Topic category: Other/General
Duke Case: Michael Cornacchia Speaks
"When E.F. Hutton speaks, people listen" was a memorable slogan.
Listening carefully to Michael Cornacchia is wise, especially for those interested in the whole Duke case story, but not for those who want to keep their illusions.
Like La Shawn Barber and Mike "Crystal Mess" McCusker, Michael Cornacchia is NOT being mentioned in the definitive book on the Duke case, Until Proven Innocent, by Stuart Taylor, Jr. and KC Johnson.
He should have been.
The description of Mr. Cornacchia at the end of his brief article published in the New York Law Journal on September 27, 2OO7 and titled "Besting a Rogue Prosecutor" is terse: "Michael T. Cornacchia, a former federal and state prosecutor, is a Manhattan-based criminal defense attorney who served as a member of the defense team for Collin Finnerty, one of the three defendants charged in the Duke lacrosse case."
Mr. Corrnacchia's self-description in the article was only a bit fuller: "For the better part of my 30 year legal career, I served with pride as a federal and state prosecutor and, more recently, as chief investigative counsel for the Volcker U.N. Oil-for-Food investigation."
Mr. Cornacchia demanded a federal investigation of the Duke case. (We did not agree on all aspects of legal strategy, but we agreed on that.)
As I wrote in "Duke case: USDJ should not be MIA," posted on December 6, 2006:
"What now is interesting is whether the United States Justice Department finally will act, with the election over and the '60 Minutes' expose having paved the way.
"What The News & Observer wrote about the possibility of Justice Department intervention is very significant to those concerned with the so-called merits of the Duke case:
'The request for a federal investigation came from Michael Cornacchia of New York, one of [Collin] Finnerty's attorneys. He wrote to the U.S. attorney general, the FBI director, the congressional delegations of North Carolina and Long Island and others, saying Nifong had violated the civil rights of the three players. The case merits an immediate investigation by the U.S. Department of Justice, wrote Cornacchia, a former prosecutor who recently served as chief investigative counsel for the probe of the United Nation's oil-for-food program.
'The request for federal intervention is aggressive and rare, said Richard Myers, a UNC-Chapel Hill law professor and former federal prosecutor.
'"It's a fairly strong indication the defense has nothing to hide if they want more eyes on the ground," Myers said. "How effective it's going to be, who knows? You cast a wide net and hope someone gets interested."'
"Mr. Cornacchia is familiar with the United States Justice Department, having served as Senior Litigation Counsel for the Office of the U.S. Attorney for the Eastern District of New York as well as a deputy chief in its Criminal Division.
"Mr. Cornacchia is absolutely right about rights violations, egregious ones.
"Professor Myers is right that the intervention request is an 'aggressive and rare' move strongly indicating that 'the defense has nothing to hide.'
"When the criminal justice system is being outrageously abused, as has been the case in the Duke case, it behooves the outrageously abused to appeal to the courtroom of public opinion (if that courtroom is open to them) and the United States Justice Department and to rely upon THE FACT of innocence instead of the presumption.
"If Mr. Cornacchia offered to provide the Justice Department with all of the 'evidence' produced by the prosecution and to have Collin Finnerty submit to a polygraph test by an FBI polygraph examiner (like the others of the Duke Three he already passed a polygraph test related to the Duke case), then the Justice Department is now out of excuses for not investigating (IF it has not been investigating).
"If Mr. Cornacchia did NOT include such offers with his request, it behooves him to make them now and it behooves the defense teams for Reade Seligmann and David Evans to do the same.
"The Duke case is hardly commonplace, of course. Based on what has become known, the evidence that the Duke Three's constitutional rights have been flagrantly violated is overwhelming and the ugly fact appears to be that they are being prosecuted (really, persecuted) because they are white.
"The United States Justice Department should intervene.
"Or does the United States Justice Department agree with [Chan] Hall, a student senator at North Carolina Central University, who wanted prosecution 'whether it happened or not,' as 'justice for things that happened in the past'?"
Mr. Cornacchia is the family lawyer to whom Kevin Finnerty turned to deal with the legal problems that flowed from incredible situations in which his son Collin found himself in both the District of Columbia and Durham.
As a result of dealing with just those legal problems, Mr. Cornacchia has a sound understanding of the problems of and appreciation for defense lawyers.
