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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 25, 2007
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Duke Case Collapse

Durham County, North Carolina District Attorney Michael B. Nifong successfully played a plurality of Durham County voters for saps, but, for him and his despicable Duke case, it's nearly time to play taps.

In "The deplorable Duke political prosecutions," posted on May 23, 2006, I anticipated "the truth catch[ing] up to the lies" and wrote of "rectifying a sad situation being exploited by opportunists and racists."

My position: "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...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."

GOOD NEWS: The rape charges finally were dropped, the prosecutor finally is off the case and facing disbarment and removal from office, and the Duke case collapse continued today with more ethics charges against the man who was wickedly wrong: Mr. Nifong.

The Duke case was bound to collapse, because Reade Seligmann, Collin Finnerty and David Evans did not commit rape, kidnapping, sexual assault or any other felonies and their families had the will and the ways and means to expose a rogue prosecutor.

David Evans' mother, Rae, may have phrased it spontaneously less artfully than she would have liked , but she was right about Mr. Nifong make a mistake in targeting of "the wrong families."

By that, Mrs. Evans surely meant families that raised their children not to be felons and had the will and the ways and means to go to "war" with Mr. Nifong and win.

Make no mistake: it was a death match (figuratively speaking) and it will end well.

The Duke case is not a case of defendants "beating the charges." It is a case of an attempted frame that failed.

Joseph Neff and Benjamin Niolet of The News & Observer reported during the morning of January 24, 2007 that the North Carolina State Bar had added more ethics charges against Mr. Nifong:

"Durham District Attorney Mike Nifong withheld DNA evidence in the Duke lacrosse case and then lied about it to judges and the North Carolina State Bar, according to a complaint filed today by the bar....

"Today's complaint ratchets up the legal troubles facing Nifong; in December the bar had charged Nifong with making inflammatory public statements to the media and misrepresenting the facts in the case.

"In April, Nifong sought and received a judge's permission to go to a private laboratory for additional DNA testing in the case, saying 'the DNA evidence requested will immediately rule out any innocent persons.'

"The test results from DNA Security of Burlington found DNA from at least four unidentified men in and on the accuser and excluded the entire lacrosse team as the source. The bar's complaint said Nifong hid these results from defense lawyers, who repeatedly asked for all DNA test results. Nifong then lied to the court, either on paper or in direct comments to a judge, on five occasions, the complaint said.

"When the State Bar notified Nifong on Dec. 20 that the organization was investigating the withheld evidence and false statements, Nifong acknowledged that he knew of the DNA results in April and May, the complaint said. Nifong told the bar that he withheld the results out of concerns for the players' privacy concerns.

"That response was false, the bar said, because the DNA Security report listed the names of all the people tested, including the 46 lacrosse players."

Ironically, this happy development followed the preparation by Hoax exposers LieStoppers of "Strange Bedfellows," a piece focusing on efforts to prolong the inevitable: dismissal of the Duke case. 

LieStoppers:

"As the implosion of the Hoax threatens to bring the farce to its long overdue end, the most ardent promoters of the Hoax have now teamed up in a desperate attempt to resuscitate the dying fraud. Having proven time and again that truth is no obstacle when it comes to advancing her agenda, Wendy Murphy continues to wage her war on civil rights and the criminal justice system. In her latest contribution to the perpetuation of the lie, Murphy joins local activist and Black Press columnist, Cash Michaels, who has personally referred to the efforts to promote the Hoax as a 'war.'

"Perhaps intent on supporting the Wilmington Journal’s demand, issued on behalf of the entire North Carolina African American community and backed by the not so subtle threat of dire political consequences, that Attorney General Roy Cooper threaten to bring false charges of obstruction of justice against the un-indicted lacrosse players, Cash Michaels turns to widely-ridiculed Wendy Murphy to rebut three esteemed law professors whose comments reveal that the Wilmington Journal’s editorial extortion aimed to bully AG Cooper into further violating the constitutional rights of the lacrosse team."

Given the sexual nature of the bogus charges, Ms. Murphy being a white female and Mr. Michaels being a black man, I would have titled the piece "Strange Fellows" instead, but I heartily agree with the substance of what redoubtable LieStoppers said. 

What did surprise me a bit is that even though North Carolina Central University Law Professor Irving Joyner, much respected by Mr. Michaels, black and the author of the treatise on North Carolina criminal procedure law, let him know that even the white members of the 2005-2006 Duke University Men's Lacrosse Team have constitutional rights, Mr. Michaels turned to Ms. Murphy for malarky.  Sometimes "balanced" is UNfair.

LieStoppers:

"The latest offering from Cash Michaels, who has repeatedly defended his coverage of the Hoax by insisting that his job is not to expose the Hoax but rather to play to a targeted audience, features insightful comments from law professors James Coleman (Duke), Irving Joyner (NCCU), and Joseph Kennedy (UNC). All of the three profs agree that threatening charges, as demanded by the Wilmington Journal on behalf of all North Carolina African Americans, against the teammates of the innocent defendants is unlawful.

'Prof. Joyner said. “They can not be compelled to answer questions from an investigator.”

'UNC-Chapel Hill’s Prof. Kennedy concurs, noting that the AG cannot sanction any of the witnesses for not cooperating. “I would offer is that it is not obstructing justice simply to refuse to speak with investigators,” Kennedy said. “The only time you are legally obliged to answer questions is when you are under compulsion of court process (such as a subpoena). Once subpoenaed, you can still take the Fifth Amendment, of course.

