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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 30, 2006
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Topic category:  Other/General

Duke Case: Profs. Coleman and Johnson, Yes: Prof. Joyner, No

An anonymous poster at Brooklyn College Professor Robert K.C. Johnson's wonderful Durham-in -Wonderland website (www.pkblogs.com/durhamwonderland) provided these memorable Dr. Martin Luther King quotations:

"Injustice anywhere is a threat to justice everywhere."

"In the end, we will remember not the words of our enemies, but the silence of our friends."

"A right delayed is a right denied."

"He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it."

"The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict."

"The moral arc of the universe bends at the elbow of justice."

"The time is always right to do what is right."

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."

Agreed?

More Dr. King quotations:

"The first question which the priest and the Levite asked was: 'If I stop to help this man, what will happen to me?' But... the good Samaritan reversed the question: 'If I do not stop to help this man, what will happen to him?'"

"We will have to repent in this generation not merely for the vitriolic words and actions of the bad people, but for the appalling silence of the good people."

"Will we march only to the music of time, or will we, risking criticism and abuse, march to the soul-saving music of eternity?"

"We were all involved in the death of John Kennedy. We tolerated hate; we tolerated the sick stimulation of violence in all walks of life; and we tolerated the differential application of law, which said that a man's life was sacred only if we agreed with his views."

"[E]very human life is a reflection of divinity, and... every act of injustice mars and defaces the image of God in man."

Agreed?

You should : Dr. King was right about all that: criminal procedure should be colorblind, and what is right should be supported by all and done as soon as possible.

Sadly, the North Carolina NAACP has failed to meet the challenge posed by the Duke case, as Professor Johnson explained months ago.

Professor Johnson: "[The reaction of] Nifong enablers among the political and legal leadership of the African-American community..... has been startling, in at least three respects. First, the black political leadership has almost unanimously given a pass to Nifong’s transparently race-baiting tactics. Second, the state NAACP has adopted a series of positions on the Duke case that wholly contradict the criminal justice principles with which the organization long has been associated. Finally, the civil rights community—with the important exception of Duke Law professor James Coleman—has missed what could have been a golden opportunity to focus media attention on blatant prosecutorial misconduct and procedural irregularities, problems that disproportionately affect minorities."

Professor Johnson highlighted two especially mind-boggling examples of apparently race-determined inconsistency: (1) calling for a gag order to silence the accused and (2) failing to condemn the identification procedure:

"Gag order. The NAACP has a long tradition of defending freedom of speech.... during the Clinton years, the organization took a high-profile stance against the politically popular but civil liberties-unfriendly Feinstein/Kyl 'victims’ rights' constitutional amendment.... In an April 2000 letter sent to the Senate majority and minority leaders, the NAACP leadership [said ]....'we have grave concerns that the negative effects this amendment would have on the rights of the accused seeking a fair and impartial trial would outweigh the benefits it bestows upon victims.” "The organization’s record in the Duke case could not have differed more from these principles. In late May, Al McSurely, chair of the NAACP’s Legal Redress Committee, publicly stated the NAACP favored a gag order, which he euphemistically termed a 'quiet zone/let’s let justice work' motion. His justification, according to the Durham Herald-Sun, was that 'media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.' [emphasis added] McSurely e-mailed me to say that, in fact, a "quiet zone" request was filed, under the auspices of the Durham Conference on Moral Challenges, a group organized by the NAACP, but consisting of over 150 Durham Community leaders, did make such a request.

"***

"So, on the one hand, the NAACP has long defended free speech and courageously highlighted how the 'victims’ rights”'movement can threaten due process. But in the Duke case, the local NAACP has asserted that the 'legal rights to a fair trial” of the 'alleged victim' can trump the rights of the accused, and also justify preventing the accused from exercising their First Amendment rights to freedom of speech?"

Astonishingly, on July 17, Judge Kenneth Titus ignored the Constitution and quietly gagged all potential witnesses, even the Duke Three! (On September 22, his successor, Judge Osmond Smith quietly ungagged them, fortunately.)

Professor Johnson:

"Due Process and Suggestive Lineups. Working alongside the Innocence Project, the NAACP has been at the forefront of demanding greater procedural protections in eyewitness identifications. In late July, LDF Director-Counsel and President Shaw wrote, 'We at the Legal Defense Fund have become increasingly concerned about recent criminal cases where the conviction was based on unreliable evidence.' He pointed to the case of Ruben Cantu, who, Shaw lamented, 'was convicted solely on the basis of a questionable eyewitness identification given under pressure from police.' The LDF similarly fought against the use of procedurally irregular “unreliable eyewitness ID” in the case of Carlos DeLuna, who was convicted despite '(1) the absence of evidence linking him to the crime scene (despite a fierce struggle between the victim and assailant, there was no blood on DeLuna, his clothes or the money in his pocket; his fingerprints were not on the 8-inch buck knife the assailant left at the scene and didn’t match the few prints that were lifted at the scene), and (2) discrepancies in the eyewitnesses’ statements.' (Does that sound like any case in Durham lately?) Nor is this concern a new one: the LDF represented the defendant in the 1974 North Carolina v. Henderson, where the use of a procedurally flawed suggestive ID was a key element in the appeal.

