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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 6, 2006
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Topic category:  Other/General

Duke Case: USDJ Should Not Be MIA

The United States Justice Department apparently is missing in action in the Duke case. Lack of awareness of the case obviously is not the explanation.

The United States Justice Department apparently is missing in action in the Duke case. Lack of awareness of the case obviously is not the explanation. The excuse that it did not want to involve itself in a local election won't fly anymore. Nor will the this-will-set-a-bad-precedent claim, since NOT intervening when intervention is required sets a worse precedent.

Less than a month after Election Day 2006, The News & Observer got around to reporting on Duke case-related complaints to the North Carolina State Bar and the United States Department of Justice.

Unfortunately, The News & Observer article (1) assumes that there will be a trial instead of pre-trial dismissal and (2) portraysDistrictAttorney Michael B.Nifong as David in a David versus Goliath struggle with the Duke case defense:

"In the war that is the Duke lacrosse case, Mike Nifong's fierce fight will not end with the trial.

"Durham's district attorney will face a barrage of attacks on the federal and state level from foes who are determined to have Nifong investigated, punished and disbarred for his actions in the rape case against three Duke University lacrosse players.

"Dozens of people, some connected to the accused, have asked the governor and the state attorney general to intervene. Many have complained to the N.C. State Bar, the agency that licenses and disciplines lawyers. And a lawyer for one of the indicted players has urged members of Congress to have the U.S. Department of Justice open a civil rights investigation."

The News & Observer chose to quote complaints to the State Bar only from friends of the Finnerty family (although there were plenty of other quotable complaints):

"'I would think of this as misconduct by a DA and that for some reason, maybe political, he has painted a fabricated picture,' wrote Edwin G. Beusse, a New York developer who works with Finnerty's father, in a letter Aug. 9. 'Isn't there a check or balance for situations like this that are so far out there, that they're obviously false?'

"Molly M. Maguire of Darien, Conn., wrote June 13, 'It is frightening to think of any American being victimized by our own legal system and devastating to know that three promising lives are held hostage to a not-so-hidden political agenda.' Maguire is a friend of the Finnerty family."

In addition to being Finnerty family friends, Mr. Beusse and Ms. Maguirewere right to write and wrote wisely.

Ideally, the court will remove Mr. Nifong from the Duke case (Kirk Osborn, Reade Seligmann's attorney, formally requested that early in the case) and the North Carolina State Bar will disbar Mr. Nifong, disqualifying himfrom serving as Durham County District Attorney.

Unfortunately, the first two judges handling the Duke case blithely ignored that urgent and warrantedrequest, making it much harder for Judge Osmond Smith to grant it now, and the North Carolina State Bar seems determined to wait until the Duke case is over before addressing the issue of whether or not Mr. Nifong should have been disqualified from prosecuting it.

What now is interesting is whether the United States Justice Department finally will act, with the election over and the "60 Minutes" expose having paved the way.

What The News & Observer wrote about the possibility of Justice Department intervention is very significant to those concerned with the so-called merits of the Duke case:

"The request for a federal investigation came from Michael Cornacchia of New York, one of [Collin] Finnerty's attorneys. He wrote to the U.S. attorney general, the FBI director, the congressional delegations of North Carolina and Long Island and others, saying Nifong had violated the civil rights of the three players. The case merits an immediate investigation by the U.S. Department of Justice, wrote Cornacchia, a former prosecutor who recently served as chief investigative counsel for the probe of the United Nation's oil-for-food program."

"The request for federal intervention is aggressive and rare, said Richard Myers, a UNC-Chapel Hill law professor and former federal prosecutor.

"'It's a fairly strong indication the defense has nothing to hide if they want more eyes on the ground,' Myers said. 'How effective it's going to be, who knows? You cast a wide net and hope someone gets interested.'"

Mr. Cornacchia is familiar with the United States Justice Department, having served as Senior Litigation Counsel for the Office of the U.S. Attorney for the Eastern District of New York as well as a deputy chief in its Criminal Division.

Mr. Cornacchia is absolutely right about rights violations, egregious ones.

Professor Myers is right that the intervention request is an "aggressive and rare" move strongly indicating that "the defense has nothing to hide."

When the criminal justice system is being outrageously abused, ashas been the case in the Duke case, it behooves the outrageously abused to appeal to the courtroom of public opinion (if that courtroom is open to them) and the United States Justice Department and to rely upon THE FACT of innocence instead of the presumption.

If Mr. Cornacchia offered to provide the Justice Department with all of the "evidence" produced by the prosecution and to have Collin Finnerty submit to a polygraph test by an FBI polygraph examiner(like the others of the Duke Threem he already passed a polygraph test related to the Duke case), then the Justice Department is now out of excuses for not investigating (IF it has not been investigating).

If Mr. Cornacchia didNOT include such offers with his request, it behooves him to make them now and it behooves the defense teams for Reade Seligmann and David Evans to do the same.

The Duke case is hardly commonplace, of course. Based on what has become known, the evidence that the Duke Three's constitutional rights have been flagrantly violated is overwhelming and the ugly fact appears to be that they are being prosecuted (really, persecuted) because they are white.

The United States Justice Department should intervene.

