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On July 27, 2006, Friends of Duke University website posted a heartwarming message from Kennedy Godettee, a former Durhamite and former Duke University employee whose put his finger on a major problem facing the Duke Three in lambasting the Duke Administration for mistreating them: "a small and vocal segment of the community in Durham" that Duke University's weak Administration chose to appease.

  Mr. Godette:

Ever since this story broke, I have found myself totally dismayed with how it has played out. I am a former resident of Durham and a former employee of Duke University; I am deeply concerned how the Duke administration has treated the entire Lacrosse team and the wrongly accused players. In order to appease a small and vocal segment of the community in Durham, the administration has chosen to turn their backs on these students. I find President Brodhead's remarks very funny and actions twisted. The treatment that President Brodhead has given the Lacrosse team and the accused players, leaves the impression that these boys are guilty before they can be found innocent.

I give my support to the three Lacrosse players wrongly accused, not as a racist white man, but as a young black man who is unwilling to follow so called 'civil rights leaders' in Durham just because they say JUMP!

BAD NEWS:  The same day,  Durham lawyer and Durham County Commissioner Lewis Cheek (a white Democrat) announced that he will not run against District Attorney Mike Nifong, even though his name will appear on the ballot. His words: "I will not run a campaign, and I will not serve as District Attorney."

Official reason: he does not want to harm his three-year-old law practice and its other lawyers and employees by leaving to serve as District Attorney.

Mr. Cheek's advice to Durham County voters who are disgusted with Mr. Nifong: Vote for him (he'll vote for himself) and if he wins without campaigning, he'll decline office and Governor Michael Easley (a Democrat who appointed Mr. Nifong) will appointed the district attorney.

Good News: Mr. Cheek still remains on the ballot, giving voters a choice, and if he wins and still declines, even Governor Easley may be reluctant to reappoint Mr. Nifong. 

What is the greatest impediment to the Duke Three having the false criminal charges against them dismissed before the next school year begins?

(1) They have too little money

(2) They have too much money

(3) Their local lawyers plan to handle other cases in Durham County, North Carolina

(4) Their lawyers are working by the hour

(5) Defense timidity

(6) Justice takes the summer off

(7) It takes time to dot the i's and cross the t's.

(8) The prosecution has enough evidence to warrant a trial

(9) Too few people know that each of the Duke Three passed a polygraph test and their accuser hasn't even taken one.

(10) Voodoo

(11) Terrorism

(12) The nature of Democrat politics in North Carolina.

The best answer seems to be (12): the nature of Democrat politics on North Carolina 

What do the Governor of North Carolina (Michael Easley), the Attorney General of North Carolina (Roy Cooper), the Durham County, North Carolina District Attorney (Michael Nifong) and the judge presiding over the Duke case (Kenneth Titus) have in common?

Answer:  They are all white Democrats who depend on the black vote to keep their jobs.

What else do District Attorney Nifong and Judge Titus have in common?

Answer: They are running for reelection in November in Durham County, North Carolina, a Democrat bastion in a Red State (in presidential elections and United States Senate races) where the Democrat Party Chairman is Floyd McKissick, Jr.

If the indictments against three white Yankees from wealthy families finally are dismissed for sound legal reasons (like they cannot be proven, they were the result of prosecutorial abuse of power inspired by personal political considerations and they were improvidently issued by a grand jury that was not presented with facts that surely should have been presented to it and thereby shamelessly misled), don't expect it before Election Day.

And don't expect Governor Easley and Attorney General Cooper, fellow Democrats also dependent on a solid black vote, to deal with the prosecutorial abuse problem of District Attorney Nifong until he is thoroughly and exquisitely exposed (which, by the grace of God, may be before Election Day, albeit not during the summer).

