Duke Case: Why I Focused, Now Need Not, But Still Will, Focus on It
Early on Election Day 2006, Joan Foster, Liestoppers' prescient poetess, posted these (and other) well-chosen words:
"LieStoppers will still be here tomorrow morning, breathing fire. Forget despair… think dogged determination. We don't do angst, we redouble our efforts. Every Ashley propaganda piece has fueled a stunning rebuttal from someone on the blog. A twisted missive popping up from the professor-ly-pitiful Gang of 88 is manna for our creative heaven. Every Nifong outrage inspires us, rejuvenates us, rededicates us. I know these LieStoppers. A Nifong victory tonight will not bring ANY of us to despair. It will burnish ALL of us to whatever brilliance we might hope to possess. We will dig deeper, we will delve further… we will leave no stone unturned. We will write and rhyme and reason... parse the law and produce wickedly funny cartoons. We will not be eviscerated by a Nifong win today… by heaven, this crew will be invigorated.
"And that's just us.
"I'm sure the other Mighty Warriors in the field, will also be fueled and return rededicated to the fracas. The inimitable, remarkable NDLax; the brilliant and commandingly comprehensive Bill Anderson; the stalwart and steady Agenda slayer, John in Carolina; the prolific, ever-pounding Mike Gaynor; the never-failing Johnsville News; FODU's Jason Trumpbour, the constant voice of justice and reason; and before us all, the undisputed Hero of the Hoax…Professor K C Johnson, who has daily dissected and decimated the Hypocrisy before us with a clarity and power of conscience that has left us all in awe.
"Nifongistas, we'll all still be here. You ain't seen nothin' yet."
Last week yet more people came to realize that the Duke case is a prosecutorial disgrace and even the accuser and the prosecutor must realize that the case is collapsing.
It would have been better for Durham County if its voters had not elected the prosecutor (by a plurality), but the pernicious prosecutor being able to win a plurality election victory does not translate into being able to pull off what Liestoppers calls the Hoax.
After the December 15 court conference in the Duke case, I was asked by an e-mailer from North Carolina and a fellow New Yorker with more than a casual interest in the case why I had focused on the Duke case, and why I still was focusing on it.
Why I Focused
There's no denying that I focused on the Duke case early and intensely.
The interested New Yorker appreciated that, even though it had been a sensational week for the defense, (1) the Duke case is still pending, (2) Reade Seligmann and Collin Finnerty are still barred from taking classes and playing lacrosse at Duke University and (3) petty tyrant Durham County, North Carolina District Attorney Michael B. Nifong is still in office and intent on continuing to prosecute the case and keeping his job.
The New Yorker did not suggest I shift my attention to ushering in an era of world peace. In fact, he had good ideas for me writing about lesser noted aspects of what has been hyped as the Duke lacrosse scandal.
I focused on the Duke case because I feared it was a travesty of justice with enormously important implications for America generally, especially America's criminal justice and higher educational institutions and politics, instead of routine pursuit of justice in a small city.
Unfortunately, I was right about that.
I appreciated that the Duke case offered plenty about which to write and a plethora of lessons to be learned.
David Evans should learn not to host stripper parties and not to facilitate underage drinking.
Collin Finnerty and Reade Seligmann should learn to be more selective in accepting invitations or leave before the strippers show up.
Ryan McFayden should learn that his email to teammates after the off-campus team party last March (body: "tommrow night, after tonights show, ive decided to have some strippers over to edens 2c. all are welcome.. however there will be no nudity. i plan on killing the bitches as soon as the walk in and proceding to cut their skin off while cumming in my duke issue spandex.. all in besides arch and tack please respond") was hideous, not hilarious, and just what those perpetrating the hoax, intentionally opr unintentionally, needed. (Mr. McFayden deserved to be suspended for his email, but Collin Finnerty and Reade Seligmann did NOT deserve to be suspended under the circumstances and their continued suspension is contemptible.)
And much more important ones:
Crystal Gail Magnum should learn that Sir Walter Scott was right when he wrote, "Oh, what a tangled web we weave, When first we practice to deceive."
Mike Nifong should learn that a prosecutor's duty is to pursue the truth regardless of political considerations, not to prosecute for political advantage.
Much of the mainstream media should learn that a criminal accusation should be investigated objectively, not hyped.
Duke University President Richard Brodhead should learn that fairness has to trump political correctness, suspending indicted Duke students sends the message that the Duke University presumes that student to be guilty instead of innocent and maintaining the suspension after it is clear that the criminal charges against the student are bogus is malicious.
Fortunately, the judicial travesty part has become generally appreciated. The tipping point has been passed. Photographs and paintings of Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) may be framed, of course, but neither of them should be framed personally. Sadly, evil efforts to convict them (and David Evans) on phony charges will continue for awhile, Unfortunatelty, those efforts are frustrating; fortunately, they are futile.
Age, profession, interest and the facts put me on the side of the Duke Three and/or kept me there.