Or does the United States Justice Department agree with Collin Hall, a student senator at North Carolina Central University, who wanted prosecution "whether it happened or not," as "justice for things that happened in the past"?

The title of Liestoppers' December 4 article--"Mike Nifong's detractors in the Hoax want him punished for forcefully pursuing transparently false charges"--is much the same asthe subtitle of the December 3 News & Observer article--"Mike Nifong's detractors in the Duke lacrosse case want him punished for forcefully pursuing charges"-- and neither does justice to the powerful articles that followed at both The News & Observer and Liestoppers.

Detraction: "a lessening of reputation or esteem esp. by envious, malicious, or petty criticism."

We critics of Mr. Nifong are not motivated by envy or malice, and our criticisms of him are profound, not petty..

My main problem with the title is that it makes the dispute seem personal instead of principled. That is not only false, but helpful to Mr. Nifong, who cleverly said long ago that the Duke case demands a Durham solution.

We want Mr. Nifong punished for prosecutorial abuse, just as we would want any abusive prosecutor punished. Pursuing transparently false charges is grounds for punishment, even if the pursuit is weak

Note: On December 5, The News & Observer issued the following correction: "A summary paragraph on the front page Sunday misstated why detractors want Durham District Attorney Mike Nifong punished for his handling of the Duke lacrosse case. They allege that Nifong violated rules of the N.C. State Bar and the civil rights of the three suspects who have been indicted."

The Duke case demands an American solution, not a Durham solution.

The Fourteenth Amendment to the United States Constitution, which guarantees due process of law and equal protection of law, was adopted to protect people against local abuse and the United States Department of Justice is supposed to enforce the Fourteenth Amendment if state and local officials do not.

There is ahuge problem in Durham's criminal justice system when (1) the word of Crystal Gail Mangum is taken as Gospel, (2) the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) are presumed to be gang rapists, (3)their fellow members of the 2005-2006 Duke University Men'sLacrosse Team are demonized as members of a conspiracy of silence because they refused to go along with a framing,and (4) Mr. Nifong,even thoughrequired by law to be a fair and impartial minister of justice, instead rejects offers to take polygraph tests, does not ask Ms. Mangum to take a polygraph test, ignores evidence of innocence, makes blatantly prejudicial public statementsabout the lacrosse team members for patently political purposes, rigs the identification procedure to get young white men for indictment, and then misuses his office to secure indictments and to persecute the innocent (including the black cab driver who confirmed Reade Seligmann's alibi) instead of to prosecute the guilty (such as a person who files a false rape report).

Dr. William Anderson (a teacher ofeconomics at Frostburg State University in Maryland and an adjunct scholar of the Ludwig von Mises Institute) on the pertinent facts: "[There is] no evidence that any crime occurred other than underage drinking. Read the SANE nurse's report, read Jarriel Johnson's statement given to the police (with regard to the use of the vibrator) and note that David Evan's DNA was consistent with that on top of the fingernail, not a match (it simply did not rule him out)--and where is the plethora of DNA that would be left behind by the false accuser and the players if such a lengthy attack happened the way she claimed. The hospital found no injuries consistent with her allegations of being beaten, and she told different stories at the various locations (the drunk tank, Duke Hospital and UNC Hospital) as to what actually happened. They found no injuries other than diffuse edema of the vagina."

According, Professor Anderson classified the Duke casebluntly: "a railroad job by a disgusting and evil DA to pursue his own election agenda and his need for the spotlight."

Brooklyn College Professor Robert K.C. Johnson established a website for his thoughts about the Duke case and aptly named it "Durham in Wonderland."

Anonymous posters at Liestoppers have convinced themselves that the Duke case is sound instead of sinister:

Example 1: "You people are totally out of your minds! You want Mike Nifong off the case because he is seeking justice for a black rape victim. Listen for once in your lives....everyone is entitled to equal protection under the law. The rich and powerful with all their money and resources will not get special treatment. A crime was committed against the victim and justice will be served. If they are innocent... the jury will see it. If they are guilty then payday is coming."

Example 2:

"Don't attack Duke University....was it the University that raped a woman? These lacrosse players are the ones and only ones to blame. Stop taking up for these criminals. Look at their past actions and behavior! It was a train wreck waiting to happen. They are NOT above the law. All the letters and whining from people like Michael Gaynor, William Anderson and etc will not make this case disappear. The victim's story have a RIGHT to be heard in a court of law. I'm sick of you taking the side of the duke 3 without hearing the whole story of what happened that night. Guess what?? The duke 3 can tell lies just like anyone else!! They lied about who the party was for, what their names were, how many were attending the party. Don't you find some of these things suspicious on their part? Or.... is it just the accuser that you're suspicious of???

I'm beginning to wonder if you people really want to hear the truth of what happened!!!

THERE WAS NO RAPE AT THE LACROSSE TEAM PARTY! SOMEONE IS TO BLAME FOR FALSELY CLAIMING RAPE, BUT NO ONE IS TO BLAME FOR AN IMAGINARY RAPE.

FIGURATIVELY SPEAKING, MR. NIFONG IS RAPING JUSTICE BY PROSECUTING THE DUKE THREE ARBITRARILY.

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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Copyright 2006 by Michael J. Gaynor
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