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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 24, 2006
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Duke Case Defense, Respect Durhamites

At the Friends of Duke University website, there is discussion as to whether the new Nifong timeline (as distinguished from the tall tale on which he obtained indictments of the Duke Three) is good or bad for the defense.

At the Friends of Duke University website, there is discussion as to whether the new Nifong timeline (as distinguished from the tall tale on which he obtained indictments of the Duke Three) is good or bad for the defense.

"Val":  "The new timeline, the way I see it, is better to defend.

"We can assume for instance that a 'rapee' is not going to hang around after being raped, so naturally, the rape occurred last thing before the dancers left. We also know it had to happen BEFORE the first 911 call about the racial slurs at 12:53 am (why Nifong chose to end the timeline when the cops arrived makes no sense given we know the time of the 911 call and both sides have stipulated the call occurred after the dancers left. So that pinpoints the alleged rape at exactly around 12:35-12:45 am followed by about a five minute effort of helping CGM to the car and three minutes to drive away and dial 911.

"That is much more easy to defend than 12:05 to 12:35 am. For sure, that rules out Reade. If Collin's alibi is airtight, it should rule him out too. And their alibis will discredit CGM so that the accusation against Dave need not even be defended."

But an anonymous poster is not sure, because he fears "a Durham jury" might "ignore it all": " I hope you are right. This assumes a Durham jury will actually pay attention to what the alibis will say. What if they ignore it all?"

If defense supporters insult potential jurors, they should blame themselves if Durham jurors do decide to ignore the evidence and send a message.  The defense team should set a good example, by treating the people of Durham with respect and letting them know what they need to know in order to decide whether or not to elect Michael B. Nifong.  Making those disputed survey questions public instead of asserting that they are privileged (a reasonable legal position, but bad from a public relations point of view) would be a good start.

I don't believe any of the Duke Three will be convicted, no matter how much Durhamites are disrespected, because I don't believe a whole Durham jury will railroad three young men out of anger.  (I don't dismiss the possibility that a jury nullifier with a ulterior purpose will slip onto the jury, but such a person only will be able to hang the jury, not to persuade all jurors to vote to convict three innocent young men of heinous crimes.)

September 22 was a great day in the Duke case, and not only because the gruesome gag order was lifted.

The News & Observer article on the September 22 court conference in the Duke case ("DA Gets to Wait on His Theory"), by staff writers Benjamin Niolet and Anne Blythe, highlighted the court's refusal to compel Durham County, North Carolina District Attorney Michael B. Nifong to state precisely the details of the felonies with which the Duke Three are charged.

But, give the writers their due.  They DID mention that there was good reason for the defense to seek the details: "''What we're wanting is the exact time that this occurred,' defense lawyer Kirk Osborn told the judge. 'Her statements are inconsistent about which bathroom it occurred in. ... Her statements are inconsistent about who did what to her.'"

As to the amount of time involved, Mr. Nifong helpfully volunteered his personal opinion (which he seemed to believe to be a sufficient predicate for the taking of judicial notice) that the accused (Crystal Gail Mangum) exaggerated by a factor of three to six: "If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside," Nifong said. "I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."

If Mr. Nifong's son were an accusee, I suspect he would appreciate how absurd, arrogant and infuriating it can be to be required to prepare to defend against a multitude of possibilities instead of a specific charge, especially when the charge is spurious.

As stated in the defense motion for a bill of particulars, "[i]n cases alleging rape and sexual offense, the trial court may direct the State to serve a bill of particulars setting forth the date and time of day, as well as the location of the expense and the specific sexual act alleged to have been committed.  State v. Kennedy, 320 N.C. 20, 23 (1987)."

Perhaps the issuance of such a direction should be mandatory instead of entrusted to judicial discretion. If Ms. Mangum can't pick a bathroom by now (she had plenty of trouble picking defendants), why is this prosecution proceeding?

