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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 13, 2006
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Topic category:  Other/General

Duke Case: Chiding Ms. Sutton, Good; Moving to Dismiss, Better!

It is good news that Joseph B. Cheshire, Esq. was inspired by comments of Kerry Sutton, to write a guest column for The Herald-Sun.

When any of the Duke Three (or their lawyers) speak up for the Duke Three, I count it as a good thing.

What Mr. Cheshire wrote was very good.

Mr. Cheshire: "As David Evans' attorney, I feel it is my duty to respond to comments attributed to Kerry Sutton in your Nov. 9 article about Mike Nifong's election and its connection to the Duke lacrosse case."

It surely is!

Mr. Cheshire: "First, while your article associated Sutton with Evans' defense, and while she did render substantial assistance to us in the logistics of Evans' surrender, Sutton does not represent Evans, nor is she authorized to speak for him or on his behalf."

Thank God!

Mr. Cheshire: "Secondly, while Sutton appears on one hand to rightfully question District Attorney Mike Nifong's handling of this case, her comment that 'he had the right to take the stance he did, and he is just doing his job' is misplaced."

NOT misplaced. Mr. Nifong did NOT have "the right to take the stance he did" and, in doing what he did, he was NOT doing his job, being a fair and impartial minister of justice.

Mr. Cheshire: "I understand the need for lawyers whose livelihood and clients' fates are often governed by the whim of the elected district attorney to remain as close as possible to that DA no matter what he does."

The key words are "as possible." An ethical lawyer will not kowtow to a rogue prosecutor.

Mr. Cheshire: "But it must be noted that Nifong's only 'right' and 'job' as a prosecutor in this or any other case is to satisfy his oath to see that justice is done. He has no right to take over the role of lead investigator from the police and then refuse to view exculpatory evidence, or to order an illegal and improper photo lineup procedure, or to make factually baseless public statements that pander to race, gender and class during an election cycle."

AMEN! Mr. Nifong did something far more grievous that exceeding his prosecutorial authority, however. He ABUSED his prosecutorial authority for personal and political reasonsby flagrantly violation the constitutional rights of the Duke Three to due process and equal protection, thereby injuring each of them irreparably. He was not too zealous in pursuing people who actually committed heinous crimes; he tried to railroad people who had NOT committed heinous crimes. Does anyone believe he would have done what he did to the Duke Three if they were black instead of white, whether their accuser was black or white? The Duke Three's "crimes" were being in the wrong place at the wrong time and partying while white.

Mr. Cheshire: "Justice is not done in any criminal prosecution when a DA who assumes the role of chief factual investigator and does not bother to talk with the chief prosecuting witness about her allegations to assess her credibility, and instead lets forth a stream of pure speculation about the 'facts' of the case to conform to the evolving investigation: speculation that, in fact, contradicts materials in his own case file and sworn statements made by his own investigators and assistants in the investigation. Those actions are hardly a prosecutor's 'right' or 'job' as defined by his oath."

Mr. Cheshire has a gift for understatement. Mr. Nifong did worse that not do justice; he perverted the criminal justice system to do injustice.

Mr. Cheshire: "Sutton also takes exception to the people from around the country who have taken an interest in this case, who include the parents of the scores of young men whose lives have been unalterably affected by the ongoing miscarriage of justice in this case. These people are victims of Nifong's actions in the same way that the people of Durham are, and their interest in this case is just as real and proper."

Would Ms. Sutton have complained that Dr. Martin Luther King did not stay in Atlanta, or that Jesse Jackson left Chicago, or AlSharpton left the New York metropolitan area? I doubt it. Every American is entitled to take an interest when the criminal justice system is perverted.

Mr. Cheshire: "This case is not business as usual in the criminal justice system. That much is clear to any objective viewer."

It better NOT be business at usual!

Mr. Cheshire: "It is an important case to all of the people of this state who are the possible subjects of criminal investigation and who believe that the charging authorities, whom they trust to uphold their oath, will see that justice is done."

It is an important case to everyone who wants justice to be done.

That said, I am delighted that Mr. Cheshire did not let Ms. Sutton's wicked words pass without public challenge.

Like Mr. Cheshire. "I understand the need for lawyers whose livelihood and clients' fates are often governed by the whim of the elected district attorney to remain as close as possible to that DA no matter what he does."

But a local lawyer who takes a case remains duty-bound to represent his or her client zealously.

In the Duke case, that means filing grievances with respect to prosecutorial misconduct when the facts warrant it.

It also means making a pre-trial motion to dismiss when the facts warrant it, no matter how outraged a prosecutor will be.

North Carolina General Statutes Section 15A-954(a)(4) states: "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."

The Duke Three's constitutional rights to due process and equal protection rights were flagrantly violated and the Duke Three have been irreparably prejudiced: but for the violations, they would not have been indicted.

The procedure used to pick the Duke Three as defendants (personally ordered by Mr. Nifong) was a travesty. .But for the tainted identification, none of the Duke Three would have been indicted.

Mr. Cheshire's client, David Evans, led the way for the Duke Three. Although he was the last to be indicted, he was the first to take and pass a polygraph test and the first to publicly proclaim his innocence (and the innocence of his co-defendants too).

If white people have a right to equal protection under the Fourteenth Amendment, then the Duke Three's right to equal protection was violated.

If lacrosse players have a right to due process under the Fourteenth Amendment, then the Duke Three's right to due process was violated.

The defense has the evidence that shows how the Duke Three came to be identified. Mr. Nifong and their accuser (Crystal Gail Mangum), it shames. The innocence of the Duke Three, it proclaims.

Most voters did not vote for Mr. Nifong, but he won because the anti-Nifong vote was split and the egomaniacal Steve Monks would not quit.

So Mr. Nifong will be in office through 2010, unless he dies or becomes disabled or is removed from office.

The grievances against Mr. Nifong have been put aside pending the outcome of the Duke case.

So the defense needs to pull the trigger on an irresistible pretrial motion to dismiss.

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,,, and 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

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Copyright 2006 by Michael J. Gaynor
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