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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  December 27, 2006
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Duke Case: Cash Michaels Can't Save This Prosecution

I  doubt that Cash Michaels' latest article, titled"Duke Case--Rape Charges Dropped, As Defense Distorts Facts" and subtitled "NC NAACP and Jesse Jackson falsely accused," was written to buttress the defense's change of venue motion in the Duke case, BUT IT DOES!

Mr. Michaels: "Now that the accuser in the Duke lacrosse case has told authorities that she could not testify 'with certainty' that she was forcibly raped 'with a male sex organ,' Durham District Attorney Mike Nifong, the credibility of his office and the case at risk, must decide whether it’s worth it to proceed with first-degree kidnapping and sexual offense charges against the three Duke lacrosse players indicted."

True.

Mr. Michaels: "The 'male sex organ' distinction is key because a broomstick was alleged to have been originally involved, but never found." False.

There was no gang rape.  There was no rape.  There was no sexual contact between Crystal Gail Mangum, the false accuser, and Reade Seligmann, Collin Finnerty and David Evans , on the night of the lacrosse team party last March, or before, or after.  And there never will be.  None of them would touch her with a ten-foot pole, or any female with a broomstick.  (As for whether any of their mothers would take a broom to despicable Durham County, North Carolina District Attorney Michael D. Nifong for what he has done by way of prosecutorial abuse in the Duke case, I am of two minds: they are too much ladies to do, and they might make an exception for him.)

Mr. Michaels:

"In his motion to dismiss, Nifong wrote, '…the victim in this case indicated that, while she initially believed that she had been vaginally penetrated by a male sex organ, she can not at this time testify with certainty that a penis was the body part that penetrated [her].'

"Since the male sex organ must be 'one of the elements of this offense that the state must prove beyond a reasonable doubt, and since there is no scientific or other evidence independent of the victim’s testimony that would corroborate specifically penetration [by a male sex organ], the state is unable to meet its burden of proof with respect to this offense.”

Actually, it was a dismissal, not a motion to dismiss. But the quoting is accurate and in context and much of the media read too much into it.  The dismissal was tactical, with Ms. Mangum and Mr. Nifong being practical and hoping to win a conviction on sexual offence and/or kidnapping by avoiding the impact of having the bogus gang rape charge tried. The prosecution plan seems to be to present Ms. Mangum as so honorable that she's letting Reade, Collin and David off the hook on the rape charges because she's not "certain," but she's "certain" about the other charges.

The plan is doomed, even if there is a trial, because Ms. Mangum is not credible and her own many versions of what happened plainly show it, even without her criminal history.

Mr. Michaels: "Most legal observers agree that given the literal paucity of evidence Nifong had to begin with, either he voluntarily drop the rape charges, or be forced to do so in a courtroom." Right!

Mr. Michaels: "But others, like Prof. Irving Joyner of the North Carolina Central University School of Law, say dropping the weakest part of the case, namely the rape charges, may strengthen the case because during a trial, it will keep all reference to the lack of DNA evidence out of testimony."

That's the plan!  But justice requires that ALL of Ms. Mangum's accounts of what allegedly happened be presented in a trial.  By dropping the rape charges, the prosecution will not succeed in stopping the defense from demonstrating that she is not credible and thereby establishing so much reasonable doubt that conviction would be impossible, if there is a trial.

Also, the remaining charges should be deemed tainted beyond reasonable belief by the deliberate decision of Mr. Nifong to conceal exculpatory evidence, now publicly known.  All three charges are so related that it would be an abuse of judicial discretion to exclude reference to the concealment of DNA evidence.

Mr. Michaels: "The first-degree sexual offense charge might suggest a sexual assault with an object, for instance, if it can be proven. If Nifong can’t, his case will continue to spiral out of control."

True.  But there was no such assault and no reasonable basis for speculating about the possibility, especially by a person who had access to what the prosecution did produce in discovery and wrote:

"'What evidence does the DA have,' and 'Can he prove this case?' Since then I've gotten answers to both — 'Nothing' and 'No.'"

