Clarification or Further Obfuscation?

Recently, we discussed Cash Michaels’ critique of the ‘60 Minutes’ airing of its take on the Duke Hoax. Specifically, we took exception to Mr. Michaels presentation of the arguments made by NCCU Law Professor Irving Joyner and NAACP attorney Alan McSurely with regard to the possibility of DA Mike Nifong’s withholding evidence. Mr. Michaels, in an effort to clear the air, has taken exception to our characterization of his piece as “obfuscation” and appears intent on making it known that the opinions he reported were not his own but rather presentation simply of the arguments being made by McSurely and Joyner.

Cash Michaels at the WTVD forum:

“Recently, Prof. Irv Joyner and atty Al McSurely suggested in my 60 Min. story that the DA hasn't shown his full deck by way of evidence. Folks immediately jumped on me saying I was promoting this viewpoint.”

“Wrong, so wrong. I was reporting this viewpoint, this perspective, if you will, because that's what I'm supposed to do.”

To ensure that no one misunderstands his personal take on the Hoax, Mr. Michaels prefaced his comments with:

“Regarding the Duke case, as a reporter, I am limited as to what I can say and do. I have stated categorically for two months now that after an examination of the discovery evidence made available, there is virtually no incriminating evidence there, in my opinion, to convict anyone of rape or kidnapping.”

“I have also reported that after reviewing the public record of what was said early on in the case by Nifong and the Durham PD, and what the records and notes from behind-the-scenes actually showed, the public wasn't being told the truth about the case. Why the Durham PD engaged in this is what I'd like the answer to.”

“Why Nifong did seems apparent. There was a May primary he had to win at all costs because of his tremendous dislike of opponent Freda Black, who he forced to resign when he took over a year earlier.”

“Now those are sober, factual observations, based not on believing anything, but on hard and cold research.”

To further the clarification, Mr. Michaels followed up with Professor Joyner regarding the following statements:

[Professor Joyner] also agrees with attorney Al McSurely that all of the admittedly weak evidence so far seen by the media “does not mean it is the only information prosecutors have available to them.”

In fact, Joyner adds, there is a lot of evidence and witness testimony that simply isn’t reduced to writing.

“I’ve been practicing law long enough to know that what ends up in a report isn’t necessarily everything that’s there,” he said, adding that, for instance, clarification of evidence or information in a criminal case is not required to be part of the discovery package mandated from the prosecution to the defense.“Just because [evidence] has been released, doesn’t mean that’s it,” Prof. Joyner said.

It appears, based on the following clarification, that what Prof. Joyner was speaking to when stating that there is “a lot of evidence and witness testimony” was nothing more than Nifong’s Theory of the Hoax.

“While state law mandates that all facts, physical evidence, reports, notes and everything else material be handed over to the defense, Joyner made clear that the prosecution's case (we're speaking generically here) is much, much more than that.”

“His "theory" of the case, based on his or the investigating officers' interpretation of the evidence, facts and /or crime scene/or sequence of events, is NOT discoverable under the law. In effect, the prosecutor's "spin" on the same set of discovery is totally his province, and that's rarely written down.”

“Therefore, the defense has no right to it under North Carolina law, according to Prof. Joyner.”

While we remain uncertain how Nifong’s Theory of the Hoax, born of his own imagination, constitutes “evidence” and “witness statements,” we do accept that the Theory of the Hoax is not covered by discovery requirements. We are equally uncertain that anyone yet has made the argument that the hoax hijacker’s theory must be turned over to the defense. The exception taken here, and noted elsewhere, was to the suggestion that “evidence” and “witness statements” (or “hole cards” as McSurely put it) could, or would, be withheld.

Limiting the “must have something” to nothing more than an idea, an argument, a theory or “the prosecutor’s spin” is not a novel idea, nor is it one that we disagree with.