As expected, Professor Robert K.C. Johnson quickly explained (1) how dramatically the prosecution story has changed, (2) why and (3) why that helps rather than hurts the defense:

"In perhaps the least surprising development of the case, Nifong has abandoned even the accuser’s version of events to invent his own timeline. Having obtained indictments based on a tale that a 30-minute rape occurred on March 14, Nifong is now claiming that a 5-10 minute attack occurred on either March 13 or March 14.

"The district attorney rationalized his new theory by adding to his previous de facto roles as lead investigator and Durham P.D. press secretary. Now posing as an armchair psychologist, he asserted, 'When something happens to you that is really awful, it can seem like it takes place longer than it actually takes.'

"The real reason for the change, of course: Reade Seligmann’s attorney, Kirk Osborn, has provided unimpeachable evidence that no possibility exists of Seligmann committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

"Unfortunately for Nifong, shortening the time of the alleged attack only undermines what remained of his credibility. Time-stamped photos show the dance ending at 12.04am, a timeline reinforced by the accuser’s cellphone records and the neighbor’s statement. The second dancer’s statement, corroborated by that of the neighbor and most of the accuser’s myriad and mutually contradictory versions, has the dancers proceeding from the dance’s conclusion to the bathroom for an unspecified period of time, and from there to the car, where one of the players persuaded them to return to the party. Unless the D.A. is now contending that these developments occurred with the two dancers effectively in a full sprint, both Seligmann and (it appears) Finnerty had departed the house before the window for even a 5-minute attack opens, while Seligmann well before that time was on the phone."

To those who feared that detailing Reade Seligmann's alibi was a bad thing, reality is the opposite.  Remember how Rosemary Woods, President Nixon's faithful secretary, explained how she might have accidentally erased part of the Watergate tapes?  Mr. Nifong is doing his own strange contortions but they do not suffice; forcing him to contort or dismiss was the right move; and focusing the Durham voters of his actions is what the defense and defense supporters need to do.

Doubters, I refer to the latest Liestoppers masterpiece, titled "The Exit, Return and Five-Minute Theory":

"In court on Friday DA Nifong’s most startling revelation was his new speculation that the entire three-person three-orifice assault 'probably took about five minutes, 10 minutes at the outside.' This dramatic revision of the 30 minute assault claim filed in sworn affidavits on March 16th, March 23rd, March 27th, and April 18th is intended to accomplish several things for the prosecution, but none more important than accounting for the Seligmann’s alibi. "This alibi has been documented extensively and is succinctly presented in a graphic by the News & Observer.

"To review, the defense has produced time stamped photographs showing the women dancing from 12:00AM-12:03AM. One of those photos shows a player’s watch, corroborating the time. The last photo in the series shows the women leaving the room where they were dancing at 12:04AM. Reade Seligmann made numerous calls from his cell phone from 12:05AM-12:14AM. The last call he made, at 12:14AM, was to a taxi company. Taxi records show that Seligmann and his friend were picked up a block away from 610 Buchanan at 12:19AM. Reade was driven to a Wachovia Bank ATM machine, where bank cameras show him withdrawing money at 12:24AM.

"Nifong’s new compressed timeframe for the alleged assault is apparently intended to somehow put Seligmann into a bathroom (Nifong refuses to reveal which one of the two), allegedly assaulting the accuser. Apparently Nifong believes that his new 5-minute theory (seemingly the duration of an alleged assault, as well as how long Nifong thought about it) will be sufficient to accomplish this goal. Nifong might believe that '5 minutes, 10 minutes at the outside' fits nicely into 12:04AM-12:14AM. However, as noted quickly by KC Johnson, Nifong has completely forgotten the Exit and Return.

"In all versions of the assault claim (and it is getting harder and harder to keep track), the accuser claims that she left the residence for a period of time, then returned, and only after that was assaulted."

Still worried? 

Maybe Mike McCusker (www,crystalmess.com), lacrosse player, Marine and lawyer, can slap some sense into you (see the Three Stooges photograph he used to illustrate "Snap Out of It!):

"Surfing around the various 'Duke case' message boards, I'm just floored by the number of kind souls who are 1) shocked by Nifong's move away from Crystal's claim of having been under siege for '30 minutes,' and; 2) think that his newly speculated 'five to 10 minute' time frame matters.

