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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:  January 13, 2007
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Duke Case: Three Up, Nifong and Group of 88 Down

Will the defense attorneys in the Duke case file a motion this week against Durham County, North Carolina District Attorney Michael B. Nifong for sanctions, including holding him in contempt of court, ordering him to pay the attorneys' fees in connection with the discovery of the DNA test results that he conspired to conceal and removing him from the case at last?

Why not?

About that much anticipated news item, please put me down as excited and emphatic.

The folks at the anti-Nifong website (www.disbarnifong.com) soon should be ecstatic.

The homepage of the site not only linked to LieStoppers, John in Carolina, Crystal Mess, Durham-in-Wonderland, Duke Students for an Ethical Durham and Friends of Duke University, but also also to two early article of mine: Concerned Americans, let North Carolina hear from you! - Addresses to write letters and Collin Finnerty's D.C. Assault Conviction Is The Disgrace - Read the Truth.

My "Concerned Americans" article, posted on June 14, 2006, urged readers to write to the Governor, the Attorney General and the Executive Director ff the State Bar of North Carolina because:

"The Duke lacrosse rape case itself is a travesty of justice. The accuser and the prosecutor need punishment and/or mental health help, not the three indictees.

"All Americans who care about the state of the criminal justice system have a stake in this case. Rapes should be prosecuted to the fullest extent of the law, and so should false accusations of rape by opportunists (including an opportunist who would hope to profit by a false charge and exacerbate racial tension by targeting people of a different color)."

With pleasure, I set forth Nicholas D. Kristof's "Jocks and Prejudice," which was published in The New York Times on June 11, 2005 and concluded:

"Granted, traumatized victims and witnesses can be terrified and confused. We don't know what happened, and we should avoid stereotyping the accuser because of her job — but we should also avoid stereotypes of lacrosse players as 'hooligans.'

"That's what the district attorney, Mike Nifong, called the Duke athletes. As I see it, he may be the real culprit here. For starters, his many public statements seem to violate the North Carolina rules of professional conduct; Section 3.8f bars prosecutors from 'making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.'

"Mr. Nifong may have had a motive for prosecuting a case that wouldn't otherwise merit it: using it as a campaign tool. Heavily outspent in a tough three-way election race, he was the lone white man on the ballot, and he needed both media attention and black votes to win. In the end, he got twice as many black votes as his closest opponent, and that put him over the top.

"Unfortunately, many in the commentariat started by assuming that the lacrosse players were thugs. Prof. Houston Baker, who is now leaving Duke, demanded that the university dismiss the coaches and players as a response to 'abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed among us.'

"Look, we have a shameful history in this country of racial prejudice. One of the low points came in the 1930's when the Scottsboro Boys were pulled off a train in Alabama and charged with rape because of the lies of two white women. The crowds and media began a witch hunt (one headline: 'Nine Black Fiends Committed Revolting Crime') because they could not see past the teenagers' skin color.

"So let's take a deep breath and step back. Black hobos shouldn't have been stereotyped then, and neither should white jocks today."

On December 28, 2006, the North Carolina State Bar finally took action against Mr. Nifong.

The next day, the district attorneys representing the other 99 North Carolina counties called for Mr. Nifong to be removed from the case.

Note: On May 1, 2006, Reade Seligmann attorney Kirk Osborn boldly did what a local attorney is loathe to do and moved for Mr. Nifong to be removed from the Duke case.

Mr. Osborn's motion is still pending.

Mr. Osborn was right about it then and still is.

If Mr. Nifong does not recuse himself, Judge Osmond Smith (not to be confused with his pro-Nifong predecessors on the Duke case, Judges Ronald Stephens', Mr. Nifong's old boss, and Kenneth Titus, who dared to gag all potential witnesses in the Duke case, including the defendants) will remove Mr. Nifong rather than protect him.

For Mr. Nifong, it is only a matter of time before he is off the Duke case, out of office, no longer practicing law and learning what it's like to be a defendant (albeit not an innocent one).

In sharp contrast, as Nifong stock plummets, the stock of Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) is rising sharply, especially Collin Finnerty stock.

Duke University began 2007 by offering to take Reade Seligmann and Collin Finnerty back.  Since Duke University abandoned them last April, it is obvious that the tide turned and it would be fitting if, by the two of them, that self-serving offer is spurned.

Things have been going so well (albeit expensively) that Collin Finnerty's conviction in the D.C. simple assault case (widely misdescribed as gay-bashing and/or a hate crime largely as a result of the bogus first-degree felony charges in the Duke case) was set aside by the judge who wrongly found Collin guilty in that case.

