Topic category:  Other/General

Professor Robert K.C. Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center.  He teaches 20th century United States constitutional, political and diplomatic history.  He is an expert on the Duke rape case and has written about it profoundly and prolifically.  America's top legal commentator, Stuart Taylor [who also has been right about the case from the start and is writing a book on the case], has referred to Professor Johnson as "brilliant" and "obscure."  Brilliant, to be sure.  Obscure meaning "not prominent or famous." NOT "imply[ing] a hiding or veiling of meaning through some inadequacy of expression or withholding of fill knowledge."  Professor Johnson's expression is superb.  He unveils and illuminates instead of veils and darkens.  His body of work on the Duke case demonstrates not only his brilliance, but why he is obscure: he follows the evidence wherever it leads instead of paying homage to the mainstream media.  Instead of giving a Pulitzer Prize to The New York Times for undermining national security in the name of freedom of the press, the committee should award one to Professor Johnson for his body of work on the Duke case.

Professor Johnson's latest piece--"Press (In)Action--will not endear him to the mainstream media in general and The New York Times in particular.  He excoriated them for making egregious mistakes and failing to acknowledge them, much less to try to makes amends for them.   Neither of those things seems to be on the mainstream media agenda.

Professor Johnson's principle point: "The race/privilege/gender prism through which the [New York]  Times–and, with it, the mainstream media–approached the Duke lacrosse case blinded journalists to evidence of prosecutorial misconduct on a massive scale."

Being blind to such prosecutorial misconduct is journalistic misconduct, and it has been massive with respect to the Duke case.

Yes, The Times' Peter Appleborne wrote an excellent article pointing out how unlikely it was that Reade Seligmann was guilty, based on how he had lived his life.  But that was the exception to the rule in The Times' coverage of the Duke case.

Professor Johnson's quotation of a Times editor reveals the group think approach there: "In late April, New York Times sports editor Tom Jolly announced, '’I'm very comfortable with our coverage. From the beginning, we’ve felt this story had two main elements: one was the allegation of rape; the other was the general behavior of a high-level sports team at a prestigious university.'"

The Times should be much more wary of jumping to conclusions, especially ones that fit its political agenda, and overgeneralizing with respect to members of a group.

Professor Johnson succinctly summarized the most outrageous prosecutorial excesses in the Duke case:

"Over the past five months, events in Durham have featured a district attorney who:

• ordered police to violate city procedures in multiple ways regarding eyewitness ID lineups, after the accuser couldn't identify any suspects in an earlier lineup that loosely conformed to procedures;
• blatantly ignored varied ethics guidelines of the State Bar, most particularly an obligation to consider exculpatory evidence, which led to the indictment of a demonstrably innocent defendant, Reade Seligmann, who had proof he was either on the phone or not even at the house for virtually the entire time in which an attack could have occurred;
• issued misleading (or outright false) public statements, which seemed designed primarily to inflame sentiments in the African-American community, whose votes he desperately needed to win a primary against a rival who he had fired in his first week in office;
• announced that he had evaluated the case before most of the evidence was delivered despite an obligation that he serve as "minister of justice," not an advocate."

I'm glad The Times published the article, because The Times exposed thereby exposed itself.  The article was thoroughly discredited,  Liestoppers produced a devastating rebuttal in hours.  MSNBC General Manager Dan Abrams (son of Times lawyer Floyd Abrams) went on air that afternoon to rebut and condemn the article and the editorializing in what was supposed to be a news story.  For Slate, Stuart Taylor set the record straight.

If there was a temptation in the CBS News empire to try to whitewash Durham County, North Carolina District Attorney Michael B. Nifong instead of expose him, the swift and sure reaction to that terrible Times article should have ended it.  The "60 Minutes" expose, tentatively scheduled for September 24, may be postponed a week (there's a court conference on September 22), but that still will leave ample time for the good people of Durham County to decide that, for Durham County's sake, Mr. Nifong must not be elected in November (or ever).