Mr. Cornacchia: "The tireless efforts and courage of the attorneys I worked with on the Duke case, particularly those on our team - Wade Smith, Bill Cotter, Doug Kingsbury and Steve McCool - demonstrated why we need a vigorous and courageous defense bar and reminded me why I became a lawyer."
The nonsensical DC case suddenly became noteworthy as a result of the Hoax. As a result of the Hoax, Collin was tried and, as put in Until Proven Innocent, "found...guilty of assault, not by hitting anyone but by 'shadow boxing' so that "Bloxsom said he was in fear of being struck."
Thanks to the Hoax, the DC story was spun as a terrifying escapade by a gay-bashing thug on a thuggish lacrosse team, nearly lily white, at Duke University in Durham. North Carolina.
The truth, related in Until Proven Innocent: "These facts were conceded even by Collin's [DC} prosecution. They never claimed that he had so much as landed a punch during the scrap outside a Washington, D.C., bar. Nor did anyone claim that Finnerty had thought that either of the two twenty-seven-year-old men with whom he and two friends had tangled were gay."
Nowithstanding both the D.C. and Duke cases and his high praise of defense lawyers, Mr. Cornacchia remains a great admirer of prosecutors: "I hold the practice of law as a prosecutor in the highest regard, believing that most prosecutors act in good faith and try to do 'the right thing.'"
Most, yes. Just a handful, no.
To his credit, Mr. Cornacchia conceded that he was unprepared for the likes of former Durham County. North Carolina District Attorney Michael B. Nifong: "Nothing in my training and experience, therefore, prepared me for the depth and pervasiveness of the misconduct I witnessed on the part of Durham County, N.C., District Attorney Michael Nifong while I was a member of the defense team for one of the accused, Collin Finnerty, in the so-called Duke lacrosse case."
Investigating corruption in the United Nations' Oil-for-Food program didn't do it for Mr. Cornacchia!
Mr. Cornacchia on Mr. Nifong:
"Calling him 'a rogue prosecutor,' the North Carolina attorney general charged Mr. Nifong with securing indictments of three 'innocent' young men for crimes that had not occurred; the state bar disbarred him for gross ethics violations; and he was jailed for lying to the court in order to conceal exculpatory evidence. How bad was Mr. Nifong's misconduct? A few examples will best answer the question.
"Mr. Nifong: 1) concealed from the grand jury that indicted our clients that the DNA found on and in the accuser was not that of our clients but the DNA of four unidentified males; 2) caused a false DNA report to be submitted to the court and defense counsel concealing this fact; 3) rigged an identification procedure, in violation of both police regulations and state directives, after the accuser twice could not identify any alleged attacker; 4) in a failed effort to keep our clients in custody pending the trial, abused his statutory power to set bail without judicial oversight by demanding that our clients post among the highest bail amounts in a North Carolina non-capital case; 5) did not interview the accuser until nine months after the alleged attack even though it was a one-witness case dependent on her credibility; 6) ignored the background of the accuser who had served time in jail and was known to have a drug abuse and psychiatric history; and 7) had a defense alibi witness arrested and held on a dormant warrant when the defense disclosed his identity.
"And it went on."
And it involved more bad actors than just Mr. Nifong.
Mr. Cornacchia also acknowledged that the criminal justice system in Durham helped Mr. Nifong greatly in his attempt to railroad Collin, Reade Seligmann and David Evans: "Some of the established practices we encountered in Durham played to Mr. Nifong's advantage. The grand jury proceedings were not recorded or transcribed, precluding defense and judicial review of witness' sworn testimony; no prosecutor was in the grand jury room supervising the proceedings; the grand jury was not charged specifically on our case by a prosecutor merely generally at the inception of its term; and the indictments were not based on the testimony of the accuser, who did not testify, but solely on the hearsay testimony of the police investigators. Despite our requests, early pretrial proceedings and conferences were not recorded or transcribed, making it difficult to preserve material for argument, frame issues for appellate review and monitor the proceedings. There was no speedy trial rule and no discovery schedule imposed. Since we could not make suppression or dispositive motions until discovery was deemed completed by us, Mr. Nifong controlled the pace and indefinitely postponed the scheduling of hearings and a trial. Mr. Nifong's unprecedented media barrage against our clients was not addressed despite our complaints and, only in the later stages, was a gag order imposed."
