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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:  September 3, 2006
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The Duke Case Should Be Dismissed

A law professor at theUniversity of Maryland School of Law and the University of Baltimore is "quite certain" that Durham County, North Carolina District Attorney Michael B. Nifong is guilty of misconduct.

On the DukeBasketballReport website, there is a legal response dated May 15, 2006 by Jason Trumpbour, Trinity 88, Law 91, a law professor at theUniversity of Maryland School of Law and the University of Baltimore, moderator and spokesperson for Friends of Duke University.

Professor Trumpbourwas "quite certain" that Durham County, North Carolina District Attorney Michael B. Nifong was guilty of misconduct (he was right, of course), yet insistence that "[t]he actual truth [with respect to the pending charges against the Duke Three] cannot be determined until all facts are known and weighed together at trial" (he was wrong).

As to Mr. Nifong, Professor Trumpbour was duly outraged and emphatically declared:"He has spread misinformation about the law and sought to undermine its most cherished values, such as the equality of all persons before the law, the right to and importance of assistance of counsel and that the accused should be tried in a manner that respects their fundamental rights. Such statements also bring the profession into disrepute."

Professor Trumpbour obviously did not need any more facts, much less "all facts" and a trial, to "convict" Mr. Nifong of misconduct: "As to Nifong's conduct generally, it is both unethical and unprofessional....Iwant everyone to know that not only are you correct in assuming the worst, but that the more you know the worse Nifong's conduct appears."

Why Mr. Nifong's guilt can be determined without trial, but not the Duke Three's innocence, was not explained. Or explainable. Mr. Nifong is entitled to a trial before his legal guilt can be formally established, but the innocence of the Duke Three on the pending kidnapping, rape and sexual offense charge is obvious and none of them should be subjected to a trial under indictments wrongly and wrongfully sought and improvidently issued by a grand jury that considered misleadingly selective evidence and did not consider any evidence of innocence (evidence that Mr. Nifong outrageously refused to examine before indictment).

To be sure, Mr. Nifong is a scoundrel who should be removed from office as well as the case. Like former President Clinton, he should not practice law again. His family should not be harassed, of course, but if North Carolina prosecutors do not have absolute immunity (I haven't researched that), he should be a defendant, in a malicious prosecution case.

By now, however, it should be clear to all who have paid attention that a trial of the Duke Three is not needed, or in the public interest, or fair to the Duke Three. We know"the actual truth" with respect to thekidnapping, rape and sexualoffense charges against the Duke Three: they are bogus! We don't know whether the accuser was motivated by vengeance, or greed, or a desire to avoid incarceration herself when she charged rape,or even confusion. But,we do not need to know "all the facts" in order to determine that the pending charges should be dismissed in the interests of justice. We only need to know that there is not enough credible evidence to support a guilty verdict.

We know that if a guilty verdict were returned by a jury, the Court's duty would be to set it aside. If there is a trial in the Duke case, a directed verdict would be in order. Mr. Nifong and the Court know that the defense lawyers will demonstrate so much reasonable doubt that it is unreasonable to proceed. Theidea of the accuser being cross-examined by at least one lawyer for each of the Duke Three has a certain appeal, but it's not sufficient reason to go to trial. Besides, the accuser's irresponsibility is dwarfed by that of Mr. Nifong. She climbed out on a limb, and Mr. Nifong may want her to decline to testify AFTER Election Day 2006, but certainly not toadmit publicly that she made a bigmistake and thereby demonstrate that HE made a huge one.

Fortunately, criminal charges can and should be dismissed by the court without the expense and delay of a trial when facts warrant it. In the Duke case, they surely do.

SparingMr. Nifong pre-election embarrassment is NOT a good reasonfor the Court to permit the case to continue past Election Day 2006, much less go to trial next year.

The Court (by Judge Kenneth Titus) issued a gag order in the case on its own initiative. That gag order was outrageously and unconstitutionally broad, in that itapplied to all potential witnesses as well as lawyers on the case, but it did demonstrate that the Court can act on its own initiative when it believes it appropriate to do so.

There is no need to pray for the Court to end the nightmare on its own initiative, however. The defense lawyers can move to dismiss, and certainly should do so promptly after the completion of discovery.

Are the defense lawyers concerned that they may lose at trial if the prosecution learns some details of the alibis of the Duke Three a few months before trial instead of during trial?

I hope not.

And it doesn't look like the trial would be televised, so the temptation to go to trial should be much less.

Mr. Nifong may dream that the Duke case will be the greatest trial in Durham County history, but the defense should move to end the case as soon as possible if possible instead of trying it (and risking a hung jury, more than a theoretical possibility and a greater problem that any surprise lost by detailing what really happened before trial).

The Court (by Judge Osmond Smith) has barred cameras in pretrial proceedings, and may well do so if the case proceeds to trial, if only to try to spare Durham even more embarrassmentand humiliation. Ironically, thatconcern and realization should make theCourt more inclined to dismiss the case.Cameras can be kept out of the courtroom, but the truth cannot be suppressed in this case. The accuser selected three fellows who will not be framed.

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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Copyright 2006 by Michael J. Gaynor
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