In the Tawana Brawley case, a grand jury rightly refused to indict. In the Duke case, however, three indictments were improvidently issued (without the grand jury considering any evidence of innocence). On the Durham County, North Carolina criminal justice system, they remain a blight. The pathetic, but powerful, prosecutor/persecutor refuses to see the light. The sooner those indictments are dismissed, the better.
The Johnsville News has done wonderful work on the Duke case, but its recent hit piece on Cash Michaels, titled "Duke Case: Special Ed. for Doubters with Hoax Dyslexia," is the sort of poison that leads people like Chan Hall to tell publications like Newsweek that Duke lacrosse players should be prosecuted "whether it happened or not" as "justice for things that happened in the past." I was accurately quoted in the hit piece, but its mischaracterization of me as a teacher of Cash Michaels (apparently a special education teacher) is as ridiculous as the rest of the piece.
The Duke case and attitudes toward it reflect America's racial problems. That's obvious. We should be trying to make lemonade out of lemons instead of to make things worse. The Johnsville News seems to have a different agenda.
Cash Michaels and I do not completely agree on the Duke case. He has moved much closer to my initial take than I have toward his. But that's because he did what we are all supposed to do--follow the evidence--and the evidence showed that Durham County, North Carolina District Attorney Michael B. Nifong had not acted as a fair and objective prosecutor. Instead, Mr. Nifong presumed that there was a gang rape, treated the troubled accuser as credible, refused to consider evidence of innocence, or to polygraph, publicly tried the case in the press until he won the primary last May, obtained indictments that now obviously were improvidently issued, and generally politicked and persecuted instead of investigating and prosecuting only when all the evidence reasonably obtainable warranted prosecution.
Dan Abrams, now the general manager of MSNBC, and Cash Michael, North Carolina journalist and television personality, both found the accuser's gang rape claim credible at the start. So did The News & Observer's Ruth Sheehan and prominent law professor Susan Estrich, each of whom appear to have been predisposed to believe because they had been raped. All have followed the evidence, to their credit..
Fortunately for him (and us), Mr. Abrams gained access to Mr. Nifong's initial document production, upon which the indictments of the Duke Three were based, and he appreciated that they simply did not support the indictment and publicly said so.
If Cash Michaels had gotten the documents as fast as Mr. Abrams did, I think he would have reached the same conclusion.
The fact is that Mr. Michaels and Mr. Abrams both realized their initial takes were mistaken and freely acknowledged it.
Hurray for them!
But, instead of lauding Mr. Michaels, The Johnsville News meanly mocked him:
"It ought to be easy, it ought to be simple enough. Meet a hoax, see the hoax, read and report a hoax. But there are always slow students, the doubters. These were the kids who couldn't tie their shoes until they were in the 6th grade.
"This Duke rape hoax has its share of slow students, the hoax doubters. A poster child for slow but steady learning is a gentleman named Cash Michaels. Cash has been making steady progress in his coursework and will someday graduate to reporting a hoax. But, that day might be delayed. Mr. Michaels like some people suffers from hoax dyslexia."
What nasty nonsense!
And hardly what is needed to focus the people of Durham on the main villain--Mr. Nifong--and the danger of a race-determined criminal justice system.
I wonder whether The Johnsville News will "someday" apologize to Mr. Michaels. I doubt he needs to receive one, but The Johnsville News needs to offer one. Let's pray it not be "slow."
Because Mr. Michaels did not see things the way The Johnsville News did, when it did, The Johnsville News claimed that he "is...easily distracted and loses his concentration and focus."
Having communicated with Mr. Michaels about the Duke case, I can attest to his ability not only to concentrate and focus, but not to lose sight of the totality of the situation. Yes, the pending criminal charges are outrageous. But that lacrosse team party last March was not a special Mass for choir boys at which the only alcohol was in the Communion wine, every word spoken was respectful, if not reverential, and everyone was modestly dressed at all times, speaking politely and thinking heavenly thoughts.
The Johnsville News: "For example, for months Mr. Michaels was completely distracted and off on his wild 'hush money' hunt. Finally, Cash learned that just like the Easter Bunny, Santa Claus, and the Tooth Fairy there is no Duke 'Hush Money.' Kids just have to learn these things at their own pace sometimes. Simple things, like don't talk to strangers and don't believe everything the gender challenged are telling you are all part of the learning process. However, getting side tracked like this did set Cash back from his peer group."
Sometimes previously reliable sources turn out to be wrong. Mr. Michaels is hardly the first to experience that unfortunate development and, unfortunately, he won't be the last.
The Johnsville News did not call Mr. Michaels a "boy," but it essentially described him as a retarded one with parents demanding documentation (which The Johnsville News gleefully provided):
"How do you explain to the parents that you have to hold someone back or put them in a remedial program, because they don't have a firm grip on reality? It's not easy. You have to document these things, or else there is denial.
