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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 26, 2006
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Topic category:  Other/General

Duke Case: Dismiss DA and Case

As a result of the travesty of justice that is called the Duke case (including the investigation by the Durham Police Department and the Durham County, North Carolina District Attorney’s Office of the perhaps initially plausible, but actually phony, gang rape claim of Crystal Gail Mangum, the indictment of each of the Duke Three on kidnapping, rape and sexual assault charges and the pursuit of those charges in both the courtroom of public opinion and the North Carolina court) and the eventual availability of the prosecution’s “evidence” and information about Ms. Mangum, the Duke Three and Durham County District Attorney Michael D. Nifong, it is apparent to those paying attention that four dismissals are in order:

(1) Mr. Nifong should be dismissed as District Attorney by the Durham County voters, who fortuitously have the opportunity to do so on November 7, effective at yearend.

(2) Mr. Nifong should be dismissed from the North Carolina bar for egregious prosecutorial abuse.

(3) The Duke case should be dismissed upon Mr. Nifong’s motion, on the ground that the indictments were improperly requested and improvidently issued.

(4) IF the Duke case is tried, it should be dismissed at the close of the prosecution’s case for lack of sufficient evidence to support a guilty verdict on any count against any defendant.

North Carolina has an open discovery law.  A prosecutor cannot reasonably expect to conceal evidence of guilt during discovery and then use it at trial.  A prosecutor may be tempted to conceal evidence of innocence, but not evidence of innocence.  A prosecutor need not provide to the defense his or her theory of the case before trial, but “theory” and “spin” are not evidence or an acceptable substitute for evidence.

North Carolina journalist and television commentator Cash Michaels is black.  Initially, he portrayed Ms. Mangum favorably.   Eventually, he gained access to what the prosecution produced in discovery and he was surprised that it did not include evidence to support conviction.  

In a post on the abc11TV.com message board on October 23, Mr. Michaels responded to criticism of his criticism of the “60 Minutes” expose of the Duke case as unfair (even though exposes are responses to perceived unfairness and not expected to cover everything or to  afford equal time to each viewpoint).  He insisted that he had not endorsed the view that Mr. Nifong is secreting evidence of guilt that will constitute a legitimate basis for conviction (a good thing, since that view is absurd, as lawyers readily appreciate). Mr. Michaels:

“Prof. Irv Joyner [who is monitoring the Duke case for the North Carolina NAACP] and atty Al McSurely suggested in my 60 Min. story that the DA hasn't shown his full deck by way of evidence. Folks immediately jumped on me saying I was promoting this viewpoint.

”Wrong, so wrong. I was reporting this viewpoint, this perspective, if you will, because that's what I'm supposed to do.

“I just got off the phone with Prof. Joyner because even a member of the defense team wrote me with his objections. Strangely enough, his objections actually backed up what Joyner was originally saying. [My note: Mr. Michaels did not specify the objections or explain why he reached his conclusion about them, a conclusion that seems utterly wrong to me.]

“While state law mandates that all facts, physical evidence, reports, notes and everything else material be handed over to the defense, Joyner made clear that the prosecution's case (we're speaking generically here) is much, much more than that.

“His ‘theory’ of the case, based on his or the investigating officers' interpretation of the evidence, facts and /or crime scene/or sequence of events, is NOT discoverable under the law. In effect, the prosecutor's ‘spin’ on the same set of discovery is totally his province, and that's rarely written down.

“Therefore, the defense has no right to it under North Carolina law, according to Prof. Joyner.

“How does he know? Because he recently had a case involving police officers that was appealed to the NC Court of Appeals, and they made that point clear in their 3-0 opinion. [My note: That’s right.  But “theory” is not evidence.}

“How do I know?

“Because at the Sept. 22 hearing, as you'll recall, Nifong advised the court that, based on the evidence, he has a new theory on how the rape occurred. Instead of the original 30 minutes, he's now saying the window was really 5-10 minutes.

“The defense told the judge, ‘We want a copy of the state's theory.’

“Judge replied (not literally of course), ‘You're not entitled to it. Get lost!’