Professor Johnson cleverly embarrassed The Times by citing "outraged... powerful voices of the legal left, who recognize the importance of ensuring that government officials follow procedures for all," including:

• Duke law professor and former House Ethics Committee Counsel James Coleman, who  wrote, “Virtually everything that [Mike] Nifong has done has undermined public confidence in the case.”
• USC law professor and former Dukakis campaign manager Susan Estrich, who lamented a “failure to follow standard procedure that is rather mind-boggling.”
• Duke law professor and longtime ACLU supporter Erwin Chemerinsky, who admitted that he could not cite a single case in the last 15-20 years where the public had learned of this extent of procedural irregularities by this stage of the process.

Whether or not that police sergeant targeted Duke students generally, the Duke Three surely are innocent and should not have been charged with any of the heinous crimes still pending against them.

The principle point of Professor Johnson's latest article (and a major reason why the mainstream media prefers him to be obscure) is the shamelessness of so many in the mainstream media: "[A]s evidence mounted that Nifong effectively manufactured a high-profile case out of whole cloth–and benefitted politically from doing so–the mainstream media started steering clear of Durham."

The stark contrast disappointed Professor Johnson: "This wasn’t always the case, of course. The avalanche of early coverage operated under an unspoken, if powerful, presumption that a rape occurred. A late March article in USA Today read like an op-ed: featuring a photo of the campus vigilante poster–'40 faces of young men, smiling smugly for the camera'–it noted of the team members, 'Their fellow students want them to come forward about what happened in a shabby off-campus house March 13.' The Washington Post served as a hotbed of one-sided, intellectually dubious, commentary about the case. After the first two indictments, Newsweek splashed mugshots on its cover, under the prejudicial title of 'Sex, Lies, and Duke.'"

Moreover, as Professor Johnson recalled, television was not much better: "With few exceptions, cable TV’s talking heads initially reflected this journalistic consensus, sometimes in stunningly extreme fashion. Former prosecutor Wendy Murphy explained away Nifong’s lack of DNA evidence by asserting, 'The real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim– . . . watch "CSI."' (Murphy later compared the indicted players to Hitler, arguing, 'They’ve all done very bad things. Maybe they’ve all not been convicted of rape, but they have a very ugly history of bad behavior.') Nancy Grace repeatedly committed herself to 'talking about gang rape at Duke University'; Pam Bondi denounced the 'escalating pattern' of 'very frightening' behavior by 'these young men, [who] were using each other's names and fake names, which really shows their intent and their premeditated intent.'"

That said, Professor Johnson focused on the primary media culprit: The New York Times: 

"The Times, however, set the tone for coverage. Between late March and late April, it ran more than 20 stories on the Duke lacrosse case, often on the front page or the firs page in the Sports section. Opinion and news analysis columns, based on very limited (and, as it turned out, inaccurate) information, framed the case in stark moral terms; while a pattern of incomplete claims and transparent pro-Nifong bias appeared in articles penned by Duff Wilson–who, for reasons that remain obscure, replaced Joe Drape as the Times’ lead reporter on the story in early April.

"Writing only a week after the first reports about the incident, sports columnist Selena Roberts indicated that, 'According to reported court documents, [the accuser] was raped, robbed, strangled and was the victim of a hate crime. She was also reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.' (Roberts oddly deemed an affidavit for a search warrant a 'court document' revealing uncontested facts, while her description of the medical evidence proved wildly overstated.) 'To the dismay of investigators,' Roberts asserted, no players 'have come forward to reveal an eyewitness account,' all part of the 'lacrosse team’s code of silence' in which offering 'any whisper of a detail [is] akin to snitching.' (This claim continued Roberts’ pattern of uncritically accepting Nifong’s version of events, and as a result making factual errors: the three captains voluntarily gave authorities lengthy statements and even access to their e-mail accounts.) In an April 9 op-ed, Alan Gurganus expressed an even more sanctimonious–and, in retrospect, even less defensible–moral tone. All but sneering at the mantra of 'innocent until proven guilty,' he lectured, 'When the children of privilege feel vividly alive only while victimizing, even torturing, we must all ask why.'"