Previously, we stated:

“It has become quite clear to us that this Hoax is not about an accuser’s day in court, but rather about Nifong’s day in court. Prosecution has apparently become a game to Mr. Nifong, rather than a pursuit of truth or justice. He demonstrates that he cares nothing for the facts of the case as he puts forth theories that contradict the complainant’s description of events, the evidence as it has been revealed, the statements and actions of the police investigators, and even the sworn statements of his own Assistant District Attorney David Saacks.”

“With skilled gamesmanship and the nerve of a con man, DA Nifong blatantly chides the media, the defense attorneys and the accused as he points his finger in every direction except his own while employing the “something” he has. What he has, folks, is nothing more than Nifongese, crafty language precisely delivered to disguise, distort, delayand deceive. With willful disregard for the truth, and with no inhibition of contradicting either the previous accounts of the Hoax, or evidence already made known, Mr. Nifong obnoxiously declared his intention of re-inventing the Theory of the Hoax that was initially presented both publicly and before the Grand Jury.”

Reinventing the Theory of the Hoax

Suggesting that the "something" Nifong has is simply his reinvented Theory of the Hoax appears to be a far cry from hinting that there is additional incriminating evidence that remains to be made public or shared with the defense team. Rather than a clarification, this suggestion appears to be a new argument, perhaps one that finally reaches the center of this debate.

To further make the point that this Hoax has become not about truth, justice, facts or evidence, Mr. Michaels adds:

Many of you have, I'm sure, heard the old saying,

" In court, it's not about what the truth is, but who has the best lawyer." [Bold added]

“Ask yourself this question? If the lack of evidence against the Duke Three is so compelling, and it is, then why are the defense attorneys, with all of the ammunition they've got, still micromanaging this case as if there was a ton of evidence against their clients?…Because, depending on the makeup and mood of the jury, the defense knows the Nifong has an outside chance to sell whatever that theory is, and they don't want to take any chances, though they won't admit that publicly…I'm not saying Nifong's ploy will work, or should work. Just telling folks, according to Prof. Joyner, what it is.” [Bold added]

If according to Professor Joyner, Nifong’s ploy is to wager on the “mood and makeup of the jury” where “in court, it’s not about the truth” we have finally gotten to the crux of the issue on both sides of the fence. Over the past several months, Nifong’s apologists have insisted that he must have something. To know that this “something” has been reduced, admittedly by Professor Joyner who is monitoring the case on behalf of the NAACP, to nothing more than a reinvented Theory of the Hoax, gives confirmation to our arguments and gives rise to troubling questions.

While the mandate given every prosecutor is to seek justice, why is Mr. Nifong defended by Professor Joyner, and others, for seeking conviction by ploy rather than by evidence? Why is the perspective, that Nifong should be allowed, or must be permitted, to attempt to sell an invented theory, devoid of substantiation, to a jury of favorable “makeup or mood,” a view that should have been presented by ‘60 Minutes’ or any media outlet interested in reporting the truth?

The argument that:

“the law allows Nifong to make a horse race of this thing at trial just based on that exception [to not disclose his reinvented theory]. He has to convince a jury of his spin, his interpretation of the evidence.”

appears to entirely contradict the special responsibilities of a prosecutor in our justice system which mandate:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

And:

“The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute. During trial, the prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.”

Again the argument presented by Professor Joyner, on behalf of Nifong, appears to be that the law allows him to commit misconduct. Clearly it does not and as such would not have served to balance the '60 Minutes' story, as appears to be the suggestion.

In an email response to Professor Joyner’s arguments, Stuart Taylor stated:

“Before putting a man on trial, a prosecutor needs to have genuinely incriminating facts and evidence, not just a made-up-from-whole-cloth "theory" of a 5-minute rape that contradicts the 30-minute-rape "theory" that he had used for many previous months until it was so obviously incompatible with the facts and evidence that he decided he needed a new "theory."

In consideration of Professor Joyner’s apparent advocacy of Mr. Nifong’s intentions to present his own theory of the case, spun as an "interpretation" of the evidence that it clearly contradicts, the frightening reality is that some of those who support Nifong's persecution do so knowing full well that his persecution is not supported by evidence but rather by willful invention, and that his only hope is jury nullification.