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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 27, 2006
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Dismiss D. A. Nifong and Duke President Brodhead

"Three Likely Innocent Young Men Have Been Accused of Ghastly Crime by D.A. Nifong": a headline that has NOT yet appeared in a North Carolina newspaper.

IT SHOULD!

Durham County voters, especially Black Durham County voters, need to know that Durham County District Attorney Michael B. Nifong is unfit to practice law, much less be a fair and impartial minister of justice, which is what a North Carolina district attorney is required to be.

Unfortunately, much of what North Carolina journalist and television commentator Cash Michaels has said about the Duke case is not widely known and the legal implications of his comments are not appreciated.

On October 19, Mr. Michaels posted these (and other) words at Talkleft.com and abc11.tv.com:

"Two months ago...I joined several other journalists in confirming that there was no evidence released so far proving that a rape and kidnapping occurred."

North Carolina has an open discovery rule in criminal prosecutions and prosecutors (and their prosecutions) suffer if they withhold evidence in discovery.

"I went after Nifong and the Durham PD for what clearly seems to be inappropriate police procedures in this case, including lying about the medical report in a probable cause affidavit...."

Lying is a particularly dangerous trait in a district attorney,

"Prof. James Coleman, a man I certainly respect, gave...the anti-Nifong perspective, which clearly was justified."

Absolutely!

"...so far there is no known evidence beyond the accuser's version of events (pick one) that proves beyond a reasonable doubt that a rape and kidnapping occurred. Indeed my piece opens by saying the 60 Min piece slammed that point home. I also added that CBS reinforced indications that DA Nifong knew he had a weak case in the beginning, but exploited it anyway to win the black vote for the May primary."

All true!

"... the case...I certainly agree is limp wristed at best...."

A limp wristed case is not fit for prosecution, and a district attorney who prosecutes one is not fit for his office.

There are "many contradictions, falsehoods and questions about the process...." in the Duke case.

The prosecution is a persecution.

In his latest "Cash in the Apple" piece, Mr. Michaels stated:

"Now don't get me wrong — there are very serious questions about not only what kind of evidence Durham District Attorney Mike Nifong has to prove that a rape and kidnapping actually occurred, but of Durham police investigators fudging the facts and screwing up a photo ID lineups of the lacrosse team. Durham authorities have so messed this case up, in addition to the tawdry history of the alleged victim, that I don't blame anybody for not knowing which way is up...."

That's an acknowledgement that Mr. Nifong's case is weak. But , it also is an insinuation that Mr. Nifong is not wicked and the case should proceed to trial so that the truth can be ascertained (even though Mr. Nifong has behaved wickedly and there is not nearly enough evidence to have warranted indictments, much less to permit convictions).

"Fudging," "screwing up" and "messing this case up" are understatements.

A reader or a listener could reasonably infer from those words that there really is great merit to the Duke case (instead of NO merit), so the authorities stretched (instead of committed perjury); undermined the case in their understandable zeal (instead of fabricated a case by ignoring evidence of innocence, such as the co-captains offering to take polygraph tests and Reade Seligmann's attorney urging Mr. Nifong to consider Reade's alibi evidence), violating constitutional rights (like the "probable cause" requirement for a search); and misrepresenting facts to the grand jury (example: Mr. Nifong still insists there was a rape, but abandoned Crystal Gail Mangum's claim that it lasted 30-minute, cutting the time to five minutes, ten minutes tops, to keep Reade in the case).

"Three Likely Innocent Young Men Have Been Accused of Ghastly Crime by D.A. Nifong" should appear on the front page of the Durham newspapers before Election Day 2006.

Last August The Wilmington Journal (part of the Black PressUSA Network) published an article by Mr. Michaels under the title "Should Blacks Trust D.A. Nifong?"

Mr. Michaels reported: "[T]he Durham Committee on the Affairs of Black People – the powerful grassroots political organization that did not endorse Nifong for election last May – will be faced with a tough choice. For the November general election, will the Committee now endorse Nifong, recommend that voters cast a ballot for one of two opposing write-in candidates (one a Republican, the other an attorney whose name will be on the ballot, but has vowed not to take office if elected), or not issue an endorsement at all, sending a very strong signal, as it did last spring, that African-Americans shouldn’t totally trust this District Attorney?"

