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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 7, 2006
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Topic category:  Other/General

Duke Case: No Evidence, No Trial, No Change of Venue

The Duke case should be dismissed as a matter of law instead of tried (and retried, and retried), because (1) the constitutional rights of the Duke Three were flagrantly violated, (2) the Duke Three were irreparably prejudiced by those violations (since they had not been accused before those flagrant constitutional violations and any in-court identification would be excludable under the "fruit of the poisoned tree" judicial doctrine), and (3) there is no competent evidence on which any of the Duke Three could have been properly indicted, much less competent evidence that conceivably could justify a jury in finding guilt to have been established beyond a reasonable doubt.

Dismissal would obviate the need for an embarrassing change of venue as well as let the Duke Three get on with their lives.

Brooklyn College Professor Robert K.C. Johnson's latest at his wonderfully named Durham-in-Wonderland website--"The Baum Letter and a Durham Trial"--fully justifies a change of venue in the Duke case, to be sure.  But a change of venue is inadequate, because justice delayed is justice denied and continuation of the Duke case is to be decried. 

The Duke case is a horrible aberration in the criminal justice system attributable to a rogue prosecutor and racial politics. Handling it in a routine way is a mistake, whether by the court, the defense or the United States Justice Department..

The court in which the Duke case is pending simply put aside the  meritorious motion by Kirk Osborn, a Reade Seligmann attorney, to remove Durham County District Attorney Michael B. Nifong from the case (a motion in which Reade's co-defendants should have joined).

That was an abuse of judicial discretion.

Mr. Osborn had realized that Mr. Nifong was out of control and acted boldly.  Yet Judge Stephens, Mr. Nifong's old boss in the Durham County District Attorney's office, declined to act on the motion.  His judicial successor, Judge Titus, instead of acting on that very important motion, abused his judicial discretion to (in effect) grant a motion that the North Carolina NAACP did not have standing to make to gag potential witnesses in the Duke case, including the Duke Three. (To his credit, Judge Osmond Smith vacated that outrageous and unconstitutional gag order, thereby facilitating the "60 Minutes" Duke case expose, and denied Mr. Nifong's motion that ludicrously charged the defense with misconduct in connection with polling a tiny sample of potential jurors.)

On December 3, it was reported by The News & Observer that Collin Finnerty attorney Michael Cornacchia had recognized early what was happening and acted appropriately (but quietly) in these circumstances, by asking other public officials to intervene: 

"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."

In the usual prosecution, the prosecutor is prosecuting, not persecuting.

In the Duke case, Mr. Nifong seized the opportunity to snatch victory from the jaws of defeat in the then soon upcoming Democrat primary by treating ex-convict stripper Crystal Gail Mangum's gang rape claim against members of the 2005-2006 Duke University Men's Lacrosse Team as legitimate instead of ludicruous; rejected polygraph test offers and evidence of innocence; and cleverly used the prosecutor-friendly grand jury procedure instead of a public judicial proceeding to have the Duke Three charged with three first-degree felonies, by grand jurors who, like Mr. Nifong (but with the legitimate excuse that it was not offered to them) did not consider any evidence of innocence.

It is popular, but often unfair, to criticize criminal defense attorneys for putting victims of trial and forcing rape victims to re-experience rape instead of having their clients plead guilty.

The huge problems with this criticism are that it assumes that (1) a person claiming to have been raped really was raped and (2) the person(s) being prosecuted for rape committed that rape.  Instead of presuming the accused to be innocent, it presumes the accuser to be a victim.

In the Duke case, the Duke Three are the victims, not false accuser Crystal Gail Mangum.

In the Duke case, Mr. Nifong is a rogue prosecutor, not an honorable, albeit mistaken, one. (Pretending that Mr. Nifong made a good faith mistake will not help the Duke Three.)

The News & Observer also reported with respect to Mr. Cornacchia's federal intervention request:

"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 there having been rights violations, egregious ones.

If the United States Justice Department is true to its mission, it will not ignore Mr. Cornacchia's appeal.

In the Duke case, there has been egregious abuse of prosecutorial authority, flagrant violations of constitutional rights to due process and equal protection and severe prejudice to the Duke Three resulting from that abuse and those violations.   

The Fourteenth Amendment protects whites as well as blacks, rich as well as poor, non-citizens of the forum state as well as the forum state's citizens.

The United States Justice Department needs to act.

