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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 14, 2006
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Duke Case: As Expected, Persecution Proof Detected

"18. On April 8, 9, and 10, 2006, DNA Security analyzed the DNA profiles extracted from the cheek scrapings, oral swabs, vaginal swabs, rectal swabs, and panties from the rape kit items taken from the accuser at Duke Hospital in the early morning hours of March 14. While DNA Security's final report would not reflect the findings from that analysis, underlying documents provided to the Defendants on October 27, 2006, reflect that DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit; it was all compared to the known reference samples from the lacrosse players; and none of it matched any of the players."

What does THAT mean?

It means that false accuser Crystal Gail Mangum's story of her sexual history in the days before the lacrosse team party last March is as false as her gang-rape claim.

It means that the joint defense team did some great work.

It ALSO means that the prosecution did not voluntarily turn over exculpatory evidence, as required under the United States Constitution and North Carolina law.

That exculpatory evidence was buried in the documentation of the private lab that Durham County, North Carolina District Attorney Michael B. Nifong retained to assist him in prosecuting the Duke case.

Significantly, in my view, Mr. Nifong and the lab fought hard NOT to provide that massive underlying documentation.

But, Judge Osmond Smith properly ordered that the documentation be produced and the defense carefully "mined" it and struck "gold" that exonerates the Duke Three and exposes Mr. Nifong as the opposite of the "fair and impartial minister of justice" that a district attorney is supposed to be.

[Mr. Nifong apparently thought he could prosecute the Duke Three with "fool's gold," but he and his supporters are the fools and/or scoundrels.]

From the start, the Duke case has been a politically (and racially) motivated persecution by a rogue prosecutor, not a fair prosecution by a mistaken one. David Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J., aka the Duke Three, each was charged with rape, kidnapping and sexual offense after winning the unlucky white guys lottery that served as the identification procedure in the Duke case. They all pleaded not guilty, for the best of all reasons: THEY ARE NOT GUILTY! Fortunately, the truth is prevailing. The evil effort to railroad them that once looked so ominous and was so hurtful not only to the Three, but to their families and friends, will be...unavailing.

As Duke Three supporters expected, persecution proof has been detected, and it's the turn of the false accuser (Crystal Gail Mangum) and the Durham County, North Carolina District Attorney (Michael B. Nifong) to be dejected. From the case, office and the North Carolina state bar, he should be ejected.

[By most Durham County voters, Mr. Nifong WAS rejected, but he managed a plurality because, into the district attorney race, race and resentment, he injected, and racism and envy are hardly sins by which only whites can be infected.]

To the Duke Three side's delight, a end to the prosecution/persecution is in sight. The case soon will be dismissed if the defense asks nicely and Judge Osmond Smith does what is right.

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."

That irreparable prejudice standard is easy to meet.

North Carolina's highest court explained what that means in dismissing a DUI charge in North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

The opinions in the case make it quite clear that the defendant actually was intoxicated. As a dissenting judge put it: "Upon the facts in this record his guilt is so obvious that reasonable men, women or children could not arrive at a different conclusion."

BUT, as that same dissenting judge declared, "defendant's constitutional right to counsel was violated by an arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice."

SO, the majority ruled that the defendant's prosecution had to be dismissed, because the majority (unlike the two dissenting judges) could not say that there was not "irreparable prejudice": "Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and credibility of the State's witnesses as well as the certitude of their tests. Even if the assumption be true in this case, it will not always be so. However, the rule we now formulate will be uniformly applicable hereafter. It may well be that here 'the criminal is to go free because the constable blundered'....Notwithstanding, when an officer's blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence does not exist....Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime. For that reason the prosecution against him must be dismissed."

North Carolina's highest court declared that "the rule we now formulate will be uniformly applicable hereafter."

When pro-Nifong Judges Ronald Stephens and Kenneth Titus were assigned to the Duke case, I doubt a motion to dismiss was winnable (for reasons NOT involving the merits).

However, with (1) Judge Osmond Smith, who lifted Judge Titus's unconstitutional gag order on all potential witnesses, including the defendants, as well as ordering the underlying documentation to be produced, and (2) the tide turning in the courtroom of public opinion as a result of the facts coming out and "60 Minutes" doing its Duke case expose, I have been urging a pre-trial motion to dismiss as well as supporting a change of venue if there is a trial, because a fair trial is not to be had in Durham and there would be hung jury after hung jury, as in the John Gotti, Jr. federal case.

On December 13, Jeff Neff and Benjamin Niolet, staff writers for The News & Observer, began their latest article on the latest bombshell (more coming!) in the Duke case this way:

"A private laboratory hired by the prosecution in the Duke lacrosse case failed to report that it found DNA from multiple males in the accuser's body and underwear, according to a defense motion filed today. "The lab, DNA Security of Burlington, found that the DNA did not match the three defendants, their lacrosse teammates or anyone else who submitted their DNA to police, including the accuser's boyfriend.

"The new evidence emerged in thousands of documents handed over to the defense in October.

