After the October 27 court conference in the Duke case, an anonymous poster at Brooklyn College Professor Robert K.C. Johnson's website, obviously and rightly disgusted with Durham County, North Carolina District Attorney Michael B. Nifong, all but called Mr. Nifong a Know Nothing:
"Nifong doesn't know what the defense's statutory discovery obligations are; he doesn't know the restrictions on his own conduct imposed by the State Bar's ethics rule; he doesn't know what's in his own case files; he doesn't have time to read defense motions or review defense evidence; he hasn't spoken to the Accuser or the Accused (despite being the lead investigator on the case) -- is there anything this man DOES know?? Every time I think he can't possibly do or say anything more foolish than he's already said and done, he proves me wrong."
The opportunity that the phony gang rape claim that became the Duke case offered to Mr. Nifong--the ability to snatch victory from the jaws of defeat, barely, in a Democrat district attorney primary by targeting three young white Yankees from wealthy families and posing as champion of a local black woman--induced Mr. Nifong to be a Know Nothing.
Ideally, Mr. Nifong's victims (targets) had to be (1) white, (2) Yankee and (3) wealthy.
Reade Seligmann, Collin Finnerty and David Evans did not match the descriptions that Crystal Gail Mangum gave to Detective Himan, but they sure fit Mr. Nifong's bill.
Wikipedia: "The origin of the "Know Nothing" term was in the semi-secret organization of the [American Republican] party. When a member was asked about its activities, he was supposed to reply 'I know nothing.'"
Mr. Nifong did not want to know that even ONE of the Duke Three really is innocent, much less that ALL of them are and their accused (Crystal Gail Mangum) had cried rape falsely.
Since the beginning of the twentieth century, Know Nothing has been used to describe a person who is both nativist and ignorant.
Mr. Nifong is a North Carolina native purporting to champion a (Black) North Carolina native against "foreigners."
In the nineteenth century, Democrats would revile Republicans a Know Nothing to win Catholic votes.
Know Nothing is an apt term for a man persecuting white Duke lacrosse players from the North in order to appeal to local Blacks.
An emailer of mine, also disgusted with Mr. Nifong, discerned that Mr. Nifong is willfully blind!
"You are a lawyer so I am sure you know that some defense lawyers tell their clients not to tell them if the clients are guilty. So the lawyer can put them on the stand without knowingly eliciting perjured statements.
"It seems to me that Nifong is doing something similar. He is being willfully blind to the case so he doesn't have direct knowledge that it is false.
"Like Admiral Nelson putting a telescope up to his blind eye and saying 'I see no ships'. True statement, but not an honest one.
"While this is allowed for a defense attorney,... this is not ethical behavior for a prosecutor, whose first duty is to the truth."
The emailer is absolutely right.
Mr. Nifong figured that willful blindness was the best strategy for him, politically and personally.
When the co-captains of the 2006 Duke Men's Lacrosse Team offered to take polygraph tests, did Mr. Nifong accept their offers?
His excuse: he preferred DNA tests.
But the DNA tests did NOT implicate ANY of the white team members!
So he had the Duke Three indicted anyway!
Under North Carolina law, a district attorney is obligated to be a fair and impartial minister of justice.
Kirk Osborn, Reade Seligmann's attorney, urged Mr. Nifong to consider evidence of Reade's innocence BEFORE seeking to indict him.
What prosecutor in America will come forward and say that refusing to do so was RIGHT?
What lawyer will say so?
It was so obviously wrong that a lawyer who pretends that it was right should be sanctioned for engaging in conduct prejudicial to the administration of justice.
Professor Johnson attended the October 27 court conference and reported that Mr. Nifong embarrassed himself, by making a false accusation that the defense had not met its discovery obligations after the defense complained that he had not complied with his:
"... attempting to rebuff defense objections that he had been slow in turning over evidence that Open Discovery required him to produce, the D.A. complained that he had filed a request for reciprocal discovery over five months ago, and had never heard anything back from the defense.
"That claim, of course, was demonstrably untrue: he received a notice of alibi defense, coupled with a description of the exculpatory evidence, from Reade Seligmann's attorneys almost immediately after he obtained an indictment against Seligmann. After being reminded of this fact in court today, Nifong admitted that he had, in fact, received this information. To my knowledge, he still hasn't amended his previous statement that he has never read the motion containing this evidence."
