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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:  October 9, 2006
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Topic category:  Other/General

Foley Scandal Implications for Duke Case

Michael B. Nifong is the Durham County, North Carolina District Attorney.  He is supposed to be a fair and impartial "minister of justice."   He has a special duty.  He is not to allow personal and political considerations to determine whether or not to prosecute.  He is absolutely not to refuse to consider evidence of innocence or to seek an indictment without solid evidence to support conviction as well as indictment.  He is supposed to try a case in court, not in the press.  He is supposed to present evidence, not personal opinion.  He is not supposed to make prejudicial statements that might preclude a fair trial.

Mark Foley is a former Republican Congressman from Florida who was co-chair of the House Caucus on Missing and Exploited Children.   He was supposed to protect children and mentor House Pages, to whom he owed a special duty.  He was not supposed to treat underage House Pages as sex partners or future sex partners and send them sexually suggestive, much less utterly vile, email or text messages. 

Out-of-control prosecutors and Congresspersons are atypical, of course.  It is improbable that a prosecutor or a Congressperson would abuse his or her position.  Unfortunately, it really happens and  when it does, it has to be dealt with, not denied or covered up for personal or political purposes.

The implications of the Foley scandal for the Duke case led me to revisit an outstanding article written last August by Cash Michaels for The Wilmington Journal (which is part of BlackPressUSA Network)

Sometimes the title of an article is misleading.  From the title--"Durham Chief  Backs Duke Probe," a reader might expect the article to be pro-Nifong. 

It was not. 

In the article Mr. Michaels identified what now appears to be the only rational basis for believing that Mr. Nifong had a case in the Duke case:

"[I]f 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?

A premise of Mr. Michaels' question--"knowing that ultimately, it would catch up to them"--is not necessarily warranted, of course, as life repeatedly teaches.

Mr. Michaels: "The improbability of that question is what those who still believe that a crime was committed, and that there’s more evidence than has been revealed, hold on to."   

They should let go.

The  Durham Mayor, City Manager and Police Department helping Durham County District Attorney Michael B. Nifong is not competent evidence against any of the Duke Three or anyone else.  It is to be expected.  Each of them presumes Mr. Nifong is acting in good faith until the facts rebut that presumption.  None of them would (or at least should) tolerate prosecutorial misconduct if they recognized it, and it should not be presumed that they know of it, just as it should not have been presumed that any of the Duke Three is guilty.

Ironically, the recent Mark Foley sex scandal helps to answer Mr. Michaels' important question.

Why would the Speaker of the House of Representatives fail to investigate thoroughly the possibility that a Congressman was stalking House Pages?

First, the Speaker certainly did not appreciate what a thorough investigation would have revealed.

Second, the Speaker did not want to investigate a fellow Congressman without ample justification.

Third, the Speaker has many responsibilities and delegates routinely.  

Fourth, Congressman Foley was a supporter of the Speaker and the Speaker presumably thought well instead of badly of him and was disinclined to  suspect that he had done what America now knows he did.

Fifth, the Speaker surely did NOT know that he would be embarrassed as a result of failing to do more.

The same explanations seem plausible for the Mayor, the City Manager and the Police Chief.

But none of then individually, and not even all of them together, mean the Speaker, the Mayor, the City Manager and the Police Chief did not made huge mistakes.

In the case of Speaker Dennis Hastert, when he did learn that former Congressman Foley was not only gay, but a predator, the Speaker told the former Congressman to resign or face expulsion.  (In 1983, when a Democrat Congressman and a Republican Congressman were discovered to have had sexual relations with underage Pages, they were censured, not expelled; the Republican was chastened and then rejected by the voters in his district; and the Democrat was defiant, embraced by the Democrat caucus and repeatedly re-elected in his district until he retired.)

One hopes the Mayor, the City Manager and the Police Chief will not be too embarrassed to admit their mistakes.

Mr. Michaels sent them a clear signal last August. 

Perhaps the most significance sentence in the article is this: "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."

Mr. Michaels is one of the few in the media who has reviewed Mr. Nifong's discovery.  So when he wrote that "[c]ritics have made it clear that D.A. Nifong was only posturing for the Black vote he needed desperately to win the May Democratic primary,"  instead of critics have claimed that, it meant plenty. 

Mr. Michaels reported that Chief Steve Chalmers "is standing strong by his investigators and their work" and Durham Mayor Bill Bell was completely confident that the police would develop evidence to win convictions.

Chief Chalmers: "Oh certainly.“They’ve had my full support from the start. They’ve had the full support of the city manager.”

That's newsworthy, of course.  And sad.

Mr. Michaels proceeded to detail why the investigators and their work deserve criticism instead of "full support."

Example:

"An analysis by The Carolinian and Wilmington Journal newspapers show that what the police were telling the public, either through direct statements or public documents, at times did not match what they actually knew, or didn’t know, behind the scenes.

"On March 24, the Durham Herald-Sun reported Durham Police spokesman Cpl. David Addison as saying investigators had '"really, really strong physical evidence" from the crime scene (610 N. Buchanan Blvd where the party was held and the bathroom the alleged victim said the rape and beaten took place in) that police will be able to compare with DNA results.'

"Forty-six of the 47-member lacrosse team had, under legal counsel and court order, had submitted to taking photographs and supplying DNA swabbings to authorities.

"But weeks later, those DNA test results from the state crime lab and a private lab in Burlington failed to yield the 'strong evidence' connection to the alleged victim both the police, and D.A. Nifong had promised the public they would."

Jeff Neff's latest article in The News & Observer-- "Experts: Lacrosse IDs likely tainted"--buttressed Mr. Michaels' case that the police work in the Duke case was improper in major respects:

"Psychologists Gary Wells and Brian Cutler helped design a procedure in 2003 for witnesses to identify crime suspects. Police departments across North Carolina embraced the procedure. The Durham Police Department adopted it almost word- for-word in February.

"The conduct of the Durham police in the Duke lacrosse case, however, is a case study in violating the new policy, the psychologists said. And as a result, police have injected doubt into a woman's selection of three lacrosse players whom she accused of rape.

"Police violated two fundamental rules for running an identification procedure, said Wells, a professor at Iowa State University, and Cutler, a professor at UNC-Charlotte.

"First, the psychologists said, police did not have an independent investigator administer the process. Second, they neglected to include photos of nonsuspects, known as fillers."

"The procedures used can yield only uncertain or misleading results, Wells said, and that's bad for everyone.

"If the woman was raped, Wells said, the botched lineups undermine the prosecution and the search for justice.

"'And if she wasn't sexually assaulted, or was assaulted by someone else, [the players are] in a position of guilty until proven innocent,' Wells said. 'It really shifts the burden to the person identified to prove it wasn't them. That is a profoundly difficult and very unfair situation.'" Mr. Michaels closed his article this way: "Indeed, if the district attorney has no better than what has been so far shown, a trial in this case may never be, and the African-American community will want to know why."

The answer is that there is not enough evidence to warrant a trial.  In fact, Mr. Nifong proceeded to hastily, not too slowly, and improperly, not properly.  The Duke Three never should have been indicted, because they did not kidnap, rape, or sexually offend anyone, much less their accuser, who is not credible and whose claim is not supported by evidence. 

By 8 PM, October 15 (if not sooner), Durham's Mayor, City Manager and Police Chief should realize that Mr. Nifong became a rogue prosecutor in the Duke case and act accordingly.

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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