“Now many of you are saying ‘BS,’ but Joyner warns that the law allows Nifong to make a horse race of this thing at trial just based on that exception. He has to convince a jury of his spin, his interpretation of the evidence. [My note: His “spin” is not evidence.]

Professor Joyner, Long Island University, Rutgers Law School,  author of a book on North Carolina criminal procedure.  He surely should appreciate that each and every element of a criminal offense must be proven beyond a reasonable doubt.  There must be supporting evidence.  Spin won’t do.  Smoke won’t do.  “Theory” won’t do.

Mr. Nifong can abandon the bill of goods he sold to a grand jury and argue that even though Ms. Mangum said that her rape took thirty minutes, it really took not more than ten minutes.  But that does not prove that ANYONE raped Ms. Mangum.  Mr. Nifong can rewrite his fable as often as he wants.  But, there was DNA testing and it did not implicate ANY Duke lacrosse player.  Whether Mr. Nifong claims the gang rape took place in one minute, or ten minutes, there is no one confirming the claim. Ms. Mangum has told many conflicting stories and Ms. Mangum’s criminal, medical, employment and sexual history make her unconvicining, much less convincing beyond a reasonable doubt.

Mr. Michaels himself described “the lack of evidence against the Duke Three” as “so compelling.”

EXACTLY!

When the lack of evidence of guilt is “so compelling,” prosecution is prosecutorial abuse, regardless of the colors of the complainant and the defendants.

Mr. Michaels opined: “depending on the makeup and mood of the jury, the defense knows the Nifong has an outside chance to sell whatever that theory is, and they don't want to take any chances, though they won't admit that publicly.”

Mr. Michaels has an excuse: he’s not a lawyer. 

Defense lawyers are bound to zealously defend their clients and not to take chances.

Before a criminal case goes to a jury (regardless of its makeup and mood), the defense routinely moves to dismiss based on insufficient evidence.

In the Duke case, that motion would deserve to be granted, no matter how Mr. Nifong may theorize or spin, because THERE IS NOT SUFFICIENT EVIDENCE TO PERMIT A JURY TO CONVICT.

As the North Carolina Court of Appeals stated in North Carolina v. Johnson, 161 N.C. App. 504, 588 S.E.2d 488 (2003):

(1) “’In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.’” [My note: There has to BE evidence and the inferences from evidence have to be reasonable.]

(2) “’The question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged…and (2) of defendant’s being the perpetrator of such offense.’”

(3) “’Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In a criminal case, that conclusion has to be beyond a reasonable doubt.

In the Duke case, such a conclusion would be based on wishful thinking, not evidence.

Mr. Michaels:

“Regarding the Duke case, as a reporter, I am limited as to what I can say and do. I have stated categorically for two months now that after an examination of the discovery evidence made available, there is virtually no incriminating evidence there, in my opinion, to convict anyone of rape or kidnapping.” [My note: you don’t have to be a lawyer to realize that there’s “virtually no incriminating evidence there.”]

“I have also reported that after reviewing the public record of what was said early on in the case by Nifong and the Durham PD, and what the records and notes from behind-the-scenes actually showed, the public wasn't being told the truth about the case. Why the Durham PD engaged in this is what I'd like the answer to.” [My note:  So would I.  But it’s not a good reason not to dismiss.]

“Why Nifong did seems apparent. There was a May primary he had to win at all costs because of his tremendous dislike of opponent Freda Black, who he forced to resign when he took over a year earlier.” [My note: Right on!  Vote Cheek!]

What is NOT apparent, perhaps, is that the Duke case should be dismissed BEFORE TRIAL, under North Carolina’s criminal procedure and well established principles of North Carolina law.

North Carolina is not New York (in this respect, unfortunately).  Since 1881, New York courts have been empowered to dismiss a criminal proceeding on their own motion, without prosecutorial approval.

Section 210.20 of the New York Criminal Procedure Law provides for indictments to be dismissed where “[d]ismissal is required in the interests of justice.”  (North Carolina, please take note.)

Section 210.40 states that “such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.”

