Criminal defense lawyers have a problem. Sometimes their clients are really guilty. Making the prosecution prove each and every element of each crime without having a really guilt client help by speaking is a smart strategy. So really guilty clients are routinely told not to discuss their case on advice of counsel.
But, what is sound strategy for defending the really guilty is not necessarily the best way to go when defending the really innocent, especially when the really innocent are very intelligent and articulate, the crimes of which they are accused are heinous and many people expect them to proclaim their innocence if they are innocent.
In the Duke case, all of the defendants are really innocent and the prosecutor doesn't care and is unfair.
When Collin Finnerty and Reade Seligmann, then college sophomores, were indicted, they were advised not to make public statements. Their silence did not help to convince people that they were being railroaded.
When David Evans became the third defendant in the Duke case (soon after he graduated from Duke), he made a compelling public statement professing not only his innocence, but the innocence of his teammates, and charged that the gang rape claim was "a fantastic lie."
THAT was impressive in itself, but it contrasted sharply with the silence of each sophomore. From them, people expected more.
People generally presume that a prosecutor does not seek an indictment and a grand jury does not indict without at least probable cause to believe that anyone to be indicted, or indicted, committed a crime.
In the Duke case, the presumption was undeserved. The prosecutor refused to consider evidence of innocence, ordered a fundamentally flawed identification procedure and secured indictments based on a story he subsequently conceded is incredible. Instead of moving to dismiss the indictments as improvidently requested and granted, however, he decided that that imaginary gang rape took no more than ten minutes instead of thirty, as charged.
When the prosecutor is a manipulative scoundrel, fear that anything said will be misused is especially understandable. Mr. Nifong's reaction to the public disclosure of Reade Seligmann's alibi--harassing the (black) cabbie who confirmed that he had driven Reade and cutting the time of the imaginary rape way down--illustrates problems that a malevolent prosecutor can cause. BUT, exposing Mr. Nifong to the Durham County voters, especially when he is up for election, is a way to remove him from the case (the motion by Kirk Osborn, Reade's attorney, to remove Mr. Nifong from the case was made promptly, but the case has proceeded without a decision on it), for the sake of the Duke Three, and from office, for the sake of justice and especially Durham County.
That means that the framees have to overcome any fear of publicly protesting that they are being framed and explain in a general way why the case against them is bogus.
Joshua 1:9: "Have not I commanded thee? Be strong and of good courage; Be not afraid, neither be thou dismayed. For the LORD thy God is with thee whithersoever thou goest."
It's must easier to advise a person wrongly accused of a heinous crime not to be afraid than for that person to stop being afraid, but it is the right advice. Fear is easily confused with guilt. It behooves the innocent to behave as the innocent are expected to behave, especially when the prosecution is out of control.
It also helps greatly to have the means to investigate and to contest the prosecution, in criminal court and in the court of public opinion.
When a prosecutor is an out-of-control rogue, it is time to appeal to the court of public opinion.
On August 16, I happily announced, in essence, that all eventually would be well for the Duke Three, by breaking the news that "60 Minutes" was on the case.
The prosecution's case cannot stand scrutiny.
In an article titled "The '60 Minutes" season opener should close the Duke case," I rejoiced:
"'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."
Predictably, there were doubters, especially at the Friends of Duke University website, where there was fear that "60 Minutes" would not do an expose.
That fear too was unhelpful.
On August 26, an anonymous Friends of Duke University poster decried what he (or she) erroneously called my "speculations": "In my opinion, Michael Gaynor's statements about the 60 minutes are causing more damage than doing any good. I wish he would stop making these speculations. I doubt very much that CBS showed him what they have. By making all these unqualified statements, he is forcing the CBS editors to 'clean up the piece' and make it a CBS piece rather than the 'case breaker' that Gaynor wants us desperately to believe we will get. I worry about Gaynor, in which planet is he operating?"
"Anonymous" was right to doubt that CBS had shown me "what they have," but ignorant about what I had learned and wrong about me forcing CBS to do a televised version of that absurd Nifong apologia done by The New York Times instead of an appropriate expose. (The exquisite eviscerations of that apologia by Stuart Taylor, America's top legal commentator, and Liestoppers, a very capable and determined group dedicated to exposing the hoax, to specify the top two, would have discouraged any impulse at "60 Minutes" not to faithfully follow the evidence.)
