he was referring to, Tedesco could only offer, 'The DA had every opportunity to come on our program or to [offer] a proxy, but chose not to.'
"The 60 Minutes spokesman never went further to explain exactly what 'balance' their reporting had, as opposed to the balance they tried, but did not get."
Ms. Mangum did not come. No gag order stopped her. Her choice not to let Mr. Bradley interview her contrasts sharply with each of the Duke Three having done so. Mr. Michaels did NOT note that the three team co-captains offered to be polygraphed, Mr. Nifong refused their offer, each of the Duke Three subsequently took and passed a polygraph test and Ms. Mangum was not given a polygraph test (even though the accuser of William Kennedy Smith passed a polygraph test twice before he was charged with rape).
"While supporters are hoping to parlay the 60 Minutes treatment, and especially video shown on the broadcast purportedly of the accuser pole dancing at a night club just two weeks after the alleged brutal assault, into an effective weapon to either get the charges dismissed immediately, or assure DA Nifong’s election defeat on Nov. 7, African-Americans have pointed questions about how truthful the defendants, and especially Kim Roberts Pittman, the second dancer who has called the rape allegations 'a crock,' actually were.
"Bradley’s report failed to reveal any information about Pittman’s criminal record (she was convicted of embezzling $25,000, and recently was sentenced for violating her probation); the alleged victim (convicted in 2003 of several felony charges related to a car theft, all reduced to misdemeanors) who turned down a chance to be queried on the program according to CBS; or even the minor offenses of two of the three defendants (the most serious being Colin Finnerty’s simple assault conviction in connection with a Washington, DC incident last year).
"Given how forceful their combined interviews were in making the point that the allegations were fraudulent, giving the audience pertinent information about the backgrounds of all involved, including the accuser, would have given viewers a more accurate barometer of Pittman and the Duke Three’s character and credibility, or lack thereof, beyond their on-air claims, critics say.
"The portions of the four interviews aired also failed to show Bradley, one of the best television interviewers in the business, pressing any of his subjects with hardball questions about the events surrounding the alleged assault. The News & Observer’s Barry Saunders chided Bradley for his 'kid-gloves treatment' and 'failure to follow-up.'
"Nor did Bradley dig deeper into what sources say was a larger and still unreported issue surrounding the money paid to both Pittman and the accuser by the lacrosse team captains on the night in question."
In more time, "60 Minutes" could have covered that and more. What it focused on in the allotted time were two questions of paramount importance: (1) whether there was a rape and (2) whether the prosecution proceeded in an appropriate way, The answer to each question was no.
"And there are questions about just how supportive 60 Minutes and CBS News were of the three indicted Duke defendants.
"For example, on the 60 Minutes website, there are two links – one for Duke University, which has certainly been at the center of the legal controversy, and whose president, Richard Brodhead, has been immeasurably criticized for what many Duke supporters believe to be his weak handling of the controversy early on.
"But the second link on the 60 Minutes site pertaining to the Duke case is to Friends of Duke University, a very supportive and most times constructive blogsite for parents and alumni of the institution who believe the Duke Three are victims of prosecutorial misconduct. In fact, several letters demanding that both North Carolina Gov. Mike Easley and State Attorney General Roy Cooper immediately find cause to remove Durham DA Nifong from his post have been formulated and published there.
"At that site the day after the broadcast, 'Friends' spokesman Jason Trumpbour posted, in part, the following message:
We welcome those of you who followed the link on the CBS News site to our own. We are very happy that a news program of the stature of 60 Minutes chose to look at the Duke lacrosse case and bring the facts of the case to a wider audience that may not have heard much about the case since it first broke. 60 Minutes also gave us some interesting insights as well.
"The 'Friends' site then refers visitors to other blogsites that are even more virulently critical of both DA Nifong, the Duke rape accuser, and those who support her.
"Given the one-sidedness of the report, the 'Friends' link raises questions about the bias of CBS News and 60 Minutes regarding this story. Critics say it is especially troubling given that the president of CBS News, Sean McManus, is a Duke University alum.
"Kevin Tedesco, spokesman for CBS News and 60 Minutes, said he 'wasn’t unaware' that the 'Friends' link existed on the 60 Minutes website, adding, 'but that’s not unusual to have anybody connected to both sides of the story to put a link on our site.'
"But when reminded that there are only two links listed – Duke University and the Friends of Duke University – Tedesco quickly added, 'and if somebody had approached us from some other organization that would presumably be on the other side of this story, they would be allowed as well.'
"When pressed if another organization 'on the other side of this story' would have to actually approach CBS News to be linked, Tedesco gave a halfhearted, 'Yeah.'
"Tedesco said in terms of response, 60 Minutes received 'a little more than normal' from viewers regarding the Duke rape case story. Tedesco confirmed that CBS approached the Duke Three for the exclusive interviews, but refused to say exactly when. He also confirmed that there were no restrictions on what Bradley could ask the defendants.
"The 60 Minutes spokesman would not confirm whether attorneys were present off-camera during the Bradley interviews, though conceding that when interviews involve legal controversies, 'That’s standard operating procedure.'
"However just before presstime, Evans attorney Brad Bannon told The Carolinian/Wilmington Journal newspapers, 'Joe and I were in the room with Dave as observers when he was interviewed by Ed Bradley, but we took no part in the interview.'
"The video purporting to show the alleged victim pole dancing at a nightclub two weeks after the alleged assault was secured by CBS News, not the attorneys, atty. Bannon and Tedesco confirmed. The spokesman would not say where or how the video was surreptitiously taken, or by whom.
"Tedesco also confirmed that 60 Minutes, in fact, did get in direct contact with the accuser in the case and offered to interview her for the program.
“'She refused,' he said, but did not explain why no mention of the offer was made on the Sunday broadcast.
"The Durham Herald-Sun reported that DA Nifong advised the alleged victim not to do the interview.
"Since the story broke on March 24, she has only done one.
"He added that 60 Minutes will be following the Duke rape case and 'report additional material as warranted.' Tedesco said he was not aware of any immediate follow-up to the Oct. 15 report.
"Meanwhile the Durham Committee on the Affairs of Black People, which is currently interviewing candidates for the Nov. 7 election, has to decide whether it will endorse DA Nifong, his opponent, Lewis Cheek, or just issue no endorsement at all. Last spring the Committee did not endorse Nifong for the May primary, giving the nod to another Democrat.
"Nifong already has the endorsement of the People’s Alliance of Durham, a liberal group. He’s unlikely to get the conservative nod, which means the Durham Committee’s decision will be all important.
"Without it, observers say he could lose Election Day, which is exactly what supporters of the Duke Three – both here and across the nation, especially after the 60 Minutes piece, want."
As to all that:
(1) Mr. Michaels is right about (a) the importance of the upcoming election for Durham County District Attorney, (b) the importance of the position on it of the Durham Committee on the Affairs of Black People and (c) Duke Three supporters wanting Mr. Nifong to lose on Election Day.
(2) The rest of what Mr. Michaels wrote does not detract in the least from what was obvious from the expose: (a) there was no rape and (b) Mr. Nifong.is guilty of prosecutorial misconduct,
(3) Each of the Duke Three was interviewed by Mr. Bradley. They answered his questions, not their parents or their lawyers.
(4) Ms. Mangum declined to be interviewed (and I wish "60 Minutes" had mentioned it repeatedly throughout the broadcast and said much more about her criminal, medical, marital, sexual and employment histories).
(5) There is no evidence that the Friends of Duke University improperly influenced "60 Minutes" and the website linkage established after the broadcast of the expose does not discredit the expose one whit.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.