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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 23, 2006
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Best Duke Case Defense: The Three's Obvious Innocence

The "60 Minutes" Duke case expose†should have put an end to any lingering suspense as to the Duke Three's innocence.† Some will never admit it, of course, but a good number of even them know it.† Some still will insist that the case still should be tried.††But, under the circumstances, that's not an ordeal and an expense that the Duke Three and their families and friends should have to abide.† There was prosecutorial misconduct and the grand jury was misled.† The case is not trial-worthy; the indictments should be dismissed as improvidently granted instead.

Prosecutorial misconduct, such as Durham County, North Carolina District Attorney Michael B. Nifong†blatantly prejudicial public statements ("there was a rape," for example), his refusal to consider evidence of innocence before seeking indictments and his ordering an identification procedure that violates local, state and federal guidelines, strongly suggests that†Mr. Nifong really†doubts his case, for good reason.† And a review of the material produced by Mr. Nifong during discovery in the Duke case shows that he doesn't have a case against any of the Duke Three on any of the heinous†felony charges on which he had each of them indicted.

Still, especially in the Duke case (an utter†prosecutorial disgrace),†obviously innocent defendants are the best evidence of their innocence.

The initial assumption by many that the Duke Three had to guilty--based on the stunning nature of the charge (who would make up a gang rape by Duke lacrosse players story?), the X-rated nature of the annual Duke men's lacrosse team††party,†the racial and social aspects of the case, media frenzy, Mr. Nifong's public statements up to the May 2 primary and the presumption (fortunately, rebuttable) that the police and the prosecution conducted themselves properly and were not trying to frame the Duke Three--was buttressed by the absence of indignant public protestations of innocence by the first two to be indicted (Reade Seligmann and Collin Finnerty).

Yes, advising defendants to be silent, lest they†misspeak and give the prosecutor a something to use at trial, is standard operating procedure for criminal defense lawyers (and sound advice when the defendant actually is guilty).† But, when the defendants are intelligent as well as innocent, having them appear in public and†demonstrate to†the world that they are not† monsters, as charged by†the prosecution†and depicted by much of the media, is the better choice.

David Evans, the last to be indicted in the Duke case, made the better choice.† His public appearance and statement, on his behalf and on behalf of his co-defendants,†right after he was indicted, was just right.† He did what needed to be done.†

WONDERFUL NEWS: The "60 Minutes" expose demonstrated that EACH of the Duke Three could help his case greatly†by being interviewed.

Better late than never!

Merely by appearing with†Ed Bradley and looking civilized instead of savage, they rebutted the racist rapist image that had been created for them.† None of them†is a racist, much less a rapist.††Happily, they did not appear to be and Kim Roberts, the second stripper (who claimed that racist language had been used at the party) acknowledged that none of them had made a racist remark.

At the Friends of Duke University website, where the defense strategy of keeping the Duke Three quiet†and out of the public eye until trial†was long and zealously defended, David Evans' superb public appearance was viewed as a wonderful aberration beyond anyone else and posted suggestions that the Duke Three should not wait until trial to show†the world that they†have been wrongly and wrongfully† prosecuted were so†unwelcome as to†be removed, the reactions to the interviews of the Duke Three by Mr.†Bradley were all favorable.†

Even before the "60 Minutes" Duke case expose was broadcast, a poster was moved by the promos: "Watching football today I have seen several promotional clips of the Duke 3 from 60 Minutes. Every time they show their faces it makes me want to cry. This could be my own son (a sophomore at Duke)- they are great kids. Evans says, 'I could go to jail for 30 yrs for something I didn't do, based on a lie.' It just makes me sick."

It is making more and more people sick† Hopefully, it will make enough Durham County voters sick enough to reject Mr. Nifong on Election Day 2006 (November 7) and to elect Lewis cheek, the viable Anybody But Nifong candidate.

Promptly after the broadcast, "K.P." applauded the Duke Three: "I just finished watching 60 minutes.... David, Collin and Reade did great, but Kim Roberts is still lying through her teeth. She was holding back on laughing out loud, and she could not keep eye contact, this is a telltale sign of when someone is lying.

"I almost started to cry as I listened to the duke three speak, I hope Nifong gets disbarred...."

Each of the Duke Three WAS great.† NONE had an eye contact problem

"60 Minutes" subsequently posted these outtakes of Ed Bradley interviewing the Duke Three:

David Evans and Ed Bradley

Ed: Let me go back to the day before you were indicted. You graduated from college that day? I mean, usually this is a cause for celebration. It is a day that we all look forward to. But you knew at that point that you were going to be indicted?

Dave: I found out on Friday, it was a very long weekend.

Ed: So, what was going through your mind at graduation?

Dave: I didnít want to cry. I was surrounded by all these people who were so happy. If you remember it was the Motherís Day. So, this should have been one of the greatest days of my momís life. The culmination of 22 years, 23 years, of schooling, all this work and she couldnít experience that. When I wanted to walk and get my diploma with all my friends but I couldnít. My dad had to go and get it because so many people in the press knew I was going to be indicted the next day and they wanted to take a picture of me with my diploma. And, I never got to get it.

Ed: You didnít feel comfortable walking up to there.

Dave: I didnít want to give them the satisfaction of that photo.

Collin Finnerty and Ed Bradley Collin: I didnít expect anyone to get indicted let alone myself.

Ed: In the following day you turned yourself in to police. The picture that comes to mind, you were in a jacket and tie, and handcuffs.

Collin: Yes, it was unreal. I mean, that morning I found out it was until I got put into handcuffs that I found Reade was the other person indicted. And then we kind of knew we were going to together the whole way.