The real threat to the "60 Minutes" expose was the gag order issued by Judge Kenneth Titus on his own initiative on July 17. The defense quietly moved to modify four days later. When I confirmed that the July 17 order applied to potential witnesses, including the Duke Three, as well as lawyers (something the mainstream media either missed or did not deem newsworthy), I reported and railed against it.
Judge Titus (up for re-election this year) predictably sat on the motion to modify his outrageous order, but he was replaced by Judge Osmond Smith and Judge Smith ungagged potential witnesses at a court conference on September 22.
Cash Michaels, North Carolina journalist and television commentator, announced that the "60 Minutes" expose air date had been postponed from September 24 to October 1, because that court conference had been scheduled for September 22.
Then I posted this message at the Friends of Duke University website to reassure doubters: "October 1 is not set in stone, but when the expose airs, Nifong will wish he was unknown. The Duke case was not tentatively scheduled as the season opener for months because CBS wanted America to know that the case is pending."
At the John in Carolina website, I later posted this comment: ""Judge Smith's ungagging of potential witnesses creates more opportunities for '60.' Whether the broadcast is on the 1st or the 8th, or even the 15th, is not critical. What is critical is that it be as compelling and factual as possible (and fair)."
"60 Minutes" took full advantage of the ungagging to do more work.
Example: Ed Bradley went to Durham and interviewed the second stripper, Kim Roberts.
This week "60 Minutes" announced that it would broadcast interviews with each of the Duke Three as well as Ms. Roberts and that its October 15 show will cover the Duke case.
There is so much to cover that there will be at least two parts, so plan to watch on October 22 too.
"60 Minutes" has released some information about its interview with Ms. Roberts that should allay the suspicions of the doubters that "60 Minutes" would not help to demonstrate that the case against the Duke Three is bogus.
Mr. Bradley got Ms. Roberts, who already had said the gang rape claim was "a crock" and asserted that she had not witnessed a rape (although she professed to have become a believer while negotiating her own deal with Durham County District Attorney Nifong in an unrelated criminal matter), to contradict key parts of accuser Crystal Gail Mangum's terrible tale. Stated otherwise, Mr. Bradley induced Ms. Roberts to refute Ms. Mangum in important respects, making continued prosecution even more despicable.
On October 13, Fox News posted "Second Duke Stripper Refutes More of Alleged Rape Victim's Claims," stating:
"The woman who was at the Duke University lacrosse house where a stripper claims she was raped now refutes a key part of the alleged victim's account of what happened that night in March.
"Kim Roberts, who danced at the same party as the accuser where the alleged incident took place, told '60 Minutes' correspondent Ed Bradley in an interview that she didn't help the accuser get dressed after the alleged incident, nor was she physically separated from the accuser by the Duke lacrosse players at any time. The accuser said in her police statement that both occurred.
" * * *
"During the '60 Minutes' interview, Bradley asked Roberts, who goes by the stage name 'Nikki' when she performs, whether she was physically holding onto the accuser at the beginning of the alleged crime.
"'In the police statement, [accuser] describes the rape in this way: "Three guys grabbed Nikki," "That's you,"' Bradley said, '"Brett, Adam and Matt grabbed me. They separated us at the master bedroom door while we tried to hold on to each other. Bret, Adam and Matt took me into the bathroom.'"
"He asked Roberts: 'Were you holding on to each other? Were you pulled apart?'
"'Nope,' replied Roberts, who said that was the first time she had heard that version of what allegedly happened.
"Roberts, who was sentenced to 120 days of house arrest on Sept. 25 for an unrelated probation violation, also denies the accuser's statement to the police that after the alleged rape, Roberts came into the bathroom and helped one of the rapists dress her.
"'She obviously wasn't hurt ... because she was fine,' Roberts said when asked by Bradley whether she saw signs of rape from the accuser."
