Duke Case: Cash Michaels: No "Major Crime" Evidence Against Duke Three
Let each reader decide for himself or herself whether North Carolina journalist Cash Michaels is, or I am, a misleader, deliberate or otherwise, based upon evidence.
Set forth below is the information a reader needs to make his or her own judgment as to whether Mr. Michaels, who has taken pains not to express his personal opinion on the validity of the charges in the Duke case when covering it for America's Black Press, slipped up when he went online trolling for racist (white racists, to be specific) and implicitly acknowledged that he realized that there is no evidence to prove the claim that the Duke Three committed any felony at that unfortunate lacrosse party in Durham, North Carolina last March.
In a criminal case, a jury or a judge as fact finder renders a verdict as to whether a defendant is guilty or not guilty of a particular crime or offense charged against the defendant, based on the evidence presented and the applicable law.
Innocent is a broad term that may refer to freedom from sin as well as freedom from legal guilt. Sometimes innocent persons are wrongly convicted, and sometimes persons who are not innocent are wrongly acquitted. The criminal justice system is imperfect
In "Duke Case: "Kramer' Meltdown Moves Cash Michaels," I quoted this message posted by "Middle Aged White Guy Raised in the South":
"I'm Curious...Is this really Cash Michaels? If so, why do you waste your time with these people. I have periodically checked in here, I admit that, but the posters here are nothing short of obsessed with Duke/Rape case. Some actually must sit and do nothing but wait for the next new message. I feel sorry for the 'accuser' but I am not going into my reasons here. Nifong is the one that needs some correction in my humble opinion.
"But I do think these folks are simply goading you into a fight that is meaningless. You will never make most, not all the posters here, admit the racism they possess.
To that, I concluded, Mr. Michaels pleading guilty to goading AND VIRTUALLY ADMITTING THAT THE DUKE THREE ARE NOT GUILTY OF THE FELONIES WITH WHICH THEY ARE CHARGED in this reply:
"Actually, they DO admit their racism every time I goad them. They can't help themselves they're so backward. They believe themselves to be so superior in their defense of a bunch of drunken, perverted, dishonest athletes who went behind their coaches back to commit a minor crime, only to be accused of a major crime, just because they thought they were men enough to hire lost women to debase themselves for their pleasure."
Mr. Michaels is not a lawyer, but his words constitute what lawyers call an admission. He was giving his own opinion about the Duke Three. He admitted that although he considers the Duke Three to be "drunken, perverted, dishonest athletes," he also realizes that there is not evidence to support convicting any of them of "a major crime."
That's a big deal, because Mr. Michaels gained access to the material Durham County, North Carolina District Attorney Michael B. Nifong had when he obtained indictments of each of the Duke Three for allegedly committing what obviously are "major crimes": first-degree rape, first degree kidnapping and first-degree sexual assault, felonies all."
The Johnsville News quickly spread the word that Mr. Michaels apparently had said much more than he wished with this posting:
"Kramer" meltdown moves Cash Michaels <http://www.renewamerica.us/columns/gaynor/061121> - Mr. [Cash] Michaels is not only well known in Durham County, North Carolina, but the person covering the Duke case. As such, much is expected of him. Provoking racists, white or black, is something he should be far above....Ironically, Mr. Richards' racist rant prompted Mr. Michaels to publicly post his opinion on the merits of the Duke case. Mr. Michaels referred to the members of the 2006 Duke Men's Lacrosse Team as "a bunch of drunken, perverted, dishonest athletes who went behind their coaches back to commit a minor crime, only to be accused of a major crime, just because they thought they were men enough to hire lost women to debase themselves for their pleasure." Thank you, Mr. Michaels.
Mr. Michaels was aghast. He let me know by emailing me his follow up post:
"TO SET THE RECORD STRAIGHT!!!
"Apparently attorney Michael Gaynor is so, so desperate for something to write about regarding the Duke case, that he's even willing to deliberately misrepresent what I wrote on this post a few days ago.
"Here is what Gaynor wrote in his 11-21 column:
"Ironically, Mr. Richards' racist rant prompted Mr. Michaels to publicly post his opinion on the merits of the Duke case.
"Mr. Michaels referred to the members of the 2006 Duke Men's Lacrosse Team as 'a bunch of drunken, perverted, dishonest athletes who went behind their coaches back to commit a minor crime, only to be accused of a major crime, just because they thought they were men enough to hire lost women to debase themselves for their pleasure.'
