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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 9, 2006
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Will "60 Minutes" Judge the Duke Case Judges?

In the Tawana Brawley case, a grand jury rightly refused to indict. In the Duke case, however, three indictments were improvidently issued (without the grand jury considering any evidence of innocence). On the Durham County, North Carolina criminal justice system, they remain a blight. The pathetic, but powerful, prosecutor/persecutor refuses to see the light. The sooner those indictments are dismissed, the better.

In the Tawana Brawley case, a grand jury rightly refused to indict.  In the Duke case, however, three indictments were improvidently issued (without the grand jury considering any evidence of innocence).  On the Durham County, North Carolina criminal justice system, they remain a blight.  The pathetic, but powerful, prosecutor/persecutor refuses to see the light. The sooner those indictments are dismissed, the better. 

On April 20, in "Duke rape accuser: Victim or victimizer," I asked whether the accuser was "another Tawana Brawley" and urged that "[u]ntil the facts are established," she be called "the accuser, NOT the victim." By calling her a victim, the mainstream media was presuming that there had been a crime committed against her by at least one person and undermining the presumption of innocence accorded to defendants.

The next day, in "The right term for that 'exotic dancer," I reiterated my simple position--"What is needed in the Duke lacrosse team alleged rape case and every other case in which an accusation of criminal conduct is made is impartial and intense investigation, not incitation"--and urged the prosecution to follow the facts: "The whole truth is still unclear, and should be pursued without fear. The authorities need to investigate very carefully instead of to proceed with the indictment as though it is well founded and be open to the possibility that they were duped as well as the possibility that a honest mistaken identification was made."

Durham County, North Carolina District Attorney Michael B. Nifong had been inciting more than investigating.  The primary in which he was running to keep his job (to which he had been appointed, not elected) seemed to explain what he was doing: pandering to black voters who could keep him in office if they thought he should stay there, instead of being beaten ignominiously by the favorite (Freda Black, the female attorney he had fired after being appointed District Attorney).

On May 23, in "The deplorable Duke political prosecutions," I deemed the Duke case out-of-control: "When a young black woman who chose to strip at an off-campus Duke lacrosse party later charged Duke lacrosse players with rape, I suspected that it was not the Duke lacrosse players were guilty only of bad taste, not rape. Subsequent developments have repeatedly confirmed my suspicion. But, the local prosecutor continues to prosecute three Duke players on what surely seems to be a phony rape charge.

"Today the news is that documents show the accuser first claimed that she was not raped, then claimed that she was raped by twenty Duke lacrosse players and eventually whittled that down to three (the same number she settled on when she charged some non-Duke males with rape years ago).

"What we appear to have here is an accuser who should be prosecuted, three Duke lacrosse players who never should have been indicted, a prosecutor abusing his office and the New Black Panthers out to exploit the situation while posing as champions of black womanhood. (The KKK championed white womanhood.)"

On June 12, in "D.A. Nifong: dissing Dr. King's dream in Durham," I invoked Dr. Martin Luther King as an antidote to the Nifong poison coursing through the Durham body politic:

"'I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.' Dr. Martin Luther King so declared in describing a dream that all good people want to be realized. A glorious dream that is being mocked by a shameless, opportunistic Southern white male Democrat named Michael Nifong. A man who not only has been pandering to the black voters he needs to be elected (which plenty of politicians do), but also perverting the criminal justice system and undermining public confidence in the administration of justice by pursuing personal and political agendas instead of justice, as he swore to do.

"It's ironic. This time a shameless, opportunistic Southern white male is preventing a couple of white males from completing their college education 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 and blacks who don't care about the facts and makes him electable."

On June 13, in "Mike Nifong should be frog-marched, NOT Karl Rove," I opined:

"Frog-marching is in order, but Mr. Rove should not be the frog-marchee.

"Instead, Mike Nifong, the district attorney in Durham, North Carolina should be frog-marched out of his office for egregious prosecutorial misconduct in precipitously seeking rape, kidnapping and sexual assault indictments against three Duke lacrosse players and shamelessly failing to have the indictments dismissed after it became apparent that the indictments were not only unwarranted, but based on his grossly misleading presentations to a judge and a grand jury.