There was no doubt where The Times stood.  It was out to bury the Duke lacrosse players.  But, just as Soviet Premier Nikita Khrushchev failed to bury America, The Times failed to bury the Duke Three.  Because people like Professor Johnson, Stuart Taylor and The Times' own Peter Appleborne would follow, find and report the evidence that exonerates instead of fall in line and salute The Times.

Professor Johnson continued:

"Times news coverage parroted Nifong’s version of events and therefore made (still uncorrected) factual errors. In his first story on the case–April 6–Duff Wilson asserted as fact,

Other details surrounding the incident emerged with the release of the search warrant affidavit Wednesday, including an attempt by the lacrosse players at the party to disguise their identities by using different names and by calling one another by their jersey numbers. The accuser told the police that the men told her they were members of the Duke baseball and track teams.

In fact, all three of these claims proved untrue. The police have produced no evidence that lacrosse players at the party were 'calling one another by their jersey numbers.' Nor is there any evidence of 'an attempt by the lacrosse players at the party to disguise their identities by using different names'–as Wilson himself would implicitly admit in an August story. And the accuser never seems to have told the police anything about the players’ athletic identities–indeed, long after the fact, she believed that, as she had initially been told, she was dancing a bachelor party.

"On April 18, Wilson wrote, 'Police interviews with three team captains, Dan Flannery, Bret Thompson and Matt Zash, . . . told the police that only members of the team were present.' In fact, the police interviewed Dave Evans, not Thompson; and even Nifong had conceded, several weeks before, that non-lacrosse players attended the party. (The Times’ website shows no correction for either item.) Wilson’s April 23 article asserted as fact, 'A second dancer and a neighbor corroborated some of the accuser’s details.' Apart from placing the accuser at the house, the police statements of the second dancer and the neighbor contradicted, not corroborated, the accuser’s details. (No correction appeared on this item either.) And the Times considers itself the paper of record?"

Unsurprisingly, The Times seems to be oblivious to its miserable performance:  "When critiquing this reporting in late April, Times public editor Byron Calame suggested, 'The coverage has been basically fair, I think, with a few miscues mainly related to the placement and the space given articles.' He did, however, offer one significant caution: 'If the rape and kidnapping charges do not hold up, the story doesn’t end. The Times should be prepared to continue covering what is done about the racial-insult allegations, given the prominence of the team and the university.'"

Professor Johnson diagnosed the underlying problem at The Times: political correctness run amok:  "Calame’s comment unintentionally explains one reason why the mainstream media has turned away from the Duke story in recent months. Even the Times can no longer seriously contend that we need additional coverage on how two or three Duke students (not, from all available evidence, any of the indicted players) engaged in an ugly, racially charged argument with the second dancer. The facts of this case, as it stands now, simply do not fit into a storyline based on a politically correct viewpoint, with a touch of Tom Wolfe for good measure."

The Times motto--"All the news that's fit to print"--should be rewritten as "What fits our agenda," under truth-in-advertising principles.

Professor Johnson explained that the result is "a precipitous decline in journalistic interest."

And Professor Johnson deftly ridiculed the rationalizers: "A few commentators–notably Andrew Cohen of CBS and the Herald-Sun’s Bob Ashley–have rationalized this approach by claiming that it’s the media’s job to wait for a trial, as if journalists routinely ignore evidence of massive prosecutorial misconduct."

