North Carolina journalist and television commentator Cash Michaels is covering the Duke case for America's Black press. Mr. Michaels and I have discussed the case at length. Given our different backgrounds and political perspectives, it's not surprising that we had different reactions when we learned of the gang rape claim that underlies (with emphasis on lies) the Duke case. I give people like Mr. Michaels and Ruth Sheehan of The News & Observer great credit for following the evidence and saying that the evidence they expected still has not appeared. It's easier to be right than wrong.
Mr. Michaels: "When you have someone who has a proven record of deception and self-interest..., you are obligated, as a news organization, to make your viewers/readers aware of that history so that they can properly judge her credibility."
Right On! So please write on.
Mr. Michaels wrote those wise words with reference to "the second stripper," Kim Roberts Pittman, but under that principle surely Mr. Michaels should give a fair, balanced and detailed history of the accuser in the Duke case, Crystal Gail Mangum.
Mr. Michaels has complained that racism has infected portrayals of Ms. Mangum. That is all the more reason for him to present a fair, balanced and detailed history that Blacks will not suspect is distorted by racism.
It would be a great public service to all.
On October 30, Mr. Michaels posted this message on the board of ABC television's Durham, North Carolina affiliate, with the title "'60 Minutes' Got Suckered":
"If I were CBS News President (and 1977 Duke alum) Sean McManus today, I'd be cussing out Kim Roberts Pittman, Ed Bradley and the producers of that two-part, one-sided '60 Minutes' report on the Duke alleged rape case.
"When '60 Minutes' dressed Pittman up, did her hair, gave her a warm set, and presented her and her story to America without challenge, they pretty much put their seal of approval on her saying, 'Folks, she's on "60 Minutes" now, so she's telling the truth.'
"Anyone want to bet that the words, 'Why didn't she tell us that?'left the lock-jawed mouths of CBS News execs when they saw the ABC piece this morning? There was no reason for her NOT to tell this little morsel about the accuser begging her to put marks on her. Gee, Ed Bradley was doing a superb job of rubbing her feet and neck during that kiss-kiss-smooch-smooch interview, where he failed to ask her a harder question than, ' Now who did your hair?'
"The problem with Pittman's story now? She apparently never told the police on March 22, even though common sense tells us the investigators asked her 'Did the AV do or say anything from the time you drove away from the house at 12:53 a.m. until you got to the Kroger Supermarket approximately 30 minutes later?'
"That question had to have asked, because that 30 minutes was unaccounted for. The police did ask Pittman is the AV said anything to her about being raped or assaulted, and Pittman is on record as saying no, that all she did was ramble.
"Now seven months and numerous police and press interviews later, Pittman has an emotional flashback, something so damming, she dared not utter it before. Please.
"I didn't see the ABC report this morning, but this underlines my point about the poor job Bradley and '60 Minutes' did.
"When you have someone who has a proven record of deception and self-interest (embezzlement, failure to remit, probation violation, seeking to sell her story, just 'recalling' a key fact that there was no reason to hide if she'd been telling the truth the whole time), you are obligated, as a news organization, to make your viewers/readers aware of that history so that they can properly judge her credibility.
"Every story I've read about Pittman's 'revelation' today has done exactly that - given a review of all of the different tales she's told.
"And for those of you who maintain that despite her foolishness, Pittman has been remarkably consistent, that got blown to hell months ago when she went over to the accuser's parents home, and tearfully apologized to them that she now believed a rape did occur, and she was sorry that she didn't know at the time because maybe she could have done something.
"Now none of what I've said above proves that a rape and kidnapping occurred, understand that. And the fact that 2,000 more pages of discovery evidence, in addition to DVD discs with downloads from the students' computers I told you about months ago (my sources told me three months ago that some racially embarrassing stuff was on there, but I cannot confirm that at the moment), I find it odd that the defense, which has had the material for three days now, hasn't already begun leaking the good stuff.