"These days Mr. Nifong is stonewalling. He went silent after initially trying the case in the press. Then the defense responded by releasing pertinent fact after pertinent fact that not only effectively destroyed his case, but exposed it as a deplorable political persecution instead of a principled prosecution. NOW he won't discuss the case in public. (He's a shameless opportunist, but not THAT stupid.)"

The next day, in "Concerned Americans, Let North Carolina hear from you!", I urged people to let the North Carolina Governor and Attorney General know that something was rotten in the County of Durham:

"It wasn't obvious at the beginning. Indeed, 'Dukie' Dan Abrams of MSNBC publicly stated that he considered the charge conceivable, based on his own Duke experience. But, it became obvious that THE CHARGE was the outrage.

"America's top legal commentator, Stuart Taylor, looked carefully into the matter and identified Durham County District Attorney Mike Nifong as a rogue, NOT any of the wrongly indicted Duke lacrosse players:

"'Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

"'Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.'"

On June 17, in "Suggestion to Crystal: pray, learn from Cynthia, apologize now," I urged the accuser to put an end to the misery that is the Duke case by recanting: "Crystal, there's a life-changing lesson there for you to learn, if you are willing. Rep. McKinney, a controversial black Democrat from Georgia, was in big trouble, but managed to avoid indictment. How? She stopped playing the race card and apologized. Initially, Rep. McKinney described the encounter as 'racial profiling' and insisted that she had been assaulted and had done nothing wrong.

"Rep. McKinney's charge that the officer (who was white) had assaulted her received little public support, even within the Congressional Black Caucus. Insightful members of the Congressional Black Caucus privately urged Rep. McKinney to smarten up and she went to the House floor the next day to apologize: 'I am sorry that this misunderstanding happened at all, and I regret its escalation, and I apologize. There should not have been any physical contact in this incident.'

"Crystal, these days thoroughly discrediting you is as easy as picking low-hanging fruit. So, for everyone's sake, please put an end to the deplorable criminal prosecutions of three wrongly accused young men who were indicted by a district attorney desperate for black votes to win a Democrat primary, based on misleading evidence and the unconfirmed claim of a person without credibility (that's you, Crystal)."

On June 15, in "Give it up, Mike Nifong!  Even Ruth Sheehan says so," I celebrated an important indication that Mr. Nifong's base was starting to crumble:

"'At this point, Nifong has damaged his own reputation and his own office to the point where he cannot possibly handle this case to its resolution.

"'It's time for him to call in a special prosecutor and put himself — and the rest of us — out of our misery.'

"Ms. Sheehan [of The News & Observer], IF Mr. Nifong had evidence to support the indictments, he would not need to be put out of his misery. As it is, he needs to off the case, out of office and disbarred."

On June 30, in "Duke case: Does the prosecutor need prosecuting," I suspected the answer is yes:

"Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males.

"And the DNA results should have led Mr. Nifong to conclude that the indictments should be dismissed.

"But, Mr. Nifong, for whom the black vote was decisive in his Democrat primary win last April, still has to face the voters in November, and pretending that he has a case may seem preferable to admitting an egregious mistake.

"The key question now is not whether any of the Duke Three are guilty of any of the charges against them — they are not — but whether Mr. Nifong is reckless and stubborn, or worse.

"Mr. Nifong should be polygraphed. Ironically, he may be one who should be prosecuted."

On July 19, in "Will the Durham establishment protect 'petty-tyrant' prosecutor Michael Nifong?," I posed a key question for the Durham establishment:

"When the local prosecutor should be prosecuted instead of prosecuting, it poses a problem for the local establishment. Durham County, North Carolina's District Attorney, Michael Nifong, won the Democrat primary last spring, but he made himself and Durham objects of ridicule across America in order to do it. Of course, he should be removed from office and punished, but would it be even worse for the local establishment to abandon him? For the local establishment, to protect or not to protect him is the question."

On July 29, in "Durham 'Justice': Political and Intimidating, NOT Colorblind and Fair," I explained that political considerations were prolonging what then was perceived as the Duke rape hoax:

"What do the Governor of North Carolina (Michael Easley), the Attorney General of North Carolina (Roy Cooper), the Durham County, North Carolina District Attorney (Michael Nifong) and the judge presiding over the Duke case (Kenneth Titus) have in common?