Section 210.40: “In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(h) the impact of a dismissal on the safety or welfare of the community;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicated that a judgment of conviction would serve no useful purpose.”

There are many good reasons for dismissal of the Duke case “in the interests of justice”—from the lack of evidence of guilt and the evidence of innocence to “exceptionally serious misconduct of law enforcement personnel” to the need to restore public confidence in the criminal justice system undermined by a rogue prosecutor to Mr. Nifong rejecting offers to take a polygraph test, the Duke Three taking and passing polygraph tests anyway to Ms. Mangum NOT taking a polygraph test, as examples.

Until North Carolina adopts such a statute, North Carolina courts will not entertain motions to dismiss “in the interests of justice,” of course,

Fortunately, there IS a suitable ground for pre-trial dismissal under North Carolina’s Criminal Procedure Act.

North Carolina General Statutes Section 15A-954(a)(4): “The court on motion of the defendant must dismiss the charges stated in a criminal proceeding if it  determines that…[t]he defendant’s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.”

That happened in the Duke case: the defendants’ due process and equal protection rights were flagrantly violated and they have been irreparably prejudiced.

The Fourteenth Amendment provides; “No State…shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In North Carolina, that “irreparable prejudice”standard is not high.  Example: it was held to have been met by a majority of the judges of North Carolina’s highest court, in North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), a case that involved a charge of unlawfully operating a motor vehicle on a public street while under the influence of intoxicating liquor.

The opinions in the case make it quite clear that the defendant actually was intoxicated.  As a dissenting judge put it: “Upon the facts in this record his guilt is so obvious that reasonable men, women or children could not arrive at a different conclusion.”

BUT, as that same dissenting judge declared, “defendant’s constitutional right to counsel was violated by an arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice.”

SO, the majority ruled that the defendant’s prosecution had to be dismissed, because the majority (unlike the two dissenting judges) could not say that there was not “irreparable prejudice”:   “Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and crebility of the State’s witnesses as well as the certitude of their tests.  Even if the assumption be true in this case, it will not always be so.  However, the rule we now formulate will be uniformly applicable hereafter.  It may well be that here ‘the criminal is to go free because the constable blundered.’…Notwithstanding, when an officer’s blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence does not exist….Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime.  For that reason the prosecution against him must be dismissed.”

Surely the Duke case “must be dismissed” for an even more flagrant violation of the Duke Three’s constitutional rights that was WORSE than a blunder: the prosecutorial misconduct of “minister of justice” Nifong.

Stuart Taylor, Jr., America’s top legal commentator, Princeton College (and rugby team), Harvard Law School, Harvard Law Review, New York Times, Newsweek, National Journal, is writing a book on the Duke case.  He realized early that the gang rape claim was bogus and took a four-month sabattical from National Journal to investigate.

Buy Mr. Taylor’s book when it becomes available.

In the meantime, be assured that Mr. Taylor’s investigation has confirmed what he suspected.

Mr. Taylor:

“Judge Smith [the Duke case judge] has good grounds to dismiss.  After ‘60’ is finished, the case should be finished.  Given the record on how [Ms. Mangum] went about identifying and the fundamentally flawed identification, it can be excluded and any in-court identification can be excluded under the fruit-of-the-poison-tree doctrine.  No DNA, no confirming witness, a complainant who is not credible.  Justice is supposed to be color-blind in this respect.  Allowing the case to proceed is bad law and bad policy.

“As to me: I think that any decent DA probably should have dropped the case without indictments as soon as the DNA came back in early April, given the lack of any other real evidence. I also think that any decent DA who had not dropped the case then (perhaps because he wanted to await the private lab DNA results that came back in May) would have dropped it long before now. “I also think that any judge governed by law…would throw the case out based on the following two-step ruling:

(1) The April 4 photo-ID process was a flagrant effort to get [Ms. Mangum] to pick ANYONE for Nifong to indict, and so unreliable as to be a gross violation of the constitutional right to due process of law under Supreme Court precedents

(2) any inside-the-courtroom ID of the defendants by [Ms. Mangum] would clearly be a fruit of that poisonous tree (of course she's going to pick the same three) and thus [Ms. Mangum] should be prohibited from doing an in-court ID. This would be the only effective remedy for the constitutional violation and should thus be a mandatory remedy.