"The sky is not falling. Seligmann's alibi has not been 'undermined.' The unified defense of The Three has not 'suffered' in the least. Chill out.

"The mere 'hour and a half' Nifong magnanimously suggests is all that Reade needs to 'account for' is of no import. That time block is bound by Kim's estimate of Crystal's 11:30 arrival at Buchanan, and police arrival at the vacated premises, at 12:55 a.m.

"We know, however, from a fair reading of Kim's statements, Bissey's statement, and those portions of Crystal's April 4th statement that have been made public, that no assault, by anyone, is alleged to have commenced before the 'dance.' Crystal arrived inside the house sometime after concluding a cell phone call at 11:39 a.m. She was paid, and then conversed with Roberts for a time. Photographs confirm that the 'dance' was underway at midnight. The 'dance' concluded and both women locked themselves in the bathroom at no later than 12:04 a.m. Reade called Elmo at 12:14 a.m. He and teammate, Rob Wellington, were picked up by Elmo at the end of the block at 12:19 a.m. In the interim, Reade was on his cell phone constantly. Even assuming Seligmann and Wellington were at the house until but one minute before they got in the cab at 12:19 a.m., this case devolves not to a Battle for 85 minutes, but fourteen. Nifong must prove that all three of the defendants were in a bathroom (whichever he decides he wants to say it happened in), sexually assaulting Crystal Mangum at some time between 12:04 a.m. and 12:18 a.m. He can't.

"He's just making it up as he goes along at this point, and Smith is apparently okay with granting him a bit more breathing. Nifong doesn't believe Mangum and no one believes him when he oh-so-confidently asserts that she will testify. He's in survival mode now, just trying to keep this flicker burning until after the election. If he wins, he'll likely look to cut a deal, with the defendants' promise not to bring civil suit being the quid pro quo for dismissal of the charges. I sincerely hope that they jointly tell him [no]."

It is the truth that will save the Duke Three and stop Mr. Nifong. 

It always has been.

Mr. Nifong biggest problem is not Ms. Mangum's claim of a 30-minute gang rape, but an expose by "60 Minutes" that he cannot escape.

Pray that defense mistakes do not help Mr. Mangum.  (There will never be a conviction, but treating the people of Durham as part of the problem instead of the solution helps instead of hurts Mr. Nifong.)  Mr. Nifong is trying to use the defense's small survey of potential jurors to convince Durhamites that it is really the defense, not he, that wants to taint the jury pool.

Yes, that is ridiculous.

But all Mr. Nifong really has today is the hometown advantage and of course he will try to use it to save himself.

The News & Observer reported:

"Nifong told the judge that a telephone poll commissioned by the defense was an attempt to influence the opinions of potential jurors. Nifong only knew about the survey because a pollster called the Nifong household Sept. 11 and spoke to the prosecutor's wife for an hour. [My note: Nifong actually was told about the survey in August.] She filed a sworn statement in which she described the interviewer as more interested in giving information than receiving it. In court Friday, Nifong produced another sworn statement from a woman who said she was polled and thought that she had been given a version of the facts in the case that was designed to skew her opinion.

"Nifong asked the judge to decide whether the poll was appropriate and to decide whether it violated any ethical rules."

Nifong championing a fair trial? 

Gall, he does not lack.

Yes, the defense rebutted and the rebuttal was reported: 

"Defense lawyer Wade Smith told the judge that the poll of 300 Durham residents was necessary because of the unprecedented amount of publicity the case has received.

"''We have tried to think of any case in North Carolina history that comes close to the kind of interest that has been generated in this case,' Wade Smith said. 'There isn't a person at this table who would squint down his eyes and say, "I think I will try to influence improperly the 240,000 people of this county.'''"

BUT, the best evidence of whether or not the survey questions were fair is...THE SURVEY QUESTIONS, not Mr. Smith's assurance that all defense attorneys are above trying to improperly influence.

BETTER!  Defense attorney Joseph Cheshire said that Mr. Nifong's wife version of the questions did not match the actual questions.