"Here are some examples of Cash's pitiful failing hoax coursework:
"COUSIN SAYS $2 MILLION 'HUSH MONEY' OFFERED, WEEK OF JUNE 22-28, 2006:
EXCLUSIVE - Cousin: Duke alleged raped victim turned down money to drop case
The cousin of the alleged victim in the Duke University lacrosse rape case says 'alums of Duke' quietly offered the accuser lots of money - a staggering $2 million - early on to drop the charges, and go on with her life.
"CASH IN THE APPLE, ''HUSH MONEY' STORY GRABS MUCH ATTENTION, WEEK OF JULY 13-19, 2006:
Back to the Jakki interview - during the course of that and several other conversations with her at the time, the allegation about the hush money came up. Jakki made it clear this is what her cousin told her, beyond which she knew nothing else. The alleged offer, as best as I understand it, was not made to the accuser directly, but to her family as a message to her.
"JUDGE BLASTS DUKE DEFENSE ATTORNEYS, JULY 20-26, 2006:
Meanwhile, reaction continues to the exclusive report here a month ago of the alleged victim’s allegation that 'alums of Duke' attempted, through her family, to offer her $2 million in hush money early in the case, if she would just 'make the case go away.'
"COUSIN DEFENDS HUSH MONEY CLAIM, WEEK OF AUGUST 3-9, 2006:
The cousin of the accuser in the controversial Duke lacrosse rape case insists that she was told by the alleged victim of a $2 million hush money attempt to have the woman back away from her charges, even though a newly uncovered Durham police memo, which purportedly was part of the prosecution’s discovery evidence to the defense, suggests otherwise.
"Note to teacher: Cash also needs help in using lower case letters. Pundit's don't need to use all capitals in their story titles."
What Mr. Michaels reported was newsworthy, albeit untrue. His reporting it and it turning out to be untrue ultimately helped to undermine the Duke case. Anyone who thinks Mr. Michaels deliberately reported something he believed is woefully ignorant.
The Johnsville News continued to wallow in the "Cash as slow learner" mud:
"Yes, some folks were snickering at Cash. Some even gave him silly nicknames like 'the bag man,' because he kept ranting about these secret 'hush money' cash payments. It is sad, but laughing and teasing the slow learners can retard their progress. We're not sure if this happened with Mr. Michaels.
"Now, everyone has been reminded to play nice, with no name calling, especially since Cash has been showing good progress recently."
Then The Johnsville News dragged me into the dissing:
"Everyone has taken an interest in Cash's education. Visiting teachers have dropped in to work with Mr. Michaels. Michael Gaynor said:
God bless Cash Michaels for (1) reviewing the prosecution's document production in the Duke case, (2) recognizing that there is no evidence there proving any of the heinous criminal charges pending against the Duke Three, and (3) confirming my report about the upcoming '60 Minutes' season opener, which, in Mr. Nifong's case, will be an exception to the alleged general rule that there is no such thing as bad publicity.
"Cash is a joy for his teachers to work with. He delights us with his work sometimes. This week he said:
This week, sources confirmed that correspondent Ed Bradley has been interviewing lacrosse players for the program, though it is not clear whom."
The disgusting disdain for Mr. Michaels is astonishing. And counterproductive: does The Johnsville News realize that Mr. Michaels is more influential with many Durhamites than it is? Or is it in denial?
What prompted this disgraceful Johnsville News diatribe?
Apparently, Mr. Michaels looking beyond the pending criminal charges and back to the behavior at the party.
"So here we are after a wasted summer semester, now ready to tackle Mr. Michaels' deeper hoax dyslexia problem. This problem is seen in his recent work this week:
What happened in the five or so minutes Pittman claims they were separated is a mystery. But it is also plenty of time for one, or some of the angry players, many of whom had been drinking all afternoon until midnight, to confront the alleged victim about the $800.00 they paid, but the two-hour strip performance they didn’t get.
Again the players have said publicly in various forms that 'nothing' happened, and yet two minutes after an angry Kim Pittman pulls away from in front of the house, calling police on her cell phone at 12:53 a.m. to report that she and her 'Black girlfriend' were called niggers as they went by 610 N. Buchanan Blvd., the house was empty, the lights were off, the music stopped and the doors locked.
Within two minutes and upon the arrival of a Durham police officer, not one of the 30 plus lacrosse players were there, not even the three captains who actually lived at the address, to tell officers that 'nothing happened.'
'Officers responded to the call at 610 N. Buchanan within a minute of the dispatch,' Durham Police Dept. spokesperson Kammie Michael said then. 'The complainant was not on the scene and no one seemed to be at the house, according to the officers, so they cleared the scene after checking the area for several minutes.'