Mr. Michaels then reported that the answer then was unknowable: "Because it is still too early for candidates’ forums and endorsement meetings, no one with the Committee can answer that question. But one thing is for sure – if Mike Nifong plans to convince the African-American community that he has the evidence to convict in the Duke alleged rape case, he has no choice but to come to the community, interview with the Committee during its candidates forum, and make his case for election to a constituency that never had strong faith in his commitment to the investigation from the start."

The Committee subsequently endorsed Mr. Nifong and other Democrats running for other offices.

Does THAT mean that Blacks should trust Mr. Nifong (or that the Committee is constitutionally incapable of taking an action that would be likely to result in a person other than Mr. Nifong prosecuting the Duke case)?

Graham Marlette, a Black Durhamite, not only rightly answered no to whether Blacks should trust Mr. Nifong, but persuasively explained why:

"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?"

In pursuing the Duke case, Mr. Nifong ALREADY did that--to the cabbie who drove Reade Seligmann after he left that infamous lacrosse team party on March 14.   The cabbie's real "crime" was being a very credible alibi witness.  Mr. Nifong tried to discredit him as a defense witness by having him convicted on a bogus charge.  A Durham jury said: "NO!"   On Election Day 2006, Durham County voters also should tell Mr. Nifong "No!"

The Black vote may be decisive.   A recent poll by The News & Observer indicates that pandering works with many, but , fortunately, not all.

Professor Robert K.C. Johnson: "The N&O poll found Nifong’s support from black voters at 62%, to 9% for Cheek, with the rest undecided. Nifong might have, as [Duke Law Professor] James Coleman told 60 Minutes, pandered to the black community—but the N&O numbers suggest his pandering found a receptive audience."

In the May 1, 2006 issue of Newsweek, it was reported that Collin Hall, a Black 22-year old attending the same college as the accuser (North Carolina Central State), wanted prosecution "whether it happened or not," as "justice for things that happened in the past."

It appears that he is not alone in that hateful attitude.

God help the students at NCCS if they are taught that such a thing is "justice."

And God help Durhamites with whom pandering works.

Mr. Nifong needs to be dismissed as soon as possible, and so does the President of Duke University, Richard Brodhead.  Like Durham County, North Carolina District Attorney Michael Nifong, Mr. Brodhead has been astonishingly abusive.   

Anyone planning to donate to Duke University should notify the Chairman of the Board of Trustees of Duke University that President Richard Brodhead must be replaced before the donation will be made. 

On October 25, Jason Trumpbour, Friends of Duke University spokesperson, posted on the TalkLeft.com website a refutation of a claim by a Duke University official that Duke University has been supportive of the members of the 2006 Men's Lacrosse Team!

Mr. Trumpbour's post should be circulated as widely as possible.  There is a question as to whether the second exception set forth below was fairly described, but none as the other two exceptions.

Mr. Trumpbour:

"....I am posting here for the first time because the assertion made by Brodhead’s assistant that the Duke administration has been 'in regular contact with them and their families and offering considerable support' is so absolutely outrageous that I believe you should know the facts.

"Brodhead and the rest of the administration have had no contact with any of the lacrosse players or their families whatsoever with the following three exceptions:

1. Brodhead talked to Devon Sherwood’s family and apologized for what they were going through. Devon is African American.

2. One of the families of a player who was not charged ran into Brodhead at a reception following the dedication of a facility at Duke Medical Center. Brodhead was very cold and uncaring toward them. One of the trustees joined them and was supportive of the lacrosse players. The trustee asked them how to get lacrosse wristbands and he indicated he wanted to get enough for a lacrosse team at the university where he teaches. As Brodhead watched silently, the family members gave him one of their own wristbands, and he put it on immediately. At this point, apparently, Brodhead walked away.

3. Col[l]in Finnerty’s parents contacted Brodhead to ask for permission to transfer credits from other colleges. Both Col[l]in and Reade Seligmann are taking classes this semester at colleges near their homes. However, Duke will not let them transfer more than two courses so they are unable to keep up with their studies while suspended unless they get permission to transfer more.