"Answer: They are all white Democrats who depend on the black vote to keep their jobs.

"What else do District Attorney Nifong and Judge Titus have in common?

"Answer: They are running for reelection in November in Durham County, North Carolina, a Democrat bastion in a Red State (in presidential elections and United States Senate races) where the Democrat Party Chairman is Floyd McKissick, Jr.

"If the indictments against three white Yankees from wealthy families finally are dismissed for sound legal reasons (like they cannot be proven, they were the result of prosecutorial abuse of power inspired by personal political considerations and they were improvidently issued by a grand jury that was not presented with facts that surely should have been presented to it and thereby shamelessly misled), don't expect it before Election Day.

"And don't expect Governor Easley and Attorney General Cooper, fellow Democrats also dependent on a solid black vote, to deal with the prosecutorial abuse problem of District Attorney Nifong until he is thoroughly and exquisitely exposed (which, by the grace of God, may be before Election Day, albeit not during the summer).

"In the sensational, but said, soap opera that is the Duke case, the right question is not whether the Duke Three will escape justice (their indictments were unjust and their continued prosecution is an egregious abuse of prosecutorial power), but whether their accuser and prosecutor will escape justice. If the Duke Three were black instead of white, natives instead of Yankees, poor instead of rich, they would NOT have been pawns in the chess game that is local Durham politics and the case would have been dismissed long ago if it ever was improvidently brought. But, justice does not always prevail in this life and, as President Kennedy said, 'God's work on earth must truly be our own.' Will the prosecutor somehow have bail revoked, imprison the Duke Three and suddenly produce career criminals ready to testify that each of them confessed to kidnapping, raping and sexually assaulting the accuser and, if the prosecutor finds it helpful, pledging eternal loyalty to Osama bin Laden and planning to hijack a plane and bring down the Sears Tower? Will a New Black Panther sympathizer slyly slip onto and hang the jury? Will an overconfident defense create a hung jury (or, God forbid!) snatch defeat from the jaws of victory by deciding NOT to have the Duke Three testify and instead expect the jury to obey the routine jury instruction not to hold an accused's failure to testify against that accused? Will the accuser or the prosecutor turn into a pillar of salt during the trial? Will the accuser come up with yet another story if she dares to take the stand, or refuse to answer on the ground that her answers may tend to incriminate her? Only God knows exactly how it all will play out, but I think the prosecutor already lost his soul and will lose more than the case, despite all his and the Durham establishment's clout.

"The Duke rape case has pretty much morphed into the Duke rape hoax in the eyes of the national media as fact after fact has become public. There's no dispute that a couple of strippers 'entertained' at the shameful Duke men's lacrosse team party last March, but that's not unprecedented at college parties, much less a crime. Even though the Duke Three were indicted for kidnapping, raping and sexually assaulting one of the strippers (BOTH are ex-convicts), there is no physical evidence supporting the charges and no witness supporting the claims of the incredible accuser. DNA showed the accuser had sexual contact with more than one man about the time of the party, but not with a Duke lacrosse player and her internal injury appears to have self-inflicted with a vibrator. "The case should have collapsed long ago...."

On August 6, in "Doomsday is coming for the diabolical duo," I celebrated a delightful development in Durham: "Sunday, August 6, 2006. The News & Observer published a long article by Joseph Neff titled 'Lacrosse files show gaps in DA's case." The gist: '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.'"

But the Durham establishment still required a push to abandon Mr. Nifong and there was wonderful news: Cash Michaels appreciated that the evidence did not support the prosecution and public acknowledged it and "60 Minutes" was quietly preparing to deliver that decisive push.

On August 18, on "The '60 Minutes' season opener should close the Duke case," I announced a compelling (practical) reason why the local establishment should not protect Mr. Nifong:

"'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." An unconstitutionally broad gag order issued by Judge Titus on July 17 and still in place despite a motion to modify submitted four days later impedes "60 Minutes," of course, but it will not save him.  The prosecution is simply too outrageous to be made respectable (even though The New York Times gave it a try).