Merry Christmas!  Ho ho ho!

Mr. Michaels: "Indeed, the Durham D.A. faces that prospect in February."

Right again.

Mr. Michaels: "At issue is the integrity of the police photo identification lineup from which the Black female accuser, who alleges she was kidnapped and sexually assaulted by Colin Finnerty, Reade Seligmann and David Evans at a lacrosse team party last March, chose the suspects."

That's ONE subject at issue.  It's Collin, not Colin.  And the lineup lacked integrity, as Duke Law Professor James Coleman and Brooklyn College Law Professor Robert K.C. Johnson (among others) have explained.

Mr. Michaels: "Defense attorneys for the so called 'Duke Three' have vigorously challenged the process in court, saying not only that it was conducted improperly and in violation of Durham Police Dept. policies and procedures, but also violated the constitution rights of the accused because only the pictures of Duke lacrosse players were used, no unrelated filler photos."

And the defense is right (for those and other reasons)!

Mr. Michaels: "The defense says that means all the accuser had to do was pick three pictures, and she couldn’t be wrong."

Actually the defense says there really was no right answer but the prosecution pretended there was no wrong answer and Ms. Mangum finally specified individuals.

Mr. Michaels: "A February 5 hearing on the matter is scheduled, though with the accuser’s reported pregnancy due to deliver the first week in February, according to the District Attorney, it may have to be postponed."

True.  And stalling is what the prosecution wants.

Mr. Michaels: " When that hearing is held, however, the accuser is expected to take the witness stand and testify before the judge how and why she identified Finnerty, Seligmann and Evans."

Remember what happened when Mr. Nifong sprung Dr. Brian Meehan, director of DNA Security, as a surprise witness at the December 15 court conference?

May Ms. Mangum take the stand!

For the defense, it will be grand!

Mr. Michaels:

"If she’s not able to justify the ID’s, Judge W. Osmond Smith may throw the identifications out, forcing D.A. Nifong to drop the case altogether.

"That’s the risk the embattled Nifong now faces, and given the tremendous pressure he’s been under since the first DNA tests came back goose eggs last April for evidence that a rape actually occurred, there is still a possibility that he may cut his losses before February." True.  Mr. Nifong and Ms. Mangum may decide it's the wisest thing to do.

"If he doesn’t, the three primary defense attorneys representing the accused have already made it known that they will spare nothing in ripping into what they believe to be a 'false accuser.'"

Absolutely!  They will do what ethical defense attorneys are bound to do.

"Their ability to successfully do so will be based on what evidence or witness testimony D.A. Nifong has to substantiate felony kidnapping and sexual offense charges against the Duke Three."

So they will NOT be able to successfully do so!

Mr. Michaels: "The proverbial legal damn burst against the Durham D.A. when, at the Dec. 15 hearing, it was revealed that he asked the head of the Burlington DNA testing laboratory to withhold the results of several tests that proved the accuser had had sexual relations with several men at the time of the alleged assault, but none of the DNA matched any of the 46 white lacrosse players at the party where she performed as an exotic dancer."

YES!!!

Mr. Michaels: "Nifong’s action violated North Carolina’s law requiring prosecutors not only to turn over all exculpatory evidence in a criminal case to the defense, but in fact, their entire file."

Not to mention the United States Constitution!

Mr. Michaels: "As a result, Nifong may face sanction, and may even have to recuse himself from the case, as a result. A North Carolina congressman has already asked U.S. Attorney General Alberto Gonzales to probe Nifong’s actions for possible civil rights violations, and Gonzales has indicated he’s considering it."

YES!!!

Mr. Michaels: "The State Bar, which governs the behavior of all licensed attorneys in the state, has reported received numerous complaints about Nifong in connection with the case, and is reportedly looking into his actions."

YES!!!

Mr. Michaels: "Meanwhile, the defense is still pressing the case with its other motion."

YES!!!