Lacrosse team supporters, who charge that the players are victims of a gross miscarriage of justice by an overzealous prosecutor who race-baited Durham’s Black community just to win the May Democratic primary, say the obvious lack of evidence that any of the crimes alleged were committed, is proof enough that what the team said is true – 'nothing' happened."
Let's be clear: Perhaps there were misdemeanors committed that night. The burden of proof of a crime is on the prosecution. The fact that there was no gang rape or kidnapping does not prove that nothing happened. I am not aware of evidence that any of the Duke Three (or anyone else) committed a crime that night, but investigating the possibility is legitimate. What I object to is a politically motivated persecution, not investigation of misdemeanors.
The Johnsville News seems to conclusively presume from the absence of felonies that there were no misdemeanors. That does not follow, of course. To use the Latin phrase, it is a non sequitor.
Exhibiting the slowness of which it falsely accused Mr. Michaels, The Johnsville News trivialized misdemeanors and tried to sanitize the party:
"Mr. Michaels reads, sees, and hears 'nothing happened,' but his brain thinks, 'something must have happened.' This form of the hoax dyslexia learning disability has been discussed before. People all see 'nothing happened' at the Duke lacrosse party, but the ones with this form of learning disability can't help themselves from thinking 'something must have happened.'
"To simplify the problem, Mr. Michaels can build a bridge between something and nothing. The bridge is called the misdemeanor:
serving underage persons alcohol
other related offenses
"Duke lacrosse players were familiar with the misdemeanor. Lacrosse Captain Dan Flannery had a 'noise violation' misdemeanor charge stemming from a party on January 10, 2006. This was his party on March 13th. He had organized it. Did he need a strike two? Do you think the other players knew the situation?
"No, the lacrosse players did not want to meet 'Mister Misdemeanor' again. Their coach had read them the riot act. He expected them to stay out of trouble. Who wanted to get busted by Durham's finest and have to walk into Coach Pressler's office and explain that they failed to listen?
"This background explains why the party ended the way it did. Kim Roberts saying she called the cops, was an instant lights out at the Duke party house.
"The misdemeanor is also something the alleged victim was familiar with. However, 'Missy Misdeameanor' would become intoxicated and end up in hot water with Durham PD. She did not want to end up at Durham Access fearing the expense and hassle of her own self-inflicted misdemeanor or worse. That is what really turned nothing into something.
"Some folks see a misdemeanor as nothing, to others it is something. It's like a letter that faces both left and right. Hoax dyslexics can see it, read it, and hopefully understand it. It's the mental model needed to understand the behaviour behind the hoax.
"People with hoax dyslexia are sometimes labeled as retarded. That kind of talk should never be allowed or tolerated. They simply need to be viewed as people with special needs who require more help to overcome their various learning disabilities.
"No hoax doubter like no child should be left behind. We can bring all these hoax dyslexics up to speed given enough time and patience. A brain is a terrible thing to waste."
The Johnsville News hit piece is worse than a waste. It is a gratuitous insult that discredits The Johnsville News, not Mr. Michaels.
Those impressed with the hit piece do NOT include Professor Robert K. C. Johnson, who was prompted to post a piece titled "Michaels Asks Questions" including this well deserved tribute"
"Outside of the mainstream media, ...one North Carolina journalist has stood out. I've read Cash Michaels' column every week since I started following the story, in part because Michaels, who writes for the Wilmington Journal and whose work is part of the BlackPressUSA Network, has access to sources that few, if any, figures in the mainstream media possess.
"From the start, Michaels--like most of his readers--has openly sympathized with the accuser. But he's also been open to adjusting his perspective as new evidence has come in. And unlike people such as the Herald-Sun's Bob Ashley, he has kept asking questions about the case--something I thought was the job of all journalists.
"Most important, in my opinion, Michaels has homed in on the significance of Nifong's habitual disregard for standard procedures. Several weeks ago, he started asking some hard questions about whether the D.A. exploited African-American voters in handling the case; and his most recent column raises serious (and, as yet, unanswered) concerns about both Nifong's procedurally irregular behavior and the seemingly dubious personal character of the case's lead investigator, Sgt. Mark Gottlieb. The piece is a must-read.
"Michaels' conclusions strike me as critical for the African-American community. We all know the sad statistics--blacks are far more likely than any other group in this country to be victimized by police or prosecutorial misconduct. So allowing Nifong to get away with his multiple violations of procedure in this case will set a dangerous precedent from which African-Americans almost certainly will suffer in the future.
"I'm, obviously, not from Durham; and so pay special attention to message-board posts when people from the area talk about how their friends and neighbors are viewing the case. There's an interesting pattern: few, if any, seem to have been influenced by the widely condemned Times article. But many, especially in the African-American community, cite Michaels' work. It looks as if they understand that on the lacrosse case, readers are more likely to see quality journalism in the Wilmington Journal than in the New York Times."
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.