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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 23, 2006
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The New York Times Is Trying to Save Mike Nifong

What should be expected from a newspaper that disclosed the terrorist surveillance program and, notwithstanding the pleas of the heads of the September 11 Commission and Congressman John Murtha (among others) the monitoring of international banking transaction aimed at stopping terrorist attacks?  As much sympathy and support for the bad guys as possible.

What should be expected from a newspaper that disclosed the terrorist surveillance program and, notwithstanding the pleas of the heads of the September 11 Commission and Congressman John Murtha (among others) the monitoring of international banking transaction aimed at stopping terrorist attacks?  As much sympathy and support for the bad guys as possible.

The article titled "Files From Duke Rape Case Give Details but No Answers," written by Duff Wilson and Jonathan D. Glater and published in The New York Times on August 25, 2006, won't win a Pulitzer Prize (not that those prizes are always deserved by their recipients), but it surely seems to have been written to buttress the floundering prosecution as much as possible (which is very challenging now and should be utterly impossible after September 24, 2006).

Durham County, North Carolina District Attorney Michael D. Nifong made a series of outrageous and highly prejudicial comments soon after Crystal Gail Magnum (who is not named in the article, of course, as though she really is an innocent rape victim instead of a false accuser) claimed to have been gang raped, including an assertion that he was certain that a rape had occurred.

Instead of citing his gross prosecutorial misconduct, the article fawningly portrays Mr. Nifong as a dedicated public servant doing his best to find the culprits for what really are heinous (but, in the Duje case, imaginary) crimes, acknowledging minor mistakes and now gagged by the court: "Mr. Nifong and the police officers and medical personnel involved in the case have refused requests for interviews, and in mid-July a judge barred participants from publicly discussing the case. But four weeks ago, at a news conference to discuss his campaign, the district attorney admitted that he had erred early on in his handling of the press and had not gotten some hoped-for evidence, like DNA matches. As for the case itself, though, he said, 'I have not backed down from my initial assessments.'"

That's about as favorable an evaluation that Mr. Nifong now can hope for by a newspaper that claims to be responsible.  And The Times ever so graciously did not note that by publicly reasserting his "initial assessments," Mr. Nifong not only was repeating his professional misconduct but violating the July 17, 2006 gag order (which was unconstitutionally overbroad, but rightfully binding upon him).

Likewise, The Times was very kind to Mr. Mangum, not only omitting her name (and any reference to her frightening criminal record), but describing her as follows: "a 27-year-old single mother of two, a student with a B average at North Carolina Central University, the historically black college across town [from Duke University]. She worked flexible hours at Platinum Pleasures, a strip club, and for Angel’s Escorts. She was a stripper, not a prostitute, she later told the police. She told them that 'she had been to one event in the past where she thought a male at the party was nice, so after the party they went out and had consensual sexual relations,' but just that once."

With respect to the Times hero of sorts, Mr. Nifong (the shameless persecutor/prosecutor), the article stated: "For several days, the prosecutor, Michael B. Nifong, had been beseeching Duke lacrosse players to break their 'stonewall of silence' about what had happened at a team party on March 13. Now, he turned up the pressure, telling Fox News that there was 'no doubt in my mind that she was raped.'"

Beseech?  Meaning "to beg for urgently or anxiously" or "to request earnestly"?  Mr. Nifong was a bully, not an earnest begger, who refused to review evidence of innocence or to have polygraph examinations.  The only way members of the lacrosse team could have pleased him would have been to support a false claim and to select scapegoats to be offered on the altar of political correctness as a human sacrifice for the sins of racism throughout history that would serve Mr. Nifong's personal political ambition: to be elected District Attorney (a position to which North Carolina Governor Michael Easley had appointed him and which he would have to vacate if he lost the then soon upcoming Democrat primary, which Frieda Black was likely to win unless much of the black vote went to Mr. Nifong instead of to the third candidate, a black man who would have polled far better but for the Duke case.

Of course, the article acknowledged that whether there was a rape is disputed: "Whether the woman was in fact raped is the question at the center of a case that has become a national cause célèbre, yet another painful chapter in the tangled American opera of race, sex and privilege. Defense lawyers, amplified by Duke alumni and a group of bloggers who have closely followed the case, have portrayed it as a national scandal — that there is only the flimsiest physical evidence of rape, that the accuser is an unstable fabricator, and that Mr. Nifong, in the middle of a tight primary campaign, was summoning racial ghosts for political gain."