"This is a rollercoaster ride folks. Hang on!"
Sometimes I quote something because it is exquisitely written, or succinctly written, or so persuasively written that nothing more should be needed and restating it is silly.
Not this time.
This time I quote simply to be fair, and for the reader's convenience.
I doubt it was Mr. Michaels' purpose, but he has demonstrated why the Duke case should end now: there is so much reasonable doubt that it is unreasonable for the case to continue and there is no reasonable expectation that genuine proof of guilt ever will be found.
Remember when Ms. Roberts was expected to be a witness for the prosecution in the Duke case in exchange for leniency in connection with her own crime?
True, she wouldn't have been much of a prosecution witness, since she had initially said the rape claim was "a crock" and showing that she had she had revised her story to a degree to please the prosecution would have discredited her in the eyes of anyone not determined to pretend that the case is solid regardless of the evidence.
Mr. Michaels has a point about Ms. Roberts being opportunistic.
Mr. Michaels also has a point about Ms. Roberts not being credible.
BUT, the same is surely true of Ms. Mangum.
There is an important difference between Ms. Roberts and Ms. Mangum that Mr. Michaels may not appreciate because he did not see Ms. Roberts on ABC this morning.
I did. And I noted that Ms. Roberts offered to do what the 2006 Duke Men's Lacrosse Team co-captains offered to do and the Duke Three did: take a polygraph test.
William Kennedy Smith was not prosecuted for rape until his accuser took and passed a polygraph test twice.
Until Ms. Mangum takes and passes a polygraph test, there is no reason to believe her and every reason not to believe her about being raped. There is no DNA evidence to support her claim. There is no witness supporting her claim. There is no physical evidence indicating that she had sex of any kind with any member of the lacrosse team, much less any of the Duke Three.
Mr. Michaels reported that Ms. Roberts made inconsistent statements to Ms. Mangum's parents, but he himself described those statements in a subsequent post at the ABC Durham affiliate website as "phony."
"Lizza 8631" and Mr. Michaels engaged in this ugly exchange:
"Hey Cash, Give it up Buddy!
"There is not bit of evidence that proves a rape occurred. You can spin this until the cows come home that will not change a thing.
"You need a rape to have happened to cover your sorry racist behind."
"Hey lizza - apparently, being the zoo animal that you are, the scales from in front of your slanted eyes haven't dropped off yet, otherwise you would have read that nothing I have written is in defense of Nifong (who I have gone after in my stories per the past two months) or says that a rape and kidnapping did occur.
"With both sorrow and sympathy, I've been reading your absolutely ignorant insights on race and the Black community. The fact that you've slithered through one book about Blacks, 'Enough' by Juan Williams, now makes you an expert on Black people. (Ha-ha)
"First of all, I know Juan well, respect him mightily for his past, historical work, but have told him directly where he went wrong with this one. And even Bill Cosby, the so-called inspiration for Juan's book, has backed away from it, and instead, is traveling the nation, visiting hard-hit areas of the Black community, trying to help and inspire local leaders to deal with their challenges.
"Something Juan has never done, and sadly so.
"So when the likes of you call me or any other Black person on this board a 'racist,' all we have to do is take one look at your shining ignorance, and laugh.
"You can't read, you can't comprehend, you lie, you misrepresent.
"Never heard of a racist lizard, before, but glad I discovered you before National Geographic. They take too long to do documentaries on rare species of vicious animals that truly belong in a zoo.
"Remember, lizza, don't s--- where you have to sleep. You smell bad enough!!"
The Duke case does seem to unhinge people. "Racist behind"? "Slanted eyes"? Smell?
Putting aside racism and accusations of racism, there is a fundamental flaw in Mr. Michaels' mostly speculative post: it was unfortunate that Mr. Michaels mentioned admitted unconfirmed "racially embarrassing stuff" (since it would not constitute proof of rape even if it was confirmed by unimpeachable sources), but it was monumentally misleading to refer to the Duke case as "a rollercoaster ride."