“That would be the end of the case, since Nifong has nothing but [Ms. Mangum]’s rigged ID to point to who did it even if she was raped (which of course she was not).

Brooklyn College Professor Robert K.C. Johnson, who has focused on the Duke case for months and exposed it as a hoax and Mr. Nifong as a scoundrel, eloquently explained that the April 4 photo-ID process was a deliberate and despicable denial of basic constitutional rights:

“This was an instance in which a district attorney, with nearly $30,000 of his own money riding on a victory in the primary, instructed the police to violate their own procedures, in a massive way.

• Five fillers per suspect? Nifong said no.

• A neutral officer rather than the lead investigator? Nifong said no.

• Telling the accuser that the suspects might or might not be in the array? Nifong said no.

• Following the rule not to run a second ID session after the first ID session had failed? Nifong said no.

• Making sure that all ‘suspects’ were included as even part of this tainted lineup, including the two non-lacrosse players police knew were at the party? Nifong said no.

“Without the lineup, of course, Nifong had not a scintilla of evidence against the three people he charged. (And with all due respect to Prof. Joyner, prosecutors can't indict on a ‘theory’ backed by no facts against specific individuals.) No indictments, no win in the primary, Freda Black is Durham's next DA.

“The results of this massively flawed procedure on 4-4--quite apart from the IDs of the three people ultimate charged:

• The accuser positively identifying two people who weren't even in Durham that night as attending the party.

• Her incorrectly identifying the person who made the broomstick comment.

• Her not recognizing three people she was 100% certain of having seen at the party on March 16.

• Her claiming to recognize nearly a dozen players that she said she didn't see at the party during the March 16 session.

“The whole result, quite apart from the IDs of the three ultimately charged, is a textbook case of how flawed procedures beget flawed results.”

North Carolina, by Mr. Nifong, has denied the Duke Three “equal protection.”  Their “crime” is not kidnapping, or rape, or sexual assault.  It is PWW (partying while white).  Mr. Nifong finally got three white men to prosecute at the instance of a local black woman (Ms. Mangum).  If the defendants were black, the indictments would have been dismissed upon Mr. Nifong’s motion long ago, if they ever were requested and issued.  If the defendants were black and their accuser was white, the North Carolina NAACP would not have needed to request a gag order, because Mr. Nifong never would have prosecuted the defendants.

Mr. Taylor’s conclusion: “[T]he UNITED STATES CONSTITUTION, which trumps NC law, is ample grounds for THE JUDGE TO BAR AN IN-COURT ID and then either dismiss the case or leave Nifong so naked in terms of admissible evidence that he would be forced to drop it.”

As Mr. Taylor explained, there is not necessarily only one poisonous tree:

“Any inside-the-courtroom ID would arguably be the fruit of a second poisonous tree as well.

“[One poisonous tree is] the unreliability of the April 4 rigged process as a (14th Amendment) due process violation.

“In addition, consider the following, which is a bit of a technicality but in this case could have especially strong fruit-of-the-poisonous tree implications as a legal matter because the ‘fruit’ doctrine is especially strong in the 4th Amendment context.

“The March 23 court order that the 46 white lacrosse players all pose for PHOTOS (as well as give DNA samples) on March 23 was probably (in my view) a violation of the 4th  Amendment ban on ‘unreasonable searches and seizures,’ including those without probable cause to believe both that (1) there has been a crime or (2) that the person to be searched was involved.

“Here, [Ms. Mangum] alone could provide probable cause that she had been raped. (The probable cause threshold is not very high.) But I doubt that there was probable cause--as defined by the most relevant constitutional precedents--to believe that, say, Collin Finnerty (or any other individual) had participated.

