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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:  November 2, 2006
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Topic category:  Other/General

D.A. Nifong, Ruthless; Ruth Sheehan, Repentant

A recent anonymous poster at the Friends of Duke University website took The News & Observer's Ruth Sheehan to task for her initial faith in the gang rape claim and her insistence that members of the lacrosse team knew what happened and were covering up for teammates.

On October 28, an anonymous poster at the Friends of Duke University website took The News & Observer's Ruth Sheehan to task for her initial faith in the gang rape claim and her insistence that members of the lacrosse team knew what happened and were covering up for teammates.

Patterned on an early article on the Duke case by Ms. Sheehan excoriating the members of the 2006 Duke Men's Lacrosse Team, the anonymous poster deftly turned the tables on Ms. Sheehanl:

"Ruth, Your Silence is Sickening

"Ruth. You Know.

"We know you know.

"Whatever happened in the DA’s Office had gone terribly bad, you know who was involved. Many down at the Newsobserver do, same with Ashley’s rag, the Herald-Sun,"

"And you need to come forward and tell the public."

But, rape victims like Ms. Sheehan and Susan Estrich were predisposed to believe and each of them eventually realized that there was no rape.

Ms. Sheehan has been trying to make amends (UNlike Durham County, North Carolina District Attorney Michael D. Nifong, who shamelessly, but skillfully, exploited the situation from the start for personal and political reasons and is still doing so).

On October 29, on her blog at The News & Observer, Ruth Sheehan wrote

"For a look at the Duke case from another perspective, check out the columns of Michael Gaynor on the Renew America website. The 'grassroots' group, according to the site, is devoted to 'one unifying premise: America must return to its founding principles if it is to survive.'"

The next day Ms. Sheehan wrote a column of her: "Turning the tide in Durham."

When it comes to the Durham County District Attorney's race, Ms. Sheehan and I have the same perspective now:

Ms. Sheehan: "To most of us, the Duke lacrosse case is such a disaster that Durham District Attorney Mike Nifong, up for re-election, should be preparing for a trouncing."

ABSOLUTELY!

Ms. Sheehan: "But not, apparently, in Durham."

Unfortunately, true.

Mr. Sheehan then explained some reasons why.

First, Ms. Sheehan noted that the anti-Nifong vote is being divided by Republican candidate Steve Monks (who garnered 2% in The News & Observer poll, one fourteenth of Lewis Cheek's 28%.

Ms. Sheehan to Mr. Minks: "It's not too late to bow out, Steve. Don't be the spoiler."

Early voting already started, but the sooner Mr. Monks drops out and endorses Mr. Cheek, the better.

Second, Ms. Sheehan reported:

"Two of the most influential political groups in the county, the People's Alliance and the Durham Committee on the Affairs of Black People, have endorsed Nifong -- with no reference to his handling of the Duke lacrosse case, mind you.

"The Alliance endorsement cites Nifong's quarter-century in the prosecutor's office. A spokeswoman for the Durham Committee told the Durham paper her group was focused on quality-of-life issues in its endorsements."

In endorsing Mr. Nifong, those groups shame themselves. They may as well be frank and say: "Nifong is an out-of-control prosecutor, but he's OUR out-of-control prosecutor!"

Ms. Sheehan:

"Why would these two groups choose Nifong over Cheek?

"In part, I'm sure, there is a hesitance to surrender votes to a candidate (Cheek) who hasn't campaigned and will not serve, forcing the governor to come in and appoint. (Ahem, just like he appointed Nifong.)

"But also, in a strange way, Nifong has become a symbol of Durham to the nation. And in Durham, as in most dysfunctional families, it may be OK to holler and throw lamps at one another within the family, but let an outsider criticize and, honey, watch out."

Do the Nifong supporters (overwhelmingly Democrat) really believed that Democrat Governor Michael Easley would not made a better choice for Durham County District Attorney if he has another chance?

Do the Nifong supporters fail to appreciate that their district attorney is required to be a fair and impartial minister of justice and Mr. Nifong used the opportunity presented to him by accuser Crystal Gail Mangum to snatch victory from defeat in the primary last May by publicly pandering to black voters and pathetically choosing not to accept polygraph offers from the lacrosse team co-captains, not to consider evidence of innocence before seeking indictments, not to talk with Ms. Mangum about the "merits" (much less to give HER a polygraph test), not to stand by his initial position to rely on DNA test results and not to follow the local, state and federal requirements with respect to identification, to list a few of Mr. Nifong's worst prosecutorial abuses?

Ms. Sheehan: "Durhamites are tired of seeing their city mischaracterized and maligned."

IF Mr. Nifong IS elected, what will THAT say about Durham?

Ms. Sheehan:

"Whether halfway across the country or a half-hour up the road, we outsiders might be appalled at Nifong's handling of the Duke lacrosse case, but on this one, Durham voters are in the driver's seat."

Yest. They have the right and responsibility to remove Nifong from office.

Ms. Sheehan:

"At a rare news conference (since he shifted from blabbermouth Mike to mute Mike), Nifong noted that 'this case remains a Durham problem, and it demands a Durham solution."'

"Too true."

Mr. Nifong is a Durham problem demanding a Durham solution.

Ms. Sheehan:

"I just hope the voters of Durham understand that the general election is not, in fact, a referendum on their loyalty to Durham. In many ways, it is not even a referendum on Nifong.

"Much as they might wish it were otherwise, this DA's race is a referendum on the Duke lacrosse case.

"If Nifong wins, how can he do anything but take this case to trial?

"That is what's so scary.

"At this paper, and in this column, my colleagues and I have written plenty about prosecutors with tunnel vision, who press forward with flawed cases at any cost.

"Here's a chance for voters to say, 'Not here. Not in Durham.' Durham voters can set this case before new eyes.

"If only they would."

THEY SHOULD! For Durham's sake as well as the sakes of the Duke Three and their families and friends.

BUT, even if Nifong is elected, the Duke case need not go to trial.

It can and should be dismissed.

Until North Carolina adopts such a statute permitting dismissal 'in the interests of justice" (like New York, for example), North Carolina courts cannot entertain motions to dismiss “in the interests of justice.”

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.

To the Duke case, Judge Smith should say "Goodbye!"

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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