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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 5, 2006
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Topic category:  Other/General

Collin's Defense Has Not Been Flawless!

An Anonymous poster (there seem to be many different ones) at Friends of Duke University website missed the main point entirely in praising Collin Finnerty's defense to date and claiming to "understand [my] frustration at having to wait for Collin's story to be told in full."

An Anonymous poster (there seem to be many different ones) at Friends of Duke University website missed the main point entirely in praising Collin Finnerty's defense to date and claiming to "understand [my] frustration at having to wait for Collin's story to be told in full."

I am not frustrated by a personal need to get "the full story" as soon as possible.  The Duke case is a soap opera of sorts, but I am not suffering like a "Dallas" or "Dynasty" suffering over the summer because the last episode was a cliffhanger and wondering whether a character will live or die.  I'm sure the Duke Three are innocent and I'd like them all to behave that way.  I'd also like my fellow Americans to know the kind of fellows they are and not suspect them of the heinous crimes with which they have been charged.  Especially the people of Durham County, North Carolina who have a District Attorney election in November and need to realize how horrible the incumbent district attorney (Michael Nifong) really is.

I have never met any of the Duke Three (or their well-to-do dads), but I doubted that there had been any kidnapping, raping or sexual assaulting at the infamous off-campus Duke University Men's Lacrosse Team party last March 13. Underage drinking, excess noise and racial comments (whether intended to be hurtful or humorous), I found plausible.  A gang rape of Crystal Gail Mangum, no!

When two sophomores from elite Catholic high schools in New York and New Jersey were charged with committing those heinous crimes, I thought the heinous crimes were the indictments and the two were being shamelessly used by a desperate man about to lose his job to a better qualified female unless he suddenly ingratiated himself with Durham County, North Carolina's black Democrat primary voters.

When the mainstream media was receptive to the idea that the indicted sophomores actually were guilty, I challenged the way the media was handling the story in Duke rape accuser: Victim or victimizer? and The right term for that "exotic dancer".

When I read the May 1, 2006 Newsweek issue, with photos of the sophomores on the cover underneath "Sex, Lies & Duke"), a quotation from another student at the accuser's college (North Carolina Central University) that "It's the same old story. Duke up, Central down" and a moving, albeit misleading Newsweek note that "[o]n a bulletin board in the student lounge [at NCCU] was a long list of students with grades high enough to qualify for the Golden Key International Honor Society [including] the name of the alleged rape victim," it was obvious that the wrongly accused needed to try to undo the damage that the Durham County District Attorney and the media had done to them in the courtroom of public opinion.  When the deck is stacked against you in the local court, you better carry the day in the courtroom of public opinion or prepare to be carried away.

After a third Duke lacrosse player was indicted, I was delighted to read that Stuart Taylor, America's top legal commentator, had closely studied the Duke case and reached the same conclusion I had reached.  I wrote The deplorable Duke political prosecutions, reiterating my disgust (it's more than frustration) with prosecutorial abuse, regardless of the color of the defendant, and spreading the news that Mr. Taylor had identified rogues and they were not defendants:

"hen a young white woman who chose to visit Kobe Bryant in his hotel room later charged him with rape, it soon became apparent that she was hoping for the local prosecutor to pave the way for her to hit the jackpot by way of a civil suit. Convinced that there was ample reasonable doubt that Mr. Bryant had committed a crime, I criticized the prosecutor for pursuing the case. I do not believe that a prosecutor should pursue a case where there is reasonable doubt, especially when there is or will be a civil suit in which the plaintiff hopes for a free ride at taxpayer expense. Unsurprisingly, the criminal case against Mr. Bryant eventually fell apart, and Mr. Bryant later settled the civil claim in order to get on with his life.

"When a young black woman who chose to strip at an off-campus Duke lacrosse party later charged Duke lacrosse players with rape, I suspected that it was not the Duke lacrosse players were guilty only of bad taste, not rape. Subsequent developments have repeatedly confirmed my suspicion. But, the local prosecutor continues to prosecute three Duke players on what surely seems to be a phony rape charge.

