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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 20, 2007
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Topic category:  Other/General

Duke Case: Black Pressure Building

The title of Wilmington Journal’s recent message to North Carolina Attorney General Roy Cooper about the Duke case is exquisitely subtle: “WE’RE WATCHING YOU, MR. COOPER.”  In case that’s too subtle, this sentence appears in the body of the letter: “After all, as a Democrat, just like Mike Nifong, you need the Black vote for any future political aspirations.”

Let’s hope Attorney General Cooper realizes that being “just like Mike Nifong” is NOT the right thing for him to do.

The Associated Press reported that the North Carolina NAACP “has called on everyone involved with the Duke lacrosse sexual assault case -- from defense attorneys to state bar officials -- to stop talking publicly while the state attorney general's office begins its review of the case.”

So much for freedom of expression!

Rev. William Barber, president of the North Carolina chapter of the National Association for the Advancement of Colored People: "We sincerely believe that the high level of public scrutiny and controversy involved in this matter is unwarranted and threatens to pervert the truth finding process."

The truth that the prosecution was a persecution is now generally appreciated, because the outrageous and unconstitutional gag order issued by Judge Kenneth Titus on his own initiative, officially (but after the NC NAACP asked for it) was rightly lifted by Judge Osmond Smith (who not only allowed the defendants and their false accuser to speak out if they wanted to do so, but  issued the order that led to the discovery of evidence and sworn testimony to the effect that Durham County, North Carolina Michael B. Nifong had conspired to conceal exculpatory evidence.

More Reverend Barber: "Nobody knows the totality of the facts. We do not expect, nor should North Carolina citizens condone, a resolution of this case based on biased and political or public pressure from the public or any overzealous supporters on either side. What we must do is insist that we follow the facts wherever they lead and face the facts when they are all in."

Today the Duke case is dismissible, as a matter of law, under a North Carolina statute, based on flagrant violation of constitutional right that irreparably prejudiced the defendants (NONE of whom ever kidnapped, raped or sexually assaulted ANYONE, and each of whom “won” “the Crystal Lottery,” the qualifications for which were being (1) white, (2) male and (3) a member of the 2005-2006 Duke University Men’s Lacrosse Team).

Wilmington Journal (part of BlackPressUSA Network):

“Dear NC State Attorney General Roy Cooper:

”On behalf of North Carolina’s African-American community, we  hope you are well, and that GOD is blessing you and your family.

”Congratulations on your hometown of Rocky Mount unveiling a historic marker in honor of Dr. Martin Luther King Jr.

”That last King statue Rocky Mount tried to put up two years ago looked more like one of the Temptations. Glad folks sent that thing back to Motown.

”Anyway. let’s get right to the point.”

So Wilmington Journal purports to speak for “North Carolina’s African-American community” and it has a point to make.

Wilmington Journal:

”This week, your Special Prosecutions section officially took charge of the Duke alleged sexual assault and kidnapping case. By the time you read this, we’re sure Jim Coman and Mary Winstead, the two prosecutors you put in charge of this matter, will have already begun combing through the thousands of pages of discovery evidence, in addition to the computer downloads, discs and other associated media obtained from the Durham District Attorney’s Office.

”The case, which you so graciously accepted during a rare press conference last weekend after Durham D.A. Nifong recused himself from further involvement, needs a fresh, honest look to determine if indeed it is worthy of prosecution.

”Did three white Duke lacrosse players sexually assault and kidnap a Black exotic dancer hired to perform at the team’s drunken, perverted party last March?”

First, the answer is NO!

Second, Crystal Gail Mangum is a stripper.

Third, the fact that there was drinking at the party did not make it a drunken party.

Fourth, unless having strippers “perform: at a party makes the party “perverted,” what is the basis for describing the party as “perverted”?

Wilmington Journal:

”The answer, and the elements, are in the hands of your office now, Mr. Cooper. The people of North Carolina expect that when it’s all over, you will tell us, based on an honest and comprehensive assessment of all of the evidence in this case, whether it should go forward to trial, or whether it should be dismissed immediately, as many supporters of the three defendants have not just suggested, but demanded.

”Again, it will be your call.”

The defense apparently agrees.  Otherwise, it would already have moved to dismiss, making it Judge Smith’s call.

Wilmington Journal:

”But in making that call, Mr. Attorney General, we remind you of some of the things you expressed to the people of North Carolina, and the nation, for that matter, as to how your office would conduct itself in this matter.

''’Our office will now serve as the prosecutor for the state of North Carolina in these three cases.''

”So this is your baby now. Whatever D.A. Nifong did or didn’t do, beyond the scientific determination that there was no DNA evidence to support a rape charge, makes no difference. This is now YOUR case to conduct in the above-board manner you see fit.”

