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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:  February 4, 2007
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Duke Case: Defense Lawyers and Divine Mercy

Brooklyn College Professor Robert K.C. Johnson is a history professor (but not a lawyer) who teaches offerings in twentieth century United States constitutional, political and diplomatic history.

The Professor recently responded to public demand for a list of characters in the Duke case with what he described as "a partial list."

Of course, it's a partial list: it does not  include, in addition to Professor Johnson himself, his co-author on the upcoming book on the Duke case: Stuart Taylor Jr., America's top legal commentator (and a lawyer), who publicly declared last April that he was 85% sure false accuser Crystal Gail Mangum was a liar and Durham County, North Carolina District Attorney Michael B. Nifong was a rogue prosecutor.

There is but one explanation for Mr. Taylor doing that, while the mainstream media was treating the ludicrous gang rape claim as true: he knew better and he so would risk acting foolishly instead of cautiously and charge into the scrum (that's a rugby term), take possession of the ball and somehow score before Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) were sacrificed on the altar of political correctness as white scapegoats (wealthy white scapegoats) and railroaded on imaginary first-degree felony kidnapping, rape and sexual assault charges, because that suited the general bias of the mainstream media and rose to the top of the mainstream media agenda.

Professor Johnson saw it the way Mr. Taylor (and I saw it) and secured his own position high on Mr. Nifong's long enemies list.

Professor Johnson's evaluation of some defense lawyers in the case is not quite the same as mine, however.  Since Professor Johnson did not list the five lawyers whom he discussed in alphabetical order and haphazard is not his style at all, I infer that he ranked them.

First listed by Professor Johnson is Brad Bannon:

"Brad Bannon: If the courtroom exchanges between Nifong and him were instead contests in Nifong?s one and only community service activity (his son?s little league), the games would have been called in the first inning under the 'mercy rule.'

"Cracked the Nifong-Meehan DNA conspiracy with first the December 13 motion and then a stunning extemporaneous examination of Meehan at the December 15 hearing."

 I commend Professor Johnson for mentioning mercy, a concept all but completely ignored in the Duke case to date (more about that later).

No dispute that Mr. Nifong is not in Mr. Bannon's league, but what rogue prosecutor would be? 

The motion to compel more DNA-related discovery was a masterpiece and the cross-examination of Dr. Brian Meehan would have made great television, but we knew during the summer that multiple male DNA had been found in Ms. Mangum or on her underwear and that it did not come from a white member of the 2005-2006 Duke University Men's Lacrosse Team (and you can rest assured it didn't come from the black team member either).  It followed that Mr. Nifong was engaged in a cover up, and it was a matter of time before it became his undoing.

Professor, a Perry Mason was not needed here. 

The problem was getting a judge like Osmond Smith to replace the pro-Nifong judges (Ronald Stephens and Kenneth Titus).

Whoever got Mr. Nifong to agree to having the Duke case assigned to Judge Smith wins first place in my ranking of the defense lawyers.  I am not sure who it was, but I am sure that Judge Smith (1) lifted the outrageous and unconstitutional gag order issued by Judge Titus that left the defense lawyers depressed, but not defeated, (2) ordered the production of the documentation that permitted Mr. Bannon to prepare himself for what was a brilliant cross-examination and (3) granted the motion that resulted in Dr. Meehan testifying and Mr. Bannon doing a superb Perry Mason performance.  Getting Judge Titus on the case was key to the collapse of the case!  (If the credit for that DOES go to Mr. Bannon, then I'm with Professor Johnson on the ranking, but primarily for that, not the masterpiece motion or the compelling cross-examination.)

Second listed by Professor Johnson is Joseph Cheshire V:

"Joe Cheshire: Subject of this wonderfully done piece in this week?s Chronicle, and the person who has been the public face of the defense, coordinating strategy and emerging as Nifong?s bête noire."

Being Mr. Nifong's "bête noire" is a very good thing (although, given the racial aspects of this unfortunate case and Mr. Cheshire being white, I'd have chosen another expression).  I would have preferred Wade Smith as "the public face of the defense" and wish Mr. Cheshire had taken the time to advise Rae Evans to close the second "60 Minutes" broadcast on the Duke case with something better than "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families ? and you will pay every day for the rest of your life."

Mr. Cheshire knows very well that there are no "right families" on which to pick.  In fact, Cash Michaels acknowledges that Mr. Cheshire (and Mr. Bannon) had a young black man's rape conviction set aside because the evidence did not justify conviction and the jury got it wrong.  Mr. Michaels said it was "very, very fair" (I'd have said "very, very generous") that they did it without charging a fee.  It was at Mr. Michaels' suggestion that Mr. Cheshire took the case (after conviction), but Mr. Michaels has not seen fit to support them on the Duke case disgrace.