"In the Duke case, the NAACP has been, to put it mildly, blasé about this issue—despite the fact that the Nifong lineup violated Durham procedures in at least four ways and reflected principles totally at odds with those of police departments and prosecutors elsewhere in North Carolina. Professor Joyner, the organization’s designated monitor for the case, recently commented, 'Based on case law from the U.S. Supreme Court and our North Carolina appellate courts, it is very easy for an identification procedure to pass constitutional muster and the written procedure which was adopted at some point by the Durham Police Department is not constitutionally required. Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities.' He specifically declined to condemn Nifong’s lineup. McSurely did the same, saying he didn't want to add to the public commentary on the case, and, in any case, 'Mr. Nifong is an experienced prosecutor, and he can defend his decisions before the Court."

"So, on the one hand, the NAACP has long fought against procedurally suspect eyewitness IDs, lest they produce a 'conviction . . . based on unreliable evidence.' But in the Duke case, the local NAACP has contended that despite Nifong having violated virtually every element of the Durham procedures and contradicted all relevant statewide trends, the jury should decide such procedural questions?"

Professor Joyner is right that not every flaw in an identification procedure is a constitutional violation.

In the Duke case, however, the identification procedure was SO flawed as to be a flagrant violation of the constitutional right of the Duke Three under the Fourteenth Amendment to both due process and equal protection of the law: Durham County, North Carolina Michael D. Nifong desperately wanted three young white members of the 2006 Duke Lacrosse Team to prosecute (that is, persecute in his capacity as district attorney) and Crystal Gail Mangum was tasked with picking out three from photos of all of the white team members

Professor Johnson:

"In June, Duke Professor of Law James Coleman, former (Democratic) chief counsel to the House Ethics Committee, told the N&O that 'up to now, virtually everything that Nifong has done has undermined public confidence in the case.' Coleman, a former member of North Carolina’s Actual Innocence Commission, singled out Nifong’s photo ID procedures for particular condemnation. After reviewing the photo ID transcript, Coleman noted, 'The officer was telling the witness that all are suspects, and say[ing], in effect, "Pick three." It’s so wrong; it had to be done for a reason other than identification.' He had no doubt 'that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so.”

And the defense would point out, in view of the what is now known about Ms. Mangum and her post-party behavior, especially her contradictory statements and prior failure to identify anyone as an attacker, that any such in-court identification by her would be "the fruit of a poisoned tree" and therefore constitutionally impermissible!

The Fourteenth Amendment guarantees criminal defendants both due process and equal protection.

The Duke Three have not had either.

Professor Johnson:

"To the recipient of the 1987 NAACP Legal Defense and Education Fund Pro Bono Award for contribution to enforcement of civil rights laws, this procedural record could lead to one, and only one, set of conclusions. For the case: 'Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case. Someone with professional detachment and unquestioned integrity must review the case and determine whether the evidence against the three students warrants further prosecution. That would serve the best interest of the alleged victim, the three defendants and public.' For the district attorney's character: “You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, "You’ve got to convict somebody?" To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice.'"

Professor Coleman is a wise man and not a hypocrite.

On April 19, in USA Today, in an article titled "N.C. Students hail Duke arrests," Dick Patrick reported some satisfaction with the arrests of Reade Seligmann and Collin Finnerty: "'Better late than never,' said NCCU junior Christopher Jackson of the grand jury indictments. 'I'm glad to hear that something is being done. The delay in action was a worry.

"'If they are guilty, I hope justice is served and doesn't go to the highest bidder. But we live in a capitalistic society, and everything has a price tag. This is a heck of a story (for the media). It's got race, sex, class."

It is disconcerting that Mr. Jackson apparently conditioned his hope for justice being serve on guilt.

Justice should be served whether the accused are guilty or innocent, or black or white.

Mr. Patrick noted Black concern that Durham County, North Carolina District Attorney Michael D. Nifong was proceeding too slowly: "Concerns were raised at a heated public forum last week on campus, where District Attorney Mike Nifong was peppered with questions about why no arrests had been made at that time."

Also reported: To his credit, NCCU Chancellor James Ammons "tried to take some emotion out of the matter" in this statement:

"In light of the indictments in the Duke lacrosse team case, we have to exercise patience as this situation unfolds. There are many sensitive issues surrounding the incident. Considering all the media scrutiny, this is a very intense time for the victim, NCCU, Duke University and the city of Durham. Our hearts continue to go out to the young lady as she goes through this process. We will continue to do everything we can to support her."

Unfortunately, Chancellor Ammons had jumped to the conclusion that Crystal Gail Mangum was "the victim."

