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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:  December 5, 2006
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Duke Case Prosecution Fails the Chemerinsky Test

There's no doubt as to either Duke Professor Erwin Chemerinsky's leftist credentials or legal expertise.  A graduate of Northwestern University and Harvard Law School, he practiced law as a trial attorney with the United States Department of Justice and with Dobrovir, Oakes & Gebhardt in Washington, D.C.  He was a professor at DePaul College of Law from 1980-83.   At the University of Southern California Law School, he was Professor of Public Interest Law, Legal Ethics, and Political Science. In 2004 he joined the Duke faculty. 

Professor Chermerinsky has written four books--Federal Jurisdiction (Aspen Law & Business 4th ed. 2003) (a one volume treatise on federal courts); Constitutional Law: Principles and Policies (Aspen Law & Business 3d ed. 2006) (a one volume treatise on constitutional law); Constitutional Law (Aspen Law & Business 2d ed. 2005) (a casebook); Interpreting the Constitution (Praeger 1987)--and more than 100 law review articles for such publications as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. In addition, he writes a regular column on the United States Supreme Court for California Lawyer, Los Angeles Daily Journal, and Trial Magazine, frequently contributes to newspapers and other magazines and  regularly serves as a commentator on legal issues for national and local media.

In 2005, Professor Chemerinsky was named by Legal Affairs as one of “the top 20 legal thinkers in America.” The Daily Journal named him every year from 1998-2003 as one of the 100 most influential lawyers in California. Professor Chemerinsky frequently has testified before congressional and state legislative committees.  He was elected in 1997 to serve a two year term as a member of the Elected Los Angeles Charter Reform Commission and served as Chair of the Commission which proposed a new Charter for the City which was adopted by the voters in June 1999.  He also served as a member of the Governor's Task Force on Diversity in 1999-2000. In 2000, he released a report on the Los Angeles Police Department and the Rampart Scandal, which was prepared at the request of the Los Angeles Police Protective League. He served as Chair of the Los Angeles Mayor’s Blue Ribbon Commission on City Contracting.

Professor Chemerinsky's awards include the 2003 President’s Award from the Criminal Courts Bar Association; 2003 Freedom of Information Award form the Society for Professional Journalists; 2002 Community Service Award from the Western Center on Law and Poverty; 2001 Community Service Award from the Anti-Defamation League; 2001 Clarence Darrow Award from the People's College of Law; 2000 Alumni Achievement Award from Northwestern University; the 1999 Eason Monroe Courageous Advocate Award from the American Civil Liberties Union of Southern California; and the 1998 Judge John Brown Award for Contributions to Federal Judicial Education, as well as awards for work on the Los Angeles City Charter from the American Society of Public Administration, the Los Angeles Chamber of Commerce, and the Los Angeles Urban League.

Professor Chemerinsky often argues appellate cases, including Van Orden v. Perry (an unsuccessful challenge to a Texas Ten Commandments monument), Tory v. Cochran (a First Amendment case concerning the permissibility of injunctive relief as a remedy in defamation cases); and Scheidler v. National Organization for Women (suit for injunction to stop violent protests of reproductive health care facilities).

The noted USAToday April 19 article on  Duke case included this excerpt:

"Duke law professor Erwin Chemerinsky, who is not involved in the case, said Tuesday, 'Right now this case is likely to turn on three things: First, how strong is the physical evidence that a rape occurred, (and) what did the examination of the woman show? Second, how credible is the woman and the allegations? Is her identification (of the attackers) credible? Third, what if any corroboration is there for the woman's story?

"'We don't know, for example, what the other woman (who danced at the party) told the police. We don't know what all the players said to the police. These are the questions that are going to be crucial to whether the prosecutor can get a conviction.

"'This is different from so many rape cases where the issue is consent. The issue here is whether sex occurred at all between the players and this woman.'"

Let's turn to the first prong of the three-prong Chermerinsky test: "how strong is the physical evidence that a rape occurred, (and) what did the examination of the woman show?"

There is no physical evidence that a rape occurred!  The DNA tests did not implicate any of the 46 white members of the 2005-2006 Duke University Men's Lacrosse Team, and the Black member of the team was not tested, because false accuser Crystal Gail Mangum claimed that each of her imaginary rapists (the number varied widely) is white. Examination showed that Ms. Mangum had recently had sex with a male, but not with a white  lacrosse player.

The second prong--"how credible is the woman and the allegations"--would be laughable if Durham County, North Carolina Michael B. Nifong had been a fair and impartial minister of justice instead of a desperate political candidate who could only save his job by offering up white sacrifices. 

Neither Ms. Mangum nor her allegations are credible.  It is readily believable that a white man could rape a black woman, but it is NOT credible that the Duke Three raped Ms. Mangum during a party in a bathroom of the house at which the lacrosse party was held last March.

Discrediting Ms. Mangum is as easy as picking low-hanging fruit, since her  personal life has been so problematic.

Example: Ms. Mangum was arrested in June 2002 after she got drunk, stole a car at a strip club, and led police on a reckless high-speed chase.

