On the Liestoppers message board, it is being asked how the Duke case will end. The scenarios (in the order used by Liestoppers): (1) Smith makes a pre-trial ruling that prevents a trial; (2) The FEDS finally get involved and Nifong is stopped; (3) Precious backs out before the trial begins; (4) Motion to dismiss granted after State rests; (5) Trial goes to a jury and all three acquitted; (6) Trial goes to jury and one or two convicted; (7) Trial goes to jury and all three convicted; and (8) Hung Jury.
The first choice--Smith makes a pre-trial ruling that prevents a trial--includes both outright dismissal and suppression of so much evidence that even Durham County, North Carolina District Attorney Michael B. Nifong will acknowledge that there is nothing to try.
The Duke case should NOT go to trial, for a number of reasons, including (in reverse order of importance):
(1) There are feminuts who insist that there always should be a trial (and a conviction) whenever a woman identifies a man as a person who raped her and black racists who agree with Colin Hall, a student senator at North Carolina Central University that Duke students should be prosecuted "whether it happened or not," as "justice for things that happened in the past." These sick people's appetite for a trial in the Duke case should not be sated.
(2) The trial would be ugly, especially jury selection. Mr. Nifong, now the poster boy for prosecutorial abuse, already filed (and lost) a motion that accused the defense in the Duke case of trying to taint the jury pool by having 300 potential jurors (including. astonishingly, Mr. Nifong's wife). Unless the defense accepts every potential black juror called, Mr. Nifong and The New Black Panther Party are likely to be peddling the poison that white racism really explains the rejection of any potential black juror whenever Judge Smith does not rule there is cause for excusing a potential juror (and perhaps even when Judge Smith rules that there IS cause).
(3) Mr. Nifong realizes that he can't win on the merits (there being no competent, credible evidence of guilt and plenty of evidence of innocence), so he will be trying to win by maliciously making the case a referendum on white racism (and he is likely to succeed sufficiently to win a hung jury, but not a conviction, if the Duke case goes to a Durham jury, given the emotional investment of Durham's black community in Crystal Gail Mangum having told the truth instead of a terrible lie).
(4) The Duke Three (Reade Seligmann, Collin Finnerty and David Evans) are so obviously innocent of the felonies with which they were wrongly charged as the result of a false gang rape claim and egregious prosecutorial abuse, including flagrant violations of their constitutional rights that putting them and their families and friends through a trial is further abuse.
A case can be made for moving to suppress so much that the case collapses, but a better case can be made for dismissal (even though Mr. Nifong may be even more insulted by a motion for dismissal).
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 case defense team can show that the Duke Three's constitutional rights to due process and equal protection have been flagrantly violated, to their irreparable prejudice?
I do not.
The whole Duke case is an abomination. It is the result of a prosecutor being willfully blind to the truth in order to snatch victory from the jaws of defeat in a then soon upcoming primary race.
Were the Duke Three denied equal protection because they are white?
Certainly. If they were black, there would have been no reason to railroad them.
Were the Duke Three denied due process?
Let me count the ways!
The Duke case defense lawyers have the material that the prosecution has produced, and they know what Mr. Nifong did and did not do when they tried to show him that the gang rape claim was bogus. They can establish multiply due process violations.
Is it due process for a prosecutor to refuse to consider evidence of innocence before indicting?
Is it due process for a prosecutor to treat a gang rape claim as legitimate instead of insisting on some confirmation, especially when DNA tests are INconsistent with rape, the accuser has the criminal, employment and medical history of Crystal Gail Mangum and no one confirms the claim, not even the second stripper?
Is it due process, after Ms. Mangum's repeated failure to identify, to ignore local, state and federal guidelines and use a suggestive identification procedure that all but screamed, "Any white lacrosse players will do!"?
My answer to each of those questions is the same and it would the same if the accuser was white and the accused were black: NO!
I criticized the white prosecutor in the Kobe Bryant case for missing ample reasonable doubt and letting the complainant in that case use him and his office to facilitate a civil case that the complainant delayed about as long as possible and then brought not in the jurisdiction where the alleged rape allegedly occurred, but in California, where jurisdiction was possible and damages were not capped.
That prosecutor was too eager to pursue a celebrity prosecution, in my opinion, but he did not cross bright lines that Mr. Nifong blithely ignored.
