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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:  January 23, 2007
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Topic category:  Other/General

Duke Case: The Polygraphing Solution

In "Let Polygraph Testing End the Duke Case," posted on December 26, 2006, I wrote in part:

Fellow WEB Commentary contributor Bruce Walker, in his latest piece, entitled "Federally Mandated Lynching - The Lacrosse Rape Case," excused Durham County, North Carolina District Attorney Michael B. Nifong's failure to ask false accuser Crystal Gail Mangum to take a polygraph test.

Mr. Walker:

"In considering the ethical obscenity of the Duke Lacrosse Rape-Lynching, it is important not only to consider the crimes of Mike Nifong, both moral and legal, but also the crimes, both moral and legal, of the federal government in its notorious 'advocacy' role. The 1994 Crime Bill under Bill Clinton included the Violence Against Women Act (VAWA.)  This program was always flawed.  Funds provided under the program, for example, could not be used to help male victims of violent crime – in spite of the fact that the majority of victims of violent crime are male.

"But this sort of consistent, petty bigotry against men has proven to be just the tip of the iceberg.  This 'advocacy' program began putting in conditions that were calculated to prevent serious investigation about whether or not rape actually occurred.  The operative language is found in 42 U.S.C. 3796gg-8(b), which provides that in order for a state to be eligible for VAWA funds – and no state has yet declined these funds – that 'the refusal of a victim to submit to a polygraph or truth telling examination shall not prevent the investigation, charging, or prosecution of an alleged sex offense by a state, Indian tribal government, territorial government, or unit of local government.”

"So, according to federal law, Mike Nifong could not have asked the promiscuous and intoxicated stripper to submit to a polygraph test to see if she might be lying because North Carolina had accepted VAWA funds. Forget about whether she passed such a test or not:  Nifong could not even ask her to submit to a polygraph test."

Not so!

First. let's parse the language of the polygraph testing prohibition in 42 U.S.C.A.  Section 3796 gg-8:

"(a) In general

In order to be eligible for grants under this subchapter, a State, Indian tribal government, terrotorial government, or unit of local government shall certify that, not later than 3 years after January 5, 2006, their laws, policies, or practices will ensure that no policies or practices will ensure that no law enforcement officer, prosecuting officer or other governmental official shall ask or require an adult, youth, or child victim of an alleged sex offense as defined under Federal, tribal, State, territorial, or local law to submit to a polygraph examination or other truth telling device as a condition for proceeding with the investigation of such an offense. "(b) Prosecution

The refusal of a victim to submit to an examination described in subsection (a) of this section shall not prevent the investigation, charging, or prosecution of the offense."

Assuming that there was a prosecutable sex offense and Ms. Mangum was a victim, the federal statute quoted above did NOT prevent Mr. Nifong from asking her to take a polygraph test, much less accepting offers to take polygraph tests by potential defendants.

FIRST: The effective date is January 5, 2009.  We are not there yet.

SECOND: The prohibition only applies to polygraph test requests conditioned upon "proceeding with the investigation of [an alleged sex] offense."  By its terms, the prohibition does NOT apply to requests NOT so conditioned. Mr. Nifong could (and should) have asked unconditionally.

THIRD: Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) already were indicted, so the pre-indictment investigation period is history and asking Ms. Mangum to take a polygraph test NOW in connection with investigating whether or not to prosecute her for making a false report is very much in order.

FOURTH: The statutory policy that "refusal of a victim to submit to an examination...shall not prevent the investigation, charging, or prosecution of the offense" permits, but does not compel, a prosecutor to proceed when a "victim" refuses to take a polygraph test.

Mr. Walker:

"The federal requirements are even worse.  Not only can a North Carolina prosecutor not ask a promiscuous, intoxicated stripper who accuses some man of rape to submit to a polygraph test, but the prosecutor cannot even ask her to submit to a 'truth telling examination.'  Should not prosecutors, as part of their ethical duty to seek justice, always submit an alleged victim to some sort of 'truth telling examination'?    How is the prosecutor supposed to determine whether a rape victim is lying or not without a 'truth telling examination?"

The statute actually refers to an "other truth telling device," not a truth telling examination.

The federal policy does not appear to be in the best interests of justice, but it's not yet effective and perhaps the Duke case will lead to reconsideration of it. 

Mr. Walker:

"But wait, it gets better…or worse.  This prohibition does not simply apply to prosecutors.  It applies to any 'law enforcement officer, prosecuting officer or other government official.'  That means that the police can not ask a woman who accuses a man of raping her to take a polygraph test.  The police cannot even ask her to submit to a 'truth telling examination.'  In order to make sure that everyone is covered, the law includes any 'government official.'  No watchdog in government is allowed to prevent the very abuses that Nifong has committed."

No.  The statutory language is what it is, and, for the reasons previously stated, it is not as bad as Mr. Walker believes.   

Mr. Walker:

"In other words, if a woman says that she is raped or has been a victim of sexual assault, the police, the prosecutor and everyone else – judges included – cannot make her take a polygraph or any other 'truth telling examination.'  Given the fact that consent is the heart of nearly every sex crimes and given the fact that about the only way to know whether an alleged victim gave consent or not is a 'truth telling examination' of some sort, it is difficult to imagine any federal law more calculated to cause innocent men to be charged with crimes and convicted of crimes."

Given the Fifth Amendment, I am not calling for compulsory polygraph testing, but willingness or unwillingness and test results merit consideration in determining whether or not to proceed to prosecute.  Legislation prohibiting it substitutes an arbitrary process for due process. 

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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