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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 6, 2007
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Topic category:  Other/General

Duke Case: From Phony First-Degree Felonies to Phony Petty Theft?

I can't say I didn't expect it.

North Carolina journalist and television commentator Cash Michaels (the person covering the Duke case for America's Black Press) is focusing on some $20 bills that allegedly changed hands at that unfortunate lacrosse team party last March and giving credence to the notion that there was a robbery at that party.

With the first-degree rape charges in the so-called Duke case voluntarily dismissed, and the first-degree kidnapping and sexual offense charges soon (but not soon enough) to be dismissed, Mr. Michaels is saying that some money is missing (more than half of $400) and seems to be looking for a robbery charge to keep the ordeal going (he didn't mention the possibility of prosecuting the complainant for a false report though).

No, I'm not making it up!

See "THE ALLEGED ROBBERY NO ONE TALKS ABOUT, WEEK OF FEBRUARY 1-7, 2007," originally posted in The Wilmington Journal on February 3, 2007.  (Different folks celebrated the Moms March in different ways!)

Mr. Michaels: "Legal experts say the 30 or more Duke lacrosse (LAX) players who attended the March 13 underage drunken team party where a Black exotic dancer alleges she was sexually assaulted and kidnapped, had every right, on advice of legal counsel, to keep silent about what they saw and heard, even if they were possible witnesses to two alleged first-degree felonies."

That's what lawyers call hornbook law, that is, basic.

Mr. Michaels: "[S]trong sources close to the case The Carolinian/Wilmington Journal have spoken with, allege that there were other reasons for the Blue Devil 'wall of silence' beyond just protecting players’ constitutional rights. While those sources do not confirm that a rape or kidnapping took place, they do allege that a robbery did, specifically of over half of the $400.00 paid to the Black female accuser by the LAX players to perform."

A robbery?

That's a forcible taking?

From false accuser Crystal Gail Mangum?

By whom?

When?

What has Ms. Mangum said about it?

Is there a specific accusation against any of all or is there but general innuendo intended to malign all of the lacrosse players at the party?

Mr. Michaels: "That silence, sources say, helped to get common law robbery dropped as one of the original five charges that was being investigated initially by Durham police investigators."

Pray tell, is Ms. Mangum now accusing one, two, three, four, five, twenty or perhaps thirty-three members of the 2005-2006 Duke University Men's Lacrosse Team of robbery?

Did the despicable Durham County, North Carolina District Attorney (Michael B. Nifong)decide not to pursue a robbery (or larceny) charge because it was even more ridiculous that the first-degree felony charges it did pursue?   Or because he has a soft spot for male Duke lacrosse players?

Think about it.

Is robbery/larceny (Mr. Michaels does not seem to appreciate the legal distinction, despite my best efforts) the fall-back position of Team Crystal, now that the sexually-charged charges generally have been exposed as imaginary?

Mr. Michaels: "This revelation comes as special prosecutors with the North Carolina State Attorney’s General’s Office and defense attorneys for the three Duke lacrosse players charged with first-degree sexual offense and kidnapping agree to postpone a pivotal pre-trial hearing regarding the accuser’s identification of her alleged assailants, scheduled originally for February 5, now continued to May 7."

Revelation?

Surely not "something that is revealed by God to man."

Another canard inspired by the Devil!

Mr. Michaels:

"The extra time now gives Special Prosecutors James Coman and Mary Winstead more breathing room to review the case files that were transferred from D.A. Nifong’s office after he recused himself January 12 to deal with related ethics charges.

"It may also give them time, beyond interviewing the accuser, Durham Police investigators and Duke Hospital emergency room personnel who examined her after the alleged assault, to invite some of the LAX players who attended the party to tell what they know."

The prosecution does NOT wipe the slate clean by replacing Mr. Nifong.  It is stuck with the consequences of Mr. Nifong's acts and omissions.

Let's have Ms. Mangum take and pass a polygraph test before wasting time and money pursuing the party attendees!