"'She tried to play it down the middle,' a source close to '60 Minutes' told the Durham Herald-Sun. 'She tried not to offer an opinion as to whether it was a crock. She wants the viewers to decide. But she says she didn't witness any rape. She wants to set the record straight on some things [the alleged victim] has said. She doesn't know whether a rape occurred. She just knows some of the things [the accuser] alleged to have happened did not happen.'"
The Fox article also mentions that each of the Duke Three was interviewed by Mr. Bradley and denied that either they or any of their lacrosse teammates assaulted Ms. Mangum
Great news! "The '60 Minutes' source told the Herald-Sun that the defendants 'tell us what they can, and they characterize the evening.'"
Obviously fear was no longer paralyzing.
The Duke Three did what they (not their lawyers or parents) needed to do.
Their interviews will be broadcast in time for the Durham County voters to take them into account in deciding whether or not to elect Mr. Nifong on November 7.
POLITICAL MESSAGE TO DURHAM COUNTY VOTERS: VOTE FOR LEWIS CHEEK, THE VIABLE ANYBODY BUT NIFONG CANDIDATE, AND GIVE GOVERNOR EASLEY ANOTHER CHANCE TO APPOINT A DECENT PERSON TO BE DISTRICT ATTORNEY.
After "60 Minutes" announced its plans for October 15, I posted this message at the Friends of Duke website:
"NOTICE: '60 Minutes' will present its Duke expose in at least two parts.
"Part I will be this coming Sunday.
"For Mr. Nifong, it won't be a fun day.
"To those who insisted the Duke Three should be quiet until trial, fortunately the better choice finally was made.
"As a result, of losing his district attorneyship at yearend, Mr. Nifong should be very afraid.
"The bulk of the voters of Durham County will realize the Duke Three are innocent.
"Then it will be the manipulative Mr. Nifong whom they will resent.
"Be very, very glad the gag order was set aside.
"As soon as it was, Mr. Nifong's chance of election died,
"Unless Mr. Monks divides the anti-Nifong vote,
"Making Nifong the victor and himself the goat.
"Republicans should tell Monks not to try to be a spoiler for the sake of Nifong.
"That would be something (1) evil, (2) stupid and (3) politically wrong."
Predictably, AN anonymous apologist for each and every aspect of defense strategy promptly responded in pertinent part:
"Since the taping of the expose has been going on for 2-3 months, it seems the supposed 'gag order' had nothing to do with the show. Furthermore, it sounds like the 'better choice' was also made a long time ago. Mike, you are defeating your own arguments. You are acknowledging that all the screaming and yelling you were doing on the sidelines was for nothing! The defense lawyers knew what they were doing after all and nobody needed your insults, right?
"Well, we have a very clear conscience here. We had faith in the defense team and believed in the wisdom of the families all along. So, we have nothing to be ashamed about and nothing to apologize for."
"To the poster...
"Trying to tempt me to write an article setting forth emails that would refute you? It won't work.
"Suffice it for me to say:
(1) I knew what Ed Bradley and '60' were doing long before I reported the upcoming expose;
(2) the Sept. 22 lifting of the July 17 gag order on potential witnesses, including Kim Roberts, was a great thing and she was interviewed after the gag order was lifted; and
(3) I supported the view of relatives of Collin Finnerty expressed in a post on this website on July 14: 'To Collin's family: stop hiding him in the attic. IF he is innocent of all the charges let him hold his head high and face the courts and the cameras and the judges and proclaim to the world who he is. Time to grow up and face the charges like a man — even though you probably are guilty of nothing you need to jump off the speeding train or at least change tracks before they railroad you right into the BIG HOUSE.'
"Methinks you protest too much about having 'a very clear conscience' and in asserting 'we have nothing to be ashamed about and nothing to apologize for."
"I didn't ask about your conscience or for an apology."
The reply must have been too much for the moderator to bear, since it and the related posts were prompted removed.
Fortunately, Mr. Nifong cannot stop (1) "60 Minutes" from addressing the Duke case and showing that the so-called rape case really was a hoax and exposing Mr. Nifong as a shameless political opportunist who has persecuted the Duke Three and (2) viewers, especially Durham County voters, from watching, all before Election Day 2006.
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.