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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 8, 2006
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Expose Flawed, But NOT Nearly as Flawed as Duke Prosecution

The News & Observer's staff writer Jeff Neff's "Lacrosse files show gaps in DA's case," published on Sunday, August 6, 2006, was a much needed belated public service, but not perfect. The next day The News & Observer acknowledged in its editors blog "a significant error" in its otherwise impressive expose of prosecutorial misconduct in the Duke case (all the more impressive because it appeared in The News & Observer, which, to use the word of its Ruth Sheehan, had "assumed" for a long time that Durham County, North Carolina District Attorney Michael B. Nifong has evidence of guilt that he doesn't).

The News & Observer's staff writer Jeff Neff's "Lacrosse files show gaps in DA's case," published on Sunday, August 6, 2006, was a much needed belated public service, but not perfect. The next day The News & Observer acknowledged in its editors blog "a significant error" in its otherwise impressive expose of prosecutorial misconduct in the Duke case (all the more impressive because it appeared in The News & Observer, which, to use the word of its Ruth Sheehan, had "assumed" for a long time that Durham County, North Carolina District Attorney Michael B. Nifong has evidence of guilt that he doesn't).

From the editors blog:

"Our story Sunday detailing gaps in the prosecution's case against three Duke lacrosse players contained a significant error. The error does not alter the story's fundamental findings, but it does mean that the story's opening paragraphs were inaccurate in describing one set of circumstances.

"In reviewing the notes of Durham Police Officer Michelle Soucie, we misread a date Soucie had circled on one page -- 4/17/06 -- as the date on the notes.

"The notes and the conversation between Nifong and Soucie happened on April 4, 2006. That means that Nifong was not seeking evidence after the indictments, as the story indicated, but was seeking evidence as part of his investigation.

"Nifong refused interview requests, and Soucie did not return calls. We did not spot the error in normal fact-checking processes and were unaware of the error until late Sunday. We have moved quickly to post a correction along with our original story -- we will not alter the original story online because that is the story we published in print and online.

"The error means the lead illustration on the story does not have the significance we thought it did. We have removed the illustration from our Web site.

"We apologize for this error. While it does not change the story's fundamental accuracy -- based on weeks of painstaking work -- it falls short of our standards.

"We will publish a page 1 report Tuesday correcting the error for print editions and adding any response from the district attorney's office."

Chalk that mistake up as another unfortunate consequence of the unconstitutionally broad gag order issued on July 17, 2006 and still in effect (and the failure of the media and, yes, the defense attorneys, to rail against it immediately). 

Do you doubt that?

Before the error was noted, the blockbuster article noted that the gag order was an impediment to the story: "Nifong and other parties involved in the case declined to comment because of an order from Superior Court Judge Kenneth C. Titus."

But for the gag order, the error would have been caught, I suspect.  The defense team surely have poured over the documents Mr. Nifong had produced and would have preferred that the blockbuster story not be tainted by even a miniscule error.  Besides, the truth is worse for Mr. Nifong, as an anonymous poster at Friends of Duke University website quickly and insightfully pointed out in a perspicacious post "NandO apparently made a big booboo in their story yesterday. 

"As pointed out on Melanie Sill's blog, this new data changes Nifong's crime from one of omission to one of commission.

[My note: Yes, Ms. Sill didn't use "crime" or "omission" or "commission" in her blog entry--quoted in full above--and Anonymous would have been wiser not to insinuate that she did, but Anonymous's complaint--that Mr. Nifong wrongfully obtained indictments by disregarding his duty as prosecutor and playing politics for personal purposes--rings true to me.]

"Instead of gathering evidence after the fact, he had additional exculpatory evidence available at the time he indicted (that CGM's vaginal swelling was likely due to her early tricks in the hotel room).

"It also indicates that Nifong delayed his announcement of the negative DNA results for almost a week in early April (likely while he schemed on how to rescue his election campaign)

"More evidence that Nifong intentionally perpetrated this false prosecution."

Unfortunately, the prosecution is genuine, not false.  It is an outrageous abuse of power and utterly unjustifiable, however, and it sure seems like Mr. Nifong intentionally pursued it long after he reasonably could have believed it was justifiable.

"To Collin's family: stop hiding him in the attic. IF he is innocent of all the charges let him hold his head high and face the courts and the cameras and the judges and proclaim to the world who he is. Time to grow up and face the charges like a man — even though you probably are guilty of nothing you need to jump off the speeding train or at least change tracks before they railroad you right into the BIG HOUSE. "

By now, it's clear that a defense team lack of confidence in Collin will not result in Collin being convicted in Durham.  The case against the Duke Three will collapse with Mr. Nifong.  It will have taken longer, because Collin was muzzled by his defense team before being gagged by a judge.

"Anonymous" defensively declared in rebuttal: "We disagree only on the question of whether Collin should be out front introducing himself to the public and the media in a manner that would not conflict with the unconstitutional gag order (which would be very tricky, given its over-reaching scope). As for responding in public prior to the Titus ruling -- it's water under the bridge, but I support their decision."

Wrong again.  I believe that Collin should respect the unconstitutional gag order while having his lawyers working to have it set aside.  NOW he has a good excuse for being silent: he risks both contempt of court and being disqualified as a witness if he speaks to the media (a message one hopes his legal team delivered to him and his parents on July 17, 2006, as soon as the hearing at which the order was issued ended).  NOW is the time for the media to protest the gagging of witnesses, including the Duke Three.

As for dismissing the tragic failure of Collin to respond in public during the THREE months between indictment and gag order: thank God that "water" won't drown Collin in the Durham (even though it may have sunk him in the unrelated District of Columbia case), but the defense strategy has prolonged the Durham case and the suffering that comes with being under indictment for heinous crimes, under public suspicion of being guilty and under college suspension.

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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