“To be clear: If I were Supreme Court, ‘probable cause’ would not be required for such orders to give over nontestimonial bodily evidence. But as a matter of contemporary 4th Amendmnt doctrine, I think it is required. See. Davis v. Mississippi, 394 U.S. 721, 727 (1969) (holding unconstitutional a detention without probable cause or a warrant for fingerprinting, even though that involves neither repeated harassment nor probing into private life and thoughts that often marks interrogation and search).

“If those photos were ordered in violation of the 4th Amendment, then their use at the April 4 ID session was a fruit of the poisonous tree.

“And that is the logic underlying Kirk Osborn's little-noted, not-yet-heard, May 1 ‘Motion to Suppress Non-Testimonial Photographs,’ which relied on NC Gen. Stat. section 15A-271 et seq as well as on the 4th Amendment. (Disclosure: I borrowed the above citation of Davis v. Mississippi citation--which I recall reading in law school in 1974--from Osborn's motion.)

“Again, to be clear: Had the 4/4 photo ID section been reliable, I don't think that most reasonable judges would suppress any courtroom ID as a ‘fruit’ on the ground that the photos had been unconstitutionally obtained. But if I were a judge looking to bolster a ruling grounded on due process and unreliability, I might use the arguable 4th Amendmnt violation as an alternative ground.

“By the way, like many of the leading Warren Court rulings expanding constitutional protections for criminal defendants, Davis v. Mississippi was driven in part by an effort to clamp down on law enforcement abuse of black people, especially in the South. Here is a summary of the facts:

’In connection with a rape investigation the Meridian, Mississippi, police, without warrants, brought numerous Negro youths to the police station for questioning and fingerprinting. Petitioner was thus questioned and fingerprinted, and released. Thereafter, concededly without a warrant or probable cause for arrest, the police drove petitioner to Jackson and confined him in jail overnight. After he was questioned and signed a statement, he was returned to Meridian and jailed. While so confined he was again fingerprinted and these prints were sent to the FBI for comparison with latent prints found in the victim's home. The fingerprint evidence was admitted at petitioner's trial for rape, over objection that it was the product of unlawful detention, and he was convicted. The Mississippi Supreme Court upheld the conviction.’

“The Supreme Court, unlike Nifong's supporters, is not into racial double-standards in criminal justice. So if precedents such as Davis are to be watered down or circumvented to get people such as the white defendants in the Duke case, the major effect will be effectively to declare open season, once again, on black kids like Davis.”

Mr. Taylor is right on the law and right on the facts, of course.

Durham’s own Graham Marlette, who is black, is righ too:

“Kudos to Ed Bradley and ‘60 Minutes’ for exposing the injustice of the rape allegations against the Duke lacrosse players. Distinguished law professor James Coleman is correct: Nifong played the race card to get elected, among his myriad transgressions, and any possible conviction would likely be overturned due to prosecutorial misconduct. Here is the dilemma for those who are seeking justice in this case: the accuser seems to have vanished. Nifong can drag this out as long as he wants, barring judicial intercession, and when the time for the trial arrives, the accuser might stay in hiding and refuse to testify. Then Nifong might say, ‘The victim is too traumatized. Sorry, boys, no witness, no trial.’ The indicted lacrosse players are then left to twist in the wind with no opportunity to ‘prove their innocence.’ The short-term solution is for Durham voters to (1) elect Lewis Cheek and (2) have the movers and shakers in the Democratic Party confer with Governor Easley and persuade him to appoint a responsible and responsive district attorney and (3) locate the accuser and have her either swear to testify or, better yet, recant her false allegations. The long-term solution must be punitive toward a public servant who has failed so miserably to serve the public. As Professor Coleman points out: since this prosecutor used his power so recklessly to indict well-to-do white students, what's to prevent him from going after a poor, innocent black man if it should suit his political agenda?”

One quibble: Mr. Mifong ALREADY went after a poor, innocent black man to suit his political agenda: the cabbie who drove Reade Seligmann and confirmed his alibi.

Make the conclusion: “what's to prevent him from going after MORE poor, innocent blacks if it should suit his political agenda?”

Step One: The Durham County voters dismiss Mr. Nifong as district attorney, on November 7.

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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