In the sensational, but said, soap opera that is the Duke case, the right question is not whether the Duke Three will escape justice (their indictments were unjust and their continued prosecution is an egregious abuse of prosecutorial power), but whether their accuser and prosecutor will escape justice.  If the Duke Three were black instead of white, natives instead of Yankees, poor instead of rich, they would NOT have been pawns in the chess game that is local Durham politics and the case would have been dismissed long ago if it ever was improvidently brought.  But, justice does not always prevail in this life and, as President Kennedy said, "God's work on earth must truly be our own."  Will the prosecutor somehow have bail revoked, imprison the Duke Three and suddenly produce career criminals ready to testify that each of them confessed to kidnapping, raping and sexually assaulting the accuser and, if the prosecutor finds it helpful, pledging eternal loyalty to Osama bin Laden and planning to hijack a plane and bring down the Sears Tower?  Will a New Black Panther sympathizer slyly slip onto and hang the jury?  Will an overconfident defense create a hung jury (or, God forbid!) snatch defeat from the jaws of victory by deciding NOT to have the Duke Three testify and instead expect the jury to obey the routine jury instruction not to hold an accused's failure to testify against that accused?  Will the accuser or the prosecutor turn into a pillar of salt during the trial?  Will the accuser come up with yet another story if she dares to take the stand, or refuse to answer on the ground that her answers may tend to incriminate her?  Only God knows exactly how it all will play out, but I think the prosecutor already lost his soul and will lose more than the case, despite all his and the Durham establishment's clout.

The Duke rape case has pretty much morphed into the Duke rape hoax in the eyes of the national media as fact after fact has become public.  There's no dispute that a couple of strippers "entertained" at the shameful Duke men's lacrosse team party last March, but that's not unprecedented at college parties, much less a crime.  Even though the Duke Three were indicted for kidnapping, raping and sexually assaulting one of the strippers (BOTH are ex-convicts), there is no physical evidence supporting the charges and no witness supporting the claims of the incredible accuser.  DNA showed the accuser had sexual contact with more than one man about the time of the party, but not with a Duke lacrosse player and her internal injury appears to have self-inflicted with a vibrator.

The case should have collapsed long ago, but District Attorney Nifong came from behind to win the Democrat primary for Durham County District Attorney by obtaining those indictments and then winning last May 2 among black voters even bigger than his main opponent, Freda Black, won among the rest of the voters.   A fellow Democrat. Commissioner Lewis Cheek, is on the ballot in November via the petition route, so Mr. Nifong is not about to acknowledge that those indictments were hastily obtained and unwarranted.

Mr. Nifong obviously does not want a trial before Election Day, because, notwithstanding his posturing, he doesn't really believe he can win and the accuser may be bright enough to realize that taking the stand will be a monumental mistake and beg off (for the sake of her children, of course).

So the case goes on, with Mr. Nifong fishing for evidence of guilt that does not exist; mainstream media that initially thought Mr. Nifong had a case thinking about atoning for their own misjudgment, and some members of the Durham establishment intensely concerned that exposing Mr. Nifong as a reckless prosecutor (or worse) may be detrimental to them as well as to Mr. Nifong.

One means of intimidating the innocent is to issue a gag order.

Gag order: "A court order forbidding public reporting or commentary, as by the news media, on a case currently before the court."

In 1644, John Milton appealed to the British Parliament to end government censorship in stirring terms: "Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do ingloriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple: who ever knew Truth put to the worse in a free and open encounter?"

Free speech, not censorship, is the American way. It is predicated upon the belief that it will lead to the discovery of the truth.  Oliver Wendell Holmes opined: "Truth is tough. It will not break, like a bubble, at the touch, nay, you may kick it about all day like a football, and it will be round and full at evening."  His son, Justice Oliver Wendell Holmes, Jr., agreed and put it this way: "The best test of truth is the power of the thought to get itself accepted in the competition of the market."

This is a reality that should be respected by the judges presiding over the Duke case, all parties to the case and their families, friends and lawyers, and even websites that purport not to be accountable to anyone for the contents of their forums or discussion boards and do not identify themselves as abject apologists for anyone.

On July 17, 2006, Judge Titus accommodated fellow Democrat candidate Nifong by issuing a restraining order based on Rule 3.6 of the North Carolina Revised Rules of Professional Conduct ("Trial Publicity"), but NOT Rule 3.8 ("Special Responsibilities of a Prosecutor").  Having won the primary last May 2, Mr. Nifong not only now wants to be silent, but wants the defense attorneys to be silent too (since the facts that have come to light have not only torpedoed his case, but exposed him as a pernicious political voters whom enlightened voters never would have back.