Professor Johnson focused on "a revealing letter from Duke student Dan Baum that powerfully explains the need for a change in venue" and appeared in The Herald-Sun.

What the letter revealed was Mr. Baum's ignorance and naivety, at best.

Professor Johnson: "In his H-S letter, meanwhile, Baum contended with that Nifong’s re-election, the D.A’s 'initial handling of the case is in the past and . . . therefore, there’s no need to continue this heated debate about things that won’t change.' Imagine such a response regarding the situation in the early 1960s Deep South—the local sheriff trampling on the rights of African-Americans had just been re-elected in a racially polarized election, so 'therefore, there’s no need to continue this heated debate about things that won’t change.'"

That "initial handling" included egregious misconduct and flagrant violations of constitutional rights that (1) cannot be excused by the result of a Durham County, North Carolina District Attorney election and (2) warrants Mr. Nifong's removal from office as well as the Duke case and pre-trial dismissal of the Duke case.

Professor Johnson: "Baum’s statements...establish that he seems not at all sympathetic to the players targeted by Nifong. Nor does he seem particularly troubled by the issues of prosecutorial misconduct or 'separate-but-equal'  justice that have marred Nifong’s approach to Duke students."

Mr. Baum has much to learn.

Mr. Baum:

"Unfortunately, I think there’s so little faith in our legal system that whatever happens in court, a substantial portion of our community will leave angry. If a guilty verdict is handed down, wearers of 'Innocent' wristbands will be up in arms about the bias of members of the Durham community against Duke. If the court finds them innocent, cries that they bought their way out of trouble will follow from others.

"As a Duke student who has had the privilege of discussing this matter with my classmates, students from NCCU and Durham residents, I’ve found that most people have made up their minds about whether or not a rape occurred.  Most do not see a verdict changing their minds either. So once this decision comes down, in the face of the inflammatory media, our community will still have serious healing and reconciling left to do . . . a verdict is not going to solve anything."

The false rape claim needs to be exposed as a false rape claim and the real culprits (Mr. Nifong and Ms. Mangum) should be punished,

The Duke Three need to move for pre-trial dismissal, and Judge Osmond Smith needs to follow the law and dismiss.  Dismissal necessarily will identify flagrant violations of the Duke Three's constitutional rights and they can serve as a predicate for the North Carolina State Bar to act on the many complaints filed against Mr. Nifong with respect to the Duke case (which prefers not to act while the Duke case is pending).

Professor Johnson judged Mr. Baum to be "naïve to believe that 'serious healing and reconciling' can occur as long as a segment of the community maintains that Nifong’s 'initial handling of the case is in the past' need not be discussed" and likewise cautioned "those on the Duke campus, such as the CCI, who are desperate to avoid any discussion about the faculty’s initial rush-to-judgment."

"Serious healing and reconciling" needs to be based on truth, not a truce.  Duke Three supporters need to demonstrate that truth and to realize that not everyone of the other side is, to use Professor Johnson's word, "naive."

Professor Johnson appreciates that ugly truth.

Professor Johnson:

"[C]onsider the various truth and reconciliation commissions established in the 1990s—from post-apartheid South Africa to post-civil war El Salvador.  All operated under the premise that reconciliation could not occur without exposing and documenting the truths of past misconduct, even if the perpetrators of these injustices were not punished for their actions.

"In short, there can be no 'healing' or 'reconciliation' in Durham until all sides—most especially Nifong’s enablers among the city’s political, legal, and media elite, as well as Duke’s faculty—acknowledge his misconduct."

True!  But "Nifong's enablers" don't want "healing" or "reconciliation."  We must overcome them instead of ask them to come over.

Professor Johnson invoked USC law professor Susan Estrich on the effect of trying the Duke case and Mr Nifong's personal interest in the Duke case:

“'Of this,' Estrich wrote, 'you can be sure: No good will come of it. Trials do not tend to be healing experiences. Sides dig in. Things get more contentious, not less. Tempers are bound to flare.'

"Estrich’s warning—made in August—seems prophetic now. In this case, the prosecutor has no evidence that a crime even occurred, much less that the three players he targeted committed a crime. As Sunday’s N&O revealed, Nifong is facing dozens of ethics complaints; while the Disciplinary Hearings Committee should not take into account the results of a trial in judging whether Nifong violated the bar’s ethics rules, it’s unrealistic to expect that a trial’s outcome would have no bearing on the DHC’s actions.