The defense lawyers and interested Duke alumni and bloggers have done much more than portray.  They have DEMONSTRATED " that there is only the flimsiest physical evidence of rape, that the accuser is an unstable fabricator, and that Mr. Nifong, in the middle of a tight primary campaign, was summoning racial ghosts for political gain."

The article accuses the defense of cherry picking the evidence: "By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks."

A case that never should have been brought and was brought for improper purposes would be more accurate than "a case heading for the rocks."

The defense may be chided for not publicly releasing everything Mr. Nifong produced soon after he produced it (and thereby demonstrating that he did not have sufficient reason to seek the indictments of the Duke Three).  By NOT doing so, it allowed the hope the Mr. Nifong somehow had compelling evidence and set the stage for the Times article.  BUT, the defense will prevail anyway, because the Duke Three have family, friends and supporters who will not allow them to be framed.  Dan Abrams, the lawyer son of The New York Times' favorite First Amendment lawyer (Floyd Abrams) and now the MSNBC general manager, has seen the documents and pronounced them patently insufficient.  (And he is not the only widely respected lawyer without a dog in the fight to have done so.)

The News & Observer, which had supported Mr. Nifong, finally reviewed the documents and reported in a blockbuster article published on August 6 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."

Now The New York Times is claiming that "an examination of the entire 1,850 pages of evidence gathered by the prosecution....shows that while there are big weaknesses in Mr. Nifong’s case, there is also a body of evidence to support his decision to take the matter to a jury."

A decision to refuse to consider the defense's evidence that exonerates the Duke Three (which the article neglected to mention) and go to a grand jury?

Certainly not! 

The Times' admitted the Mr. Nifong's professional conduct has been challenged, but insisted that the "arguments" cannot be settled now (while trying to settle the argument as to whether Mr. Nifong should have requested the indictments of the Duke Three):

"Increasingly, Mr. Nifong has become the focus of attacks on the case. Some of the defense lawyers have accused him of professional misconduct for, among other things, giving dozens of what they describe as inflammatory interviews early in the case and for instructing the police to employ the faulty photo lineup. The defense lawyers say, too, that the district attorney refused to meet when they tried to share evidence that supported their clients. In the courthouse and around town, even people who know Mr. Nifong well and respect him are wondering: What does he have?

"The files, of course, cannot settle any arguments about the case...."

Please note that the Times' position is NOT that the "evidence" supports a conviction, but that it supports requesting an indictment, and then recall the enormous difference between proof beyond a reasonable doubt, which is required for conviction, and probable cause to believe a crime has been committed, which is the standard for indictment.

The Times' essentially conceded that its position depends upon the credibility of Sergeant Mark Gottlieb: "Crucial to that portrait of the case are Sergeant Gottlieb’s 33 pages of typed notes and 3 pages of handwritten notes, which have not previously been revealed. His file was delivered to the defense on July 17, making it the last of three batches of investigators’ notes, medical reports, statements and other evidence shared with the defense under North Carolina’s pretrial discovery rules."

The Times blithely assumed that Sergeant Gottlieb is honest and competent, ignored the elephant in the room (why had it taken more than four months from the day Sergeant Gottlieb interviewed Ms. Magnum for the prosecution to turn over "33 pages of typed notes and 3 pages of handwritten notes"?), disregarded the gross discrepancies between Ms. Magnum's descriptions of her alleged attackers as recorded by Detective Himan and Sergeant Gottlieb, and proceeded to try to make the case that "[i]n several important areas, the full files...contain evidence stronger than that highlighted by the defense."  As though "stronger than that highlighted by the defense" somehow equates to persuasive evidence instead of flimsy.

Times: "Defense lawyers have argued that the written medical reports do not support the charge of rape. But in addition to the nurse’s oral description of injuries consistent with the allegation, Sergeant Gottlieb writes that the accuser appeared to be in extreme pain when he interviewed her two and a half days after the incident, and that signs of bruises emerged then as well."

How convenient for the prosecution?  The written record does not establish rape; the oral comments of the nurse in training do not either (and the nurse surely did not consider the possibility that the redness was the result of Ms. Mangum using a vibrator; and, if "signs of bruises emerged" "two and a half days after the incident" and Sergeant Gottlieb noticed them, surely he would have had a reputable medical specialist take notice, if not treat, and obtain confirmation of his opinion that could be submitted to a jury in due course.

