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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  August 4, 2006
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Topic category:  Other/General

There IS a Gag Order in the Duke Case!

Friends of Duke University website isa self-described "discussion board for the friends of Duke University" now "focus[ing]....on the Duke Lacrosse Scandal." Itposts a wealth of pertinent information and provides wonderful support for the persecuted Duke Three.I think the catchphrase should have been changed to "Duke Lacrosse Prosecution Scandal"long ago.

Friends of Duke University website isa self-described "discussion board for the friends of Duke University" now "focus[ing]....on the Duke Lacrosse Scandal." Itposts a wealth of pertinent information and provides wonderful support for the persecuted Duke Three.I think the catchphrase should have been changed to "Duke Lacrosse Prosecution Scandal"long ago. On the scandal scale, the infamous off-campus party with strippers and some racist languageranks way belowthe misuse of the criminal justice system for personal and political purposes. (I might have saidthat thesignificance of the partypales before the significance of the misuse, but the choice of the word "pales" wouldrisk a racist humor charge.)

My previous article--"Collin Finnerty: Happy Birthday!"--quickly attracted interest and provoked debate. It made two basic points: (1) Collin should be prepared to speak for himself, since that is expected in the courtroom of public opinion, and (2) Collin should not be discouraged from speaking to the media by a gag order (Judge Kenneth Titus's July 17, 2006 order).

The media did not publish the order. Worse, it simply reportedthe orderas an imposition of publicity restraints on the lawyers involved in the case. Since it is much more than that, the Duke Three's defense teams filed a joint motion for modification four days later.

The joint motion seeks modification of the orderto

(1) "limit its purview to the lawyers involved in the prosecution and defense of the case and remove from its purview all potential non-lawyer witnesses, including the members of the 2006 Duke University Men's Lacrosse Team" [Note: That description includes the Duke Three!};

(2) "expand its purview to include all rules of professional conduct related to extrajudicial lawyer speech in a criminal case, including Rule 3.8" of the North Carolina Rules of Professional Conduct [For some reason Judge Titus omitted to make violation of a rule that applies to prosecutors punishable as a contempt of court under his order]; and

(3) "to the extent the Court is not inclined to grant the first request for relief sought in this Motion, conduct a hearing as contemplated by the United States Supreme Court's First Amendment jurisprudence and provide notice of such a hearing to counsel for all members of the 2006 Duke University Men's Lacrosse Team."

Judge Titus's order is breathtaking in its unconstitutionally broad scope and flagrant disregard of applicable law. The defense motion summarized it splendidly: "The breadth and lack of legal foundation for such an order is contrary to First Amendment rights, unnecessary to protect the Defendants' Sixth Amendment rights, and substantially harmful to the rights of citizens, harmed by prosecutorial government conduct, to speak freely against the harm, that government conduct, and against the significant negative publicity that accompanied the allegations in this case and the Defendants' indictment.")

What the July 17, 2006 order shows isthat the court is inclined instead of straight. Inclined to do what fellow Democrat Michael Nifong and the NAACP want him to do, regardless of the Constitution. Inclined not to read motion papers before an important court conference. And inclined to pick among the Rules of Professional Conduct that Mr. Nifong would risk contempt by violating.

The General Comments section of the Friends of Duke University website included the following comments on my Happy Birthday article (which at least one of Collin's relatives "loved") and a couple of my attempts to expose the gag order:

"Michael Gaynor has a new commentary urging Collin Finnerty to speak out if the 'gag' order is lifted: http://www.renewamerica.us/columns/gaynor/060803"

"I think Michael Gaynor should leave Collin Finnerty alone. Collin is young and most likely very nervous. Demanding for Collin to speak is ridiculous, in my opinion."

"Worth quoting from the Gaynor article : http://www.renewamerica.us/columns/gaynor/060803"

"'Why people might find out how anti-racist the Finnerty family really is. They might learn about all those family charitable contributions that primarily benefit blacks. Worse, they might not only appreciate that the 'hired priest' libel is shameless Catholic bashing (that priest being a friend of your father since childhood and someone you've known all your life), but that the priest was called to build a hospital in AFRICA and lots of the money for that noble purpose came from the Finnerty family. It would be very hard to have Durham's blacks hate you if they saw you and learned how you were raised and what you and your family believe. Why, it would be impossible to brainwash the bulk of Durham's blacks under those circumstances.'"