Worse, as Professor Johnson appreciated, was Mr. Nifong's attempted justification for not considering evidence of innocence:
"Perhaps the single most bizarre item from today’s court hearing came when Nifong attempted to rationalize his refusal to consider exculpatory evidence from the defense, despite the requirement under Rule 3.8, comment 2, of the bar’s ethics code. He complained that his refusal had been 'widely' (and, apparently, erroneously) reported.
"The justification for his actions, claimed he: the offers formed part of a defense plot to force his removal from the case by making him a witness. For this reason, 'any prosecutor with any sense' wouldn’t talk to suspects and take statements from them.
"Joe Cheshire got up to correct the record. He reported that he had asked Nifong to meet with Dave Evans’ lawyers—not to interview or take a statement from Evans—so that the attorneys could, as they were entitled to do under 3.8, comment 2, to get exculpatory evidence. 'Other than a very rude response,' Cheshire noted, Nifong never responded to his offer.
"In one of the hearing’s better lines, Kirk Osborn termed it 'rather stunning' to have Nifong 'piously' stand up and defend his refusal to meet when Osborn offered to present him exculpatory evidence. As he noted, Nifong’s assertions in court today meant that the DA, who doubled as the case's lead investigator, had refused to talk to the accuser about the case or the accused’s lawyers about evidence that would prove their innocence. That’s quite a record for Durham County’s 'minister of justice.'"
With Election Day 2006 coming soon, Durham County voters have the opportunity to reject Mr. Nifong and people who know that he is a scoundrel have an obligation to make it known.
Plenty of people were predisposed to believe Ms. Mangum initially. Likewise, plenty of other people were predisposed NOT to believe her. Given people's different backgrounds and experiences, that's to be expected.
Some people will exploit the Duke case to increase racial tensions. That's to be expected too. Some of them are white. Some of them are black. These people are opportunists and haters.
Those people who want colorblind justice will put aside their predispositions and follow the evidence.
If the DNA tests had implicated a single lacrosse player, then we would "know" that at least one player had raped Ms. Mangum and fair-minded persons would make allowances for inconsistencies in her recollections and look forward to a trial of that player and suitable punishment if a jury convicted him.
If Ms. Mangum had taken and passed a polygraph test and the Duke Three had not agreed to take a polygraph test, I'd look forward to a trial instead of dismissal
BUT, (1) the DNA tests did not implicate any lacrosse player, (2) each of the Duke Three passed a polygraph test and (3) Ms. Mangum did not take a polygraph test.
Moreover, some journalists and lawyers not participating in the case have gained access to what Mr. Nifong has produced in discovery (and more), and they realize that there was not enough evidence to justify the indictments, much less continued prosecution and conviction under the "beyond a reasonable doubt" standard.
As noted above, Mr. Nifong opted to be willfully blind and to keep the Duke case going at least past Election Day 2006.
In email discussion of the Duke case with a passionate person who has accessed Nifong production, I have been pleased to receive further confirmation that there is no evidence of guilt, yet disappointed that the person nevertheless believes there there should be a trial to determine that and that Judge Smith cannot dismiss the case "if he wants to maintain his credibility."
Me quoting the estimable 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."
Response: "No one in the Black, or white communities, knew in the beginning that the District Attorney did not have what he said he had. No 'pass' was given. As Susannah Meadows of Newsweek Magazine said at Duke this past week, the world thought that the district attorney was telling the truth and knew what he was talking about."
Me: "Right! He didn't have it. He perpetrated a fraud and manipulated voters. It wasn't there to have."
Response: "But in the beginning, no one knew that...."
SO RESPONDER CONCEDED THAT (1) MR. NIFONG DID NOT HAVE "IT" ("WHAT HE SAID HE HAD,' THAT IS EVIDENCE OF GUILT), AND THAT (2) MR. NIFONG 'PERPETRATED A FRAUD AND MANIPULATED VOTERS, AND THAT (3) EVIDENCE OF GUILT "WASN'T THERE TO HAVE."
I don't blame Responder, a non-lawyer, for heeding erroneous legal advice, but Responder should let the people of Durham County know (1), (2) and (3) directly.
Durham County voters should dismiss Mr. Nifong from office this November and the court should dismiss the Duke case, because the Duke Three's constitutional rights to due process and equal protection of the law have been violated.
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.