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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 17, 2006
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Topic category:  Other/General

Duke Case: Move to Dismiss NOW

British Prime Minister William Gladstone (1809-1898) was right: "Justice delayed, is justice denied."

Michael F. McCusker, aka NDLAX84 ( seems to suspect that the defense attorneys in the Duke case have not yet moved to dismiss because it is more lucrative for them to try the case: "Naturally, defense counsel must move for dismissal. It is disturbing that they have not yet done so. I don't profess to know their motives. I do know, from two decades of civil and criminal litigation practice, that, as surgeons make less money referring their patient candidates to physical therapy than by, um, actually performing surgery, criminal defense attorneys typically make less money forcing disposition by way of motion than they do trying cases."

If Duke case defense counsel decided to wait to move to dismiss until after discovery and the district attorney election, in order to make the most powerful motion to dismiss possible at a time when politics is less likely to complicate it, I commend them for that decision.

I also commend the defense for ungagging the Duke Three to be interviewed by the late Ed Bradley for the "60 Minutes" expose on the Duke case and to undo some of the damage in the courtroom of public opinion resulting from their prior general silence (a standard defense trial strategy that worked for Durham County, North Carolina District Attorney Michael D. Nifong and against the Duke Three in the courtroom of public opinion for months).

That general silence had been so detrimental that this message was posted on July 14 at the Friends of Duke University website: "To Collin's family: stop hiding him in the attic. IF he is innocent of all the charges let him hold his head high and face the courts and the cameras and the judges and proclaim to the world who he is. Time to grow up and face the charges like a man — even though you probably are guilty of nothing you need to jump off the speeding train or at least change tracks before they railroad you right into the BIG HOUSE."

The Duke Three came forward, and it was Mr. Nifong who didn't talk much about his collapsed Duke case.

A powerful motion to dismiss could have been made months ago, but judges are human and it would have been reasonable to decide to hold off on bringing a  motion to dismiss until "60 Minutes" had broadcast its expose (October 15), the Duke Three had prevailed overwhelmingly in the courtroom of public opinion.(they have) and the Durham County, North Carolina District Attorney election was held (November 7).


The North Carolina Criminal Procedure Act mandates that, on motion, the court "must dismiss the charges stated in a criminal pleading 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."

There is no need to wait for trial if the two requirements are met.

Mr. McCusker agrees with me that the flagrant violation of constitutional rights requirement is easily met.

Brooklyn College Professor Robert K.C. 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.'"

If that is not a flagrant violation of the constitutional right to due process, what is?

The prosecutor's argument that Ms. Mangum would have an independent basis for identifying would fail, under the "fruit of the poisoned tree" doctrine.

Mr. McCusker worries about the irreparable prejudice prong or the two-prong dismissal test: "This second requisite is what will make the Wannabelievers  bang their pots and shout, 'But they have the best defense team money can buy! Even if their constitutional rights were flagrantly violated, surely they have not been irreparably prejudiced in the preparation of their case.' Stand up to the Wannabelievers, Oz. Tell them to sit down and shut up."

All Judge Osmond Smith needs to do is check out how higher North Carolina courts have construed the irreparable prejudice requirement.

The irreparable prejudice requirement was held to have been met by a majority of the judges of North Carolina’s highest court, in North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), a case that involved a charge of unlawfully operating a motor vehicle on a public street while under the influence of intoxicating liquor.

The opinions in the case make it quite clear that the defendant actually was intoxicated.  As a dissenting judge put it: “Upon the facts in this record his guilt is so obvious that reasonable men, women or children could not arrive at a different conclusion.”

BUT, as that same dissenting judge declared, “defendant’s constitutional right to counsel was violated by an arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice.”

SO, the majority ruled that the defendant’s prosecution had to be dismissed, because the majority (unlike the two dissenting judges) could not say that there was not “irreparable prejudice”:   “Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and credibility of the State’s witnesses as well as the certitude of their tests.  Even if the assumption be true in this case, it will not always be so.  However, the rule we now formulate will be uniformly applicable hereafter.  It may well be that here ‘the criminal is to go free because the constable blundered.’…Notwithstanding, when an officer’s blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence does not exist….Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime.  For that reason the prosecution against him must be dismissed.”

North Carolina's highest court declared that "the rule we now formulate will be uniformly applicable hereafter."

That means Judge Smith is obligated to follow the rule.

Stuart Taylor, America's top legal commentator:

“I...think that any judge governed by law…would throw the case out based on the following two-step ruling:

“That would be the end of the case, since Nifong has nothing but [Ms. Mangum]’s rigged ID to point to who did it even if she was raped (which of course she was not)."

Surely the Duke case “must be dismissed” upon motion for an even more flagrant violation of the Duke Three’s constitutional rights that was WORSE than a blunder: the prosecutorial misconduct of “minister of justice” Nifong.

Brooklyn College Professor Robert K.C. Johnson explained that as a result of the April 4 photo-ID process, in the words of the North Carolina statute, the Duke Three's "constitutional rights have been flagrantly violated

“This was an instance in which a district attorney, with nearly $30,000 of his own money riding on a victory in the primary, instructed the police to violate their own procedures, in a massive way.

“The results of this massively flawed procedure on 4-4--quite apart from the IDs of the three people ultimate charged:

“The whole result, quite apart from the IDs of the three ultimately charged, is a textbook case of how flawed procedures beget flawed results.”

In the Duke case, Mr. Nifong is the equivalent of the "arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice” in North Carolina v. Hill.   

But for the flagrant constitutional violations, none of the Duke Three would have been picked for indictment.

Obviously they were irreparably prejudiced by those constitutional violations.

The defense can set forth in detail from documents obtained in discovery how Crystal Gail Mangum's gang rape claim changed repeatedly and how she never identified anyone as her attacker, despite ample opportunities, until Mr. Nifong

Mr. Musker urged Judge Smith not to wait for a motion to dismiss before deciding the motion to suppress submitted on May 1: "The ID Suppression motion begs to be decided. Now. Will you succumb to the oppressive coercion of the, um, 'special interests?' Will you play Stephens? And Titus? And Pontius Pilate? Will you let this travesty ooze inexorably into the New Year? Will you blame inaction on the busy Holiday season? Will you remember Reade, and Collin, and Dave, and their families as this 'Thanksgiving' and Christmas near? Will you actually do something of substance on or before December 15th? Will you cast yourself in the mold of the brave, and truly "Honorable," James E. Horton? Or will you continue to underwhelm? You've got to move, Oz. It is time. Time to define your place in history. Have you the brain, the heart, the courage?"

I doubt that Mr. McCusker's phrasing will motivate Judge Smith to decide the motion to suppress, but I agree that Judge Smith should grant the motion, and thereby invite a motion to dismiss. 

I note that on September 22 Judge Smith lifted the unconstitutional gag order issued by Judge Titus on his own initiative on July 17, thereby facilitating the "60 Minutes" expose.

With or without a decision on the motion to suppress, however, the Duke case defense should give Judge Smith the opportunity to dismiss as against each of the Duke Three by moving for dismissal...NOW!

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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