I suspected that (1) accuser Crystal Gail Mangum, had lied in crying "Gang rape!"; (2) Mr. Nifong had preferred (for personal reasons both political and financial) to treat that lie as the truth and to rebuff sincere efforts (especially by Kirk Osborn, Reade Seligmann's attorney) to demonstrate that the lie is a lie; (3) Mr. Nifong had improperly helped Ms. Mangum target young white males from wealthy families (who did make the mistake of attending a stripper party while white in Durham) against whom Mr. Nifong then could obtain indictments virtually for the asking (and without there being a written record of how he did it); and (4) Mr. Nifong would proceed to use his position of public trust to persecute the Duke Three, under the guise of responsibly prosecuting them for first-degree felonies for which there was competent, credible evidence when there was not and he had to know there was not.
I thought that Mr. Nifong was an ambitious political hack who had been (1) afraid of losing (a) the May 2 Democrat district attorney primary to a former colleague (Freda Black) and, upon Ms. Black succeeding him, (b) the only legal employment he ever had (he had terminated Ms. Black's employment when he was appointed district attorney and feared she would send him packing if she got the chance).
I perceived Mr. Nifong as a shameless scoundrel and a despicable disgrace to the legal profession (my profession). A public menace willing to sacrifice the Three for the sake of his political ambition and self-esteem by pandering to those in Durham County who crave the perverse pleasure of having the Three prosecuted upon the word of Ms. Mangum, a black ex-convict stripper whose history is such that any accusation of hers should be investigated especially carefully to determine whether or not it is verifiable (or at least supported by substantial evidence) and certainly not taken as true because she said so (especially when she had not taken and passed a polygraph test).
I deemed Mr. Nifong desperate for the political support of the likes of Chan Hall, 22, black and a student senator at North Carolina Central University, who
told Newsweek that he wanted prosecution of Duke lacrosse players "whether it happened or not," as "justice for things that happened in the past"?
That was ample reason for me, a lawyer who had followed the Tawana Brawley rape hoax and the William Kennedy Smith alleged rape case and posted articles regularly on several websites, to focus on the Duke case.
Especially when much of the mainstream media was treating the rape claim as a fact instead of a questionable claim and calling Ms. Mangum a victim instead of an accuser and an exotic dancer instead of a stripper.
Supporting those whom I believe are being scapegoated, that is, made to bear the blame of others, is something I like to do.
Jesus died for our sins. He volunteered. He didn't try to sacrifice someone else.
In sharp contrast, Mr. Nifong opted to try to sacrifice the Duke Three for his own purposes and planned to have them imprisoned for decades on bogus charges.
Tragically, many in Durham County wanted the Duke Three to be guilty so much that they blinded themselves to the Duke Three's innocence. To them, Mr. Nifong pathetically pandered. He decided to play the race card instead of to ascertain and to abide by the truth, because he believed that
the truth would not play well with voters whose support he desperately needed.
Understandable? Yes. Tolerable? No.
Last May I learned that America's top legal commentator, Stuart Taylor, had focused on the Duke case. I read his article as confirmation that no matter how bleak it looked, the sun eventually would shine and things again would be fine (for the Duke Three and their families and friends, NOT the people Mr. Taylor identified as rogues, including Mr. Nifong, Duke University President Richard Brodhead and the Duke faculty members known as the Group of 88).
I then wrote an article titled "The deplorable Duke political prosecutions," noting my criticisms of what I had considered prosecutorial abuse of two black defendants (minor, compared to what Mr. Nifong has done) and sharing Mr. Taylor's view as set forth in National Journal with interested Internet readers. [Note: The cost to subscribe to National Journal is substantial.]
I stated in part:
"When a young white woman who chose to visit Kobe Bryant in his hotel room later charged him with rape, it soon became apparent that she was hoping for the local prosecutor to pave the way for her to hit the jackpot by way of a civil suit. Convinced that there was ample reasonable doubt that Mr. Bryant had committed a crime, I criticized the prosecutor for pursuing the case. I do not believe that a prosecutor should pursue a case where there is reasonable doubt, especially when there is or will be a civil suit in which the plaintiff hopes for a free ride at taxpayer expense. Unsurprisingly, the criminal case against Mr. Bryant eventually fell apart, and Mr. Bryant later settled the civil claim in order to get on with his life.
"When a young black woman who chose to strip at an off-campus Duke lacrosse party later charged Duke lacrosse players with rape, I suspected that it was not the Duke lacrosse players were guilty only of bad taste, not rape. Subsequent developments have repeatedly confirmed my suspicion. But, the local prosecutor continues to prosecute three Duke players on what surely seems to be a phony rape charge.
"Today the news is that documents show the accuser first claimed that she was not raped, then claimed that she was raped by twenty Duke lacrosse players and eventually whittled that down to three (the same number she settled on when she charged some non-Duke males with rape years ago).
"What we appear to have here is an accuser who should be prosecuted, three Duke lacrosse players who never should have been indicted, a prosecutor abusing his office and the New Black Panthers out to exploit the situation while posing as champions of black womanhood. (The KKK championed white womanhood.)