In addition to exonerating the Duke Three and excoriating Mr. Nifong, "60 Minutes" should do some judging of the judges on the case, and find them sorely wanting. (Judge Osmond Smith, who recently got the case, opted not to have televised pre-trial proceedings, but he has scheduled a court conference in the case on September 22, the Friday before the upcoming "60 Minutes" season opener, and can do the right thing by ungagging the 2006 Duke Men's Lacrosse Team, compelling Mr. Nifong to provide the kind of discovery he claims to have been voluntarily providing in other cases long before it was required by law, and acting on the long-pending motion to remove Mr. Nifong from the case that his predecessor judges deferred instead of decided.

It is now common knowledge that Mr. Nifong is a despicable political opportunist, and petty, but the full extent of his hypocrisy is not generally appreciated, in part because to date the judges who have handled the case have deferred action on that motion to remove him from the case and instead allowed discovery to proceed with Mr. Nifong as prosecutor (which is grossly unfair to both the defendants and Durham County).

At his website (www.MikeNigongDA.com), Mr. Nifong alleged: " Both personally and professionally, I have always been a person on whom the community could rely to make the right decisions for this office and for this community: decisions that further the cause of justice. That is why, for example, I voluntarily gave open-file discovery to defendants twenty years before the law required it: it was the right thing to do. Doing the right thing is not only the best practice in principle, but it is usually also the most economical process in the long run, and you can count on me to continue to do so."

I don't know whether Mr. Nifong voluntarily provided open-file discovery before, but it is a matter of public record that the Duke case defense attorneys have made motion after motion to compel discovery.  Mr. Nifong hardly as been as cooperative as he claimed to be on his website.  He has been dilatory and obstructionist,

Worse, at the start Mr. Nifong refused to consider evidence of innocence and instead secured unwarranted indictments.

Yet, on his website. claims to be a person of absolute integrity: "Just as important as recognizing what is the right thing to do is having the moral fortitude to actually do it, even when it would be easier to do the opposite, or to do nothing at all. Justice requires a level playing field, and it is the District Attorney's responsibility to see that every defendant has one. For my entire career, I have been known to be a person of the utmost integrity, and I pledge to you that I will continue to live up to that reputation."

John in Carolina recently proposed that "60 Minutes" show the bathroom where "the crimes" are alleged to have occurred and explained why: 

"I’ve talked to a number of people who’ve been in it. They all tell me the same thing: it’s very small.

"What’s more, in separate conversations, two people who are friends of mine and friends of the former owner who last year sold the house to Duke, say he’s told them he doesn’t see how three people, let along four, could all fit in that bathroom at the same time.

"Showing that bathroom will serve a very important public purpose."

ABSOLUTELY!  After all, as the late Johnnie Cochran would have said to a trial jury, "If they didn't all fit, you must acquit."

John in Carolina exquisitely exposes the absurdity of Crystal Gail Mangum's claim to have been gang raped in that bathroom (even after the number of "gang rapers" was reduced from twenty to five to three):

"For the Nifong/Gottlieb version of events to be true, four people have to not only be able to fit into that bathroom, they also need to do a lot of moving around as three of them seek to subdue the fourth, who’s fighting them off as ….. (well, you know how the rest of 'the story' goes.)

"And then, at the end of about a half-hour of desperate struggle, all four walk out of the bathroom without one of them having a fracture, dislocation or cut requiring stitching.

"So please, 60 Minutes, show that bathroom! We should be allowed to see it after listening to and watching all of Nifong’s descriptions and reenactments of what he says happened there."

There is so much reasonable doubt that it's ridiculous for the Duke case to proceed.

On the Nifong website is an endorsement by Mark E. Edwards, a Durham criminal defense attorney, lauding Mr. Nifong as "the most ethical prosecutor I have ever known."  Unless Mr. Nifong is the only prosecutor Mr. Edwards has ever known, that's a terrifying thought, especially for Durhamites.

"60 Minutes" should not be satisfied with exposing Mr. Nifong.  Mr. Nifong has enablers and protectors who should be exposed too.  If the underlying problem is to be corrected, they must be exposed. 

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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