Mr. Michaels: "'The extensive and prejudicial pretrial statements' made by Nifong and Durham police over eight months ago; in addition to massive media coverage and public demonstrations by Duke student protesters and Black activists, have created such a 'highly polarized' and racial environment in Durham County that the three white defendants in the Duke alleged kidnapping and sexual offense case cannot get a fair trial, claim their defense attorneys in their change of venue motion filed Dec. 13."

Exactly!!!

Mr. Michaels: "'The grounds for this motion are that there exists within this county among a significant percentage of residents …so great a prejudice against the defendants that they cannot obtain a fair and impartial trial and that a jury selected from this county will be unable to deliberate on the evidence presented in the courtroom, free from outside influence,' the 31-page document contends."

EXACTLY!!!

Mr. Michaels: "According to the County Board of Elections, over one-third of Durham’s registered voters are African-American in a county where US Census data shows Blacks are over 38 percent of the population, and the jury pool is derived from that registered voter list."

Yes.

Mr. Michaels: "If the trial were held in Durham, the probability of at least three to possibly four members of the 12-person jury being Black would be high."

Yes.

Mr. Michaels: "“[The Duke Three defense team believes] that Black people don’t like Duke [University],' Chapel Hill civil rights attorney Al McSurely, chair of the NC NAACP Legal Redress Committee, told The Carolinian/Wilmington Journal newspapers in September. 'They would want a change of venue whether Nifong said anything or not.'

Irrelevant, even if true.  Every defendant is entitled to a fair trial, not trial Nifong-style.

Mr. Michaels: "Black leaders in Durham say they see a distortion-filled defense motion that’s a futile, yet blatant attempt by the high-priced Duke Three defense team not only to play the race card to substantially limit the number of African-Americans impaneled on the jury if the case goes to trial next spring, but to deliberately mischaracterize Durham’s current low-key 'wait-and-see' attitude about the case as racist against the white defendants."

Yes, they say it.  But if they are connected to reality, they don't believe it, because it's obviously not true to observant people of all colors, black too.

Mr. Michaels:  "'I would really be excited if I could find this reservoir of anger that these lawyers are talking about,' Rev. Melvin Whitley, a Durham community activist, said. 'I don’t even hear it. In fact, I think for the most part, our community has bent over backwards to give the benefit of the doubt.'"

NOT FUNNY!  Poll results showed massive prejudgment of the Duke case.  And the demonstrations and remarks, both in and out of court, are not forgotten.

Mr. Michaels:"'“In fact, in some cases, they’re probably harsher towards the alleged victim, than are other folks.'"

SOME, yes.  But Durham's a mess.

Mr. Michaels: "'That’s an unfair depiction of Durham, ' Rev. Whitley added.

Playing to his base.

Mr. Michaels: "'I think the Black community is more skeptical of the [accuser] than ever,' agreed Keith Sutton, president/CEO of the Triangle Urban League, noting how so far, there’s been no known evidence substantiating her rape and kidnapping claims. 'You just don’t know what to believe from her, and what happened.'"

Ms. Mangum is not credible, that's become obvious.

Mr. Michaels: "Those leaders add that if there’s been plenty in the press about the Duke lacrosse case over that past seven to eight months – including a highly touted “60 Minutes” expose’ in October - the Duke defense attorneys themselves have been the ones responsible for all of the noise."

NONSENSE!  The has been an effort to railroad their clients.  And the NC NAACP asked for and received a blatantly unconstitutional gag order from Judge Kenneth Titus, later vacated by Judge Osmond Smith.

Mr. Michaels: "Even more troubling, Durham Black leaders say, is that the motion echoes, without any reference or substantiation, the unfounded charge by the predominately-white Duke Three support movement that Blacks in the Durham community might harm Black jurors if they didn’t vote to convict."

A reasonable inference, based on the history of the Duke case.  Example: the "Dead Man Walking" jibe at Reade Seligmann.

Mr. Michaels: "The Duke case is so divisive in Durham that jurors would be likely to worry about their own well-being if they voted to acquit,' conservative Michael Gaynor, a New York attorney and national columnist. wrote in November. 'Durham jurors, especially Black Durham jurors, would be subject to pressure to ignore the lack of evidence and the law, and vote to convict, hanging the jury and making the prosecution look credible.'"