"America's top legal commentator, Stuart Taylor Jr., had written that 'the available evidence leaves [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie.'
"Mr. Taylor's designated Duke case rogues gallery does NOT include the indicted players, but 'does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties' as well as 'former Princeton University President William Bowen and civil-rights lawyer Julius Chambers [who] went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal — a report that is a parody of race-obsessed political correctness.'
"America has a huge problem — a despicable media bias — and Mr. Taylor dared to call attention to it with commendable candor: 'Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.'
"As if that was not enough, Mr. Taylor not only castigated the pathetic prosecutor, but called for an investigation of HIM:
'Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.
'Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.'"
My article was noticed by a relative of one of the Three, who wrote to encourage me to stay focused on the Duke case.
I stayed focused on it, together with, among others, some other lawyers also outraged by corruption of the criminal justice system and educators outraged by that and the way Duke University as an institution and many members of its faculty (e.g., the Group of 88) mistreated the members of Duke University's 2005-2006 men's lacrosse team, especially the Duke Three.
The defense's three blockbuster motions last week--the DNA-related motion to compel discovery, the motion to suppression and the motion to change venue--not only set the stage for dismissal of a baseless prosecution/persecution, but exposed prosecutorial abuse.
The examination in court on December 15 of DNA Security Director Dr. Brian Meehan elicited sworn testimony indicating that Mr. Nifong deliberately withheld exculpatory evidence from the defense. (The excuse proffered--a desire to protect the privacy of lacrosse player--does not pass the laugh test. How does the discovery of DNA from multiple males in the rectal cavity and panties of Ms. Mangum violate the privacy of the lacrosse players WHEN IT IS NOT THEIR DNA?)
Why I No Longer Need to Focus
My North Carolinian emailer opined, seemingly reassuringly: "It's time to move on. The lacrosse players are in good hands....There are lots of things out there more interesting than this. How about the Iraq war or Darfur?"
I hope to continue to focus on it until the innocent are exonerated and those who should be called to account, be it in criminal court or civil court or before the North Carolina State Bar, are called to account and justice is done.
But my North Carolinian emailer is right about Reade Seligmann, Collin Finnerty and David Evans being in good hands and on course toward exoneration in the North Carolina criminal court as well as in the courtroom of public opinion.
The challenge in the Duke case was not to discover the truth--there was no evidence that any of the Duke Three was a monster, even though much of the mainstream media made them out to be monsters. They each passed a polygraph test, while Ms. Mangum did not even take one, and NO ONE ELSE
CAME FORWARD TO CLAIM THAT ANY OF THEM HAD DISRESPECTED A FEMALE, MUCH LESS RAPING ONE.
The challenge was--and is--to focus America (not just a dozen jurors, or the people of Durham, or even the people of North Carolina) on the ugly truth--that the Three had been framed, badly, by an ex-convict stripper who would not have had credibility if the Three were black and otherwise the same and a desperate white man about to lose an election to a white woman he had fired
(and then the only type of gainful legal employment he had during nearly thirty years as a lawyer) willing to do whatever it took--the Constitutions of the United States and North Carolina, the North Carolina statutes and case law and the ethical duties of a prosecutor be damned--by prejudicing the potential jury pool, hiding exculpatory evidence and dividing blacks and whites by assuring blacks that the rape claim was bona fide instead of doing a thorough investigation and then demonstrating to all who care about the truth that it is bogus,
The tide turned.
America in general "got it" when "60 Minutes" did an expose on the Duke case.
The petty tyrant survived on Election Day 2006, but the truth about the rape claim and how he had poisoned race relations in Durham County in particular and in America generally was unsuppressible.
The recent Saturday Night Live Nancy Grace skit was....PRECIOUS!
Excerpt from the Nancy Grace character's holiday message:
"And to the Duke lacrosse players, congratulations. It looks like you won this round. What with your daddys' money, and your high-priced lawyers, and your NOT having done the things you were accused of....
"That is why I am saddened by the recent news out of Durham, North Carolina where a brave, young woman, whose cause I have championed week after week on my show 'Nancy Grace' appears to have been lying when she claims she was sexually assaulted by three members of the Duke University lacrosse team. Although, thankfully, none of us will ever know her name. That heroic stripper needs our support and our prayers tonight.
"Over the past few years, our society has shown much greater sensitivity and compassion in the way it treats victims of sexual assault and that's a good thing. But what about those whose claims of sexual assault are almost certainly false? Who's sticking up for them? Besides me and Durham County D.A. Mike Nifong, nobody."
There are political, legal and social lessons to be learned from the Duke case, whether or not they are learned or spurned.
At propitious times, I hope to write about them.
I plan to still focus on the case. NOT because the Duke Three still need help. Because there are important lessons to be learned in their suffering is to have meaning.
We need to fix the criminal justice system, institutions of higher education like Duke University and the biased mainstream media, so that there are no more cases in which innocent persons are deliberately prosecuted anyway, abandoned by their universities in the name of liberal mythology and pilloried by the media because their being guilty would make a great story.
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.