To be complete, the gag order was imposed by Judge Kenneth Titus, on his own initiative, to help Nifong, to please the North Carolina NAACP and to gag witnesses, including the defendants, to handicap the defense in the courtroom of public opinion. That gag order was blatantly unconstitutionally overbroad, as successor Judge Osmond Smith surely recognized when he modified it (and thereby set the stage for the first "60 Minutes" expose on the Duke case, an expose that was already in the works when the gagging was done).
Fortunately, Mr. Cornacchia soon appreciated that the Duke case was atypical.(A cautious lawyer, he kept Collin from meeting me, but failed with Collin's confident and proud mother and maternal aunt.)
Mr. Cornacchia: "It became clear in the process that this was not a case that we could handle in a conventional fashion to successfully counter Mr. Nifong's misconduct. Rather, we adapted - adopting multi-faceted approaches of media campaigns, a blitzing motion practice, petitioning for federal intervention and, most importantly, pursuing our own independent investigation to determine the facts. We spoke publicly, on a regular basis, to accurately set forth the nature of court proceedings and to rebut inaccurate information disseminated by Mr. Nifong. Motions were submitted on every possible issue and continuous follow-up exercised to ensure compliance with court orders. Not trusting their integrity or completeness, we scoured over every page of documents provided in discovery. We employed the services of experts in the areas of DNA, emergency medicine, fingerprints and audio/video. Our efforts led to the discovery that the DNA report submitted to the court and the defense was false and laid bare the scheme of Mr. Nifong and the report's author to conceal exculpatory evidence, a development which led to the Attorney General's takeover of the case."
Not quite true: there was no motion to dismiss on constitutional grounds, as permitted by North Carolina statute, and there should have been.
Interestingly, Mr. Cornacchia, a New York lawyer, acknowledged that he was untrusting, also known as suspicious, and claimed: "Our efforts led to the discovery that the DNA report submitted to the court and the defense was false and laid bare the scheme of Mr. Nifong and the report's author to conceal exculpatory evidence, a development which led to the Attorney General's takeover of the case."
That seems to contradict the dramatic story of Brad Bannon doing it all himself, when it came to finding the evidence of multiple male DNA.
Amazingly (to others as well as me), Mr. Bannon, a North Carolina lawyer, testified during Mr. Nifong's ethics hearing that he did NOT think he would find evidence of multiple male DNA (my three reports beginning on June 20, 2006 notwithstanding), because he trusted Mr. Nifong as a fellow officer of the court, yet found it anyway, because he had intensely studied the science of DNA. (Why anyone who put anything past Mr. Nifong after his outrageous public statements, his threat to castrate Joe Cheshire without a surgical instrument or anesthesia and his malicious mistreatment of the late great Kirk Osborn is beyond me.)
Mr. Cornacchia was part of the Finnerty legal team, while Mr. Bannon was part of the Evans legal team, of course.
When Mr. Cornacchia wrote of "[o]ur efforts" and "we," he appeared to be at least including the Finnerty legal team. Until Proven Innocent reported that Mr. Bannon focused on the DNA and "the Finnerty team...on the medical evidence." Unless the Finnerty legal team brought my reports about the multiple male DNA to Mr. Bannon's attention, so that he would expect to find it, what efforts on the part of the Finnerty legal team "led to the discovery that the DNA report submitted to the court and the defense was false and laid bare the scheme of Mr. Nifong and the report's author to conceal exculpatory evidence, a development which led to the Attorney General's takeover of the case"?
Last August I posted an email exchange between Collin's aunt, Eileen Cornacchia, to refute the suggestion that I simply included incidental references to the multiple male DNA in three of my articles in the hope that no one would notice if it was not true, but I could later claim credit if it turned out to be true, and that I had no reason to believe my articles were being read by defense attorneys.
In view of the appearance Mr. Cornacchia's article, I repeat what I wrote last August:
"To refute ignorant statements and suggestions , I am setting forth an email I sent today to Eileen Cornacchia, Collin Finnerty's aunt, and her gracious reply.
'You may or may not know that there is a public dispute of sorts between Brad Bannon and me as to whether Brad should have believed Nifong's lies and not expected to find evidence of multiple male DNA when he had the opportunity to review the underlying documentation.