GREAT!  Proof it.  Show some respect for the voters of Durham, and show it before Election Day.

The defense is passing on an opportunity to expose the Nifongs (husband and wife) as misrepresenters of the survey questions approved by the defense for a survey designed to ascertain how badly Mr. Nifong's public statements had poisoned the Durham County jury pool.

Defense lawyer Joseph Cheshire said in court that Mrs. Nifong's versions of questions did not match the script. But, the script was submitted to Judge Smith for in camera examination to determine whether it was proper, not made public.

I don't doubt the questions were proper (even though at least one erroneously mentioned rape instead of alleged or claimed rape).

But I also don't doubt that Durhamites would much appreciate seeing the evidence that shows that Mrs. Nifong's story does not match the script LONG BEFORE ELECTION DAY.

Preparing for a trial (and perhaps retrial) new year is one strategy, but it keeps the nightmare going.

Letting Durhamites know that Mr. Nifong is unfit and then moving to dismiss because the evidence shows that the indictments were improvidently granted and there is not credible evidence of guilt, much less proof beyond a reasonable doubt, is a better one. (Not necessarily as remunerative, but better.)

To those who chided me for mentioning that "60 Minutes" had focused on the Duke case, I ask do you think it was a coincidence that Judge Smith scheduled his first court conference in the Duke case for September 22, two days before the "60 Minutes" season opener and replaced the gag order issued on his own initiative by his predecessor, Judge Kenneth Titus, on July 17, which applied to potential witnesses (including the defendants) as well as lawyers, before he could be blamed for it? The truth about the gag order is that the local NAACP called for it and Judge Titus (up for reelection in November) issued it on his own initiative (that is, without the benefit of motion papers).

The defense wisely moved to modify four days later, submitting papers so compelling as to make reasonable observers wonder what possessed Judge Titus.

BUT, the media merely reported that day that Judge Titus had restrained publicity and defense lawyer Joseph Cheshire reportedly said that the gag order was NOT a gag order. (I hope he was misquoted.)

I later learned of the gag order from the Friends of Duke University spokesperson, NOT because there was a public relations campaign to protest, but in an email aimed at dissuading me from ever chiding potential witnesses (especially the Duke Three) from not making any public statements about the case. (I don't believe in a one-size-fits-all, keep-them-quiet defense strategy for innocent defendants, especially ones being railroaded.)

I was delighted with the motion to modify and disappointed with the absence of a public protest.

So I reported the gagging, so that those interested would know. If the accuser had been white, the defendants had been black and a local judge had issued such a gag order after a politically motivated prosecutor had done what Mr. Nifong had done, the mainstream media would have shrieked in protest (and rightly so).

Liberals would have demanded the United States Justice Department intervene (and rightly so).

Protecting the rights of the Duke Three and their friends and families seem to have been less important than maintaining the illusion that justice was being served in the Duke case instead of blatantly denied, the persecution was merely a prosecution, and if the wheels of justice moved slowly, there were prior cases on the court calendar and the defense was overlitigating and responsible for some of the delay.

The lessons of the Duke case are many, including:

(1) mainstream media should not have jumped to an erroneous conclusion that fit its agenda;

(2) so-called educators at a leading university should not have lost their moral bearings;

(3) the President of Duke University should not have made the great mistake of presuming guilt, suspending the then sophomore defendants and keeping them suspended even as the case collapses;

(4) the local media and establishment gave far too much credence to the hometown accuser (an ex convict stripper with a problematic history) and the prosecutor (a desperate and opportunistic politician) and too little respect to the three young Yankees from wealthy families without any history of sexual abuse (much less kidnapping and rape); and...

(5) the defense gave paramount importance to preserving and seeking trial advantage, as though they were defending guilty persons, and not enough importance and respect to the good people of Durham, who are the Durham solution (but NOT the Durham solution that DA Nifong has in mind).

"60 Minutes" long planned a Duke case expose as its season opener, but wisely delayed after Judge Smith scheduled a court conference on September 22, two days earlier.

When finally finished and broadcast, it should be well worth taping.

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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