It is outrageous, but it seems that the best much of the mainstream duty can do when it has been wrong is become quiet: "Most papers have, understandably, avoided offering such torturous claims and simply scaled back coverage. Since June, the Washington Post has published two wire-service articles on the lacrosse case, while seeming to drop the inflammatory op-ed columns; the Wall Street Journal and Chicago Tribune have ignored the story altogether. A recent comment thread at TalkLeft correctly critiqued cable’s law and public affairs shows: 'This case was covered extensively by all of those people, and yet now, I rarely hear anything from them.'"

For the sake of completeness, Professor Johnson cited ego as an additional reason for much of the mainstream media going quiet:

"Ideology alone, however, doesn’t explain the media’s decision to ignore, rather than explore, the extent of Nifong’s procedural irregularities.

"No one, I suppose, likes to admit mistakes, but many mainstream journalists took such an extreme line in March and April that it’s proved almost impossible for them to take a fresh look at events in Durham. On March 31, for instance, Selena Roberts concluded that reports of the players’ conduct 'threatened to belie their social standing as human beings.' After suggesting that the players might be sub-human, how can Roberts’ thought process deal with Reade Seligmann? Obviously, it can’t: Roberts’ recent columns have explored such pressing issues as how Maria 'Sharapova proved her game could be as intimidating as her beauty,' or how Mets’ general manager 'Omar Minaya is decidedly unruffled, yet is unafraid of pushing the envelope on conventional logic.'

"Duff Wilson similarly went far out on a limb, his biases perhaps best revealed in his peculiar habit of ending lengthier stories with an uplifting vignette directed toward either the accuser or Nifong. Take, for example, this April 12 item.

Some of Mr. Nifong’s friends say the extra attention he has received has not flustered him. Mr. Nifong, who had been an umpire for a local Little League for two years, is used to the pressure, they say. 'He was heckled as an umpire, but he could take it because he has thick skin,' said Chuck Campbell, a league official and Mr. Nifong’s friend. 'He’s handling this the same way.'

If we’ve learned nothing else over the past several months, it’s that Nifong–the man who threatened to resign from the Animal Control Board(!) because two of its members signed a nomination petition for his opponent–possesses nothing resembling a thick skin. But it’s rather hard to reconcile Wilson’s avuncular portrayal of Nifong as the Little League umpire with evidence of misconduct on a 'mind-boggling' scale. Perhaps that’s why, in his widely ridiculed August story, Wilson grabbed for the only life raft available. He used as his article’s spine the after-the-fact, written-from-memory notes of Sgt. Mark Gottlieb, despite their inherently incredible nature."

After ideology and ego, Professor Johnson listed laziness as an explanatory factor: "Even though the documents to show Nifong's procedural improprieties are all publicly available and can be researched on the internet, it’s still a lot harder now to cover the story than when Nifong was spoonfeeding the tale most journalists wanted to tell. Anyone could (and, it seemed at the time, did) write the race/privilege/gender storyline. Now, however, journalists must display an understanding of basic North Carolina procedure and a willingness to explain why procedure matters to the judicial process--even in a case involving Duke lacrosse players."

Professor Johnson obviously appreciates the significance of the Duke case to America, especially its criminal justice and education systems, as well as to the members of the 2006 Duke Men's Lacrosse Team and their families and friends and Durham, North Carolina.  He proposed the Duke case as a textbook example for journalism students of what NOT to do and a continuing challenge to which the national press should respond:  "How often do we see a case where prosecutorial corruption has occurred to this scale, in the open, and with such clear-cut effects on the gathering of 'evidence'? In the future, I suspect that journalism schools will study the response to the Duke case, as an example of how ingrained biases, reporters' egos, and sheer laziness led the mainstream media to miss the critical elements of a story, and then turn away from the affair once journalists' initial assumptions proved unfounded. For now, however, the reticence of the national media, formerly so enthusiastic about the case, has allowed Mike Nifong's misconduct to go unchecked. The full story remains to be told. Will anyone from the national press do so?"

Is "60 Minutes" part of the national press?

Michael J. Gaynor

Biography - Michael J. Gaynor

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.

Gaynor's email address is gaynormike@aol.com.