A fellow attorney whom I have never met recently emailed me as follows:
"That was a wonderfully written article about the duke hoax. It was thoughtful, well reasoned and well written. Someone has to step in and stop this outrage. We need someone very powerful to step up, whoever that be congressman, Bill Clinton, George Bush, the US attorney general, Carter, Kofi Anan, a Supreme Court justice or anyone to show some courage .
"I am surprised that Nifong's friends or acquaintances have not tried an intervention. Someone that Nifong trusted and respected without an agenda should sit Nifong down and say what the hell are you doing here?
"Where is the outrage from the assistant da's. ? Where is the courage? Why don't they try an intervention. I would like to see one of them resign over this. I would like to see one of them stand on principle. The assistant da's must know that they are perpetuating a outrageous hoax and fraud.
Nifong is trying to ruin the duke boys' lives. Its the old famous quote: which room do I go in to get my reputation back?"
"This is one of the worst miscarriages of justice ever. Nifong is an out of control whacko. The public's faith in the judicial system is being tested here. This case makes me sick to my stomach. It makes me want to go to Durham with a huge sign to stand in front of the district attorney's office
"As a member of the bar, I see it as an affront to my sense of justice.
"Is there any authority for the judge to step in sua sponte and dismiss or force the prosecution to show enough evidence to go forward.. That would actually be a courageous move on the judge's part. Perhaps it is the judge's calling to be courageous and stop this outrage!"
I replied to the question: "A grand jury indicted. If the defense doesn't move to dismiss, don't expect the judge to do it for the defense. But I have hope that the defense will do something sensible, if not exactly what I'd do, soon."
Christmas is coming. It is a hopeful time.
Last August, in "The "60 Minutes" season opener should close the Duke case," I not only announced that "[t]he current plan is for its thirty-ninth season to begin with a blockbuster expose on the Duke case" (it was postponed until October 15), but also urged the lifting of a patently unconstitutional gag order on potential witnesses, including the Duke Three:
"The Duke case has been a travesty of justice. The investigation was fundamentally flawed. The indictment was wrongly and hastily requested and improvidently granted. The court put aside a meritorious motion by Kirk Osborn, Reade Seligmann's attorney, to remove Mr. Nifong, and then, on its own initiative, issued a gag order craved by the NAACP of Durham as the truth began to penetrate the public consciousness.
"That gag order, issued on July 17, 2006, is a nuisance as well as an outrage, but it will not stop '60,' so Judge Kenneth Titus would be well advised to do a 180 and modify it as the defense lawyers requested four days after it was issued.
"The defense lawyers did not shout to the world that their clients and other witnesses were being gagged, as they should have, but their motion papers challenging the unconstitutional breathy of it are compelling. The next scheduled court conference in the case is next week. Judge Titus should do the right thing, even though Mr. Nifong may freak."
Judge Titus did not do the right thing, but he was replaced by Judge Osmond Smith and Judge Smith lifted the gag order at the September court conference.
The ugly truth in the Duke case is that the Duke Three were not out of control at that foolish party last March, but their prosecutor is out of control and he still needs to be removed from the case (as Reade Seligmann attorney Kirk Osborn requested last May) and from office as well.
Mr. Nifong's election last November does not insulate him from punishment for misconduct, including disbarment, which would put an end to his reign of terror as district attorney or prevent the court from removing him from the Duke case.
I wrote "reign of terror" because a recent emailer had a good point:
"I see Nifong as a terrorist as he has terrorized these three young men and their families. Yet the Federal government will give terrorists in Iraq more rights than these boys, at least Alkida terrorist get interviewed and the opportunity to prove their innocence. The AA community has been allowed to get away with their lynch mob mentality not caring about evidence or truth of which they have plainly stated. These boys are being held responsible for hundreds of years of AA injustices and the Federal Government will not protect these boys from this racist witchhunt."
If the Federal Government will not intervene, that leaves Judge Smith and the Duke case defense attorneys to stand up for the rule of law.
I hope they stand up all the way, the defense by charging the prosecution with flagrantly violating the constitutional rights of the Duke Three to their irreparable prejudice in a motion to dismiss that calls Mr. Nifong what he really is instead of pretending that he what he is supposed to be but obviously is not--"a fair and impartial minister of justice" and Judge Smith by holding a hearing on the motion at which Mr. Nifong is required to testify and then dismissing after due deliberation.
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.