'I had reported the multiple male DNA three times, twice in June of 2006 and again in early September of 2006, before the September 22, 2006 court conference at which Judge Osmond Smith ordered that the underlying documentation be produced. Brad apparently never knew what he should have expected to find should have been there to find.
'Ironically, I am being blamed for protecting a source and respecting parameters.
'I have consistently tried to do that. Therefore, I did not announce that "60" was on the Duke case as soon as I learned it, because I learned it in confidence, and I only used material when I believed the time had been reached when I could use it, and then used it discretely. I could write a fascinating book if I refused to treat confidences as confidences, but that's not my way.
'On February 26, 2006 I emailed you as follows:
"I am serving strictly as an intermediary for the fellow who wants to talk to [name of defense lawyer omitted], but I'm glad you encouraged [him] and [he] agreed to speak with the fellow.
"One must take care with such contactors, but in a corrupt system, there is much to be learned from disgruntled people.
"My experience with people in NC with respect to the Duke case has been pretty good. Some strange ones have contacted me, but usually it's fearful people who want to help, know things that are not public knowledge and want me to front for them so that they will not not be identified as a source and punished for airing dirty little Durham secrets. Some are well-positioned and highly unlikely to be suspected.
"I recently was advised that Brad Bannon realized only this fall that Crystal was a multiple male DNA treasure trove, as a result of reviewing underlying documentation that Judge Smith rightly ordered to be produced over the objections of Nifong and Dr. Meehan.
"In 'Duke Case: Does the prosecutor need prosecuting,' posted on June 30, 2006, I wrote:
'Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males.'
'I am astonished that the defense lawyers say that they did not appreciate that until several months later.
'I thought they knew, "60" knew and the trick was for the lawyers to get a judge who is not a Nifong judge (Smith, as distinguished from Stephens and Titus) to take over the case, ungag so that "60" could do a blockbuster expose and expose Nifong's villainy and the real facts for all to see.
'Apparently the defense team finally learned about the scheme to cover up the facts because they were being very thorough instead of because they had been told where to look.
'At least Collin and Reade are on track to switch from being defendants in the Duke case to plaintiffs in civil suits and don't have to worry about a possible petty theft charge.
'It sure is a weird case.
"You replied the same day:
'I think there are lots of things the defense team knew and knows but they let the information out in their own good time and in their chosen ways. Thanks for the email.
"By posting our email exchange, I would show that (1) my practice was to deal with the defense through you (it was),(2) I expressed my surprise about the defense's apparent ignorance of what to expect BEFORE Brad testified that he did think as of September 22, 2006 that he would not find evidence of multiple male DNA (I did) and (3) my email did not surprise you (after all, I had forwarded my June 20 and June 30 articles directly to you).
"Some Brad enthusiasts are suggesting that I am a Nifong enabler.
"You knew what my view of Nifong was when you first emailed me on May 24, 2006 to express gratitude for my writing and to encourage me to do more.
"I responded by making exposing the truth in the Duke case a personal priority, pro bono, so that the unwarranted ordeal of the players would end ASAP.
"Of course, there are those who resented any criticism of the defense strategy and I did criticize it in some respects. When I urged a bolder strategy (after all, I had already reported the multiple male DNA twice and expected it eventually would bring down Nifong and end the case), the article was pronounced 'excellent' and promptly posted on the FODU website, only to be quietly delinked because it did not conform to defense strategy.
"The notion that those of us who favored a bolder strategy are Nifong enablers is ludicrous, of course, and I wish North Carolina was whistleblower-friendly, but it was not for me to decide a source's parameters should not be respected and knowing what to look for is not the same as finding it.
"I would like to post this email including our email exchange of February 26 (with the attorney's name omitted).
"If you have a problem with any of that, please let me know.
"Eileen's prompt reply:
'Mike, I don't see any problem with your releasing these emails. I certainly understand your position and your interest to protect yourself if you are being maligned or misinterpreted professionally. What I understand is that you are going to release your two emails to me. Name me as the recipient and print my one line reply. If that is your understanding, you have my permission.
"Thereafter, for clarity of presentation we agreed that I would post in order our email exchanged on August 2, 2007, since my email included both of our February 26, 2007 emails.
"Thanks be to God, the underlying documentation was not 'lost' and the truth finally prevailed in the Duke case, albeit not as quickly as we (and many others) wanted and some things apparently fell between the cracks."
Maybe some day the whole Duke case story will be told!
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 email@example.com.