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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 15, 2006
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Topic category:  Other/General

Duke Case: Time for Judicial Initiative: Dismissal, Not Just Suppression

Considerations: (1) Durham County, North Carolina District Attorney Michael B. Nifong managed to win a plurality of the votes in the district attorney election last month and is determined to pursue the Duke case; (2) the likelihood of hung jury after hung jury if the Duke case is held in Durham County is great; and (3) Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) should be trying to put their lives back together instead of preparing for trial on bogus rape, kidnapping and sexual assault charges.

The Duke case is a contest between those who would frame and conceal (false accuser Crystal Gail Mangum, the ex-convict stripper opportunist, and Mr. Nifong, petty tyrant/political opportunist) and those who want people to distinguish what is false or imaginary from what is true and real (the Duke Three and their supporters).

Initially, the Duke Three were inundated by what has been called "a perfect storm." (That means that Ms. Mangum's gang rape claim fit the agenda of The New York Times, the leader of the mainstream media, and so it was assumed that Ms. Mangum was a rape victim and all that needed to be determined was which of the 47 members of the 2005-2006 Duke University Men's Lacrosse Team attacked her and which ones covered up for them.

The problem: NONE of the team members kidnapped, raped or sexually assaulted Ms. Mangum and so there was no kidnapping, rape or sexual assault for anyone to cover up.

The irony: When Mr. Nifong called upon the team members to come forward and cooperate with the prosecution, he was really asking them to provide false testimony against innocent teammates.

Initially, the media created the impression that there had been a gang rape instead of a false gang rape claim and Mr. Nifong violated his ethical and statutory duties as district attorney to vouch for Ms. Mangum (whose credibility was such that confirmation of any accusation by her was very much in order).

Result: Mr. Nifong no longer is credible (or fit to practice law, much less serve as a district attorney)..

The tide began to turn as facts came out and the Three were humanized. (Their initial silence, but for David Evans' superb public statement after his indictment, and their attorneys' respect for ethical duties made it easy for Mr. Nifong, a rogue prosecutor hell-bent on being elected and desperate for the black votes that could make it possible, to demonize the Three, upset the favorite (Freda Black) in the Democrat primary on May 2 and win the general election on November 7, by pandering and playing the race card shamelessly.

BUT, the truth is on the side of the Three and their attorneys, investigators, families, friends and supporters in and out of the media pursued it zealously.

"60 Minutes" focused on the Duke case, and concluded that it was a prosecutorial disgrace. The blockbuster expose (facilitated by Judge Osmond Smith's lifting on September 22 of the blatantly unconstitutional gag order issued by Judge Kenneth Titus on July 17) aired on October 15 and was a wonderful valedictory for the late Ed Bradley.

Mr. Nifong was elected, however, since his message was a message many Durham voters wanted to hear and, to Durham's black community, himself, he did endear.

A farcical trial is to avoided, to be sure. It is an experience the Three and their families (and America) should not endure.

So, this week in the Duke case has been exciting. The defense, its supporters, have been delighting.

North Carolina Congressman Walter Jones publicly disclosed what he had written to United States Attorney General Alberto Gonzales and what needed to be publicly said: "Mr. Attorney General, many of my constituents have expressed concern to me that the facts outlined in this letter are indicative of prosecutorial misconduct. I urge you to look into these matters to ensure that Mr. Nifong’s actions have not illegally denied the accused of their civil rights as American citizens. After all, if the American people cannot trust those who they’ve empowered to pursue justice fairly, then hope for this democracy is lost.”

The Duke case really is about prosecutorial misconduct, not rape, or kidnapping, or sexual assault.

Federal authorities have a duty to intervene in a state criminal prosecution under circumstances such as those in the Duke case.

As lacrosse player/Marine/attorney Michael McCusker pointed out at crystalmess.blogspot.com:

"In his concurring opinion in Younger v. Harris, 471 U.S. 37 (1971), Mr. Justice Stewart noted that

The questions the Court decides today are important ones. Perhaps as important, however, is a recognition of the areas into which today's holdings do not necessarily extend. In all of these cases, the Court deals only with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court...

The Court confines itself to deciding the policy considerations that in our federal system must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury 'both great and immediate.' A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face (citation omitted), or if there has been bad faith and harassment - official lawlessness - in a statute's enforcement (citation omitted). In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights.

"The Court's restatement of long embraced deference to a sovereign state's freedom to prosecute criminal matters unencumbered by federal meddling (save in those exceptional circumstances summarized by Justice Stewart) came to be colloquially known as 'Younger Abstention.'"

The "official lawlessness" exception to "Younger Abstention" fits the Duke case perfectly.

The joint DNA-related discovery motion made by the defense on December 13 exposed "official lawlessness" without using the phrase (as does the subsequent joint suppression motion).

Accordingly, my article on the DNA-related motion, titled "Duke case: As expected, persecution proof detected," began:

"'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."The circumstantial evidence against Mr. Nifong is enormously stronger than the so-called evidence against the Three:

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 of DNA Security, a private laboratory, seemed eager to participate in the Duke 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 me 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.