“Just to be clear, however, you don’t need to invoke the Fifth Amendment in order to refuse to talk to an investigator who knocks on your door or calls on the telephone,” Prof. Kennedy added. “There is no legal obligation to cooperate.”

'Duke’s Prof. Coleman, who has been a staunch critic of Durham D.A. Mike Nifong’s original handling of the case, maintains that despite being at the party where serious felonies were alleged to have happened, all of the lacrosse players present had a right not to cooperate.

“I don’t think it is appropriate to ascribe anything negative to the decisions of the students to get lawyers,” Coleman told The Carolinian/Wilmington Journal newspapers. “As you recall, at the beginning, Nifong was threatening to prosecute all of the students as possible accomplices because he claimed they failed to come forward to assist with the investigation.“I would advise any person in their situation to get a lawyer,” Prof Coleman said. “I would especially advise a person who is innocent to get a lawyer.”

"Ironically, the assessments made by the three professors align perfectly with Mr. Michaels own parental advice, as presented several months ago at Ruth Sheehan’s Metro Blog.

'And if one of my children was present during an alleged criminal situation they had nothing to do with, but someone may have been hurt as a result of, no, I wouldn't want any cloud over my child, which means I would instruct her to tell all (with the help of counsel)." Cash Michaels at Ruth's Metro Blog

"Knowing that Mr. Michaels would advise his own child in exactly the same manner as the lacrosse parents advised their own sons, it is difficult to attach sincerity to his repeated arguments that the decision to 'lawyer up' is an indication of anything but adherence to common sense and deference to parental wisdom. There's a clear contradiction between Michaels' asserting that his instruction to his own child to speak with the help of counsel would be motivated by not wanting a 'cloud over my child,' and his forceful efforts to place a cloud over other people’s children for doing exactly what he admits he would do for his own. It would appear that, with little else left to make hay about, the attempt by Michaels to continue to sully the lacrosse team for their fictional wall of silence is little more than an effort to milk the dying hoax for every last drop of circulation enhancing and audience appealing propaganda."

Mr. Michaels could have been a Hero of the Hoax, but declined.

Instead, he somehow came up with Ms. Murphy, for him, quite a find.

LieStoppers:

"Not surprisingly, co-warrior Wendy Murphy attempts to affirm Michaels’ public attacks on retention of counsel, while contradicting Michaels’ personal assertion that wanting to retain counsel before speaking to authorities would be part of the cloud removal process. Murphy also adds her own unique vision on parenting by suggesting that, rather than advising counsel, she would employ blackmail with her own child.

'I disagree somewhat with the point that uncooperative witnesses who hire lawyers deserve deference rather than pressure and suspicion,' Murphy says. 'If my son were at that party - and not a suspect – I would never let him NOT talk to police. I would threaten not to pay his tuition if he didn’t tell the truth about what he saw.'

"For Michaels and Murphy, it appears that what matters most is not an accurate telling of events surrounding the investigators' refusal to meet with any members of the lacrosse team, including the defendants, after counsel was retained. What matters most, apparently, is continued deception and distortion aimed at promoting the Hoax in the interests of prolonging the mutually beneficial grandstand it provides for their separate agendas."

Thankfully, the late Ed Bradley and Leslie Stahl had bigger megaphones than Ms. Murphy and Mr. Michaels.

"This case is a good sanity litmus test. Anyone who knows much about it and doesn't agree with us — right-wing, left-wing, or otherwise — is a lunatic or a scoundrel."

So opined an insightful fellow who was right about the case (the Duke case) from the start and is right about it being a good sanity litmus test too, in an email to me.

If you are so disposed, figure out who is which

Meanwhile:

Last April, I wrote about another fair-minded emailer whose wise advice is worthy of repetition:

"A more discerning email who focused on the facts of the particular case as well as rape cases generally and thinks that the word 'accuser' carries a negative connotation (I don't agree about that, but do agree that what is needed is a neutral term) urged that, in general, the accuser in the first instance (that is, the person who claims to the police and the prosecutor that he or she has been the victim of a crime or crimes) be called an alleged victim instead of a victim, but agreed that the dancer in the Duke case could fairly be called an accuser.

"'I am not a big fan of calling alleged rape victims "accusers" since I believe it has a negative connotation and once the police arrest someone, at least the state has concluded the "accuser" is a "victim."

"'Alleged victim seems the fairest way to refer to the vast majority of women who say they were raped, it doesn't paint them in a negative light, doesn't assume they are or may be lying, and also doesn't call them a "victim" prior to any court proceeding. It is also true that many legitimate victims of rape do not win their court cases due to the high standard of proof and the general lack of objective evidence in rape trials.

"'However, in this particular case, the evidence we have seen appears to point overwhelmingly to this being a false accusation. At present, every piece of evidence and every statement appears to contradict what the woman says happened.

"'So have at it, call her an accuser, call her a potential liar, a stripper...

"'But the next time around, keep in mind that most rape accusations are not blatantly false, as this one appears to be and most women who do claim rape have been wronged or hurt and are deserving of respect and sympathy.

"'In this case, I agree, we have Tawana II, but this woman has no excuse at all, at least Tawana was a teenager, this is an adult female with two children. There is no conceivable excuse for making up this terrible story of a violent gang rape.'"

Mr. Nifong has no excuse for seeking indictments in the Duke case.

Neither do Ms. Murphy and Mr. Michaels, for pretending there may be merit to it.

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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