WRONG!!!  The State cannot escape the consequences of egregious prosecutorial abuse by bringing in a new prosecutor and starting over. The State is stuck with Ms. Mangum as its witness and the identification procedure that led to Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three)being wrongly and wrongfully indicted and prosecuted (actually, persecuted). Since the identification procedure was fundamentally flawed and Ms. Mangum failed to identify anyone before and any subsequent identification by her would be excludable unde the “fruit of the poisoned tree” doctrine, the North Carolina Attorney General’s office should announce shortly that the three cases collectively known as the Duke case will be dismissed voluntarily.

Wilmington Journal:

“’Our prosecutors, as we always do, will conduct a fair, impartial and thorough review of these matters. Agreeing to accept the prosecution of these cases doesn’t guarantee a trial, nor does it suggest a dismissal. It simply promises a fresh and thorough review of the facts and a decision on the best way to handle these cases.’

”We intend to hold you to that promise, too, Mr. Cooper. Trust us!”

Has Wilmington Journal proved itself worthy of trust?

I think not.

Wilmington Journal:

“’Any case with such serious criminal charges requires a careful and deliberate review.’

”Absolutely!”

So be it.

Then refer additional ethics charges to the North Carolina State Bar.

Wilmington Journal:

“‘Our goal is to seek justice and truth while respecting the rights of everyone involved. We accept these cases with our eyes wide open to the evidence but with blinders on to all other distractions.’

”Without question!”

So it should be.  We will see.

Wilmington Journal:

“‘During the review it’s possible that we would need to request additional information to conduct further investigation or recheck information that’s already been included in the court file.’

”Naturally!”

YES!  HOW ABOUT ASKING MS. MANGUM, READE SELIGMANN, COLLIN FINNERTY AND DAVID EVANS TO TAKE POLYGRAPH TESTS?

Wilmington Journal:

“‘I anticipate that our prosecutors will seek to meet with witnesses, with investigators and with defense attorneys.”

”You can take the investigators and defense attorneys to lunch for all we care (make sure the defense attorneys pay for the meal up front – you know how trusted THEY are).”

Is THAT a comment worthy of the North Carolina African-American community, on whose behalf Wilmington Journal presumed to speak? (It's the prosecution, not the defense, that proved to be untrustworthy in the Duke case!)

Wilmington Journal:

”It’s the ‘witnesses’ piece we find intriguing.

”You see, Mr. Attorney General, save for the three captains who lived at the house where that perverted, underage drunken Duke lacrosse team off-campus party took place, none of the other 30 or more players and/or guests who reportedly attended that soiree’ have ever given Durham police investigators or the Durham District Attorney’s Office a signed statement as to exactly what happened.

”From the moment the accuser and Kim Roberts Pittman, the second dancer, arrived to perform their show, to when they left in a huff with racial slurs flying back and forth, we really don’t have a cogent and cohesive picture.

”Mr. Attorney General, your task, challenge and duty isn’t just to go over Mike Nifong’s case to see how badly he screwed it up.

”Your job now, if you call yourself honestly promising ‘a fresh and thorough review of the facts,’ is to indeed compel every last witness attending the party that night, to come forward and truthfully tell what they saw and heard.

”All of it!!!”

First, that’s NOT the job: the job is to determine whether the Duke case should proceed or be dismissed.

Second, the people at the party had good reason not to speak when railroading innocent young men for the sakes of Mr. Nifong’s political career, pension maximization and ego was the plan.

Third, the North Carolina Attorney General cannot “compel.”  Even party goers have constitutional rights.

Fourth, there is a presumption of innocence, not a presumption of guilt.

Wilmington Journal:

”You see, this puts you in a weird situation, Mr. Cooper.

”Three people are alleged to have committed two first-degree felonies at 610 N. Buchanan Blvd. That means witnesses in the surrounding neighborhood who saw or heard something, like next-door neighbor Jason Bissey, have to be re-interviewed by the State Bureau of Investigation to put the relevant pieces together.

”Well if you talk to Mr. Bissey outside, you absolutely have to talk to every last person inside that house at the time of the alleged assault. You can’t possibly be fully accountable to the citizens of North Carolina, who you and your office constitutionally represent, unless you indeed do ‘a fresh and thorough review of the facts’ in this case, which must include interviewing everybody at that party.

”But here’s your problem, Mr. Cooper.

”All of the players lawyered up, according to some of the knuckle-dragging leaders of the ‘free the Duke Three’ movement, because they were afraid of being railroaded by that ‘mean, nasty and corrupt’ Durham D.A. (funny how they knew how ‘corrupt’ Nifong was BEFORE he took the case).

”Well heck, they don’t have THAT problem anymore.