Col[l]in was supposed to do study abroad this semester, but Duke cancelled that. Brodhead refused to meet with them despite several requests. Finally, the person in charge of the annual giving program told Brodhead that, unless he agreed to see the Finnerties, he would resign. Only then did Brodhead agree to meet them. In the meeting, Brodhead remained intransigent and he and Mrs. Finnerty got into terrible argument. The Finnerties walked out because Brodhead started insulting them.

"There has not been a single note, card or other expression of kindness from anyone in the Duke administration to any of the three accused students.

"By contrast, I received an e-mail from someone close to Reade Seligmann who told me that, the same day Duke suspended Reade, an Ivy League athletic department official called him to tell him how much they believed in him and wanted him to come to their university and play lacrosse. The people there had recruited him out of high school, two years prior, remembered what a great person he was. They that much confidence in him."

Under Mr. Broadhead, Duke University has grossly mistreated Reade Seligmann and Collin Finnerty.  (David Evans graduated before he was indicted, so he was not subject to suspension.)

Duke's suspensions of Reade and Collin were not only unwarranted in the circumstances, but highly prejudicial.

Duke set aside the presumption of innocence and instead presumed guilt.

Some say that since the criminal justice system presumed them to be guilt,  Duke properly did the same.

But, (1) the criminal justice system did not determine that either Reade or Collin was a danger to the community, or else they would not have been released on bail, and (2) the presumption of innocence does not disappear upon indictment.

The indictments of Reade and Collin hardly justified their suspension.

On September 19, Liestoppers effectively explained in an article titled "Enabling the Hoax" why Duke treating the indictments as cause to suspend Reade and Collin was grossly unfair. 

Excerpts:

What happened in the Grand Jury?

So what exactly did the grand jury hear? What caused the grand jury to bring the indictments? Even after the lack of evidence became apparent, we continued to hear from the former DAs turned Talking Heads: “The grand jury indicted, so Nifong must have something!”

The spin continued after Nifong went silent, as the cadre of former DAs, such as Pam Bondi, Nancy Grace, Georgia Goslee, and Wendy Murphy came to the rescue of their brother in arms.

“Oblivious to the fact that police, forensic experts, prosecutors, AND a grand jury comprised of citizens, all agreed that charges should be brought, angry pundits rant on and on about how the charges must be bogus because of politics, race and/or who the victim is and how she lives her life.” - Wendy Murphy

Unfortunately, we will never know what was said in the grand jury room. Astonishingly, North Carolina grand juries do not keep transcripts of witnesses’ testimony, with the exception of specially convened grand juries in drug trafficking cases. Grand jury Proceedings

Defense Attorney Joe Cheshire gave us insight on April 17 on CNN on what most likely happened in that Grand Jury room.

"ZAHN: When you say it's impossible that that rape might have happened, are you suggesting that the DA is making up something here?

CHESHIRE: I'm not saying -- well, you know, you can indict a ham sandwich in North Carolina, Paula. There's no record of what goes on in a grand jury. There's -- there's no tape recording, no court reporter. There are no rules of evidence. Two sides are not put on. The only thing that happens is, a police officer goes in, in front of the grand jury and says, these are the facts. They're not always the true facts. And grand jurors indict 99.9 percent of the time. So, the fact that they have a grand -- a grand jury indictment means absolutely nothing in the process here.

And I'm not saying at all that the prosecutor is making anything up. The prosecutor has said he believes this accuser. Well, that's his right, to believe the accuser. But the facts, as I understand them -- and we have worked in this case very hard and very long. And we know much about this young lady. We know much about the timeline. And, as I have said all along, as all the other lawyers and all the boys have said, no rape happened in that house.”

CNN Transcript April 17

Prosecutorial misconduct

As prosecutorial misconduct has become a bigger issue across the United States, in recent decades reform has entered the grand jury system, but not in North Carolina. Contrast North Carolina to California, where a transcript of grand jury proceeding is not only required but has to be released to the defendant [Woverbeck]. Furthermore, in California, "if the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence [Find Law CA Codes]." In the Federal Courts, recording of grand jury proceedings were made mandatory in 1979, and most states followed suit [Grand Jury].