And if she is not accusing any party attendee of theft, what is to be pursued on whose behalf and who will pay the costs of defending this time?

Is the prosecution completely shameless?

Mr. Michaels:

“'I feel very confident that we know what happened,' Charlotte attorney Jim Cooney, one of defendant Reade Seligmann’s defense lawyers, told McClatchy Newspapers. 'I am also confident that there are certain people who will never believe the facts of this case because it does not fit their view of the case or their personal agendas.'

"Cooney later added, 'Nothing that occurred at that party justifies either jailing these young men for 30 years or the national condemnation and death threats that they received.'"

I doubt that Mr. Cooney meant to imply that jailing, or even trying, any of the party attendees, for less than 30 years on account of anything that happened at the party might be reasonable.

Mr. Michaels: "Prosecutors can’t compel the players to speak unless they are served with subpoenas to testify at trial. Most legal experts agree the only way that can reasonably happen is if prosecutors have solid information to go on in order to know in advance what to ask."

To continue the Hoax, the new prosecutors are supposed to pursue a robbery/theft possibility that even Mr. Nifong did not deem trial-worthy?

Mr. Michaels: "But beyond the alleged felonies, prosecutors could also probe who went into the accuser’s bag while she was away from it at the party, and allegedly took at least $240.00 from it before she left." That would be larceny, petty larceny, not robbery!

And even more ridiculous! 

From persecuting people based on bogus sex charges to pursuing a hope that something might be prosecutable: petty larceny!

How about charging 30 party attendees with stealing $8.00 a piece?

What a case!

Mr. Michaels: "The Carolinian/ Wilmington Journal newspapers have been quietly following up on tips about the alleged robbery since last fall. It’s a question no one in the media has ever really focused on, Duke Three support bloggers have challenged, and apparently even the Duke Three defense team wants to stay away from."

Right!  With bogus first-degree felony charges pending, Duke Three supporters should have been thinking petty theft!

When this nonsense collapses of its own weight, how about prosecuting the entire team but one for partying while white and the black team member for partying with whites? 

Mr. Michaels: "On the March 16, 2006 search warrant listing of evidence recovered from 610 N. Buchanan Blvd – the alleged crime scene where the LAX party occurred – police note that beyond the accuser’s 'make up bag, cell phone, and identification…a pile of twenty dollar bills were recovered inside the residence totaling $160.00 consistent with the victim claiming $400.00 cash in all twenty dollar bills was taken from her purse immediately after' the alleged sexual assault."

This makes perfect sense: steal $240 dollars and leave $160!

Doesn't Duke teach its students not to leave money behind?

Mr. Michaels:

"On a March 27 search warrant application for the Duke dormitory room of unindicted LAX player Ryan McFadyen, Investigator Benjamin Himan listed among the items to be seized “United States Currency totaling $340.00 or portions of said currency (all twenty dollar bills).

"The reason that figure is $100.00 more, sources say, is because some of the players allegedly pushed an extra hundred dollars under the bathroom door to entice the accuser and the second dancer to come out after they had locked themselves inside out of fear."

First there was a gang rape in the bathroom.  Now the strippers locked themselves in the bathroom.

What's next?

I have castigated young Mr. McFayden for his unfunny email, but "sources say" he's much too intelligent to steal money and leave it where it could be found nearly two weeks later!

It's NOT a crime to have seventeen $20 bills.

Mr. Michaels: "Why police focused in on McFadyen for the missing money is not clear, especially since, according to records, it was not recovered."

"[M]issing money"?  Now it's missing instead of stolen?  What's next?

Mr. Michaels: "McFadyen is the player who was suspended from school after authoring a controversial e-mail that talked about having more strippers over for a second team party the next night, then 'killing the bitches,' and cutting their skin off for his sexual gratification."

The foolish email was inspired by "American Psycho" (which is studied at Duke).  I have consistently criticized Mr. McFayden for writing it, but be fair, Mr. Michaels: put it in context and criticize the curriculum too instead of insinuating that Mr. McFayden meant his email to be taken seriously.  And note that, while the email was disgusting, it was NOT racist.

