The "60 Minutes" Season Opener Should Close the Duke Case
60 Minutes premiered on September 24, 1968. Its website promotes the show as "the CBS News magazine providing a blend of hard-hitting investigative reports, interviews, feature segments and profiles of people in the news" and "the most successful broadcast in television history." The current plan is for its thirty-ninth season to begin with a blockbuster expose on the Duke case.
Mike Nifong, make a note: as of now, on September 24, 2006, an inevitable hour of infamy finally will follow your undeserved and disgraceful fifteen minutes of fame and you will realize that your short-term political gain from your deplorable (political) decision to prosecute (and persecute) the Duke Three was NOT worth it.
Sure, you played the race card, it won you the Durham County, North Carolina District Attorney Democrat primary, and that would be tantamount to election if you are not exposed before Election Day 2006 as a shameless political hack whom Durham County's good people will not want back. Mr. Bradley, "60 Minutes"'s Ed, will leave you politically dead. You'll wish you had refused to play the race card and acted professionally instead of politically and objectively instead of objectionably.
William Gladstone (1809-1898), a British prime minister, famously declared: "Justice delayed, is justice denied." "60 Minutes" may be delaying justice a bit for ratings purposes, but eventually justice will be served.
Besides, preparing a blockbuster expose takes some time.
How much of the accuser's sordid history should be mentioned? Her criminal record? Her previous gang rape claim? Her claim that her ex-husband tried to kill her? Her "employment" history? The circumstances of her discharge from the United States Navy?
Should the Duke case be compared to the William Kennedy Smith case? Should viewers learn that his accuser passed two polygraph tests and a voice stress test before he was charged with rape, and that each of the Duke Three passed a polygraph test and their accuser did not need to take one to persuade Mr. Nifong to seek indictments?
Should the Durham County District Attorney's office, the Durham Police Department, the Durham judiciary and the Durham political establishment be excoriated, or just embarrassed?
Should the different defense circumstances and strategies be compared? (Each of the Duke Three has an alibi, but only Reade Seligmann's alibi was made public and only David Evans stood up like a man and refuted the charges publicly; only Reade Seligmann's attorney moved to remove Mr. Nifong from the case; and only Collin Finnerty was hampered by an unrelated assault charge in another jurisdiction that became a big problem only because he was arrested and indicted in Durham on a baseless charge that a prosecutor in the District of Columbia treated as valid instead of trumped up.)
Is there time to cover those two scandalous emails--the lacrosse player email about skinning strippers (college humor for which the emailer was suspended) and that fake email apparently intended to frame Duke lacrosse players?
Decisions, decisions.
The Duke case has been a travesty of justice. The investigation was fundamentally flawed. The indictment was wrongly and hastily requested and improvidently granted. The court put aside a meritorious motion by Kirk Osborn, Reade Seligmann's attorney, to remove Mr. Nifong, and then, on its own initiative, issued a gag order craved by the NAACP of Durham as the truth began to penetrate the public consciousness.
That gag order, issued on July 17, 2006, is a nuisance as well as an outrage, but it will not stop "60," so Judge Kenneth Titus would be well advised to do a 180 and modify it as the defense lawyers requested four days after it was issued.
The defense lawyers did not shout to the world that their clients and other witnesses were being gagged, as they should have, but their motion papers challenging the unconstitutional breathy of it are compelling. The next scheduled court conference in the case is next week. Judge Titus should do the right thing, even though Mr. Nifong may freak.
Like many people, Cash Michael, who has covered the Duke case for the The Wilmington Journal (Part of the Black Press USA Network), has struggled with the thought that Mr. Nifong exploited the Duke case for political purposes. His analysis is astute and acute:
"Critics have made it clear that D.A. Nifong was only posturing for the Black vote he needed desperately to win the May Democratic primary, which he did.
But if Nifong was exploiting the Duke alleged rape case for solely political means, then why would the Durham PD, with the apparent blessing of City Manager Patrick Baker and Mayor Bill Bell, help him, knowing that ultimately, it would catch up to them?
"The improbability of that [happening] is what those who still believe that a crime was committed, and that there’s more evidence than has been revealed, hold on to. But incredulous actions by the prosecutor have shaken confidence."
Sherlock Holmes' admonition--“When you remove all that is impossible, that which remains, no matter how improbable, must be the truth"--applies.
In addition, a premise of the question is false: The police department, the city manager and the mayor did not "know" that "ultimately, it would catch up to them."
There have been actions by the prosecutor and the investigators that Mr. Michael understandably described as "incredulous." They are a strong hint that the prosecution is up to no good.
Politics has been defined as the art of the possible, and few politicians are saints. When one party dominates, the local establishment may do some despicable things in the arrogant belief that it can get away with it. Often, unfortunately, that turns out to be true. Sometimes, fortunately, it doesn't. It finally will be obvious to all but the oblivious that there was no kidnapping, or rape, or sexual offense, but there was a false accusation and an opportunistic prosecutor fighting for his job.
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.
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