Third listed by Professor Johnson is Wade Smith:

"Wade Smith: To my knowledge, the only defense attorney of whom Nifong spoke positively in public. Of course, the remark came a few days after Nifong accused Smith, one of the most respected lawyers in the whole state, of violating the bar?s ethics canon with a clearly acceptable defense poll of possible community bias."

A good word from Mr. Nifong would put almost all lawyers at the bottom of the list, so it is a tribute to Mr. Smith that he still came third on Professor Johnson's list.  But with his former law partner, former Senator and current presidential aspirant John Edwards having hired a Nifong apologist as his blog mistress (and Senator Edwards not having publicly said anything supportive of the persecuted (white) lacrosse players, ranking Mr. Smith is hard. Mr. Smith would shine at a trial, but the Duke case should be dismissed instead of tried.

Fourth listed by professor Johnson is Kirk Osborn:

"Kirk Osborn: Made the risky yet critical decision to make public Reade Seligmann?s defense?a move that allowed all to see that Nifong was putting a demonstrably innocent person on trial, thereby providing a face to the corruption of the process."

The only lawyer whom I would rank above Mr. Osborn would be one who got Mr. Nifong to agree to bring in Judge Smith.  What Professor Johnson described as "the risky yet critical decision," others have called an accident.

Whatever, Mr. Osborn is the kind of lawyer who does the legal profession proudest (something greatly needed).

The Duke case obviously was the next trial of the century.  If it went to trial, it would be a defense lawyer's dream as well as personally lucrative.  Mr. Osborn proved himself to be the polar opposite of Mr. Nifong--ethical, not corrupt; principled, not opportunistic.

Mr. Osborn did all he could to keep his client out of the case!

You don't maximize fees that way.

You do do what you are supposed to do.

And, in this case, it was the detailing of Reade Seligmann's alibi that helped enormously to turn the tide in the courtroom of public opinion (where the battle apparently needed to be won before the North Carolina State Bar and the Conference of North Carolina District Attorneys to do what they have done).

The detailing of Reade Seligmann's alibi led Mr. Nifong to have Reade's alibi witness (a black taxi driver) unsuccessfully prosecuted) and Mr. Nifong to change the time the imaginary assault lasted and  Ms. Mangum (who changes plenty) to change the time the imaginary assault began and to decide Mr. Seligmann didn't rape or sexually assault her after all.

Moreover, on or about May 1, 2006, Mr. Osborn filed motions to suppress the tainted identification and to remove Mr. Nifong from the case.

The Conference of North Carolina Distirct Attorneys finally publicly urged Mr. Nifong to remove himself from the case.

The motion that Professor Johnson credits to Mr. Bannon was an expanded version of the motion that Mr. Osborn had made many months earlier.

The pro-Nifong judges (Stephens and Titus) had ignored Mr. Osborn's motions, but that discredits them, not Mr. Osborn.

Fifth listed by Professor Johnson is James Coleman:

"Jim Cooney: Brought in to coordinate Seligmann?s defense in October. Has distinguished himself as the master of the motion (especially a brilliant motion on the April 4 lineup) and for politely delivered remarks that decimated Nifong?s position?whether the D.A.?s false claim not to have received reciprocal discovery in the October hearing, or the Perry Mason moment in the December session."

Mr. Cooney has followed the path blazed by Mr. Osborn very well, to be sure.

Then there is...mercy.

On February 3, 2007, I attended the Annual Divine Mercy Conference at Archbishop Stepinanc High School in White Plains, New York.

Listening to James M. White, Executive Vice President and Chief Operating Officer of Covenant House-New York, discuss works or mercy to rescue young men and women from the streets to stabilize them and prepare them to live productive lives, I wondered how much money that otherwise would have been donated to worthy charities (including Covenant House, a charity that disproportionately benefits minorities) has been spent instead of defending a case that never should have been brought.

Irony: Mr. Nifong played the race card and minorities suffered from it along with the Duke Three and their families and friends.

Listening to moving testimonials to the impact of Divine Mercy on the lives of speakers themselves, I pondered how the Three have survived the suffering.  Yes, they attended a stripper party (a sin, not a crime).  They behaved foolishly, not feloniously.  They now know the unintended consequences that followed, for their families as well as themselves.  They have been through a hell on earth and they have survived, apparently sustained by their faith and hopefully strengthened and purified.

On the first "60 Minutes" broadcast, Reade Seligmann insisted he had done nothing wrong. He should have said nothing criminal.

All the lessons of the Duke case need to be learned, and hate and vengeance need to be spurned.

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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