In "Collin Finnerty's D.C. Assault Conviction Is The Disgrace," I wrote (with the utmost restraint in the circumstances):

"SCARY THOUGHT: IF COLLIN FINNERTY CAN BE UNJUSTLY CONVICTED, WHO IS SAFE?

"Friendsofdukeuniversity.blogspot.com is a discussion board for friends of Duke University worth checking. Understandably, it has been focusing on what it calls 'the Duke Lacrosse Scandal.' By now, it should be called the Duke Rape Hoax. Yes, the Duke men's lacrosse team exhibited egregious taste in 'entertainment' (for which the co-captain seniors are primarily to blame), but the great scandals are (1) the way the criminal prosecution system has been abused for personal purposes by an incredible accuser (Crystal Gail Mangum) and for personal and political purposes by the Durham County District Attorney (Mike Nifong) and (2) the way liberals who would be apoplectic (understandably) if the accuser was a white woman with a similar criminal, medical, mental and moral history and the three accused were black basketball stars think (or pretend to think) that the Durham District Attorney is just doing his job in a fair, objective and professional manner and everyone should wait for the trial whenever next year and hope that district attorney can somehow win a conviction from a local jury against three white Yankees from wealthy families."

As for the "merits" of the D.C. case, I commented (cautiously):

"The trial itself and the conviction are travesties of justice for at least three reasons: (1) Mr. Finnerty's plea deal (25 hours of community service to put an end to the very expensive nuisance) should not have been voided under the circumstances (the accuser's identifications having been the result of an unconstitutionally suggestive identification procedure and the accuser and her story being dubious and unsupported by physical evidence, another person or a polygraph test), (2) the judge (Judge John H. Bayly, Jr.) who decided the case behaved oddly (one example: he seemed obsessed with the possibility (NOT reality) that Mr. Finnerty may have violated the curfew he imposed on Mr. Finnerty, to the point that he stated in open court that he would check out a lead he had gotten from an unchecked item posted on the Wonkette website); and (3) the judge was blind to the ample reasonable doubt established by multiple defense witnesses who were present, the chief complainant's personal history, and Mr. Finnerty's unrebutted character witnesse (Father James Williams, the head of Chaminade, and Michael Hannan, the father of Mr. Finnerty’s girlfriend Jessica, praised Mr. Finnerty as peaceful and nonviolent and a gentleman) and his very impressive and unblemished record at the time of the incident.

"The judge chose to belief, beyond a reasonable doubt, Jeffrey Bloxsom's supremely self-serving claim that Mr. Finnerty fake-punched him and shoved him. The judge must have disbelieved three defense witnesses who said that Mr. Finnerty did no more than yell at the two complainants as far as they could see. If the judge really believes Mr. Bloxsom's tale of woe beyond a reasonable doubt, will he ask the prosecution to pursue the three defense witnesses for perjuring themselves?

"What makes the judge's decision to convict especially suspect is that NOBODY witnessed Mr. Finnerty throw a REAL punch and the fact that the testimony of Mr. Bloxsom and his friend Scott Herndon had never used bad words or otherwise acted belligerent didn't pass the laugh test. Four defense witnesses (Nicole Cobble, Bill Gerrish, Dan D’Agnes and Patrick Bonanno) testified quite credibly that all of the persons involved in the incident were screaming bad words at each other before blows were struck. It is very hard to believe that there would have been a trial if Messrs. Bloxsom and Herndon had been as passive and non-provocative as they claimed to have been. .

"Ms. Cobble said that she saw them all shouting bad words at each other, with Mr. Finnerty and another (probably Mr. Bloxsom) 'nose to nose and chest to chest.' She said she ran off crying before seeing any blows struck or any pushing. Messrs. Gerrish, D’Agnes and Bonanno said that they had stopped around Wisconsin and N Streets (or perhaps a bit before there, in the case of Mr. Gerrish) while Mr. Finnerty continued north on Wisconsin for another half block or so. Mr. Gerrish said that he saw the first blow, which was Mr. Herndon hitting Mr. Finnerty in the back of the head. Mr. Bonanno said he had not seen it but had looked up and seen Mr. Finnerty sprawled on the ground with Messrs. Bloxsom and Herndon standing over him. Messrs. D’Agnes and Bonanno hastened to help Mr. Finnerty, Mr. Bonanno punched Mr. Bloxsom, the fight petered out, and Messrs. Finnerty, D’Agnes and Bonanno went down N Street.