Yes.

Mr. Michaels:

"Gaynor, who recently called the NC NAACP 'Negroes Asserting A Canard Publicly' in his Dec. 17 column, offered the same evidence to back up his Blacks-threatening-Black-jurors assertions as the defense’s change of venue motion does.

"None."

Mr. Michaels characterized an article of mine titled "Duke case: NAACP, apologize!" 

It began "NAACP: National Association for the Advancement of Colored People? Or, in North Carolina, Negroes Asserting A Canard Publicly?" and ended this way:

"Will the North Carolina NAACP announced that it was fooled?

"For its own good as well as the sake of doing the right thing, it should!"

Please read it. 

Mr. Michaels: "'Trial in another county, by residents of another county, would also eliminate any potential influence on – or even action against – jurors returning to their community and explaining their verdict,' the motion by attorneys representing Reade Seligmann, Colin Finnerty and David Evans – the three white Duke University lacrosse players indicted for the alleged sexual offense and kidnapping of a Black exotic dancer last March - maintained."

Correctly!

Mr. Michaels: "'How ludicrous,' declared Andrea Harris, who heads up an economic development agency in Durham."

See the polls results.

Mr. Michaels: "'If there are any people in America that, because of all they’ve been through, believe in fairness and justice, it’s African-Americans,' Harris added."

Believing in fairness and justice does not always make one fair, unfortunately.

Mr. Michaels:

"Duke Three defense attorneys apparently don’t agree.

"No other commuity within the area has experienced street protests about this case, a stream of prejudicial and inflammatory statements by faculty members of the largest employer in the county, a parade of editorials from the only newspaper of general circulation based in the county supporting the prosecution and attacking the defendants, or had significant segments of its population openly and uncritically embrace the accuser’s version of events,' the defense motion adds.

"'Moving this case to another community will remove each of these outside influences from any role in the deliberations of the jury.'

"The defense document, which the prosecution has yet to respond to, lists 64 'Facts Supporting Motion,' consisting of various assertions about events, statements made by public and private figures, and media coverage that the defense maintains makes for a compelling argument against the slightest possibility of a fair trial in Durham for the Duke Three."

The defense is right.  And a defendant is entitled to a fair trial, NOT the possibility of a fair trial.

Mr. Michaels:

"But a careful, closer review of the motion by The Carolinian/Wilmington Journal newspapers shows clear evidence, not only of repeated factual distortions, but critical misrepresentations and outright omissions of several well-known mitigating facts, calling into question the veracity of the defense’s calculated attack on the credibility of Durham’s African-American community.

“'Given some of the attorneys that are behind this, it seems to me they are intentionally trying to play the race card in this to the favor of their clients,' Triangle Urban League’s Keith Sutton noted.

"Some of the more glaring examples include the motion’s pivotal concern that 'significant outside forces' so impacted the Black community’s reaction to news of the alleged rape, that civil rights leader Rev. Jesse Jackson '…came to Durham to assist in the African-American community’s response…'

"The motion even assuredly cited a Newsweek May 1 article as the source of that information.

"However, while the nationally-known activist did publicly offer to pay the college tuition of the alleged victim, out of concern for her continued education at North Carolina Central University, he did so from Chicago, not Durham.

"To this day, neither Jackson, or fellow civil rights activist Rev. Al Sharpton, who had also expressed concerns about the case eight months ago, have set foot in North Carolina concerning the Duke case, because they were specifically asked not to in an effort to minimize public protests.

"Neither has said anything about the case since."

A USA Today June 20, 2006 editorial stated in part: "Two weeks later, District Attorney Michael Nifong, running for re-election, equated the incident with cross burnings and a quadruple homicide that had occurred in the previous year, making national news and prompting Jesse Jackson to come to the accuser's aid. Over the next five weeks, Nifong asserted that the charges were true and that lacrosse team members were 'hooligans' covering up a crime.

"More striking is that the Newsweek story the motion references never reported that Jackson came to Durham.

"Only that he got involved."