Mr. Nifong concealing Ms. Mangum's pregnancy is not a court marshal offense, but his concealing of test results that obviously constitute exculpatory evidence is.

The defense followed up on its explosive DNA-related discovery motion with a compelling 43-page "motion to suppress the alleged identification' of the defendants by the accuser on December 14 and is likely to file a meritorous change of venue motion on December 15, a court conference date in the Duke case.

The suppression motion begins:

"NOW COME the Defendants in the above-captioned matter, pursuant to the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution, the coordinate rights established by the North Carolina Constitution, and G.S. §~15A-972, 15A-974, 15A-975(a) and 15A-977, and move to suppress any alleged 'identification' of them by the accuser in this case. The grounds for this Motion are that the 'Identification' procedure used by the State of North Carolina in this matter violated due process, was inherently suggestive, was inherently misleading, and resulted in out of court identifications by the accuser that have been tainted and are unreliable. The Defendants further move to bar any 'in-court' identification by the accuser on the grounds that any such identification would be inherently unreliable as a result of the tainted procedure utilized by the State, as a result of the numerous errors and misidentifications made by the accuser during these procedures, and as a result of the fact that the objective circumstances revealed by the State in this case demonstrate that the accuser’s 'identification' of the Defendants is false. Consequently, any 'in-court' identification would also violate the Defendant’s rights under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and the coordinate rights established under the North Carolina Constitution."

The convenient motion summary stated:

"The Defendants in this case have been indicted based on identifications made of them by the accuser during an 'identification' procedure that took place on April 4, 2006.

"Before that 'procedure' was used to identify the Defendants, according to a late-produced report by the State, the accuser had failed to identify either Reade Seligmann or Dave Evans as her attackers during the course of a series of photo arrays; indeed, as of April 4, and again according to this late-produced report, despite viewing approximately 36 photos of lacrosse team members (including Reade Seligmann and Dave Evans), she had failed to identify anyone as one of her attackers. Moreover, as of April 4, the investigation had failed to yield any evidence -- hairs, fibers, semen, blood or DNA -- on or in the accuser that was linked to any of the Defendants. Finally, and despite descriptions of her attackers given to police by the accuser on March 16, 2006, the accuser had never been shown a picture of Collin Finnerty, presumably because he did not match any of these descriptions.

"On March 31, 2006, and in light of these facts, the District Attorney -- who had taken over the supervision of the investigation on March 24, 2006 -- directed that a different photographic identification procedure be used by the police. In the new procedure, he directed that all of the white members of the lacrosse team who attended the party on March 13, 2006 be shown. This procedure was used despite the fact that investigators knew that at least two of the people present at the party were not members of the Duke Lacrosse team.

"In accord with these instructions, the Durham police prepared a 'PowerPoint' identification in which only members of the lacrosse team were shown to the accuser.

"That is, no 'fillers' were used to test the accuracy of her identification. Prior to showing the accuser these pictures, the supervising investigator informed her that she was only going to be shown pictures of the people who attended the party and that it was important for her to identify the people she recognized. In short, the accuser was asked to pick three people as her attackers from those present at the scene, and because only those thought to be at the scene were shown to her, she was, in effect, given a multiple choice test in which there were no wrong answers.

"This identification process, and the instructions and administration of it, were unduly suggestive and misleading. They not only violated the Defendants’ constitutional rights, but they also violated General Order 4077 of the Durham Police Department concerning photographic identifications and were contrary to the recommendations made by the Actual Innocence Commission as endorsed by the Education and Training Committee of the North Carolina Criminal Justice Education and Training Standards Commission.

"Moreover, the accuser’s actual 'identification' is riddled with errors. The accuser identified two players as being at the party who investigators later discovered were not there; indeed, one was not even in Durham on March 13 while the accuser was at the party. In the process of identifying her three attackers, the accuser actually identified four separate men as her attackers -- the State apparently just chose three of the four to indict without further investigation. She did not recognize people whom she earlier had identified, and misidentified people as doing things at the party that the investigation showed they did not do. Moreover, none of the Defendants matched the physical descriptions of the attackers given by the accuser to lnv. Himan on March 16, 2006.

"The Defendants contend that this 'PowerPoint' Identification procedure must be suppressed and that -- given the context of the investigation, the facts preceding the 'PowerPoint' identification, and the objective facts indicating that the accuser is simply wrong -- any further 'identifications' by the accuser should be barred."

MAKE NO MISTAKE: This suppression motion is superbly supported by factual references and so compelling that a denial of the motion would be an abuse of judicial discretion.

The "legal" part of the motion sets forth the applicable law simply and soundly:

"II. The Identification of the Defendants by the Accuser Wasthe Result of a Process That Was Suggestive, Unfair, Flawedand Which Plainly Violated Due Process Resulting in a SubstantialLikelihood of Irreparable Misidentification

"103. Pretrial identification procedures must conform to the standards of due process set forth in the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution, and the coordinate rights established under the North Carolina Constitution. See Moore v. Illinois, 434 U.S. 220, 227, 98 S. Ct. 458 (1977); State v. Knight, 282 N.C. 220 (1972). These standards of due process apply specifically to photographic identifications. See United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568 (1973); State v. Long, 293 N.C. 286 (1977).