”Mike Nifong is now busy trying to figure out how best to keep his law license from being shredded by the State Bar. So surely all of these brave, upstanding, fine young leaders of tomorrow – many of whom engaged in, all together now, ‘a drunken, perverted party’ where they peed off the patio and railed against two Black strippers because the players’ raucous behavior scared the daylights out of them – are relieved, and will now graciously, and willingly, sit down with SBI agents and, for the very first time in ten long months, actually truthfully tell what they saw and heard.

”Under threat of obstructing justice, of course.

”You can’t play games with this, Mr. Cooper. Those boys must talk if you’re doing a full and transparent investigation. You have to be willing to also charge anyone else who may have committed a crime (like who went into the accuser’s bag and took the $400.00 in cash she was just paid? After careful and deliberate research of laws in at least 80 nations, including this one, we believe that that’s generally called a ROBBERY!!!)

”So your plate is full, Mr. Attorney General, and we truly wish you well.”

Amazing.  The rape charges are history.  The sexual assault and kidnapping charges will be history.  Wilmington Journal is reduced to hoping for public urination charges (at a private house?) and presuming that there was a robbery.

So much for its “careful and deliberate research of laws in at least 80 nations, including this one.”

Wikipedia:

”Robbery is the crime of seizing property through violence or intimidation. A perpetrator of a robbery is a robber. Violence is an ingredient of most robberies, and its use sometimes results in the murder of the victim(s). Robbery is generally an urban crime. In common with most legal terms, the precise definition of robbery varies between jurisdictions.

“The element of force differentiates robbery from embezzlement, larceny, and other types of theft. Piracy is a type of robbery. Armed robbery involves the use of a weapon. Highway robbery takes place outside and in a public place. Carjacking is the act of stealing a car from a victim, usually at gunpoint. Banks are often the target of robberies.

“Informally, robbery may be used to denote other kinds of theft that are not robbery, such as burglary. People returning home and finding their possessions stolen may well exclaim, ‘We've been robbed!’, though actually they've been burgled.”

Does Ms. Mangum claim she was robbed?

If so, by whom.  One person?  Twenty? Five? Three? Two?

If anyone actually stole money from Ms. Mangum, I doubt it was a lacrosse player. 

As for whether the strippers took money under false pretenses and should disgorge, the North Carolina Attorney General might look into that in his spare time.

Wilmington Journal:

”And don’t worry. We’re paying absolutely no attention at all to all of those internet rumors about how your handling of the Duke case is really a shill for acting as if you’re really re-investigating, when in fact, you’re just going to stall for two months so that you won’t tee-off the African-American community.

”We don’t believe that for a minute.

”After all, as a Democrat, just like Mike Nifong, you need the Black vote for any future political aspirations.

”Rumors are you want to dump this case faster than you can say ‘Joe Cheshire’s nose,’ but you can’t do it too fast or else the ‘colored folks’ will get mad and hold it against you.

”Darn it, we get blamed for everything, don’t we?

”Well, you don’t get blamed, Mr. Cooper.

”Do an honest job now. Don’t go holding hands at the Superior Court picnic with the Duke Three defense lawyers, only to find out they’ve put more ants in your case. Those legal-beagle rascals keep ‘em in a jar right next to their ‘Blacks-in-Durham-are-racist-threats-to-jurors’ venue change motion.

”Be honest; be fair; be thorough, and take as much time as Judge Smith will allow to indeed know whether you truly have a case or not.”

Oh my!  First someone called Mr. Cheshire “the bearded one.” Now Wilmington Journal seems fixated on his nose.

Alas, in North Carolina, in the prosecution that has been a “perverted” persecution, that’s the way it goes.

Wilmington Journal:

”The African-American community wants truth by the law, not trial by the media. Keep the lid on your findings until the appropriate time.

”But above all, Attorney General Cooper, don’t play with this case. You can indeed restore trust in our criminal justice system here in North Carolina.

”Just as long as you act honorably and honestly. Don’t allow anyone to force you to do otherwise.

”Indeed, the Roy Cooper we know and respect, is an honorable man, and always has been.

”Once again, our best to you and yours.

”Sincerely,

North Carolina’s African-American community, and anyone else who believes true justice comes from the gavel of a judge, not the demands of a mob; or slick, race-baiting defense attorneys.”

Translation: Coop, if you don’t hang something on those white lacrosse players and it’s obvious to the world that Ms. Mangum lied and Mr. Nifong happily went along and suckered the bulk of Durham County, North Carolina’s black voters big time, you are political toast!

Questions:

(1) Is Roy Cooper a Gary Cooper?

(2) Does North Carolina’s African-America community have Mr. Cooper …over a barrel?

(3) WILL MR. COOPER’S PEOPLE SAVE HIM BY ASKING MS. MANGUM, READE SELIGMANN, COLLIN FINNERTY AND DAVID EVANS TO TAKE A POLYGRAPH TEST?

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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