One of the pluses in the tragedy that is the Duke case has been meeting North Carolina journalist and television commentator Cash Michaels online and discussing the case with him, both on and off the record.
For me, one of the pluses in the tragedy that is the Duke case has been meeting North Carolina journalist and television commentator Cash Michaels online and discussing the case with him, both on and off the record.
Mr. Michaels and I have different backgrounds, perspectives and predispositions, but each of us tries to follow the evidence, each of us tries to see the whole picture, and each of us irritates some people by being independent.
Mr. Michaels surprised many when he got access to what Durham County, North Carolina District Attorney Michael B. Nifong had produced during discovery in the Duke case, recognized that what many assumed was there--solid evidence of guilt--was NOT there, said so, and aimed tough questions at the prosecution.
But, that's exactly what Mr. Michaels should have done: his (and everyone's) goals should be to ascertain and to assert the truth, good or bad, beautiful or ugly, and to support justice for all. A prosecutor trying to frame innocent people innocent, whether the innocent are poor, black Durhamites or white Yankees from wealthy families, should be intolerable to everyone. When it becomes clear that a prosecution really is a prosecution, grand jurors were deceived, and voters were manipulated for political and personal purposes by a person duty-bound to be a fair and impartial minister of justice abusing his position of power, justice demands that a stop be put to it immediately. Justice delayed is justice denied. .
As I recently emailed Mr. Michaels: "Nifong is a shameless shyster who sold his soul to the devil to win a primary. The whole investigation and prosecution was a mockery of what the criminal justice system is supposed to be. I know it; you know; anyone who pays attentions knows it. There was no rape. There was drinking, bad behavior, bad taste, bad language, but no kidnapping, or rape, or sexual assault. The case is Crystal's and (mostly) Nifong's fault.
My Catholic Church does not endorse particular candidates, but it does take positions on issues. As a journalist, you may not want to endorse a candidate in the Durham DA general election. Fine. But, you know enough about the facts and the law to say that the Duke case has been a travesty of justice and manipulating black voters needs to be recognized, not ignored and rewarded. A hope that there is hidden (and therefore inadmissible) evidence of guilt, notwithstanding all the admissible evidence--like DNA, tox report, conflicting versions, no confirming witness, alibis--should be exposed as vain, not encouraged by treating it as reasonable."
Mr. Michaels' most recent article on the Duke case takes "60 Minutes" to task for not being "fair" to the prosecution. Mr. Michaels would have been pleased if "60 Minutes" had interviewing North Carolina Central University Law Professor Irving Joyner. So would I. He wanted more to be reported. So did I!
But, neither Professor Joyner nor anyone else can provide what is necessary to justify the prosecution of the Duke Three in the Duke case: credible evidence of guilt.
What Mr. Michaels reported that Professor Joyner told him is NOT that there IS evidence of guilt, but that there MAY be such evidence and the prosecution may be witholding it. Even though, as Mr. Michaels has noted repeatedly in his coverage of the Duke case, North Carolina law requires that it be provided to the defense. And even though Mr. Nifong boasts on his website
(www.MikeNigongDA.com): "Both personally and professionally, I have always been a person on whom the community could rely to make the right decisions for this office and for this community: decisions that further the cause of justice. That is why, for example, I voluntarily gave open-file discovery to defendants twenty years before the law required it: it was the right thing to do. Doing the right thing is not only the best practice in principle, but it is usually also the most economical process in the long run, and you can count on me to continue to do so."
Mr. Nifong, conceal evidence of GUILT? What was Professor Joyner thinking? Besides, as Professor Joyner must know, IF a prosecutor deliberately concealed evidence of guilt during discovery, the court would not be inclined to allow it to be used at trial. Professor Joyner must know that there is a problem on occasion with a prosecutor concealing evidence of INNOCENCE, but prosecutors don't risk losing and being sanctioned for hiding evidence of guilt.
I will be thrilled if "60 Minutes" does a follow up with Professor Joyner and Stuart Taylor, Jr., America's top legal commentator and the author of an upcoming book on the Duke case, discussing the evidence and lack of evidence and prosecutorial misconduct.
Mr. Michaels believes that "reporters (as opposed to columnists) are not in a position to accuse anybody of anything. Yes, they let evidence of such do the talking, but they can't make the personal accusation."
"Understand, no matter how certain many people are that no rape or kidnapping occurred in this case, we in the news media are still obligated not to decide a criminal case before a judge or jury even gets it.
"The reason is simple – what we say or report has the legal weight of a flea. What a court of law says is the weight of the world because both sides of the argument are duly heard.
" It is because the Duke alleged rape case has so many legal implications that we in the media, when reporting it, must make sure that no matter how overwhelming the evidence, or lack thereof, seems to be, we must allow the contrary perspective to be heard."
Report on "the contrary perspective" (although the phrase accords thar perspective an undeserved respectability), Mr, Michaels. But also report (fairly, of course) before Election Day 2006 (November 7) on what should be a matter of great importance to the voters of Durham County, North Carolina: whether Mr. Nifong has committed prosecutorial misconduct in order to manipulate voters in that district attorney Democrat primary last May.
Surely Mr. Michaels' readers and viewers would benefit from him doing that.
Until that happens, I will have to be satisfied to point to public comments by Mr. Michaels of which many people are unaware and let my readers infer what Mr. Michaels' own opinions on the innocence or guilt of the Duke Three and the way Mr. Nifong has conducted himself in the Duke case and why.
On October 19, Mr. Michaels posted these (and other) words at Talkleft.com and abc11.tv.com:
"Two months ago...I joined several other journalists in confirming that there was no evidence released so far proving that a rape and kidnapping occurred."
"I went after Nifong and the Durham PD for what clearly seems to be inappropriate police procedures in this case, including lying about the medical report in a probable cause affidavit...."
"...those of you hoping I would somehow tell the Black voters of Durham how to vote in the upcoming election don't understand that's something I've never done, but CAN'T do".
"I just put the info out there, and voters make their own choices."
"Prof. James Coleman, a man I certainly respect, gave...the anti-Nifong perspective, which clearly was justified."
"...so far there is no known evidence beyond the accuser's version of events (pick one) that proves beyond a reasonable doubt that a rape and kidnapping occurred. Indeed my piece opens by saying the 60 Min piece slammed that point home. I also added that CBS reinforced indications that DA Nifong knew he had a weak case in the beginning, but exploited it anyway to win the black vote for the May primary.
"Reporting the opinion of Prof. Joyner, atty McSurely or anybody else does not contradict that observation."
"... the case...I certainly agree is limp wristed at best...."
"....the premise that something is wrong [with the Duke case] and there's no doubt about it....may indeed be true...."
"Those of you who say there are no two sides to a fact are correct."
There are "many contradictions, falsehoods and questions about the process...." in the Duke case.
In his latest "Cash in the Apple" piece, Mr. Michaels also stated:
"Now don’t get me wrong – there are very serious questions about not only what kind of evidence Durham District Attorney Mike Nifong has to prove that a rape and kidnapping actually occurred, but of Durham police investigators fudging the facts and screwing up a photo ID lineups of the lacrosse team. Durham authorities have so messed this case up, in addition to the tawdry history of the alleged victim, that I don’t blame anybody for not knowing which way is up...."
Note: In the Duke case Mr. Nifong ordered a photo identification procedure that violated local, state and federal guidelines, as Duke Law Professor James Coleman, a guidelines expert, patiently explained on "60 Minutes."
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.