"104. In short, for nearly thirty years, it has been the law that 'due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.' Moore v. Illinois, 434 U.S. 220, 227, 98 5. Ct. 458, 464 (1977).

"105. The test for determining whether a pretrial identification utilizing a photographic procedure violates due process is, itself, nearly forty years old: (1) whether the pretrial photographic identification procedure is impermissibly suggestive, and, (2) whether the impermissibly suggestive procedures give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968). See State v. Long, 293 N.C. 286, 289 (1977); State v. Knight, 282 N.C.220, 225 (1972). The first prong of this test has been characterized by North Carolina courts as asking 'whether the totality of the circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice.' State v. Fowler, 353 N.C. 599, 617-18 (2001) (quoting State v. Hannah, 312 N.C. 286,290(1984).

"106. In State v. Knight, the Supreme Court of North Carolina set forth seven factors to be considered in the suppression of evidence of an identification that violates due process. These factors are: (1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and, (7) the lapse of time between the alleged act and the out-of-court identification. 282 N.C. 220,

"107. As analyzed by the Court in Knight

The first of these factors focuses upon the magnitude of the suggestiveness inherent in the photographic identification procedures employed. The facts relevant to the remaining six factors are then balanced against that suggestiveness in order to determine whether, in the particular factual context under consideration, the suggestiveness gives rise to a very substantial likelihood of irreparable misidentification.

282 N.C. at 225-26 (internal quotations omitted).

"108. Subsequently, in State v. Pigott, the Court explained that the initial inquiry in any claim of improper identification, is whether ‘The identification procedure in question was unnecessarily suggestive.' 320 N.C. 96, 98 (1987). Once an impermissibly suggestive procedure has been employed, the remaining factors address the question of whether ‘The procedure employed was so suggestive that there is a substantial likelihood of irreparable misidentification.' Id. at 99. As presently employed by the Courts of North Carolina, the six factors in Knight, have now been reduced to five: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.' Pigott, 320 N.C. at 99-100. See State v. Pinchback, 140 N.C. App. 512, 518 (2000). While the Defendants bear the burden of showing a constitutional violation in connection with the process used for a pretrial identification, once such a violation has been established, it is the State that must demonstrate by clear and convincing evidence that there has not been a substantial likelihood of irreparable misidentification. State v. Knight, 282 N.C. at 226-227."

The facts and the law require that the suppression motion be granted.

BUT, Judge Smith can and should do MORE with the suppression motion!

The suppression motion included a prayer that the court order "such further relief as it deems just and appropriate."

Judge Smith should deem it just and appropriate to dismiss the Duke case.

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."

Mr. Nifong himself flagrantly violated the constitutional rights of the Three by rigging the identification procedure.

As stated in the suppression motion:

"155. This combination of circumstances effectively rendered the PowerPoint Identification procedure into a 'showup' procedure in which the accuser was essentially told that everyone that she would see was a suspect who police were willing to believe committed the crime and that it was important that she identify the persons she wanted to choose as her attackers. In the context of such 'showup' procedures, the courts have not hesitated to find these types of tactics unduly suggestive and constitutionally improper. See State v. Richardson, 328 N.C. 505, 511 (1991) (holding that procedure in which police informed witnesses that ‘They had a suspect' in a show-up identification was unduly suggestive). As noted in State v. Oliver, 302 N.C. 28, 44-45 (1981):

Both the United States Supreme Court and this Court have criticized the ‘practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup [with persons who did not commit the crime]. . . .‘ This Court has recognized that such a procedure, sometimes referred to as a "showup," may be "inherently suggestive" because the witness ‘would likely assume that the police had brought (him) to view persons whom they suspected might be the guilty parties.’

(internal citations omitted)"

For whatever reason(s), the defense hesitated to specifically request dismissal and instead sought a suppression that should lead to dismissal, since a criminal prosecution is not supposed to proceed to trial without admissible evidence.

However, Judge Smith should NOT hesitate to dismiss (and thereby avoid the need to rule that a fair trial in the Duke case cannot be had in Durham County, North Carolina.

The Duke case is a rarity in criminal law: either the Three or their accuser and prosecutor are villains and the Three are NOT the villains.

Pretending that the real villains are merely mistaken is a great mistake that is detrimental to the public good as well as the personal interests of the Three.

Congressman Jones, bless his heart, acted boldly and correctly.

Judge Smith has done the same thing before in the Duke case: lifting the blatantly unconstitutional gag order of Judge Stephens, denying Mr. Nifong's frivolous motion challenging the defense polling of a tiny sample of potential jurors and ordering the production of the underlying documentation for the DNA Security report that Mr. Nifong and DNA Security tried to keep from the defense.

Judge Smith should do it again, by dismissing. It is an opportunity not to be missed.

Amen.

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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