Whether or not Reverend Jackson came to Ms. Mangum's aid by coming to Durham or from another place is a trivial detail.

Mr. Michaels:

"The venue motion accuses the NC NAACP, and specifically its president, Dr. William Barber, of taking part in the Black 'outrage' in Durham.

"In fact, Dr. Barber joined with Durham Mayor Bill Bell, NCCU Chancellor James Ammons, and even Duke University Pres. Richard Brodhead, in calling for calm in the community, cautioning against a 'rush to judgment.'

"Barber and Ammons even issued public statements blasting the militant New Black Panther Party for coming to Durham, saying that the prospect of violence was neither wanted nor needed.

"And the NC NAACP president issued a 10-point position paper on the Duke case, calling for no favoritism in the criminal probe, and for citizens to give the justice system 'a chance to determine the truth.

"I think that the people in Durham – white and Black – considering all of the dynamics that have gone on in this case, have been quite reflective, and quite patient,' Dr. Barber said. 'We have good people who are willing to make very sound and clear judgment on the case.'

"Barber adds that it was the NC NAACP that demanded that the case not be tried in the newspapers and television when the defense attorneys themselves began to pile on the accuser."

WHY IS THERE NEVER ANY SPECIFICATION WHEN I ASK WHAT THE DEFENSE ATTORNEYS SUPPOSEDLY DID THAT WAS IMPROPER? Could it be that they did not do anything improper?  If not, please specify!  And file an ethics complaint.

Mr. Michaels:

"The motion also alleges that 'The NAACP Chapter in Durham County has included a "Duke Lacrosse Update” on its website.'

"Problem – the Durham NAACP doesn’t have a website, and hasn’t had one all year, officials there say. A member may have started his or her own “Update” page, but not under the auspices of the organization."

How clever!

Mr. Michaels: "In another instance of apparent mischaracterization, the defense motion states, 'During the course of Reade Seligmann’s initial appearance…he was met by a mob, including members of the New Black Panther Party…'

"The obvious insinuation to the court is that Seligmann was met by a 'mob' of angry protestors as he entered the Durham County Courthouse.

"In fact, the 'mob' defense attorneys referenced was actually the large throng of local and national news media, along with less than a handful of New Black Panther Party members, all from out of town, waiting for the rape case defendant to arrive and enter the building.

"When he entered the courtroom with his attorney, it was already filled with well-behaved onlookers, not a mob. 'I don't know why you're all here ... but this is a court of law and this is my court,' a surprised Durham Superior Court Judge Ronald Stephens said to the packed gallery, which, as Courttv.com reported on its website June 22, '…included a few men wearing hats with Black Panthers logos.'

"One of those out-of-town NBPP members did utter, 'Dead man walking' in Seligmann’s direction, but there was no incident and authorities did not react. The defense says, 'It was a mob, regardless of whom made it up…and the atmosphere was threatening.'"

Michael McCusker, a Notre Dame lacrosseplayer/United States Marine/lawyer explained on his website (see crystalmess.blogspot.com/2006/08/persecution-by-stephen-miller.html) why he took up the cause of the Duke Three, as follows:

"I do not know Reade Seligmann, Collin Finnerty or Dave Evans, and I do not receive any remuneration or other tangible incentive in consideration of my thoughts. I'd been following the case, since it had exploded into the public consciousness two months earlier, with but the detached interest of one who loves the game, loves his wife, respects the rule of law, and maintains an occupationally healthy dose of skepticism for all things prosecutorial. Enough had been disclosed by then, of course, from police files, hospital records, witness statements, publicly filed court documents and the D.A.'s own discovery materials, to...know.