"I totally disagree with above assertion. The Durham blacks could not care less about how the Finnerty money was used, and what good deeds the family might have done. For this group of people, and I do not want to generalize it -- just this group of people -- all they care is that the Finnerty family has money and they don't. That is their crime.

"So, I would say talking about Finnerty money does not take us anywhere. If anything, these assertions make 'that group of people' even angrier and more hungry for that money. I really think we should shut up and not talk about such nonsense. The issue here is not what the Finnerty family has done or not done. The issue is: did Collin rape the accuser or not. All the rest is insignificant. These arguments, no matter how well meaning, only hurt these people and do not help in any way. Take if from me, a most ardent supporter and a friend of the three indicted young kids."

"I agree with the above. In my experience, most black people regard attempts by whites to show their good works and good faith as further proof of white racism. I know I would.

"At the far extreme, racists like NCCU law professor Irving Joyner and Cash Michaels see skin color and nothing else.

"They are professional race men and could/would never abandon their support of this false accuser.

"No, any resolution of this case will do nothing to improve race relations- in fact, it has only served to marginalize the blacks of Durham even further.

"The resolution of this case will only come when Nifong and the rogue Durham cops like Mark Gottlieb who pressed this fraud are disgraced and their sorry careers ruined.

"Nothing else will stop a monster like Nifong."

My opinion: Nifong is a monster and some will "never abandon their support of this false accuser," but don't dismiss the bulk of Durham County's blacks as incapable of learning what really happened at the party and how the criminal justice system has been abused. Perhaps Cynthia McKinney will lose her runoff race for a Congressional nomination and doubters will have more faith in the ability of humanity to learn and to admit mistakes.

"BTW, the 'gag order' only applies to attorneys and other court professionals.

"Finnerty could say anything he want. not that I think he should

"So could Ms Mangum (of Wikipedia fame), not that I think she will."

"all they care is that the Finnerty family has money and they don't

"I think the black community hates being used; being misled, and being lied to by whites, in order to be manipulated.

"Nifong gets three strikes there, and as soon as everybody sees it, he's 'out'."

"No. I do not think the gag order just applies to lawyers."

My note: You're right!

"the is an absolute first amendment right for any citizen to speak, unless covered by a court order or some other contract in which they willingly entered into

"There is no such things as a gag order of litigants, unless they agree to it.

"Not even in Nifongia."

My note: it would be better if you were right. Read the order.

"Most people do not follow the case closely enough or astutely enough to realize that the DA has no case. What people remember is that three rich Duke kids were accused of raping a poor black stripper at a wild party, the coach was fired for it, and the lacrosse team was suspended for it.

"If the kids get off, folks (white and black) will say it is because their daddys had money. This is a Reign of Terror.

"Collin should not speak. It will do him no good. What furthers his cause is for more stuff to come out on the accuser's criminality. Maybe some pressure can be put on the escort service that hires crooks and sends them off to parties where they blackmail clients. Nifong is a crook. Most likely, all associated with him are crooks too. And, I guess lots of non-crooks in Durham are afraid of him and his cohorts."

My note: Discrediting the accuser establishes reasonable doubt. Showing that Collin and the other members of the Duke Three are innocent not only rebuts the presumption of guilt that Mr. Nifong created by his initial public relations campaign, but enlightens societyand removes the bull's-eye on their backs. Being acquitted by establishing reasonable doubt is better than being wrongly convicted, but not comparable to being exonerated. Besides, knowledgeable legal observers concluded that reasonable doubt was established in Collin's simple assault case in the District of Columbia, but Collin had been demonized in both Durham and the District of Columbia, Collin had taken the traditional legal advice to be silent in the courtroom of public opinionandCollin not only had not testified in the District of Columbia case, but it was announced before the trial ended that he would not testify. Under those extremely problematic circumstances, is it so shocking thata judge in the District of Columbiawas blind to that ample reasonable doubt and Collin was wrongly convicted?

"To the 10:31 poster. You obviously haven't read motion to reconsider and modify by the defense."

"Ihave read it, and I suggest you reread it.

"Motion

"It concerns a lawyer's rights to speak on behalf of their clients.