"No one was seriously injured. Mr. Bonanno gave Mr. Bloxsom a cut lip."

The atmosphere in which the D.C. trial was conducted was highly prejudicial.  The mainstream media had mistakenly, even maliciously, maligned Collin and depicted him so badly that a judge would have had to be immune to public opinion to have acquitted Collin and risked the wrath of the media then and later (if Collin had been convicted in the Duke case).

The following letter from Collin Finnerty attorney Steven J. McCool to The News & Observer, published on January 9, 2007, reports the happy news and reflects the interrelationship of the D.C. and Durham cases:

"As Collin Finnerty's attorney in Washington, D.C., I am disappointed, but not surprised, that a Jan. 5 People's Forum letter-writer appears to have learned nothing from the Duke lacrosse scandal. He, like many others, ignores the procedural history, the evidence and the court's findings in Finnerty's Washington matter.

"Initially, prosecutors decided to dismiss the misdemeanor charge against Finnerty in exchange for community service. The gross injustice in Durham prompted the prosecutors to withdraw from their agreement. The evidence at trial made clear that Finnerty did not strike the accuser. The proof also contradicted assertions made by others -- that this was some sort of hate crime. Neither the police nor the prosecutors ever made this assertion. In fact, the government acknowledged this 'was an argument between two young guys who were sizing each other up.' Notwithstanding, the court found Finnerty guilty of throwing 'fake punches.'

"Ironically, the court found it unnecessary to require that he perform community service as part of his probationary sentence. More importantly, last week the judge who presided over the case set aside his conviction, after monitoring Finnerty for several months and learning more about his fine character."

Judge Bayly all but apologized for his bad decision.

Having met Collin Finnerty's mother and aunt after the indictments in the Duke case (at the aunt's instance), before the Family Finnerty went on the offensive in the courtroom of public opinion and when the conventional legal wisdom called for Collin not to testify on his own behalf in the D.C. case because the Duke case was pending, I had two strong feelings: (1) the Finnertys would need to do much praying, and perhaps re-read the Book of Job, because they had become pawns in the eternal battle between good and evil, but, thanks be to God and doing His work on earth, like Job, they ultimately would be rewarded; and (2) even though no son (or daughter) of Mary Ellen and Kevin Finnerty would engage in kidnapping, rape, sexual offense, gay bashing, hate crime or unprovoked physical violence and Collin had exceptionally able lawyers, very respectable witnesses and ample resources, there would be a undeserved conviction in the D.C. case unless the battle in the courtroom of public opinion first was won.

The good news is that the battle in the courtroom of public opinion finally has been won.

The Duke case is in free fall from Mr. Nifong's pernicious perspective and the D.C. conviction already has or soon will be expunged, giving Collin back his clean record.

In 2007, instead of the Three, it is the 88 who will worry.

Brooklyn College Professor Robert K.C. Johnson was pleased to announced this news:

"Karla Holloway has resigned her position as race subgroup chair of the Campus Culture Initiative, to protest President Brodhead’s decision to lift the suspensions of Reade Seligmann and Collin Finnerty. 'The decision by the university to readmit the students, especially just before a critical judicial decision on the case, is a clear use of corporate power, and a breach, I think, of ethical citizenship,' said she. 'I could no longer work in good faith with this breach of common trust.'"

No wonder Professor Johnson titled his blog "Durham-in-Wonderland"!

Were the suspensions of Reade and Collin "clear uses of corporate power," Professor Hoolway?

Were they "a breach" of, say, contract?

Like, perhaps, punitive grading of unindicted Duke lacrosse players by an 88er who passed 38 others and failed the only two members of the 2005-2006 Duke University Men's Lacrosse Team who had been so brave (or foolhardy) as to take her "Politics and Literature course" ins the spring of 2006?

Did you exhibit "good faith" with respect to the Duke lacrosse players after Crystal Gail Mangum falsely cried "Gang rape!" last March, Professor Holloway?

Were you exhibiting "good faith" this summer, when you wrote that judgments about the Duke case “cannot be left to the courtroom"?

Were you exhibiting "good faith" when you maintained that "innocence and guilt must be “assessed through a metric of race and gender"; "[w]hite innocence means black guilt"; and "[m]en’s innocence means women’s guilt,” Professor Holloway?

Did you want to believe that the Three were guilty because your son was convicted of rape and the Three being convicted rapists would somehow ameliorate your pain?

Whatever, thanks for resigning from the committee and please resign from Duke, lest your "thinking' contaminate any of its students.

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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