Ed: When you think about your future, what do you think about?

Collin: I just think about being tried for something I never did. I am just hoping this whole thing ends as soon as possible so I can get on with my life.

Ed: Are you frightened by it?

Collin: Yes it is very frightening. The whole thing, this process takes a lot out of you. Going to trial for something you never did is very scary. I think about it all the time.

Ed: Do you ever think about the possibility that you could be convicted?

Collin: Thatís the scariest part of it. I know that going to trial there is always some small percentage, whatever percentage it is, that doesnít go that way. Thatís the scariest part of it.

Reade Seligmann and Ed Bradley Ed: What are your feelings today about Duke?

Reade: I chose Duke to be my home for four years. And, to see your professors, you know, go out and slender you and say these horrible untrue things about you. And have your administration just cut us loose, based on nothing, based on nothing. And, they have to know that this is not true. But, Duke took the stance that ďwe wouldnít stand for this behavior.Ē They didnít want to take a chance for standing up for the truth. It wasnít convenient for them to stand up for the truth. I canít forgive them for that.

Ed: Would you go back?

Reade: I canít say that I would. I donít know what the circumstances will be. I donít know where I will be in a year from now or whenever I get the opportunity. But, I mean, based on the way I have been treated so far, I just cant, I canít imagine representing a school that didnít want me to represent them. I couldnít imagine.

Ed: Do you get angry sometimes?

Reade: Absolutely. To see my face on TV, in that you know, in those little mug shots and above it saying ďalleged rapist;Ē you donít know what that does to me. What a pity that time constraints precluded showing the whole interviews! The outtakes impressed Friends of Duke University posters. "Just watched the student outtakes from 60 minutes. I wish this footage had been on the show. Colin speaks about being arrested, the idea of a trial, etc. Reade speaks about the Duke administration, professors, and whether he would return to Duke. David talks about graduation day and knowing he would be indicted Monday. It is a shame the general public won't see this part of their interviews."

I sure is.† "60 Minutes" should do a follow up!

"Above: This is why we are commenting about it here, so that as many people can look at it as possible. I hope CBS keeps this footage on their website forever."

Having it up on the website is good; broadcasting it on, say, October 29, would be better.

"I thought the outtakes were extremely powerful. I had tears in my eyes when Dave talked about his mom, graduation being on Mother's Day and having to have his dad walk up to get his diploma because he did not want the media to use the moment for a photo op.... Reade's indignation was just as powerful and more than justified. Collin was as open as I've seen a young man."

RIGHT!† Two bad it took until October 15 for the world to see Reade's powerful and justified indignation and Collin's openness.† Neither of them deserve to be in the Duke case mess.

"I teared up at Reade's outtake comments too. What a terrific young man. He wasn't complaining about what HE lost, he complained that his mom had her mother's day and his parents' prideful day of graduation ruined.

"I certainly understand his current desire not to come back to Duke with his perspective on his treatment by faculty and administration. If he comes back and takes the field at a home game, though, he'll get the largest cheer for him he's ever heard. I'd drive the 5 hours it would take to see that."

Reade did not let get to finish his sophomore year in the usual way, much less graduate.† He did not let Duke down; Duke let Reade (and Collin and David) down.

"Reade is a smart one to not come back."

He (and Collin) never should have been indicted or suspended.†

"Yes Reade's outtake was heartfelt--but he did not talk about his mother and her Mother's Day being ruined--that was dave. He was the only one who graduated on mother's day."

"Apologies for mixing up Dave and Reade. I was making dinner after signing off and realized I goofed. Anyway, I am impressed by both of them."

Each of the Duke Three is impressive.

"All three young men were powerful in the outtakes. Reade and Dave seem angry - and should be. For some reason, my heart really goes out to Collin. He seems sad, frightened, and the most vulnerable. Having a son near their ages, it is heartbreaking to watch them speak."

All of them are sad, frightened, vulnerable and...innocent.

"Each of them helped himself and his co-defendants.

"David was angry AND contrite, with reason to be each.

"Reade was still shocked that the sky fell on him, and that showed him as innocent.

"Collin was NOT angry, and obviously innocent. That was best of all."

That's my opinion.

"†I thought Collin seemed very vulnerable too. He seems sweet and still shocked by the whole situation. Reade was very confident and well-spoken. Dave was exactly the way he was when he made his first statement - completely open and honest. It was good to hear from them but it caused a bit of a heartbreak for me too. Especially Collin. He really got to me."

Collin really got to lots of viewers, I believe.† Better late than never.

"Collin's already been convicted in one trial where he believed (and many think the evidence showed) he was innocent and yet the judge cut off his prime defense witness in mid-sentence and then imposed a harsh sentence (apparently more to suit the political needs of the prosecutor than those of justice)--see the discussion about this on the open discussion boards here--

http://z10.invisionfree.com/FODU_Open_Board/index.php?showtopic=6

With that experience, plus what has happened in Durham, what sort of confidence can he be expected to show in the judicial system?"

Collin should have been acquitted in the D.C. case.† His indictment in the Duke case not only resulted in the D.C. trial, but kept him off the stand there.† So Collin did not get to "get to" the judge or the public and the D.C. judge was blind to ample reasonable doubt.† The judge knows that failure of a defendant to testify is not supposed to be held against a defendant, but the judge was all too human.

The "60 Minutes" expose afforded each of the Duke Three an opportunity to dispel terrible misconceptions about him largely and maliciously created as a result of the Duke case and each of them did so.

Hopefully, enough Durham County voters watched.

MAKE MIKE NIFONG SHRIEK--VOTE LEWIS CHEEK!

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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