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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  August 10, 2006
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Topic category:  Other/General

Cynthia McKinney's Loss Bodes Well for Durham and Duke Three

It was as simple as ABC. On August 7, 2006, in Georgia's Fourth Congressional District, the ABC (Anybody But Cynthia) candidate, Hank Johnson, won nearly three-fifths of the vote in a Democrat runoffagainst incumbentand local political legacy Cynthia McKinney, the Capitol Hill policeman whacker, Congressional slackerand loony September 11 theory backer.

It was as simple as ABC. On August 7, 2006, in Georgia's Fourth Congressional District, the ABC (Anybody But Cynthia) candidate, Hank Johnson, won nearly three-fifths of the vote in a Democrat runoffagainst incumbentand local political legacy Cynthia McKinney, the Capitol Hill policeman whacker, Congressional slackerand loony September 11 theory backer. Playing the race card may have saved Ms. McKinneyfrom indictment in the District of Columbia, but Hank Johnson is black too, so that primary runoff became Ms. McKinney'sWaterloo.

There is an important messagein that delightful developmentfor Durham County, North Carolina and the powers that be there, including District Attorney Michael B. Nifong, who succeededin winning the Democratprimary on May 2, 2006 by proclaiming his certainty that Crystal Gail Mangum, an ex-convict stripper/"escort"who happens to be black, happened to be sent by her employer to perform at an off-campus Duke Men's Lacrosse Team party and happened to claim as she was about to be incarcerated that she had been gang raped at the party and eventually picked the Duke Three (Collin Finnerty, Reade Seligmann and David Evans) as her "rapers" (NOT that any of them, especially Collin, matches any ofher descriptions of the three she claimed raped her, when she wasn't claiming the number was 20, or 5, or ).

Ms. Mangum has beena nightmare for the falsely accused, wrongfully indicted and shamelessly prosecuted Duke Three. For Mr. Nifong, however, Ms. Mangum was opportunity knocking. Short-term opportunity, that is Mr. Nifong was on course to lose the Democrat primary for the office for which he had yearned and to which he had been appointed but never elected on May 2, less than two months after the date of the allegedgang rape(March 14) to Frieda Black, a former colleague. Ms. Mangum, because sheis black,provided Mr. Nifong, who is white Democrat politician,with an opportunity to pander to the black voters (critical in a Democrat primary in Durham County, North Carolina) by publicly endorsing Ms. Mangum's claim to have been gang-raped, proclaiming that he would find and prosecute her alleged attackers and proceeding to indict white Yankees from wealthy families.

It worked! As Sports Illustrated reported, Mr. Nifong "polled 2 to 1 among African-American voters, an advantage that more than accounted for his victory margin of 883 votes."

Ordinarily, winning the Democrat primary in Durham County is tantamount to winning the general election (as demonstrated by the Republican Party having opted not to have a candidate in the race). But, the circumstances are anything but ordinary. Lewis Cheek, a Democrat Durham County Commissioner, amassed about 10,000 signatures and his name will be on the ballot in November.

Mr. Cheek will vote for himself, but he has chosen not to campaign and declared his intention not to serve if elected. But he is the ABN (Anybody But Nifong) candidate and, unless the anti-Nifong is split by a Durham Republican running as a write-in candidate, enough good people of Durham County will appreciate what kind of person Mr. Nifong really is (hint: NOT the champion of the innocent victims he pretends to be) and Mr. Cheek will win a majority of the voters without personally campaigning.

The bulk of Durham County's black (like the bulk of Durham County's whites) eschew racism and aspire to see the dream of Dr. Martin Luther King of "a nation where [people] will not be judged by the color of their skin but by the content of their character" realized.

The bulk of Durham County voters, regardless of race, will punish Mr. Nifong for mocking that dream and pandering to blacks looking for scapegoats when they realize that is what he did. Ironically, this time a shameless, opportunistic Southern white male is preventing a couple of white males from completing their college education at a Southern university as they have a right to do, by pursuing a wholly unwarranted political prosecution that ingratiates him to blacks who have been misled as to the facts (andblacks who don't care about the facts).

There IS a segment of the Durham County black community that supports prosecuting innocent whites as compensation for abuses of blacks. Thus, in the May 1, 2006 Newsweek issue, it was reported that Chan Hall, 22, a student at North Carolina Central University (Ms. Mangum's college), "said he wanted to see the Duke students prosecuted 'whether it happened or not'" because "[i]t would be justice for things that happened in the past."