"I was moved, however, to do something more, anything I might, to help spur justice for the wrongfully accused, on coincidentally sidling up to two men having a sidelines conversation at our town league-sponsored youth lax tournament on May 20th. At first, I was interested only in finding out the score of the ongoing game, the winner of which would play my team in the next round. As I stood there, I could not help but pick up on the agonized tone of one of the gentlemen standing next to me. Understand, I hadn't yet discerned the subject matter of their chat; I merely felt the sudden unease of being an intruder, the unwitting eavesdropper to another dad's angst. I was starting to walk away when I heard '...and I had to stand there with my SON, and walk past that angry mob, shouting, "Rapist!" "Dead man walking!" "You'll get yours, Rapist!" I don't know why I did it, but I stopped, stone still, really LOOKED at the man for the first time, and asked, "Excuse me, but what is your name?" He looked back at me with the focused peer of a night sentry seeking to ascertain friend or foe, met my eyes with confident self-assurance, extended his hand and said firmly, "My name is Phil Seligmann. Nice to meet you. What is your name?" The other man shortly bade goodbye and we chatted, then, Phil and me, for quite a while. As the game in front of us ended and I had to marshall up my fourth grade troops for their contest, he extended his hand again. We shook, each pulling the other into the warm hug of mutual fatherly understanding. I asked him to convey to Reade that there are millions of people across the country, like me, all of whom who can see, hear, read, and...know. His eyes misted just a bit as he embraced me more firmly and whispered in my ear, "Thank you. THANK you. You have no idea how much that means to me and my family." I've never spoken to Phil Seligmann again. This is the first time that I have publicly conveyed the story of our meeting, and I fully expect that, if he sees this, he will appreciate my reason for doing so now.

"Much more is now known about the insidious, cancerous malignancy that eats away the good soul of the city of your collegiate residence than had seen the light of public scrutiny when Duke students cleaned out their rooms and dispersed for points far removed last spring. The mind-numbing depth of judicial, prosecutorial, police and media corruption shall not, and is not, going unnoticed any longer."

The mainstream media failed to report how scary it was.

Mr. Michaels:

"The defense motion even has Durham D.A. Mike Nifong telling an audience at historically Black North Carolina Central University that he wasn’t going to allow Durham to be portrayed by '…a bunch of lacrosse players raping a black girl.' 

"While Nifong did address students, press and community leaders at NCCU on April 12, he didn’t make that racially-charged statement there, but at the candidates’ forum later that evening, in front of a more mixed, much smaller audience, which was televised on cable television.

He made a different racially-charged statement there?  What did he supposedly say at NCCU on April 12?

Mr. Michaels:

"The motion mentions the numerous demonstrations and rallies, but fails to note that there hasn’t been any in Durham in over six months. It cites numerous articles in the local and national press critical of the Duke lacrosse team’s past behavior of drinking and hard partying, but fails to mention how the majority of news coverage shifted to be critical, if not brutal, towards the accuser after information about her troubled background and criminal history emerged.

"Information, including photographs and exclusive access to discovery evidence for certain members of the press like MSNBC’s Dan Abrams, supplied by defense attorneys.

"D.A. Nifong’s over 60 press interviews in April are cited, but the fact that he virtually stopped talking after the third indictment last May, is not noted. And neither are the numerous defense interviews, press conferences, and questionable motions attacking the credibility and background of the accuser, motions designed to be salacious enough for the press to run with; the intensity and frequency of which, critics say, were designed either to poison the Durham jury pool in favor of the Duke Three, scare the accuser into backing out of testifying, or forcing a change of venue, all of which defense attorneys denied.

“'I definitely think that there are some students on Duke's campus who share the sentiments that many of the North Carolina Central students were expressing, that this woman has been -- her reputation, though not her name, has been dragged through the mud,' Seyward Darby, editor of the Duke University student newspaper, The Chronicle, told CNN in April.

"Darby added that certainly the lacrosse players had been 'dragged through the mud' as well, so she felt that 'all parties are being really hung out there right now,' meaning that defense efforts to equalize D.A. Nifong’s initial blizzard of negative publicity against the players had pretty well caught up by then."

The defense DID NOT violate any ethical rule or due process requirement.  That was done by Mr. Nifong, making it incumbent upon them to response within ethical parameters.  Doing that does NOT undo the damage Mr. Nifong did or obviate the need for a change of venue to assure a fair trial if there is a trial.