The good news is that the Duke Three's defense attorneys have moved to have the purview of Judge Titus's restraining order limited to "the lawyers involved in the prosecution and defense of the case" (Judge Titus's order also applied to "non-lawyer witnesses, including the members of the 2006 Duke University Men's Lacrosse Team, itself an appalling outrage under the Constitution and, of course, a political boon for Mr. Nifong) and to "expand its purview to include all rules of professional conduct related to extrajudicial lawyer speech in a criminal case, including Rule 3.8".

IS there a gag order now forbidding the Duke Three from speaking out?

YES!

The Duke Three may be chided for not speaking out more or sooner, but a court gagging them is downright un-American!  They should be free to speak out.  If what they have to say leads the Durham voters to reject Mr. Nifong, THAT'S THE AMERICAN WAY!  (NOT gagging the three white Yankees as some sort of atonement for the sins of slavery and segregation or help a fellow Democrat win re-election.)

The legal teams for the Duke Three face great challenges (even though each of their clients is innocent of all of the pending criminal charges against him).  Even though they should have done more, they have done much, and they have challenged the gag order in clear, concise, compelling language that the drafters and ratifiers of the Bill of Rights would have enthusiastically applauded.

Example:

The First Amendment to the United States Constitution guarantees freedom of speech and freedom of the press.  'There is no question that speech critical of the exercise of the State's power lies at the very core of the First Amendment,' and 'the dissemination of information relating to alleged governmental misconduct' is ''speech which has traditionally been recognized as lying at the core of the First Amendment."'....Furthermore, '[p]ublic awareness and criticism have even greater importance where...the criticism questions the judgment of an elected public prosecutor.  Our system grants prosecutors vast discretion at all stages in the criminal process.  The public has an interest in its responsible exercise.'...Likewise, '[t]he press...guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.'  Accordingly, 'any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity,' and the party seeking to justify it 'carries a heavy burden of showing justification for the imposition of such restrain.'

Until relatively recently, but for a glorious public statement by David Evans shortly after became the third indictee, the silence of the Duke Three was by choice.  A bad choice, in my opinion, but a FREE choice in the land of the free and the home of the brave.

To those who would have the Duke Three and their representatives stand mute in the courtroom on public opinion, the defense attorneys quoted a pertinent part of a United States Supreme Court opinion: "Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences or possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives.  A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that his client does not deserve to be tried."

Sophomore Reade Seligmann produced eye-catching alibi evidence, but did not make a public statement.

Sophomore Collin Finnerty remained silent too.  He was burdened by an unrelated simple assault case (America's most overblown bar fight) in the District of Columbia.  The District of Columbia prosecutor's office resurrected the case, presumably in the good-faith believe that the Durham indictments were meritorious instead of malicious, and convinced a peculiar judge obsessed with imaginary curfew violations, had been proven beyond a reasonable doubt (even though the evidence was that Collin had been hit in the bad of the head and never actually hit anyone) and knowledgeable legal observers had ample doubt.

At the end of June, Collin's parents, Kevin and MaryEllen, appeared on NBC and MSNBC to assure viewers that, like Reade, Collin had alibi evidence, and to announce that ALL of the Duke Three had passed a polygraph test. 

What are the odds that all three could pass the test if they were lying?  And why did Mr. Nifong decline to have either the accuser or Duke lacrosse players take polygraph tests when the young lady who accused William Kennedy Smith was given two polygraph tests and a voice stress test before Mr. Smith was charged with rape?  Are the Duke Three less deserving of the presumption of innocence than Mr. Smith?  Or are white accusers to be polygraph tested while black accusers (even ones with a criminal record and medical and employment histories that make them even more suspect) to be automatically believed?

Let's be realistic: the Duke Three are the ones under indictment, but now Mr. Nifong and the Duke establishment are the ones under examination, in need of purification and due to be punished, and not deserving of any protection from Judge Titus.

A local establishment is loathe to admit that its District Attorney is a rogue and is tempted not only to overlook prosecutorial misconduct, but to help cover it up.

That's why the media and good people need to pay attention! 