"Today the news is that documents show the accuser first claimed that she was not raped, then claimed that she was raped by twenty Duke lacrosse players and eventually whittled that down to three (the same number she settled on when she charged some non-Duke males with rape years ago).

"What we appear to have here is an accuser who should be prosecuted, three Duke lacrosse players who never should have been indicted, a prosecutor abusing his office and the New Black Panthers out to exploit the situation while posing as champions of black womanhood. (The KKK championed white womanhood.)

"America's top legal commentator, Stuart Taylor Jr., had written that 'the available evidence leaves [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie.'

"Mr. Taylor's designated Duke case rogues gallery does NOT include the indicted players, but 'does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties' as well as 'former Princeton University President William Bowen and civil-rights lawyer Julius Chambers [who] went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal — a report that is a parody of race-obsessed political correctness.'

"America has a huge problem — a despicable media bias — and Mr. Taylor dared to call attention to it with commendable candor: 'Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.'

"As if that was not enough, Mr. Taylor not only castigated the pathetic prosecutor, but called for an investigation of HIM:

"'Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

"'Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.'"

The Anonymous person who purports to understand my frustration appears to believe that Collin Finnerty's defense has been splendidly conducted (even though Collin was wrongly convicted of simple assault in the District of Columbia last month) and resorts to the trick of using my own points to answer a question I DID NOT ASK: Why hasn't Collin spoken publicly.  (A lawyer's trick, I suspect.)

Still, the post deserves to be set forth in full, so here it is (with my comments noted in brackets):

"I understand Michael Gaynor's frustration at having to wait for Collin's story to be told in full. Of course he's innocent. However, Gaynor answers his own question as to why Collin has refrained from telling it thus far.

[My Note:  I didn't ask that question.  It was obvious the defense team silenced him.  Worse, it was obvious that the defense team did not give him a much-needed sense of confidence, so, in the words of people whose opinion I solicited, when he appeared in public, he appeared "frightened" or "angry" or "confused" instead of innocent, confident and perhaps indignant. Example: the photo of Collin with his dad on page 46 of the May 1, 2006 Newsweek issue. Collin's demeanor made it much easier for the District of Columbia prosecutor to revoke the plea deal and the peculiar judge assigned to the case to reject the sworn testimony of Collin's four witnesses, to accept the story of the man who claimed Collin had menaced him, even though Collin was the one who had been hit in the back of the head, and to convict Collin of simple assault (as though ample reasonable doubt had not been demonstrated).  Yes, Collin should have been acquitted, based on reasonable doubt, and the plea deal should not have been revoked based on the Durham indictment, and the District of Columbia trial should have been put off upon request until the Durham case was over, but Collin was carrying a presumption of guilt in the courtroom of public opinion and relying too much on lawyers and legal presumptions instead of behaving the way most people expect the falsely accused to behave.]

"First, he points out the list of corrupt officials who have, as he suggests, pandered to the black electorate in order to get elected, second he points out that the defendants are wealthy white out-of-towners, and third, he points out the DA's attempt (permissible under the law) to undermine Reade's alibi evidence (initially inadvertently leaked by a lawyer not representing Reade and then of necessity defended by his own attorneys, who, given Nifong's behavior, would clearly have preferred that it not be made public at the time) and to intimidate one of his chief witnesses (illegal, but done anyway).

[My note: Given Nifong's behavior, he needs to be exposed as soon as possible.  The release of the Reade alibi evidence may have been inadvertent, but it was what the Duke Three needed to fight back against the Nifong onslaught in the courtroom of public opinion.]

"Finally, he points out the clear differences between Dave's position relative to Collin's on the issue of speaking out before the press at the time he did. Collin had the DC charge pending and now has the fact of that preposterous conviction to deal with. The less said by him, the better for his lawyers to work around whatever attempts Nifong et al. may have up their sleeves to use it against him.