When Mr. Nifong won the primary, the word was out from defense attorneys that the first round of DNA tests did not link any white male Duke lacrosse player to the alleged rape, but Mr. Nifong was assuring all who would pay attention that Ms. Mangum had been raped and awesome alibi evidence for Reade Seligmann had been disclosed, but neither Reade nor Collin Finnerty was offering to take a polygraph test and demanding Ms. Mangum do the same, Collin's defense team was not keeping his alibi secret, it became generally known that Collinand a couple of other (non-Duke) lacrosse players had been charged with assaultinga couple of men in the District of Columbia and many Durhamites(example:Ruth Sheehan of The News & Observer) assumed that their District Attorney had to have compelling evidence of guilt that he would disclose in due course and was fighting the good fight on their behalf against a phalanx of high-powered, high-priced lawyers hired to get those rich white Yankeesoff somehow.

Since then, however, May, June and July have come and gone. Ruth Sheehan, who was disposed by personal experience to believe the charges, admitted that she had been assuming too much. Even better, The New & Observer got the 1800 pages of Nifong production and realized that there's no there there. On Sunday, August 6, 2006, The News & Observer published a blockbuster by staffer Jeff Neff, titled "Lacrosse files show gaps in DA's case," declaring that "[a] review of prosecution documents in the rape investigation reveals that the district attorney's public statements promised more than the evidence released so far indicates." Mr. Neff misidentified a date, but he effectively made the case that the Duke Three had been wrongly indicted and the correction credited Mr. Nifong with seek some evidence before seeking an indictment but discredited him for seeking it despite the facts.

For months Nifong supporters had chided the defense team with cherry-picking, that is, releasing evidence favorable to their clients but not unfavorable evidence. In place of the presumption of innocence, the Nifong supporters were presuming he had evidence of guilt and the defense was buttressing the presumption by not stepping upand makingthe entire Nifong production public,thereby postponing the day the truth--that the charges were bogus--became common knowledge and Ms. Mangum and Mr. Nifong became the villains of the real-life soap opera that is the Duke rape hoax.

Ideally, long before the outrageous and unconstitutionally broad gag order was issued (July 17, 2006), the Duke Three should have presented one of the commentators calling for the case against them to proceed, such as Alan Colmes, with a complete set of the documents, because those documents damn their accuser and their prosecutor/persecutor, not them.

At the end of June, Collin's father announced on NBC ("Today") and MSNBC ("The Abram Report") thateach of the Duke Three had passed a polygraph test. Ideally, they should have taken the test sooner and publicly challenged their accuser to do the same, pointing out that William Kennedy Smith's rape accuser passed polygraph tests twice (as well as a voice stress test) before he was prosecuted and Mr. Nifong was presuming them to be guilty instead of proceeding as a minister of justice seeking to ascertain the truth.

To his credit,Reade's attorney, Kirk Osborne moved to have Mr. Nifong removed from the case onMay 1, 2006 (the day before the primary), because: "District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant [Reade] could not have committed this crime; (2) he made a series of statement to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any Duke Lacrosse players; and (4) he denied the Defendant aprobable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies of the prosecution's evidence would have been exposed."

Perhaps filing the motion on the day after the primary instead of the day before would have insulated the motion from the suspicion that it itself had a political purpose, but the motion deserved to be promptly considered and granted. Collin's attorneys did not make a similar motion, presumably calculating that keeping the details of Collin's alibi a secret was a great tactic and perhaps even a needed protection for Collin's witnesses (since Reade's black taxi driver alibi witness promptly was harassed). Unfortunately, the judges that have handled the prosecutions of the Duke Three to date have put the motion aside and thereby permitted Mr. Nifong to continue as prosecutor/persecutor.

In addition to this meritorious recusal motion, there is pending an equally meritoriousjoint motion by all three defense teams to modify the gag order to remove "all potential non-lawyer witnesses, including the members of the 2006 Duke University Men's Lacrosse Team" (yes, that includes the defendants) and to make "all rules of professional conduct related to extrajudicial lawyer speech in a criminal case, including Rule 3.8 [of the North Carolina Revised Rules of Professional Conduct]" (that rule applies to prosecutors and Judge Titus neglected to include it within the purview of his July 17, 2006 gag order).

The public interest as well as the private interests of the Duke Three requires that the recusal and modification motions be heard and granted as soon as possible, even though it is not in Mr. Nigong's political interest for that to happen.

With or without the court's cooperation, the truth is going to prevail, sooner or later. Better sooner. And better with the court's cooperation.

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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