I"n that motion, they are actually claiming that the 1st amendment (and other sources) support the right of the _attorney_ to speak publicly,

"The NC law (and thus the judge's order) has nothing to say about a defendant's right to speak on his/her own behalf."

"Oh really? Then why did defendants request[] the court to modify its order to limit its purview to the lawyers involved in the prosecution and defense of the case and remove from its purview all potential non-lawyer witnesses, including members of the 2006 Duke University Lacrosse Team?"

My post:

"The defendants should not be gagged,of course, but the July 17, 2006 order was NOT limited to lawyers (even though the media missed or ignored the breathtaking scope of the order and defense lawyers chose to try to fix it without fanfare).

"The order explicitly applies to 'non-lawyer witnesses' too. That would include the members of the 2006 Duke University Men's Lacrosse Team, including the defendants.

"I'd hold it unconstitutional.

"I'd also describe it as improperly intimidating.

"The order states: 'Counsel for the State of North Carolina and counsel for the defendants, the employees and agents of the State, the employees and agents of counsel for the defendants, and any witnesses for the State or the defendants, are hereby restrained and enjoined from communicating with the news media concerning the above-entitled criminal action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct.'"

"NOT just lawyers.

"The defense motion to modify stated at page 12 that Mr. Nifong's 'selective public comments' 'led to tremendously negative publicity about the Defendants in this case and all of their teammmates on the 2006 Duke University Men's Lacrosse Team' that 'tainted all of these young men with a presumption of guilt that continues to this day' and therefore 'respectfully request[ed] that this Court modify the Court's order of July 17, 2006, by removing those young men and any other non-lawyer potential "witnesses" from its purview.'

"Disagree with me about whether Collin Finnerty should speak or stand mute, if you fear Collin cannot proclaim his innocence without hurting his case (obviously I don't believe that).

"But please read the order and the motion and appreciate both (1) the scope of the order and its sinister effect (and the implications to be deduced therefrom) and (2) the defense attempt to ungag which deserves full support.

The reply:

"The order is clearly unconstitutional, I agree.

"But it does not say that the defendants are bound by his gag order.

"Finnerty would be free to speak.

"Titus has already shown himself to be a lazy, sloppy and unethical jurist. My guess is if anyone wants to push it, his rulings will be repeatedly overturned on appeal."

My rebuttal:

"From Wikipedia:

'A gag order (or "suppression order") is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.

'Gag orders are often used against participants involved in a lawsuit or criminal trial. They are also a tool to prevent media from publishing unwanted information on a particular topic.'

"THE JULY 17,2006 ORDER APPLIES TO WITNESSES AS WELL AS LAWYERS AND PARTIES.

"IT RESTRICTS COMMENT BY PARTIES IF THEY HAVE REASON TO BELIEVE THEY MAY BE WITNESSES, WHETHER ON THEIR OWN BEHALF OR ON BEHALF OF A CO-DEFENDANT.

"NIFONG SAYS ALL THE DUKE MEN'S LACROSSE PLAYERS ARE POTENTIAL WITNESSES, SO THEY SPEAK TO THE MEDIA AT THEIR PERIL IF THEY WILL BE WITHIN THE REACH OF NIFONG OR JUDGE TITUS. IF ANY OF THEM KNOWS HE NEVER WILL BE A WITNESS, THEN HE'S NOT COVERED BY THE ORDER, BUT IF HE THINKS HE MAY BE ONE, HE'S WITHIN THE PURVIEW OF THE ORDER AND NEEDS TO BE READY, WILLING AND ABLE TO LITIGATE IF HE DARES TO COMMUNICATE WITH MEDIA ABOUT THE CASE AND IS WITHIN REACH. THAT'S INTIMIDATING.

"DON'T KID YOURSELF: IT IS A GAG ORDER, A SLY, SUBTLE, SINISTER ONE.

"If the defendants want to be defense witnesses, they are not to speak to the media about the case, because they risk being excluded as witnesses or held in contempt of court.

"If the Judge had been less subtle in his intimidation, perhaps the scope of the order would have been appreciated immediately.

"Fully understanding it requires actually reading it. It also helps to know that a defendant in a rape case may need to testify. (Ask William Kennedy Smith about it.)"

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.


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