"'This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated,' said the motion, which was signed by lawyers for all three defendants.

"'There is not a single mention of this obviously exculpatory evidence in the final DNA Security report.'"

The obvious question is...WHY NOT?

The answer is almost as obvious.

After all, the applicable law (set forth in the motion) is clear:

"Under the plain language of 15A-903(a)(2) of [North Carolina's] open-file discovery laws, as it relates to any anticipated expert witnesses and testimony, the State of North Carolina must provide:

notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials...within a reasonable time prior to trial, as specified by the court."

"Additionally, the United States Constitution requires the disclosure of any evidence tending to negate a criminal defendant's guilt and/or affect the credibility of any prosecuting witness(es). See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); United States v. Agurs, 427 U.S. 97 (1976); and their progeny. These materials, as the Court is well aware, have become known in criminal law practice as 'Brady materials,' and they include any information gather in the course of an investigation or prosecution that tends to impeach the credibility of a prosecution witness."

Who has an interest in concealing exculpatory evidence?

Think about it.

Do the people at the private lab want convictions in the Duke case so much that they would violate lab rules?

After the DNA-related motion to compel discovery was made, North Carolina journalist and television commentator Cash Michaels posted a significance message on the TalkLeft message board:

"The day after Thanksgiving (Nov. 24), I attended a birthday party in Raleigh for a close friend. Close to the end of the party, a gentleman from Durham I know well and trust implicitly, took me to the side, told me he knew one of the technicians at the Burlington lab that did the second set of DNA tests, and that more DNA had been determined, but the results hadn't been made public yet. He didn't know why.

"He speculated that the undisclosed DNA belonged to one or some of the players, though he had no way to prove it.

"Since I'm not one of the DA's favorite people, there was no confirming this with Nifong's office. The source would not ID the tech. But last week I did get wind of the defense motion made public today that filled in the blanks. All that 'wind' confirmed was that there were previously undisclosed DNA samples, but not the source or sources of those samples.

"When I previously said I didn't know which way this would cut, that's why.

"Today we know."

On that score, Mr. Michaels is right.

And Mr. Nifong has good cause for fright.

TO THE PEOPLE IN THE PRIVATE LAB AND IN THE DURHAM COUNTY DISTRICT ATTORNEY'S OFFICE AND THE DURHAM POLICE DEPARTMENT: PUT TRUTH AND JUSTICE FIRST! DO WHAT IS RIGHT INSTEAD OF BEING PARALYZED BY FRIGHT.

I know something about what has happened in the Durham County District Attorney's office since Mr. Nifong became district attorney.

I reported how Mr. Nifong planned to deflect, and deflected, local attention from the "60 Minutes" expose by proceeding with a indictment in the quadruple murder case (even though that was not best for the investigation).

If people want to be anonymous sources, that's fine with me. I understand the fear of Mr. Nifong. But enabling him by silence instead of disabling him by letting the truth be known is wrong. Following the "60 Minutes" Duke case expose and North Carolina Congressman Walter Jones' disclosure that he had called for the United States Justice Department to investigate the prosecution of the Duke case, the joint defense motion to compel discovery: expert D.N.A. analysis filed on December 13, a decidedly unlucky day for Durham County, North Carolina Michael B. Nifong and false accuser Crystal Gail Mangum) prepared the way for the upcoming motion to put an end to a case that won Mr. Nifong a Democrat primary election and a general election, but will put an end to his legal career.

The joint motion is 16 pages, plus attachments, but the defense attorneys provided a convenient summary at the beginning:

"On March 14, 2006, physical evidence was collected from the accuser in this case as a result of her accusation that she had been gang-raped and beaten only hours earlier by multiple men who did not wear condoms, at least one of whom had ejaculated. This evidence was taken from her mouth, vagina, anus, and public region. Along with the panties and other items of clothing she was wearing at the time of the alleged assault, and dozens of other items collected from the scene of the alleged rape, this evidence was submitted to two different labs: first the State Bureau of investigation (SBI), which found no DNA link between the accuser and any of the suspects, and then to DNA Security, a private laboratory in Burlington.

"On May 18, 2006, the State provided the Defendants with a final report of the work of DNA Security. Despite performing DNA tests on over a dozen evidentiary items, DNA Security only reported its analysis of three of the items.

"The Defendants later sought from DNA Security its entire case file of documents underlying its work in the case. Through a letter read to the Court by District attorney Michael Nifong, DNA Security objected to the defendants' request for its case file, citing cost and privacy concerns. The Court overruled that objection and ordered that the materials be disclosed.

"On October 27, 2006, pursuant to the Court's order, the State provided the Defendants with thousands of pages of materials underlying the analyses performed by DNA Security.

"The Defendants have, upon examining those thousands of pages, discovered that DNA Security identified DNA from multiple males in the accuser's anus, in her public region, and on her panties. Enough of that DNA existed for DNA Security to conclude that none of it matched the Defendants, their teammates on the 2006 Duke University Men's Lacrosse team. or anyone else who submitted a DNA sample in the investigation.