Who were the witneses?

What took place in the Grand Jury room? By statute, only the witnesses can be present in the grand jury room. Neither the prosecutor or the defense attorneys can be in the room. The only clue as to what took place is the true bill of indictment, which is signed by the grand jury Foreman. The bills of indictment state that the only witnesses before the Durham County Grand Jury were Sergeant Gottlieb and Officer Himan. News & Observer

What did Gottlieb and Himan say to the Grand Jury? Did they talk about Kim’s “crock” statement, or other exculpatory evidence? Did they mention there were no DNA matches? Did they tell the Grand Jury that the accuser gave multiple inconsistent versions of the story? Absent further lawsuits being filed in this case, we will never know, since the Grand Jurors are sworn to secrecy. But since the presentation of exculpatory evidence was not required, we can guess.

The Deliberations

So how diligent was the Durham County Grand Jury on the day Reade Seligmann and Collin Finnerty were indicted?

"Eighty-one indictments were returned by the secret jury but none of the cases presented were rejected by the court. The indictments are under seal, so it's not yet known whether there are more charges in the Duke case or if that specific case was among the 24 that were "carried forward" to be heard at a later date." Fox News

What possible deliberations on those cases could have happened? How could the Grand Jury have enough time to carefully weigh each case, look for probable cause, and debate the issues? The Grand Jury did what it was asked to do: issue indictments and allow Nifong to bypass the possibility of a probable cause hearing.

Summary

If Nifong hadn't gone to the Grand Jury to get indictments directly, the evidence could have been presented in a probable cause hearing. Defense attorneys could have questioned the results of the SANE exam, lack of DNA matches, and conflicting statements by the accuser. The light of day could have been shed on this Hoax. DA Nifong could have been exposed as an emperor with no clothes.

In our research of this issue we discovered that both District Attorneys and defense attorneys in North Carolina are choosing the option of grand jury indictments frequently, thus bypassing the probable cause hearings. However, grand jury procedures have not been changed to reflect what is actually happening in North Carolina. With knowledge that on the day Seligmann and Finnerty were indicted, the Grand Jury returned 81 indictments, it is apparent to us that it was impossible for the Grand Jury to make meaningful determinations of probable cause in that amount of time. Without the safeguard of transcripts to insure accurate testimony and without the requirement for the exculpatory evidence to be presented, the Grand Jurors have no data to challenge the veracity of the witnesses (who are usually the investigators). The door to prosecutorial misconduct is wide open.

The North Carolina Legislature needs to address the reform of the grand jury. The Legislature could start with the mandatory recording of grand jury proceedings, and proceed to requiring the prosecutor to present the exculpatory evidence if the prosecutor is aware of it. This case could have turned out differently if DA Nifong knew recordings would be made of his two star police witnesses, and exculpatory evidence had to be presented. We believe this case could have ended after a brief investigation.

The fact that the Duke defendants were indicted is no more probative of their guilt than the sworn affidavits in the various search warrants. At least we can read the preposterous and unsubstantiated assertions in the search warrants, while we guess at the tale the Grand Jury was told.

All true!

Without probative evidence of guilt, Duke's suspensions of Reade and Collin obviously are egregious abuses of discretion.

Reade and Collins are victims of false charges, prosecutorial abuse and Duke abuse!

It's now obvious that there is no probative evidence of guilt and there IS overwhelming evidence of innocence.

Yet the suspensions have not been rescinded and Duke has refused to help Reade and Collin stay on track to graduate from Duke in four years.

It's not surprising that Mr. Brodhead dreaded meeting Collin's parents.

It's also not surprising that a desire to avoid the embarrassment of having the person in charge of Duke's annual giving program resign induced Mr. Brodhead to change his mind.

It's not surprising that Mrs. Finnerty was greatly offended by Mr. Brodhead's stubborn refusal to make it possible for Collin to keep up with his studies by taking more than two courses at a college near his home for which Duke would give him credit.

It's not even surprising that Mr. Brodhead insulted Collin's parents.

What IS surprising is that Mr. Brodhead has not been removed from office.

That situation should be remedied without delay.

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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