Duke Case Solution: Voter Nullification, Not Jury Nullification
Prominent feminist Wendy McElroy realized long ago that the prosecution of the Duke Three was a politically motivated persecution and rightly railed against it. But, in "In Duke Rape Case, Justice Relies on Jurors," Ms. McElroy opted to play Durham County, North Carolina District Attorney Michael B. Nifong's game by calling for jury nullification (to be sure, in favor of the Duke Three): "As a D.A., Nifong is out of control. If the governor, the bar association and the police will not ensure the very basics of justice, then common people with common decency should say 'no, I will not convict.'"
THAT was a well-intentioned mistake.
First, the Duke Three do not NEED jury nullification to be acquitted. IF there is a trial, the Duke Three only need the jurors to decide the case based only on the evidence presented in court and in accordance with the court's instructions. In the Duke case jury nullification would mean a hung jury, not acquittal.
Second, in the Duke case jury nullification is the only basis on which any of the Duke Three would not be convicted on any of the three felony charges pending against each of then: kidnapping, rape and sexual assault.
Jury nullification was a big problem in the South for a long, long time. If the complainant was black and the accused was white, the jurors did not always do what was right.
BUT, it would compound instead of correct that problem if the white Yankees from wealthy families who are the Duke Three are denied acquittal IF there is a trial (and there should NOT be a trial).
Even before the first two indictments were issued in the Duke case, I expected that the lack of DNA evidence and credible witnesses for the prosecution constituted ample reasonable doubt precluding conviction in accordance with the law.
BUT, I worried that, in view of the way the malevolent Mr. Nifong had shamelessly played the race card, a person intent on hanging the jury might become one of the jurors. (Hung juries happen: John Gotti, Jr. has been tried three times without a verdict.)
That is not a racist suspicion. It is realism supported by readily available facts.
Newsweek, May 1, 2006: "'This is a race issue.' said Candace Shaw, 20. 'People at Duke have a lot of money on their side.' Chan Hall, 22, said, 'It's the same old story, Duke up, Central down.' Hall said he wanted to see the Duke students prosecuted 'whether it happened or not. It would be justice for things that happened in the past."
It would NOT be justice, Mr. Hall. It would be INjustice. It would set back race relations, not advance them. None of the Duke Three ever owned slaves and Kim Roberts, the second stripper, acknowledged that none of them used racial epithets. Wrongfully imprisoning the Duke Three will not do anyone any good. It would be very bad, and not only for them and their families and friends.
"On Sunday on CBS's 'Minutes,' the key witness against the three Duke University students accused of rape flatly contradicted the story their accuser gave to police.
"Prosecuting District Attorney Mike Nifong now has exculpatory DNA tests, a solid alibi for one defendant, a string of contradictions from the accuser, an irredeemably tainted police identification and a witness who benefits the defense."
The totality of the evidence shows a false rape charge and prosecutorial misconduct, not a probability of guilt (the indictment standard), much less proof beyond a reasonable doubt (the conviction standard).
Which brings us to: Third, the Duke case should be dismissed by the court, not tried by a juror, because the evidence on which the indictments were issued was tainted (for example, the photo identification procedure that Mr. Nifong ordered violates local, state and federal guidelines), Mr. Nifong refused to consider evidence of innocence and instead obtained indictments by misleading the grand jurors), and MORE than the word of an accuser like Crystal Gail Mangum should be required before an accused and the taxpayers are put to the time, trouble and expense of a trial.
Ms. McElroy is right that "charges are unlikely to be dropped in the immediate future -- at least not until the election for D.A. is concluded."
Because: "Politics, not justice, will be done."
Which brings us to what the voters of Durham County, North Carolina should do: reject Mr. Nifong on Election Day 2006 by voting for Lewis Cheek, the viable alternative.
Ms. McElroy: "Those in charge of the legal system are damaging justice itself. It is time for average people to bring fairness and standards back into the courtroom."
Because: "Certainly, those with authority over the Duke case cannot be trusted to do so. Nifong has virtually turned the prosecution into a campaign promise. And, if he wins the election, he may proceed rather than alienate his voter base which is black; the accuser is black as well and her alleged rape by three white men has become a racial flash point."
THAT is why Mr. Nifong should be voted OUT of office.
Ms. McElroy: "Governor Mike Easley, who appointed Nifong, won't ask him to step down from the case perhaps for fear of alienating the same voter bloc."
Governor Easley will have to explain his reticence the next time he runs for office.
Meanwhile, the Durham County voters have the power to end Mr. Nifong's reign. (If Mr. Cheek wins, Mr. Nifong's term ends at the end of the year.)
Ms. McElroy: "The Bar Association seems strangely uninterested in sanctioning Nifong for violating its own rules. (Specifically, Nifong's public statements about the case violate Rules 3.6 and 3.8 of the N.C. State Bar.)"
As a quick solution, the Bar Association is hopeless. If Mr. Nifong is not elected, it will get around to considering complaints about his conduct on the merits.
Ms. McElroy: "The police haven't acted as a check. For example, against established procedure, they followed Nifong's instructions to have the Duke accuser identify her alleged attackers from a photo line-up that consisted only of white Lacrosse Team members; this made it de facto impossible for her to pick the 'wrong' man."
Police presume the district attorney acts properly. They can't remove him for office, but the Durham County voters can!
Ms. McElroy: "To many, Nifong now represents the unchecked power of government to destroy innocent people."
The Durham County voters CAN and SHOULD check Mr, Nifong, on November 7, letting him and his allies know that pandering to and manipulating black voters and exacerbating racial tension for personal gain are unacceptable.
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.