"Thank you, Mr. Michaels."
"Having seen what the prosecution had when the Duke Three were indicted on rape, kidnapping and sexual assault charges, all in the first degree, you know there was not evidence to support ANY of those felony charges."
"In his 'Duke Case: Sowell, Yes:NC NAACP, No' column of today, Gaynor gleefully, but erroneously writes:
'...North Carolina journalist and television commentator Cash Michaels finally admitted publicly that he believes the Duke Three are not guilty of the 'major crimes' of which they have been accused: rape, kidnapping and sexual assault, each in the first degree, each a felony. It is something that thoughtful voters might have taken into account if they had known.'
"Now, forget whatever differences we have for the moment. Where in the hell have I 'admitted' anything? Where in what I wrote, do I express 'belief' in the players' guilt or innocence regarding the accusation of the felony charges? Is attorney Gaynor listening to little green men from Mars again? Are his bifocals misaligned? Does his computer screen incessantly blink as he's trying to comprehend the missives of others?
"For the sake of accuracy, let's pull what I actually wrote here apart:
"'Actually, they [THE RACISTS ON THIS BOARD] DO admit their racism everytime I goad them. They can't help themselves they're so backward. They believe themselves to be so superior in their defense [NOTICE, I'M REFERENCING THEM, NOT ME] of a bunch of drunken [MANY PLAYERS WERE DRINKING SINCE 2 PM THAT DAY, MARCH 13], perverted [WANTING LIVE STRIPPERS AND PAID $800.00 FOR A TWO-HOUR SHOW] , dishonest [KNEW THEY WERE VIOLATING THEIR COACH'S RULES AND THE NEIGHBORS' CONCERNS] athletes who went behind their coaches back to commit a minor crime [UNDERAGE DRINKING] , only to be accused of a major crime [THREE OF THEM INDICTED FOR THREE FIRST DEGREE FELONIES, INCLUDING RAPE], just because they thought they were men enough to hire lost women to debase themselves for their pleasure [THEY GOT THEMSELVES IN THE TROUBLE THEY'RE IN].
"Now, where, oh where does any of that, or I, say they are guilty or innocent of the felony charges? Show me, please!
"Once again, this is another prime example of desperation and outright misrepresentation on the part of a major leader in your cause, Duke Three supporters. What I said is the case at hand. Those three players wouldn't have been indicted for anything if the team hadn't violated their coach's rules. As a result, they hired strippers, and three of them are now accused of a major crime.
"I did say 'accused,' did I not?
"Do you see me saying someone is guilty or not guilty in any of that? If you do...well, i just don't know what to say.
"And as for you, Gaynor, get a grip! This deliberate act of misrepresentation is low, even for you. Criticize and lift as many of my public remarks as you want, but at least represent them accurately, and with some integrity.
"I have quoted you many times in my stories, and you have written me back to say that I have never misquoted, or misrepresented you. I still have those emails.
"No matter how much you dislike or disagree with me, which is your right, at least afford me the same respect.
"Be honest, for goodness sakes!
"How sad indeed."
Realizing that Mr. Michaels had "lost it" and was ranting and raving, I sent him this email in an attempt to bring him back to reality:
"Immediate retraction demanded.
"I did not 'deliberately misrepresent' anything.
"I did not 'misrepresent' your opinion on the Duke case either.
"I have respected 'OFF THE RECORD,' of course, but I read all that you wrote to me off the record and it informed my thinking as to your thinking.
'Sir, again, thank you, and Prof. Johnson, for your generous defense. I can only tell you that I will continue to call it as I see it. And as I look back over my stories from the beginning, the common theme has always been, "What evidence does the DA have," and "Can he prove this case?"
'Since then I've gotten answers to both - "Nothing" and "No."
'So my next theme of focus is, "Why?"'
"You were quite clear, Cash.
"And you were right!
"I respected your position that as a reporter you would not take a public position, although I disagreed with it.
"After the election, you posted a message in which you referred to the members of the 2006 Duke Men's Lacrosse Team as 'a bunch of drunken, perverted, dishonest athletes who went behind their coaches back to commit a minor crime, only to be accused of a major crime, just because they thought they were men enough to hire lost women to debase themselves for their pleasure.'
