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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 18, 2006
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Topic category:  Other/General

Duke Case: The Truth About A Pre-trial Motion to Dismiss

Having urged a pre-trial motion to dismiss the indictments in the Duke case, I am delighted that Michael F. McCusker, aka NDLAX 84, Notre Dame lacrosse player/United States Marine/experienced trial lawyer, recently urged it too.

I also am disappointed that some are saying it's "simply not possible" or it should not be made because it "would be denied," because (1) it IS possible, (2) it SHOULD be granted and (3) it would further expose in a major way the egregious prosecutorial abuse that resulted in the Duke case and has kept it going without damaging the defense (since there is no prosecutorial goodwill to lose).

I thought Mr. McCusker might have been too hard on the defense lawyers (something of which I have been accused by their apologists) when he wrote: "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."

I prefer to believe that the defense attorneys are not letting their own financial interest affect their legal strategy, subconsciously, and I have no reason to believe that any one is doing so consciously

I hope that the defense attorneys are preparing an irresistible pre-trial motion to dismiss, because I believe that there is a well-founded pre-trial motion to dismiss that can and should be made and should be granted.

Of course, I also think that the motion should be made when it is most likely to be granted, and that is AFTER (1) the "60 Minutes" expose, (2) Election Day 2006 and (3) completion of the prosecution's production during discovery. 

"Photios" posted the following message at the Talk Left website:

"Michael F. McCuscker has a long analysis of Smith at the NDLax84 site: (put accuser's first name in the blank)

"PS. I note that McCusker does (like Michael Gaynor) call on the defense to move for dismissal, though I believe we have several times been told by legal experts here that that simply is not possible, at least not prior to the prosecution presenting its case at trial. Smith could, however, EFFECTIVELY dispose of the case in the ways noted by KC Johnson as quoted above."

I don't know what "legal experts" have said a pre-trial motion to dismiss "simply is not possible."

I DO know that there is a North Carolina statute that explicitly provides for pre-trial motions to dismiss indictments:

"§ 15A?954.  Motion to dismiss – Grounds applicable to all criminal pleadings; dismissal of proceedings upon death of defendant.
      (a)       The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:
      (1)       The statute alleged to have been violated is unconstitutional on its face or as applied to the defendant.
      (2)       The statute of limitations has run.
      (3)       The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.
      (4)       The 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.
      (5)       The defendant has previously been placed in jeopardy of the same offense.
      (6)       The defendant has previously been charged with the same offense in another North Carolina court of competent jurisdiction, and the criminal pleading charging the offense is still pending and valid.
      (7)       An issue of fact or law essential to a successful prosecution has been previously adjudicated in favor of the defendant in  a prior action between the parties.
      (8)       The court has no jurisdiction of the offense charged.
      (9)       The defendant has been granted immunity by law from prosecution.
      (10)     The pleading fails to charge an offense as provided in G.S.  15A?924(e).
            (b)       Upon suggestion to the court that the defendant has died, the court upon determining that the defendant is dead must dismiss the charges.
            (c)       A motion to dismiss for the reasons set out in subsection (a) may be made at any time. (1973, c. 1286, s. 1.)"

North Carolina General Statutes 15A-954(a)(4) 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,." and North Carolina General Statutes 15A-954(c) permits such a motion "at any time."

Who doubts that the Duke defense team can show that the Duke Three's constitutional rights to due process and equal protection have been flagrantly violated?

Did you note  the way North Carolina General Statutes 15A-954(a)(1) is worded?

"The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that: (1)The statute alleged to have been violated is unconstitutional on its face or as applied to the defendant."

There is unconstitutional on its face and there is unconstitutional as applied to the defendant.

The Fourteenth Amendment to the United States Constitution requires each State (North Carolina is a State) to respect the constitutional rights of persons to due process of law and equal protection of the laws

The constitutional rights of the Duke Three to due process of law and equal protection of the laws surely were grossly deficient as applied and therefore "constitutional rights" of each of them were  "flagrantly violated." 

The Duke Three are guilty of "parting while white" (which is not legally recognizable as a crime, thanks to the equal protection clause) and their due process rights were trampled in order to prosecute three white lacrosse players.



But that's a reason to move to dismiss, not a reason NOT to move to dismiss.

The remaining statutory requirement is "such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."

North Carolina's highest court explained what that means in dismissing a DUI charge in North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

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 (and every other North Carolina trial judge) is obligated to follow the rule in the Duke case (and any other case before him).

That means, upon motion, Judge Smith should determine that the manner in which each of the Duke Three came to be identified was flagrantly unconstitutional and it cannot be said that they were not irreparably prejudiced under the circumstances, so the indictments against them must be dismissed.

A motion to dismiss would relate and/or recite what accuser Crystal Gail Mangum did and said with respect to her gang rape claim, including her many versions of what happened, her inability to identify anyone and finally her identification of the Duke Three after Durham County, North Carolina District Attorney Michael B. Nifong concocted an identification procedure that defied the due process requirement.