Mr. Michaels: "Even national cable TV legal pundits like Nancy Grace mused that the defense team’s aggressive public assault on the alleged victim’s troubled personal and criminal history was an attempt to poison the Durham jury.

"“In my mind, this is totally ruining the defense’s possibility of getting a venue change because once they try to argue, ‘Look, the public, the jury pool has been tainted by all the press ‘-- they’re part of the taint. They’re part of the stench of the taint of the jury pool,' Grace said on her May 1 Headline News program."

Yes. Ms. Grace said it.  But there is no evidence that it is true, obviously because it is not.  Like the bogus gang rape claim, it is a forelorn hope.

Mr. Michaels:

"Greg Skordas, another legal pundit on the show that evening, noted that the defense deliberately filed a motion right before the May primary charging that D.A. Nifong was exploiting the Duke case for political advantage.

“'…[F]iling a motion like that and filing it on the eve of an election, knowing it’s going to get publicity, knowing you`re going to talk about it, other people are going to talk about it, shoots them right in the foot,' Skordas told Grace. 'They’re not going to come and say, "Well, Nifong has so tainted our jury pool that we can`t get a fair trial," because then he`s going to turn right around and point at them and say, "You`ve done the exact same thing."'"

"Clearly others thought so. In May the NC NAACP asked the chief judge of the Durham County Courts to impose a 'quiet zone,' which would have been directed primarily at the defense for their almost daily attacks on the accuser.

"Judge Kenneth Titus apparently thought the defense had gone far enough, long enough, with their various selective leaks of evidence, press conferences and mountain-high motions, to impose a pseudo-gag order on July 17.

“'This court takes judicial notice of the extensive pretrial publicity that's been available in all of these cases… It is this court's responsibility to ensure that the defendants and the state proceed with the constitutionally guaranteed right to a fair trial by a jury free from partiality, bias or prejudice.''

“'Future statements or disclosure of additional information, otherwise prohibited … will have a substantial likelihood of materially prejudicing that right,' the clearly concerned judge continued. 'I am, therefore, entering an order in these cases, which require compliance…'

"Ironically, it was the defense, not the prosecution, who balked, primarily because they were working on a deal to have the Duke Three defendants be interviewed exclusively on CBS’ '60 Minutes.'"

That gag order was a judicial disgrace.  The defense lawyers were entitled and obligated to reply to the prejudicial pre-trial statements by Mr. Nifong.  Doing that did not prejudice the defense's right to a fair trial or eliminate the need for a change of venue.

Mr. Michaels:

"In late September when Judge Osmond Smith lifted the gag order, those interviews for a national audience were conducted, and aired on Oct. 15."

The gag order was rightly lifted.

Mr. Michaels:

"Ironically it was last September when commentator Michael Gaynor, who fully backs the defense’ change of venue motion today, had absolutely no concerns about a Durham jury then.

"'The Duke Three will not be convicted, because a jury will not consist of people who share the view of North Carolina Central [University] student [Chan] Hall, as reported in Newsweek, that Duke students should be prosecuted ''whether it happened or not,'' as ''justice for things that happened in the past,"' Gaynor wrote in his Sept. 23 column.

“'Perhaps a person who thinks that way will slip onto the jury (if the Duke case is tried), but the entire jury will not be contaminated and there just is not credible evidence of guilt, much less proof of guilt beyond a reasonable doubt.'"

Nice try!   I fully support a change of venue motion if the Duke case is not dismissed, but I had concerns about a Durham jury back then (hence, the "Perhaps" sentence quoted by Mr. Michaels).  The  poll results and election results confirmed my fear of a hung jury.  I fear hung jury after hung jury if the Duke case is tried, not because there is evidence to justify it, but because the Duke case has been so racially charged, due to Mr. Nifong and the initial media reaction.

Mr. Michaels:

"One glaring omission in the defense’s change of venue motion is statistical data to back up their contention that, '…there exists within this county among a significant percentage of residents so great a prejudice against the defendants that they cannot obtain a fair and impartial trial….'