"Putting aside you opinions on their alleged drunkenness, perversion and dishonesty, you opined that the Duke Three tried to 'commit a minor crime, only to be accused of a major crime....'
"That means, at least, that you believe they did not commit any first-degree felonies, including the ones on which they were indicted: rape, kidnapping and sexual assault.
"Fair is fair.
"Unfair is unfair.
"Be fair or be exposed as UNFAIR."
Mr. Michaels' unrepentant reply:
"Gaynor, I see you and your friend [Stuart]Taylor (and I don't mind him reading this) need to see the same shrink.
"You're incredibly desperate stretch to make something out of nothing is simply extraordinary. What you've written clearly misrepresents what I was saying, as I have clearly and absolutely outlined for you, and the people who read it.
"You didn't bother to go beyond the opening paragraph of my response, which tell me you had to search long and hard to justify the cold crap you got caught putting out there.
"You di[g] up an old email and focus on the following lines:
'What evidence does the DA have,' and 'Can he prove this case?'
Since then I've gotten answers to both - Nothing and no.
"Didn't see the word 'innocent' in there Gaynor, and if you look at all of my stories since I had a chance to consider the evidence, my position has never been, 'These guys are innocent, let them go (which can be easily documented), but rather, 'Where is the evidence the DA came to the African-American community and said he had, because if he doesn't have it, those boys walk!'
"I mean, this is too easy to prove on my part. I have copies of tons of emails and message board posts where I say exactly the same thing. If Nifong doesn't have the goods, those boys walk.
"That is a far, far cry from, 'Those boys are innocent,' which I NEVER SAID IN ANY WAY, SHAPE OR FORM. Not having evidence may mean you can't prove guilt, but doesn't mean a crime wasn't committed by those indicted.
"This one you simply don't have the goods on, Gaynor, because you're so, so wrong without a drop of sweat to it. Anyone with sense, common or otherwise, knows good and well what I wrote is how I explained, nothing else. For you, all of a sudden out of thin air, to put out an email from months ago to justify what clearly had to be a deliberate mischaracterization of what I wrote (because nobody could be that dumb), is scrapping the bottom of the barrel, even for you.
"This dishonesty, the latest in a series regarding me on your part, is reprehensible.
"Originally, I didn't call for a retraction because while I feel I was seriously injured per your clear and deliberate misrepresentation, I wanted nothing further to do with you beyond informing you, and readers who may have seen that garbage, that it was a complete falsehood.
"But after your pathetically weak attempt to cover it up with some old email that was sent to several people, none of whom can say I wrote the Duke Three were 'innocent,' which I've never written as a personal or professional opinion, I now formally demand a written retraction and apology from you within ten business days to be distributed and published in every outlet that published what amounted to a baldface lie.
"I'm not kidding here. You published something, clearly based on you're own interpretation, that I never said or wrote. It so alarmed me that I had to immediately stop what I was doing and issue a public statement clearly detailing what was actually written, and chastising you for doing something you had to know was wrong when you did it.
"What you knowingly did in misrepresenting me in that hit piece is malicious on its face, and completely unacceptable. I had ever right, in the same venue where someone posted a link to the website that carried your lies, to post something there immediately so that even my adversaries at least knew the truth."
Mr. Michaels misrepresented me again, whether deliberately or not. I did NOT say that he believed the Duke Three are innocent. I said that he believed that there is not evidence that they are guilty. Specifically, I wrote: "To that, Mr. Michaels replied, pleading guilty to goading AND VIRTUALLY ADMITTING THAT THE DUKE THREE ARE NOT GUILTY OF THE FELONIES WITH WHICH THEY ARE CHARGED!"
Neither Mr. Michaels nor I believe that the Duke Three are sinless. But the Durham County, North Carolina District Attorney's office is supposed to prosecute crimes, not to punish sin as such. People are not supposed to be prosecuted unless their guilt reasonably can be expected to be proven beyond a reasonable doubt.
None of the Duke Three never should have been indicted on any of the felony charges on which each of them was indicted.
Mr. Michaels was privileged to review the material available to the prosecution when the indictments were obtained produced. He came to recognize that the indictments were unwarranted in reality. He sought out and got two astonishing answers: Mr. Nifong has nothing in the way of evidence and he can't prove his case.
It follows that the continuation of the Duke case is a travesty of justice instead of the pursuit of justice, whether or not Mr. Michaels will admit it.
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.