That incident resulted in the following charges:

Felonious Assault with a Deadly Weapon on Police Officer, O2-CRS-49961

Felonious Larceny and Felonious Possession of Stolen Vehicle charges, 02-CRS-49955

Felonious Speeding to Elude Arrest, Driving while Impaired (.19 Blood Alcohol Content) and Driving while License Revoked, 02-CRS-49956

Driving Left of Center, 02-CR-49958

Failure to Heed Blue Light and Siren and Reckless Driving in Wanton Disregard to Rights or Safety of Others, 02-CR-49959

Driving the Wrong Way on Dual Lane Highway and Open Container After Consuming Alcohol, 02-CR-49960

two counts of Injury to Personal Property, 02-CR-49962-63

Resisting a Public Officer, 02-CR-49964

Ms. Mangum pled guilty to four misdemeanors in May 2003: Speeding to elude arrest, assault against a government official, DWI level 3, and larceny.

She was lucky to make that plea bargain.

A report of this incident is riveting and revealing:

"The incident began at a topless dance club [Diamond Girls] while the woman was performing for a taxi driver, [Sgt. T.H] McCrae wrote.

"'As she was feeling him up and putting her hands in his pockets she removed the keys to his taxi cab, without him knowing,' the officer said. 'He [the cabbie] told her he would drive her home but needed to go to the restroom first. While in the restroom he was advised that she was driving off in his taxi cab.'

"McCrae said he chased the woman at speeds up to 70 mph in a 55-mph zone until she finally stopped.

"'As I began to approach the vehicle she put it in drive and drove towards me,' McCrae added. 'I jumped out of the way to the right and she missed me. The suspect then struck the right rear quarter of my patrol vehicle.'

"Another chase ensued, but the woman finally was apprehended after having a flat tire, according to McCrae.

"The officer said she registered a blood-alcohol concentration of 0.19 on a portable sensing device — more than double North Carolina's 0.08 legal threshold for impairment.

"And while being questioned, the dancer 'passed out and was unresponsive,' McCrae said. [Note to Duke University's now apologetic Professor Thomas Crowley: Ms. Mangum's history of passing out began before the lacrosse party and suspecting that she had been given a dape rape drug at that party was really stretching.]

"She was taken to the emergency room at Duke University Hospital, McCrae's report indicated."

The more things change, the more they remain the same?

A further report on the incident:

"The episode started at the Diamond Girls club on Angier Avenue in Durham. According to Larry W. Jones, the owner of Diamond Girls, the woman appeared at the club that night and 'tried out,' giving lap dances to a few men.

"Jones said the manager at the time did not offer the woman a job because she was 'acting funny.'

"She started dancing for a taxi driver, whom she asked for a ride, according to a report from the Durham County Sheriff's Office. While dancing, she took the keys from the driver's pocket without his knowledge and, minutes later, drove off in his taxi.

"The cab driver called 911 and a sheriff's deputy responded and saw the blue 1992 Chevrolet Caprice heading east on Angier Avenue near Page Road. The headlights were off and the woman was driving on the wrong side of the road, according to the deputy's report.

"The woman sped up to pass the officer, and he began to chase the taxi, which ran a stop sign and veered across the road, weaving across a grass median, onto the shoulder and back. The car sped from Angier Avenue onto U.S. 70, the report said.

"According to the report, the woman drove down the center of the highway, a 55 mph zone, at 70 mph, heading into Raleigh. She kept speeding, drove the wrong way down Brier Creek Parkway and turned into a dead end, where she tried to drive the taxi through a fence.

"The sheriff's deputy said he got out of his car and told the woman to turn off the car. She laughed, backed up the car, then drove forward again and nearly hit the deputy, the report said.

"The taxi slammed into the deputy's car and kept going, turning back onto Brier Creek Parkway into oncoming traffic, the report said. Another deputy continued to chase her until the taxi got a flat tire. Officers boxed in the car, pulled the woman out and arrested her.

"Her blood alcohol level was 0.19, according to court records, more than twice the legal limit to drive in North Carolina.

"The woman was charged with driving while impaired, driving with a revoked license, felony speeding to elude arrest, felony assault with a deadly weapon on a government official, and felony larceny of a motor vehicle. Court documents and her criminal and driving records show that her driver's license had been revoked before the incident, but they do not indicate why.

"Under a deal with prosecutors, she pleaded guilty to four misdemeanors in the car chase: larceny, speeding to elude arrest, assault on a government official and DWI, according to court records. She was required to serve three consecutive weekends in jail and was placed on two years' probation. She paid restitution and court costs, and completed her probation."

As for prong three--"what if any corroboration is there for the woman's story"--the answer is none.  Kim Roberts Pittman has not confirmed.  No one else at the party did either.  Mr. Nifong defamed the members of the lacrosse team by suggesting a conspiracy of silence, but there was no rape and asking anyone to say otherwise is suborning perjury. No one has come forward to accuse any of the Duke Three of disrespecting women, much less raping them. [Note: William Kennedy Smith was not so fortunate after he was charged with rape, but the evidence that three women would have presented was excluded by the court and Mr. Smith was acquitted.  Unlike the Duke case (in which the accuser has not been polygraph tested while each of the Duke Three passed an independent polygraph test after the prosecution declined to test, but the case proceeded anyway), the Smith case proceeded only after the accuser passed a polygraph test twice and the defense was that there was consensual sex, not no sex.

Our criminal justice system is imperfect.  Sometimes the guilty go free because their guilt is not proven beyond a reasonable doubt.  In the Duke case, the prosecution itself is the travesty of justice.  There is not even a reasonable doubt that the Duke Three are innocent of the heinous felony charges against them. The best solution is pre-trial dismissal.

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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