"The hard evidence to buttress that would come from the results of a controversial telephone survey of prospective Durham jurors that the defense commissioned a New York research firm several months ago to conduct to determine 'a good faith basis to believe the jury pool is tainted in that jurisdiction,' according to defense attorneys.

"Those results are never mentioned or revealed in the motion." Judge Smith should receive them in due course.

Mr. Michaels:

"If the current state of Durham is so 'polarized' against the Duke Three then why isn’t the latest, and presumably most accurate polling regarding that. prominently featured to buttress the claim?

"Attorney Brad Bannon, who along with lead attorney Joseph Cheshire, represents defendant Dave Evans, wouldn’t reveal the results of the survey, stating in a written response that 'we intend to present evidence in support of the venue change motion' at a future hearing.

"Adding that the telephone survey 'was not simply for venue purposes,' Atty. Bannon later added, '…the fear of a verdict produced by considerations outside the record is simply too great, and the survey added nothing to that obvious truth.'

"Chapel Hill civil rights attorney Al McSurely, chair of the NC NAACP Legal Redress Committee, says the absence of the strong survey results Duke Three defense attorneys were hoping would spin their way suggests the numbers were weaker than expected.

All in due course, of course.

Mr. Michaels: "Bannon further charges that the 'OurHeartsWorld.com' website sponsored by the Black Press, NC NAACP, Triangle Urban League and other community organizations in support of the accuser’s right not to be racially castigated is also an element in creating an unfair atmosphere for a trial." It is!

Mr. Michaels: "'The 30-page venue motion, supported by two volumes of referenced exhibits, is not riddled with errors and does not distort the truth, but to portray it that way would be misleading and distort the truth.,' attorney Bannon wrote. 'The motion accurately represents the atmosphere that has existed in Durham County ’s many institutions within days of these allegations...'"

That, I believe.

Mr. Michaels:

"Attorney Joseph Cheshire, in a Dec. 22 written response to the Carolinian/Wilmington Journal Newspapers on-the-record queries about what evidence he has proving the Black community would 'take action' against Black jurors hearing the case, replied:

'First, please understand that the Defendants and their lawyers speak for themselves and not for any bloggers, reporters, or other commentators. Michael Gaynor has no more to do with the defense of these innocent young men than you have to do with the prosecution of them. You are both commentators.”

"Regarding your questions below:

--Per the Duke lacrosse alleged rape and kidnapping case, and the change of venue motion the defense filed last week, what evidence, if any, does the defense have to support the following assertions put forward to the court in that motion:

Trial in another county, by residents of another county, would also eliminate influence on - or even action against - jurors returning to their community and explaining their verdict.---

'The answers are dictated by common sense, reality, and knowledge of life.

There is an undeniable atmosphere in Durham where jurors of many different walks of life, for many different reasons, may fear the potential of action being taken against them in their community as a result of their verdict. You cite race and the example of a black juror who votes to acquit; what about a white juror who votes to convict? The very fact that we are having this discussion proves the point of our venue change motion: the community is polarized, and venue should be changed. It is this simple: we are seeking justice for our clients and a fair trial for both sides, regardless of whether that comports with ideas of political correctness or offends anyone’s agenda of race pandering.'

'If these boys were black and the false accuser was white, I doubt you would be asking these questions. You would be supporting the efforts of the defendants to get a fair trial in a jurisdiction that would consider fairness and evidence, instead of race distinctions or class distinctions or educational distinctions or any other inappropriate consideration. That is the truth. As always, you will do and write what you wish, but you know the truth in your heart, and you know who and what Brad Bannon and I are in our hearts, because you have celebrated with us the release of a young black man from prison for a rape he did not commit because of our pro bono efforts, and, with us, you joyfully watched him run around Fayetteville Street Mall a free young man. There is no difference here. You are in a position to be a courageous truth teller and to end the games of agenda reporting.'

"'Also, if you would like to know additional facts about the venue change motion or any other aspect of this case, we invite you to come to court and watch the proceedings,' Attorney Cheshire said."

That's a good idea!  (Being an independent commentator and not representing any of the defendants, I am free to be frank and not to be politically correct, Sir.)

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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