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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  November 20, 2006
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Topic category:  Other/General

Duke Case: Jury Nullification Nonsense

Shadee Malaklou is a Duke senior with a double major in women studies and cultural anthropology.

Ms. Malaklou boldly challenged Joseph B. Cheshire, a distinguished lawyer representing one of the Duke Three, in a guest column on the Duke case published in The Herald-Sununder thetitle "Lacrosse players far from innocent" on November 19.

Ms. Malaklou's "thinking" demonstrates the danger that jury nullification will hang the Duke case if it is tried instead of dismissed.

Ms. Malaklou, now of the Wonderland that is Durham, North Carolina, islike Humpty Dumpty inAlice's Wonderland: she blithely misuses words likeangry, innocentand inaccuracy to promote her warped view.

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all."

Ms. Malaklou would be master of many words. Examples: her insistence that Mr. Cheshire used "angry words"; her chargethat the Duke Three are not "innocent"; and her description of the problems with Mr. Nifong's investigation in the Duke case as "inaccuracies."

Perhaps Ms. Malaklouwould benefit from takinga psychology course in her last semester at Duke and studying "projection." She appearsto be angry, not innocent and inaccurate.

Ms. Malaklou: "Joseph B. Cheshire's Nov. 11 angry words did not go unnoticed. For every smug remark by a smug, white attorney representing a smug, white lacrosse player, there is a woman cringing. This time, that woman was me."

I'd say that Ms. Malaklou is the smug, or highly self-satisfied, one.

What did Mr. Cheshire write?

"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."

"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."

"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."

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

"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."

"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." Mr. Cheshire's wordsstrike me assad or disappointed, not angry.

As for Ms. Malaklou claiming to havecringed when she read Mr. Cheshire's letter, it's very hard to believe. Cringe: "to shrink in fear or servility"; "to behave in an excessively humble or servile way."

Mr. Malaklou: "Not only was Cheshire's guest column unprofessional, but it was also completely insensitive to the multitudes of women who have been victim, in one way or another, to the lacrosse players' actions."

Mr. Cheshire is a professional. Apparently Ms. Malaklou does not recognize a criminal defense lawyer doing his job professionally. Nor, apparently, does she realize that Mr. Cheshire's letter was written as a response to a controversial comment by another attorney who previously had represented his client David Evans, NOT as a history of "the lacrosse players' actions" (which Ms. Malakloumeanly maligned with the broadest of brushes).

Ms. Malaklou: "By now, most members of the Duke, Durham, and (thanks to CNN, Newsweek, and 60 Minutes) national community are acutely aware of the inaccuracies of District Attorney Mike Nifong's investigation of the Duke lacrosse case. Cheshire's guest column only acted as a reminder, albeit an unneeded one. After all, how could be forget the desperate situation of these young men? Indeed, although we have been allowed to--encouraged to--forget their racism and misogyny, we have not been allowed to get their innocence."

"[I]naccuracies"? Mr. Nifong is guilty of egregious prosecutorial abuse. Such understatement is pathetic.

The Duke Three, racists and misogynists? Is there any evidence for that conclusion, Ms. Malaklou?Kim Roberts Pittman said that none of the Duke Three made a racist remark. Other than Crystal Gail Mangum (whose difficulty with identification and lack of credibility have been discussed at length), no woman has come forward claiming that any of the Duke Three mistreated her, much less is a rapist or a misogynist. Do you have any evidence to support your charge, or are you just a reckless character assassin?

Ms. Malaklou: "Much of the emphasis on this 'innocence' has ignored the gender and racial prejudice of the March 13 party. If nothing else, Nifong is holding the lacrosse players accountable for that, and as a woman at Duke who knows just how much these men get away with, I'm thankful."

THAT'S THE DANGER!

Ms. Malaklou really is "thankful" that a prosecutor is misusing his power to punish the Duke Three for alleged gender and racial prejudice by prosecuting them on bogus rape, kidnapping and sexual assault charges.

There ARE people who would use the criminal justice system to punish sexism and.or racism real or imagined, regardless of the facts and the law, to serve a supposedly "higher purpose."

The men's lacrosse team had a party with female strippers, and the women's lacrosse team had a party with male strippers. I don't approve of either. I wouldn't call it progress for the women's team, but to the politically correct, it may well be viewed as "good."Regardless,such parties are not illegal in Durham and no bogus charges should be trumped up as a result of them.

Ms. Malaklou: "Perhaps that's Cheshire problem--he's got a woman, and he doesn't have the fear of rape. A rape may not have occurred on March 13, but as a woman on Duke's campus, as a woman's studies major and as an activist for survivors of sexual assault, I assure Mr. Cheshire that these men are not innocent, not are they upstanding citizens of Duke or Durham law."

Unfortunately, Ms. Malaklou is a shameless defamer. Fortunately, Ms. Malaklou does not get to decide whether the Duke Three should be convicted or acquitted.

Ms. Malaklou: "As unethical as it is for Nifong to 'take over the role of lead investigator from the police and then refuse to view exculpatory evidence,' it is just as unethical for Cheshire to present his defendant, David Evans, or his lacrosse friends as innocent victims."

When it comes to rape, kidnapping and sexual assault, each of the members of the 2006 Duke University Men's Lacrosse Team is innocent. When it comes to representing Mr. Evans, Mr. Cheshire has done so ethically. When it comes to the law and legal ethics, Ms. Malaklou is woefully ignorant.

Mr. Malaklou: "If things went the 'right' and 'just' way, as Cheshire argues they should have, the lacrosse players would be quickly excused of their actions. Nifong might not be in the right, legally, but that doesn't mean he's not doing the right thing."

Innocent people don't need to be "excused."

Ms. Malaklou apparently thinks that prosecutorial abuse is "the right thing" in the Duke case.

Ms. Malaklou: "And here's why: Very rarely are the Duke lacrosse players not drinking or partying, and true to Duke's motto of 'Work hard, play hard,' it is understood and accepted at Duke that what happens under a drunken stupor is excusable, and forgivable the next morning,"

Drinking and partying are NOT crimes.

Ms. Malaklou: "But the March 13 strippers were not Duke students, and (at least one of them) was not going to excuse the lacrosse players' reactions with the trusty understanding, 'boys will be boys,' boys will get drunk, and boys will be horny. Unfortunately, in spite of all your education and opportunities, Duke women are not so strong...or smart. We'll giggle it off, and sometimes even find a man more endearing for his drunken slip-ups. Even if one of those slip-up rapes is us."

Ms. Malaklou is deluded. Dangerously deluded. Example: Dismissing "Duke women" as "not so strong...or smart" and championing accuser Crystal Gail Mangum as one who "who was not going to excuse the lacrosse players' reactions...." Ms. Mangum is a victimizer, not a victim. The Duke Three are victims.

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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