A rollercoaster has a number of ups and downs. The Duke case has been collapsing ever since the facts started to catch up to the media hype and the folly.
Initially, journalists like Ruth Sheehan (and Mr. Michaels) assumed there was solid evidence of guilt.
They and others eventually learned otherwise.
We learned the DNA tests had not implicated anyone.
We learned that BOTH strippers were not credible (making the need to polygraph them all the greater).
We learned that Ms. Mangum changed her story many times.
We learned that Ms. Mangum took weeks to identify anyone and then did so only when assured that there was no wrong answer, because Mr. Nifong had ignored local, state and federal guidelines and the constitutional right to due process in order to get some young white men to prosecute before the Democrat district attorney primary last May.
We learned that Mr. Nifong had a financial stake in winning the primary, including $30,000 in loans to his campaign and a much better pension if he won election.
We learned that Mr. Nifong refused to consider evidence of innocence before seeking indictments.
We learned of falsehood in an affidavit filed by the prosecution.
We learned the Duke Three were not the monsters they were initially suspected to be.
We learned that Ms. Roberts was not going to be a good witness for the prosecution.
We learned that Ms. Mangum was poll dancing before she went to the hospital for narcotics and was rejected.
We even learned from Mr. Nifong that some of his public statements about the Duke case were not above criticism (that's putting it gently!).
We haven't learned a thing to suggest that any of the Duke Three actually is guilty.
NCCCU Law Professor referred to probable cause for the prosecution of the Duke Three as "a fact." But, we know that a grand jury was shown selective evidence by the prosecution and no evidence by the defense, so that "fact" is merely a grand jury opinion based on a story that even Mr. Nifong now disputes.
Mr. Michaels was right when he said: "Now none of what I've said above proves that a rape and kidnapping occurred...."
Nothing else does either.
Mr. Michaels acknowledged that Ms. Mangum's "credibility has been shot, the defense has done a masterful job of that already." Given Ms. Mangum's criminal, medical, employment and sexual history, just reciting facts did the job.
But Mr. Michaels himself should do a fair, balanced and detailed history.
"Ms. Missouri" chided Mr. Michaels:
"I don't understand why your outrage is reserved for 'the poor job Bradley and "60 Minutes" did" rather than the appalling job Durham law enforcement and justice has done in investigating and bringing charges. In the long run of the case, what does that have to do with anything? 60 Minutes has no long-lasting effects on any of our lives. Justice run amok anywhere affects us all."
Missouri is the Show-Me State and "Ms. Missouri" obviously has not been shown evidence of guilt.
"Grindal693" insisted that Mr. Michaels was being unfair:
"'This is lowdown dirty tactics by the defense.' [Note: NOT Mr. Michaels' words]
"Another statement based by no facts. The last thing the defense is going to do is bribe Pittman.
"It's also so typical of Cash Michaels to make statements about racist statements in the emails of the Duke LaX players, without any evidence.
Michaels knows it will rile up the Black residents of Durham and prove nothing about a rape."
But, "truthseeker2369" was delighted:
"You're always right on point. That the very reason you're a great journalist. I watched a little of the interview this morning and right away, I said BS. Why now, after 7 months with information like that and she said NOTHING. How dare her??? How dare her??
"This is lowdown dirty tactics by the defense. They lie through their teeth and say 'we want a speedy trial' but, NO.... They don't want this case to see the inside of a courtroom.
"Kim Pittman is about money and will sell her soul to get it. The audacity of her to tell this kind of information right at election time. You see, the public didn't fall for 60's one-sided lie and now they've decided this is IT. This info will get the case dropped. I'm so furious I can hardly contain myself. Cash, keep up the good work that you're doing and we'll keep reading. I look forward to it."
I look forward to enough Durham County voters repudiating Mr. Nifong and. whether or not that happens, to the Duke case being dismissed on constitutional grounds.
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.