"This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police that she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated. In short, these discoveries by DNA Security show that male DNA was discovered, on multiple rape kit items, which did not match any Defendant in this case or their lacrosse teammates.

"There is not a single mention of this obviously exculpatory evidence in the final Security Report. Indeed, had Defendants not undertaken an exhaustive examination of the underlying materials, which DNA Security objected to providing, this evidence would have remained unidentified in the mass of documentation underlying DNA Security's work in this case.

"Moreover, those materials also reflect additional serious gaps and deficiencies in the final report and underlying materials of DNA Security. For example, DNA Security apparently analyzed evidentiary items in this case that are nowhere identified in their records and for which, along with the rape kit items, it failed to provide the results in its final report.

"This Motion will seek an order directing the State of North Carolina to obtain from DNA Security a report of all of its analyses in this case, as well as the other items specifically sought in the Prayer for Relief."

That Prayer for Relief seeks "[a]n Order directing the production of [specified] items," OR "[a]n Order directing Dr. Meehan [of DNA Security] to submit to questioning under oath by a representative of the Defendants about those items and the matters raised [in the Motion," OR "[a]n evidentiary hearing on the matters raised [in the Motion]," AND "[a]ny other order [the] Court finds appropriate in the interests of justice."

The defense's refrain: "Our discovery laws, our Constitutional law, and this Court's order of September 22, 2006, demand that [the material be] provided to the Defendants."

Halleluah!

The circumstantial evidence against the prosecution is highly suggestive.

As stated in footnote 82 to the Motion:

"In fact, the DNA section of the SBI lab maintained and provided to the Defendants in this case a log of its activities and communications in this case.... By contrast, although Dr. Meehan met with the District Attorney and two investigators on two separate occasions in this case (April 10 and April 20 or 21, 2006...), there are no notes in the DNA Security materials that reflect those meetings. Nor is there a phone log reflecting any telephone communications related to this case by any of the analysts or personnel at DNA Security, despite the fact that Inv. Himan's case investigation narrative reflects that he communicated by phone with DNA Security on at least two occasions during the lab's work in the case (see, e.g., BS 1240 regarding a conversation on April 19 and BC 1250 regarding a conversation on May 8). Nor are there copies of any internal e-mails which may have been sent between or among the analysts who worked on the case between April 6 and May 12, 2006. There is a copy of one e-mail to Dr. Meehan from a representative of Applied Biosystems regarding the Y-STR database...; however, there are no other e-mails included in the underlying materials, external or internal."

Add to that, this: "On September 22, 2006, through District Attorney Mike Nifong, Dr. Meehan objected to production of those materials, citing cost and privacy concerns. Mr. Nifong read into the record Dr. Meehan's letter of objection. Nevertheless, this Court ordered that the materials be produced as sought by the Defendants."

What was buried in the documentation that Mr. Nifong fought hard NOT to provide not only strongly supports the defense, but is more than sufficient reason to investigate Mr. Nifong and the private lab of his choice in order to ascertain whether he and/or a person or persons with the lab concealed exculpatory evidence.

On March 28, the State Bureau of Investigation laboratory had tested the rape kit items in the Duke case and found no evidence of semen, blood or saliva, according to SBI records.

On April 4, after meeting with Mr. Nifong, Durham police investigator Michele Soucie called DNA Security to ask whether the laboratory could do any additional testing of the evidence, according to Ms. Soucie's handwritten notes.

Dr. Brian Meehan, director of DNA Security, said his lab could do Y-chromosome testing, a more sensitive test than the tests performed by the SBI lab.

Obviously Mr. Nifong then still was hoping for DNA evidence to implicate instead of exonerate.

Dr. Meehan seemed eager to participate in the case. According to Ms. Soucie's notes, he spoke of "possibly adjust[ing] prices because they would really like to be involved in case."

On April 8, 9 and 10, DNA Security found DNA from multiple males on the panties and rectal swab from the rape kit; none matched the lacrosse players.

On April 10, Dr. Meehan met in his office with Mr. Nifong and the two lead investigators in the case, Sgt. Mark Gottlieb and Investigator Benjamin Himan.

On April 18 and 19, DNA Security ran tests on pubic hair from the rape kit and found multiple male DNA that did not match the players or any other sample taken by police.

On April 20 or 21, Dr. Meehan again met with Mr. Nifong and the two investigators in his Burlington office.

It is incomprehensible to be that Mr. Nifong was not made aware of the results.

Yet Dr. Meehan did not include any of these DNA results in his final report to Mr. Nifong on May 12.

Moreover, the report violated DNA Security's own policies, which state that reports shall include "results of every DNA test."

Now let's have the Duke case dismissed, so the Duke Three can have their lives back.

Congressman Walter Jones was right to request a United States Justice Department investigation of the prosecution of the Duke case. Unless there is one, petty tyrants will feel free to pervert the criminal justice system for their own pernicious purposes.

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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