"So, as a matter of personal survival if nothing else, Nifong’s only realistic strategy is to intensify his race-baiting demagoguery, seeking to exploit and intensify what he has termed Durham’s 'underlying divisions.' During the campaign, Nifong previewed his opening argument: 'The future of Durham’s in the balance' with any verdict.

"In short, whatever tensions Baum and others detect now are likely to be infinitely worse after a Nifong-orchestrated show trial."

If there is a trial, every aspect will be viewed through the prism of race and jurors will be much more fearful or acquitting than convicting.

Thus, Professor Johnson concluded:

"Baum’s letter makes an overpowering case for a change of venue. By his own description, Baum feels comfortable moving between Duke, NCCU, and among Durham residents. He clearly has spoken to numerous people about the case. His findings? 'Most people have made up their minds about whether or not a rape occurred.'

"This discovery should surprise no one. After all, Nifong’s handling of the lacrosse case was the only issue at play in both the primary and the general election. The 51 percent of Durham voters who cast ballots against Nifong (for either Lewis Cheek or write-in spoiler Steve Monks) effectively said that they didn’t believe a word their 'minister of justice' said about the case.

"On the other side:

  • Several months ago, most dramatically at the NCCU forum, a segment of the Durham 'community' demanded that indictments occur—regardless of whether the players were innocent—in the name of justice.
  • With their votes in November, 49 percent of the Durham 'community' demanded that a trial occur—regardless of whether the players were innocent—in the name of justice.
  • Is there any reason to believe that these same people will not demand that a conviction occur—regardless of whether the players were innocent—in the name of justice?

"Baum appears to have encountered few who would answer that question in an encouraging fashion."

There is no doubt that potential jurors can say that they will be fair and impartial, but so can Mr. Nifong.

Professor Johnson eviscerated the try-the-Duke-case-in-Durham case:

"The two principal arguments against a change of venue, meanwhile, seem quite weak. The first, presented by NCCU professor and NAACP case monitor Irving Joyner, revolves around the racial dynamics of the potential jury pool. In a June interview with Sports Illustrated, Joyner stated that the district attorney “still has a viable shot at victory before a jury in Durham."  I e-mailed Joyner to ask why he specified a 'Durham' jury as giving Nifong a chance of victory; he replied, candidly, 'A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina.' Joyner added, 'This case originated in Durham and should be tried here.'

"This viewpoint clashes with the traditional approach of the NAACP Legal Defense Fund, which has supported changes of venue in racially charged trials; and also, as a late September article by Cash Michaels pointed out, contradicts a previous high-profile case in North Carolina. In short, the fact that Nifong would have little chance of prevailing in a trial outside of Durham is not a compelling argument against change of venue. The issue revolves around the constitutional rights of the defendant, not the prosecutor or the accuser.

"The other argument also came from the state NAACP (which, reversing 70 years of its traditional positions on criminal justice issues, has functioned in this case as an arm of the prosecution). As summarized by Michaels, 'Joyner was one of many who blasted the defense for releasing so much dirt about the accuser’s troubled past that he felt they wanted to effectively taint the Durham pool themselves to force a probable change of venue.'

"It is undeniably true that much damaging information has come out about the accuser. But the vast majority of this information came from the media, not the defense. In the spring, the AP broke the story of the accuser’s previous unsubstantiated allegation of a three-man gang rape. In October, 60 Minutes   revealed that the accuser was pole dancing in a limber fashion at the same time she told the UNC Hospital that she was in such great pain that she required prescription drugs. In November, the N&O reported that four days after the alleged attack, the accuser reportedly told the security manager of the strip club at which she worked, 'I’m going to get paid by the white boys.' There would seem to be few, if any grounds, for punishing the defense for damaging information about the accuser that the media has uncovered."

The state NAACP’s Al McSurely claimed, without citing evidence, that the defense “would want a change of venue whether Nifong said anything or not.” But, of course, Nifong did say things, over and over again, in violation of Rule 3.8(f) of the state bar’s ethics code. The conclusions of the Baum letter illuminate why one consequence of those statements should be a change of venue.

Like their clients, the Duke Three's defense lawyers are being accused of misconduct without supporting evidence.  People who want the Duke case to go forward, and in Durham, charge the defense with defaming Ms. Mangum, but they never offer any evidence.  Moreover, they complain about news reports about Ms. Mangum, but don't show that the reports are erroneous.

The case for a change of venue is overwhelming, but a change of venue motion should be unnecessary: a pre-trial motion to dismiss should be made and granted.

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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