Mr. Michaels: "He was later allowed to return to Duke."

Right.  Writing a vile email to friends is not a crime.

Mr. Michaels: "To date, even though Durham Police searched his dorm room and vehicle, McFadyen has not be[en] charged with, or alleged to have committed any crimes in association with Duke assault case."

Right again!

Mr. Michaels:

"In a Tuesday, Dec. 19, 2006 written request for comment regarding the Duke Three defense’s change of venue motion, The Carolinian/Wilmington Journal newspapers asked Brad Bannon, one of the defense attorneys representing former LAX team Co-Captain Dave Evans, if, as alleged, 'the [team] silence was to protect the player who allegedly took money out of the accuser’s purse, and only put back part of it.'

"Atty. Bannon answered the question pertaining to the motion, but never addressed the alleged robbery issue, even to deny it as attorney Thomas did months earlier."

Who would dignify that question with a response?

Mr. Michaels: "“Mike Nifong did accuse the players of erecting a wall of silence and calling on their daddies and expensive lawyers to shield them, when he knew the captains at 610 N. Buchanan, including Dave Evans, had not called their parents or lawyers when police arrived at their house on March 16,' Bannon wrote. 'They helped [police] execute the search warrant and then volunteered to give statements without lawyers, to give DNA samples, to take polygraph examinations, to sign over the e-mail accounts, and to do anything else the police wanted them to do to assist in the investigation. Nevertheless, after Mike Nifong’s wall of silence comments, hundreds of people protested outside their home, many holding signs or actually placing signs on the home lamenting the wall of silence.'"

True!

Mr. Michaels: "While he was quick to both admonish and challenge the questioner on every other item of contention, Bannon never even denied in his on-the-record written response the allegation that at least one of the LAX players took money out of her bag at the party."

Is a non-denial by an attorney in a written response to the press now evidence of guilt?

Mr. Michaels: "It was the only subject in his long list of answers that Bannon ignored."

Did the questioner follow up at the time or wait until later to use the non-response to buttress a bogus robbery charge that is a desperate attempt to afford a modicum of credibility to a prosecution that has been a persecution?

Mr. Michaels: "Sources say there may be good reason."

"[M]ay""

What sources?

When The Johnsville News made what Mr. Michaels and I both considered an unfair attack upon him, he and I not only agreed that the charges were unfair, but making them anonymously was even worse.

Now Mr. Michaels is according respectability to anonymous sources!

Mr. Michaels proceeded to offer an account "from a variety of sources over the past five months" of what "is alleged to have occurred between 12 midnight and 12:25 a.m. on March 14 at the lacrosse party:"

What matters is what happened, not what is alleged to have happened.

I will not review Mr. Michaels' account, lest I omit something, other than to say that a key element of larceny--criminal intent--seems to be missing and that I am perplexed as to how the strippers could have been paid a few minutes into their performance and somehow left the money in "the bathroom where they made themselves up prior to performing" based on the account.

Mr. Michaels: "Sources confirm that a March 22 interview session between the LAX players and Durham police investigators was indeed cancelled, in part, because attorneys for the players and their parents did not want questions asked about the missing money, or who brandished the broomstick."

It's amazing what anonymous sources profess to know!

Mr. Michaels: "While LAX players now tell the press that they wished they would have been allowed to speak 10 months ago so it didn’t appear like they were hiding something, they still won’t address specifics about what did, and did not happen at the party, except to insist that no rape or kidnapping occurred."

It's not every prosecutor who does what Mr. Nifong seems to have done: create liability to a civil suit to follow a perverse prosecution.  Specifics will be addressed at a suitable time.

Mr. Michaels: "Whether the special prosecutors will followup on the missing money is unknown."

Having seen the error of Mr. Nifong's ways (and some of the results), they would have to be insane to pursue another bogus (and petty) charge!

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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