[My note:  The defense loses in DC, and then wants to use that "preposterous" loss to justify keeping Collin quiet.  Wow!  Talk about compounding a mistake.  I agree the loss was preposterous.  The message is that Collin needs to be introduced to America, not hidden in the basement like the character in "Desperate Housewives" whose mother mistakenly believed he was a murderer.]

"In addition to the fact that Gaynor has correctly interpreted the substance of the unconstitutional gag order issued by 'judge' Titus, he correctly notes that anything a defendant says can and will be used against him. It's what prosecutors live for -- prior inconsistent statements by defendants that can be used to undermine any statement they make while under oath in court, however trivial or irrelevant.

[My note:  On that, we agree.  But, Collin can introduce himself to the American people and profess his innocence in general terms without fear of making Nifong's case against him.  The truth won't change.  Collin's father said Collin has an alibi for every minute.  Nifong can't add even one minute to a day.]

"Dave Evans's statement to the press was the stuff of Hollywood legend -- as Bernie Grimm characterized it -- 'I'd put this guy on the witness stand every day of the week and twice on Sunday.' It's also exceedingly rare for anyone, particularly a young person under such tremendous strain, to be able to deliver such a statement without appearing terribly nervous or without making some misstatement, however slight, that will afford the Persecutor in this case an opportunity to weaken his testimony in court."

[Note:  Dave Evans told the truth.  He was innocent of the criminal charges and it showed.  Collin and Reade are innocent of the same charges.  If they got a vote of confidence and some preparation, they'd make Bernie Grimm's witness list too.]

"This the spectre of having _after the fact_ to fight contempt charges for violating a gag order, however improper such an order might be. Who needs the extra pressure and adverse publicity with everything else they already have on their plate?"

[My note:  I did not suggest violating the outrageous gag order.  Get it set aside first.]

"Collin and his family are doing the right thing -- it would be a no-win situation for them to give Nifong an advance look at his defense. It would only give that unscrupulous DA more time to try to undermine it or to intimidate his witnesses."

[My note: America can get a look at Collin without Nifong getting a look at the details of his defense.  Sometimes clever lawyering is needed; not always.]

"After all, in the typical jurisdiction, an ethical prosecutor would have sat down with them at the outset, seen the evidence as compelling and never sought these ridiculous indictments. Given the facts of life in Durham, they have no choice but to keep their evidence close to the vest and not let Nifong and his cronies try to destroy it. His lawyers know what they're dealing with in this nut case and have advised their client correctly."

[My note: We agree that Mr. Nifong is abominable.  To exonerate the Duke Three, it needs to be proven.  And showing that all of the Duke Three have passed polygraph tests and have alibis that Mr. Nifong preferred to ignore at the start is a great way to let the people of Durham County know Mr. Nifong needs to be replaced.]

"Look at how Nifong has responded to Joe Cheshire, Kerry Sutton, and Kirk Osborn et al. in the past for speaking out on their clients' behalf to try to correct the record of his lies and misstatements of fact. They've now got the same bullseye on their chest as does Susannah Meadows, Dan Abrams, Susan Filan ('I've got two words for you -- Rodeo Cowboy'), Freda Black, Lewis Cheek, and now even the Animal Control board members, for God's sake! They're better off flying under the Captain Queeg/Nifong radar for as long as possible."

[My Note: They are better off with Mr. Nifong self-destructing sooner than later.  Appeasing a petty tyrant is a bad strategy.]

"The real story of the Finnerty family, their faith and tremendous good works can best be told at this point by loyal and caring friends and supporters beyond the reach of any gag order. Even there, I'd be careful about who does the talking -- I wouldn't want to have any of these good folks subjected to an attempt to eliminate them as potential character witnesses, which Nifong would absolutely try to do if he could."

[My note: THAT story should have been out long before the gag order was issued!  But I agree that the gag order needs to be respected until it is revoked.  Surely there are people who will not be character witnesses who can provide the facts.]

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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