Times: "The defense has argued that the accuser gave many divergent versions of events that night, and she did in fact give differing accounts of who did what at the party. But the files show that aside from two brief early conversations with the police, she gave largely consistent accounts of being raped by three men in a bathroom."

So Ms. Mangum DID contradict her early versions and then pretty much sang the same song when it seemed to play well?  She was consistent, except when she was inconsistent. The details set forth later in the article effectively impeach Ms. Mangum.

Times: "As recounted in one investigator’s notes, one of the indicted players does not match the accuser’s initial physical descriptions of her attackers: she said all three were chubby or heavyset, but one is tall and skinny. In Sergeant Gottlieb’s version of the same conversation, however, her descriptions closely correspond to the defendants."

And who seems to be manufacturing evidence here?   Is Detective Himan lying, or Sergeant Gottlieb?

The Times perceived (if only dimly) that Sergeant Gottlieb may be too good for the prosecution to be true:

"The sergeant’s notes are drawing intense scrutiny from defense lawyers both because they appear to strengthen Mr. Nifong’s case and because they were not turned over by the prosecution until after the defense had made much of the gaps in the earlier evidence.

"Joseph B. Cheshire, a lawyer for David Evans, one of the defendants, called Sergeant Gottlieb’s report a 'make-up document.' He said Sergeant Gottlieb had told defense lawyers that he took few handwritten notes, relying instead on his memory and other officers’ notes to write entries in his chronological report of the investigation.

"Mr. Cheshire said the sergeant’s report was 'transparently written to try to make up for holes in the prosecution’s case.' He added, 'It smacks of almost desperation."

ALMOST?

Times: "Defense lawyers say that because the accuser was shown pictures only of team members, the identification process was fatally flawed."

NOT just defense lawyers! As The Times later conceded in the article: "The array of photographs used to identify the suspects violated generally accepted guidelines for lineups, because it included only lacrosse team members."

Sergeant Gottlieb's belated contribution to the prosecution's document production in the Duke case cannot cure all the defects in the prosecution's case, but it sure does suggest gross incompetence, or worse, in connection with the investigation and prosecution.

The Times article compares Detective Himan's recollection of the physical descriptions of the alleged rapists (disclosed to the defense early) to those of Sergeant Gottlieb (disclosed on July 17):

"In Officer Himan’s handwritten notes, the woman described all three as chubby or heavy. Adam: 'white male, short, red cheeks fluffy hair chubby face, brn.' Matt: 'Heavy set short haircut 260-270.' Bret: 'Chubby.'

"The descriptions in Sergeant Gottlieb’s notes are more detailed and correspond more closely to the men later arrested: Collin Finnerty, 20, a slender 6-foot-3 and 175 pounds with light hair; Mr. Evans, 23, 5-foot-10, 190 pounds and with dark hair; and Mr. Seligmann, 20, who is 6-foot-1 and 215 pounds with dark hair.

"Sergeant Gottlieb wrote: 'She described the three men as 1) W/M, young, blonde hair, baby faced, tall and lean, 2) W/M, medium height (5’8”+ with Himan’s build), dark hair medium build, and had red (rose colored) cheeks, and the third suspect as being a W/M, 6+ feet, large build with dark hair.'"

Either Detective Himan is utterly incompetent, or Sergeant Gottlieb is utterly incompetent, or Sergeant Gottlieb has taken the give-the-boss-what-he wants approach way over the line.

Fortunately, the sudden appearance of that description of Collin Finnerty ("W/M, young, blonde hair, baby faced, tall and lean") creates prosecution problems even as it seems to solve one. Examples: (1) Why was Collin Finnerty not included in the photo lineups on March 16th and March 21st?   and (2) If Ms. Mangum had described Collin Finnerty so well, why didn't she identify him on March 16th or March 21st?  It seems inexplicable, unless Sergeant Gottlieb came up with a Collin Finnerty description when Mr. Nifong desperately needed one.

Why is The Times trying to help Mr. Nifong now?  Could it be because the lessons of the Duke case discredit the political correctness crowd and at least part of the agenda of The Times?  Could The Times be interested in postponing until at least after Election Day 2006 the exposure of a Democrat like Mr. Nifong as an out-of-control prosecutor who pandered to the black vote (and black voters pondering whether voting for such Democrats is really in their best interests)? The New York Times, playing politics and treating innocent young men as pawns to be sacrificed and corrupt Democrats to be protected in the great game of politics? 

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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