That conclusion turned out to be wrong.

The Duke Three are the victims.

Mr. Patrick then reported that "Irving Joyner, an N.C. Central law professor, is monitoring the case as requested by the state chapter of the NAACP"; quoted him as saying "[i]t was important that arrests were made and more that it was explained why (additional) arrests weren't made"; noted that he " teaches criminal law, civil rights and race and the law"; and further quoted his as follows: "My assessment was that things are moving forward. We're now on track. And we'll just have to wait and see what happens next."

"Track" was a suitable word: the young men indicted in the Duke case were being railroaded.

Professor Joyner was a partner in the firm of Currie, Pugh & Joyner in Raleigh for five years before joining the faculty of North Carolina Central University School of Law where he serves as Associate Dean and Assistant Professor of Law. He is a member of the North Carolina State Bar, the North Carolina Association of Black Lawyers, and the Academy of Trial Lawyers. He received his J.D. from Rutgers University School of Law after graduating from Long Island University.

There's no dispute that Professor Joyner is a criminal law expert.

Description of Professor Joyner's book: "North Carolina Criminal Procedure, Third Edition is a comprehensive reference to the rules, statutes, and case law affecting criminal procedure in North Carolina. In one convenient volume, it covers every procedural aspect of the criminal case - from arrest to appeal. Through careful analysis of the case law, author Irving Joyner points out where North Carolina Appellate Court decisions conflict with holdings of the U.S. Supreme Court."

In the Duke case, the man monitoring for the North Carolina NAACP has spoken theoretically, apparently not been privy to the prosecution's evidence and asked how could Mr. Nifong possibly expect to win convictions.

Instead of evidence of guilt, the hard-pressed professor has offered the theoretical possibility that there is evidence of guilt not produced or required to be produced in discovery.

North Carolina has an open discovery law. And a prosecutor can't win a conviction by concealing evidence until trial. (He CAN be sanctioned and even disbarred for it though.)

After "60 Minutes" did a Duke case expose, North Carolina journalist and television commentator Cash Michaels (who is covering the Duke case for the Black press nationally) quoted Professor Joyner as follows:

(1) All of the admittedly weak evidence so far seen by the media "does not mean it is the only information prosecutors have available to them." There is a lot of evidence and witness testimony that is not reduced to writing."

BUT: nothing to change the DNA test results or the toxicology test results, or to eliminate the contradictions in Ms. Mangum's many versions of what happened, or to contradict the Duke Three's alibis; no one to confirm any of Ms. Mangum's versions; and no way to prove beyond a reasonable doubt that would did NOT happen happened. Not to mention the routine practice of writing down what IS important.

(2) The 60 Minutes piece "failed to present anything about the state's case, and that's the way it should have been."

IT WAS AN EXPOSE! IT'S POINT: MR. NIFONG DOES NOT HAVE A CASE AGAINST THE DUKE THREE!

(3) "I thought it was a pro-defense theme that sought to take a shot at Nifong, and possibly impact the election, more than anything else."

IT SHOULD HAVE DISCUSSED THE UPCOMING ELECTION, BUT IT DID NOT. IT DID NOT 'TAKE A SHOT"; IT SHOWED THAT MR. NIFONG DOES NOT HAVE A CASE.

(4) The jury pool "is already tainted and can't get any worse" in favor of the defense.

MR. NIFONG, DUTY-BOUND TO BE A FAIR AND IMPARTIAL MINISTER OF JUSTICE, BEGAN POISONING THE JURY POOL AT THE START. THE DEFENSE IS DUTY-BOUND TO GET THE RECORD STRAIGHT.

(5) By not revealing any negative background information about the Duke Three or Kim Roberts Pittman, “It was pretty clear that they wanted to present these kids as being pretty pure and without sin” despite evidence of excessive underage drinking and poor judgment the night of the party.

THERE IS NO BACKGROUND INFORMATION INDICATING THAT ANY OF THE DUKE THREE IS A RACIST OR A SEXUAL HARASSER, MUCH LESS A RAPIST! MOREOVER, "60 MINUTES" SHOWED PHOTOS OF THE STRIPPERS DOING THEIR ACT, SO IT WAS OBVIOUS THAT ANYONE AT THE PARTY WAS NOT SINLESS.

(6) “I’ve been practicing law long enough to know that what ends up in a report isn’t necessarily everything that’s there, “ he said, adding that, for instance, clarification of evidence or information in a criminal case is not required to be part of the discovery package mandated from the prosecution to the defense.

"CLARIFICATION" IS NOT A SUITABLE SUBSTITUTE FOR PROOF.

(7) “Just because the defense is slam-dunking during warm-ups, doesn’t mean a thing when the game starts.”

MR. NIFONG'S CASE IS NOT TRIAL-WORTHY. IT SHOULD BE DISMISSED, NOT TRIED.

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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