If the gag order is revoked, the Duke Three should be speaking out long BEFORE Election Day, so that the good people of Durham County realize how important it is to replace Mr. Nifong, a rogue prosecutor.

"Mississippi Burning" is a 1988 movie based on the investigation into the actual murders of three civil rights workers in Mississippi in 1964.  Of course, those murders were much worse than the prosecution of three white Duke lacrosse players from wealthy families on baseless kidnapping, rape and sexual assault charges.  But, there is a common lesson: local justice can be unjust, whether it is letting the guilty get away with murder or railroading the innocent on trumped up charges, in each case for pernicious political purposes.

North Carolina, a tobacco state, is fuming.  Higher authorities in North Carolina should act to rectify an egregious wrong, but so far they have not.  That leaves it to the federal government and the voters.

Wikipedia Encyclopedia notes an important criticism of "Mississippi Burning": "The film has been criticized by many...for its fictionalization of history. While FBI agents are presented as heroes who descend upon the town by the hundreds, in reality the FBI and the Justice Department only reluctantly protected civil rights workers and protesters and reportedly witnessed beatings without intervening."

In the Duke rape hoax, people who should have intervened have not. 

Encouraging fact: On June 21, 2005, 41 years to the day after the murders, Edgar Ray Killen was convicted of manslaughter in the 1964 slayings of the three civil rights workers, and later was sentenced to 60 years in prison.

It takes time for truth to catch up to lies, and for justice to prevail, it is up to all of us to speed up the process as much as possible.

Wikipedia on 1964 Mississippi:  "Mississippi Burning highlights the injustice of Southern American Society in the 1960s. Anderson and Ward are given the task of investigating the fate of the three Civil Rights Boys. While they investigate, they uncloak the social inequality in Mississippi, clearly shown when Anderson says to Ward 'Dont do it, Mr Ward. You'll just start a war' and Ward simply replies 'There was a war long before we got here.' Ward is unable to penetrate the thick fog of oppression by the Ku Klux Klan, a group responsible for the oppression in the American South. Anderson takes over the investigation, taking a more 'hands on approach' by forcing the information out of the responsible persons. His actions, along with others, lead to the eventual capture and trial of the suspected leaders of the Klan, including the main suspects for the murder of the Civil Rights Boys."

In 2006 Durham, North Carolina, the Ku Klux Klan is not the problem.  The people being railroaded and oppressed are rich white Yankees, not poor black locals.  That needs to be exposed, like the Ku Klux Klan problem needed to be exposed.  Those who are not part of the solution are part of the problem.  And timidity never overcomes oppression.

On April 14, 2006, three days before Collin and Reade were indicted, R. Jeffrey Smith wrote an article titled "Judge in CIA Leak Case Threatens Gag Order."  U.S. District Judge Reggie B. Walston, the federal judge presiding over the pending trial of "Scooter" Libby, had threatened to impose a gag order barring statements or disclosures to the news media by Mr. Libby's defense team or by the special prosecutor investigating alleged wrongdoing by the former White House official. Mr. Smith wondered what had "provoked his pique"; noted that the judge's order stated that "on several occasions information has been distributed to the press by counsel, which has included not only public statements, but also the dissemination of material that had not been filed on the public docket"; and reported that the judge had "complained that the parties to the case did not heed an earlier warning that he would not tolerate 'this case being tried in the media,' and he said such disclosures could impair the court's ability 'to ensure that both sides receive a fair trial.'"

The belated gag order in the Duke case is not only an utterly unwarranted infringement upon the freedoms of speech and press that oppresses the Duke Three and prejudices the people (especially the people of Durham County), it is a judicial contribution to Mr. Nifong's race to be elected Durham County District Attorney. Remember: it was Mr. Nifong who tried the case in the media at the beginning outrageously and the went silent after he won the primary.  The truth CAN be shown (to Mr. Nifong's distress) and should be presented in the courtroom of public opinion.  Thus, that gag order is serving serves Mr. Nifong's personal and political interests and disserving the public interest.  It should NOT apply to the Duke Three at all, or selectively apply the rules of professional conduct to the attorneys in the case.

Michael J. Gaynor

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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.

Copyright © 2006 by Michael J. Gaynor
All Rights Reserved.

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