All or virtually all of the material that was submitted in the grievances against Mr. Nifong (which are not public and action on which has been deferred pending resolution of the Duke case) would be includible in public documents.

"Newport" posted this observation at Talkleft::

"Problem is  two of the three defense teams have filed no motions to suppress the lineups.  Problem is two of the three defense teams have filed no motion to suppress the March 23 ID order and its fruits.  Problem is that the one motion filed by the one defendant is not very thorough. 

"It seems to me that the lawyers should be filing the briefs of their lives on suppressing the ID order for the use of false affidavits.  They should be filing the brief of their lives on the suppression of the lineups.  That ID order is highly vulnerable, and the lineup is beyond vulnerable, yet we have seen no comprehensive motion attacking them.  I think Liestoppers did a much more thorough job awhile back on the false affidavits. 

"Now, it may be that these lawyers know that the judge is not going to decide anything for many months - this is my personal belief as well - and that is why they have yet to file anything.  Why give Nifong more time to gin up some response, not that he would do it anyway.

"He sure as hell isn't going to decide anything on December 15, except to decide when the next hearing date will be.  He might then move the case into the 7th 'setting' or whatever it is that the call their system in NC.

"I guess I don't understand why they can't get a hearing on these motions before next February."

God save the Duke Three from timidity! 

First it was said that Reade Seligmann and Collin Finnerty better not proclaim their innocence publicly or else they surely would same something that would be used to convict them.

Then it was said that David Evans' public proclamation of his (and their) innocence was a fluke, and another public statement would be too dangerous.

Each of the Duke Three proved the naysayers wrong when they spoke with there late Ed Bradley of "60 Minutes" (and the outtakes were as good or better than what was broadcast).

Now someone is saying better not to move to dismiss because the Judge might not decide the motion quickly and Mr. Nifong would be able to read the motion papers and do his worst.


In order for the truth to prevail, it needs to be made public. 

As Oliver Wendell Holmes said: "Truth is tough.  It will not break, like a bubble, at a touch; nay, you may kick it about all day like a football, and it will be round and full at evening."

"Tony Soprano" at Talkleft:

"I enjoy reading NDLax - and he comes up with some great stuff.   Again, the questions he raises loom large. 

"I must say Newport's been commenting on the half-hearted motions, or lack of motions, for sometime now.    Newport points out that Liestoppers attacked these points - specifically the false affidavits.   

"Further, when you add into the mix the statements coming from Megyn Kendall (FOX), that Defense attorneys have acknowledged to her, off the record, that they'd lose this motion or they don't think there's any chance of getting the case thrown out, etc.  -  it's troubling.   

"What was the defense attorney, that told her that, thinking?   When someone in the Press brings up the Subject of the False affidavits or the Lineup-Setup - Megyn Kendall rushes in and quashs the entire conversation by saying the Defense attorneys have told her that they don't think that will happen or there's any hope for that motion or they don't expect to win that one.   

"It's devastating from a Public relation's standpoint - the Defense benefits tremendously by the public discussion of these failings by Nifong and lackey's  - however, the entire discussion is undercut by defeatist statements made by those paid to defend the Players!"

IF the defense lawyers in the Duke case really are allergic to a pre-trial motion to dismiss, it is a monumental problem, because the chance that there will be a hung jury, and then another hung jury. and then a third hung jury (as there was in the criminal prosecution of John Gotti, Jr. here in New York) is significant. NOT because a fair-minded juror free from fear might conclude that guilt had been proven beyond a reasonable doubt, but because jury nullification to convict is a genuine possibility and voting to acquit would be an act of courage, especially for a member of Durham's Black community.

When Judge Stephens or Judge Titus would have decided the motion, a motion to dismiss was unwise, because they would have denied it. 

But Judge Smith is not Judge Stephens or Judge Titus.  Judge Titus lifted the unconstitutional gag order issued by Judge Titus on his own initiative (after the North Carolina NAACP indicated it wanted one).  And Judge Titus denied Mr. Nifong's motion challenging the defense polling of a few hundred potential jurors.  

Given all that has happened, the defense should give Judge Smith a chance to dismiss the case before trial (and further discredit Mr. Nifong and Ms. Mangum by stating the facts in the motion papers). 

If the defense is waiting for an answer to one or two questions that ideally should be answered before the pre-trial motion to dismiss is filed, then they have a plausible reason to delay, but not indefinitely.

If  a pre-trial motion to dismiss "simply is not possible" is what they say, Then that is false and the Duke Three supporters should be filled with dismay.

If a pre-trial motion to dismiss would be more hurtful than helpful is their take, Then they desperately need to rethink their position, for the Duke Three's sake.

If there is a reluctance to put Mr. Nifong (figuratively) on the rack, Then the Duke Three's parents should get their money back.

Defense attorney Cheshire took Kerry Sutton to task for currying Mr. Nifong's favor, and rightly so.

A pre-trial motion to dismiss that will set forth flagrant constitutional violations in the Duke case is the right way to go.

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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