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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 9, 2007
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Duke Case: NCCU, Thank You and Batson

North Carolina Central University is where (1) North Carolina Governor Michael Easley went to law school; (2) Duke case false accuser Crystal Gail Mangum was going to college when she agreed to work as a stripper at an off campus party held during Spring Break 2006 by members of the 2005-2006 Duke University Men's Lacrosse Team; (3) Durham County, North Carolina District Attorney Michael B. Nifong (appointed by Governor Easley) went†prior to†the 2006 Durham County District Attorney Democrat primary to assure Durham County's African-American community that the absence of DNA evidence would not dissuade him from prosecuting Duke lacrosse players eventually accused (falsely) by Ms. Mangum as though Ms. Mangum†really had been gang raped; (4) criminal procedure law expert†Irving Joyner†teaches law; (5) Chan Hall, then 22 and†a student senator, who told Newsweek last April, "It's the same old story, Duke up, Central down," and wanted to see the Duke students prosecuted "whether it happened or not. It would be justice for things that happened in the past"; and (6) seventeen communications students recently interviewed by The Baltimore Sun's†Jeff Barker communicated the sad truth that reverse racism imperils a fair trial in the Duke case.

For (6), I thank NCCU, because it's better to know about that sad truth than not to know it or to pretend that it is untrue.

Mr.†Barker's February 8, 2007 Baltimore Sun article, entitled "Deep divide about Duke lacrosse case remains," surely suggest a powerful predisposition on the part of Durham blacks to believe Ms. Mangum regardless of all that has become public, because she is a local black female and the persons she falsely accused (Reade Seligmann, Collin Finnerty and David Evans, also known as the Duke three) are out-of-state young white male Duke lacrosse players from wealthy families.

Mr. Barker:

"The 17 North Carolina Central University undergraduates in a communications class were asked to think like a jury. Raise your hands, they were told, if you believe the accuser in the Duke lacrosse sexual assault case fabricated her story.

"The students in the cramped cinderblock classroom looked at each other and at the reporter posing the issue. Not a single hand was raised.

"Students at the historically black state university, where the accuser is enrolled, mostly support the 28-year-old student, mother and exotic dancer whose allegations against three former Duke lacrosse players have been widely discredited in court and the media. Some of the defendantsí backers now refer to her story as a 'hoax,' saying the proceedings show how society rushed to judgment against the accused players.

"But in the class on North Carolina Centralís campus, a blend of Georgian-style and modern brick buildings criss-crossed by busy streets several miles from Duke, students believe the case illustrates something else."

What do those North Carolina Central students think the Duke case demonstrates?

"It demonstrates, they said, how 'victims' such as the woman in the case can be trampled by the justice system, how their voices can get lost. While the students didnít pretend to know what happened on the evening the woman said she was assaulted at an off-campus Duke party, their comments reflect an uneasiness bordering on distrust about the justice systemís ability to uncover the truth.

ď'You have this team of white lacrosse players from Duke, and you have this North Carolina Central University black girl that strips for a living,' said one of the students, Teccara M. Carmack of Durham. 'Itís just kind of not in her favor.'"

Obviously† Ms. Carmack would prefer things to be in Ms. Mangum's favor, but facts are pesky things and the facts are NOT in Ms. Mangum's favor.

Now that Durham County, North Carolina District Attorney Michael B. Nifong is exposed as an out-of-control prosecutor and off the Duke case, there is resentment building against him in Durham's black community.

"Some in the class said they felt used by District Attorney Michael B. Nifong, who vowed publicly to aggressively prosecute the players last spring but recused himself last month after ethics charges were lodged against him by the North Carolina State Bar. Before turning the case over to the state attorney generalís office, Nifong had called the players 'hooligans.'

ď'He just milked it for his advantage,' said undergraduate Brielle McCadden of Burlington Township, N.J. 'He sold us the pipe dream that, "I will do whatever I can do." It was the flavor of the month. Sorry to say, but thatís how it went.'"

To be sure, Mr. Nifong suckered enough Durham County voters to win first the Democrat primary and then the general election, and the black vote was decisive.† But for the black vote, Freda Black would have won the primary.† But for the black vote, Lewis Cheek would have†won the general election and then resigned and given†Governor Easley another chance to appoint an ethical district attorney for Durham County.

What do those North Carolina Central communications believe (or profess to believe) about the Duke case?

"Nine students in the class raised their hands when asked if they thought the accuser was sexually assaulted, as she has claimed. The other eight indicated they believe an assault could have occurred, but that the accuser may not know precisely what happened Ė possibly because she was drunk.

"'I†personally believe something happened,' McCadden said."

There are people who believe or profess to believe what they want to believe, regardless of the facts.

Mr. Barker noted that these days the sentiment at Duke is pro-Duke Three:

"The sentiment is very different at Duke, where two of the defendants have been invited back to school Ė the third has graduated Ė and a columnist for the student newspaper wrote recently of campus 'loathing' directed at Nifong and the accuser."

The Duke student body did not reflexively support their lacrosse team fellow students last March, but they have been following the case and overwhelmingly realize it was both bogus and a prosecutorial disgrace.

For a straightforward appraisal of the Duke case, Mr. Barker turned to straightforward Dr. William Anderson:

ď'If people believe you can rape a woman and not leave any physical evidence, Iíve got a bridge in Brooklyn I can sell them,' said Frostburg State University associate economics professor William Anderson, who has written extensively in blogs about the case and believes the accuser manufactured her story.

"Anderson said he wondered whether North Carolina Central students expressing faith in the accuser had succumbed to 'peer pressure.'"

That would be the best explanation.

Mr. Barker reported: "North Carolina Central figures prominently in the case. Not only is the accuser a full-time student, but it was there that Nifong appeared at a 'town hall' meeting in April and assured students the case wasnít being dropped despite a lack of DNA evidence."

Given what Ms. Mangum said happened, if there was not DNA evidence, then what she said had to be false.

Obviously that is not generally acknowledged at North Carolina Central, where the desire to believe Ms. Mangum is still strong.

"Her North Carolina Central defenders say it matters little that the accuser may have wavered.

ď'I would say that none of us have really been in that type of situation she was in (at the party). To be violated like that, thatís trauma,' said Candice Benbow, a North Carolina Central graduate student from Winston-Salem, N.C.

"Benbow, who is studying sociology, was not among the 17 communications students, but has followed the case and said she believes 'there is truth and there is validity to that story.'

"Benbow said itís hard for her and other black women not to be influenced by the weight of history.

ď'We didnít see an exotic female dancer and lacrosse players. We saw an African-American female and white young men, and we still see that,' Benbow said. 'And the history between the two groups is one thatís not favorable. So for us, especially being black women, even today we stay on the defensive.'"

Ms. Benbow's frankness is commendable: she admitted that she perceived the Duke case in racial terms and believed what the person with the same skin color as herself said.†† That's foolish, but frank.

Unfortunately, Ms. Bembow confuses defensive and offensive: putting skin color ahead of the facts of the case is...offensive.

The hope that Ms. Mangum is telling at least some truth about being a victim of crime is palpable at North Carolina Central (and reference to her own criminal history tends to be dismissed as "dogging"):

"Duke law professor Paul Haagen said the North Carolina Central studentsí comments may reflect a general skepticism about the justice system that he found 'not surprising.' Surveys have found disparate views of the system based on race and class.

"Some North Carolina Central students are withholding judgment about the case.

ď'The truth usually comes out at trial,' said Roderick Brown, a law student from Myrtle Beach, S.C.. 'Thereís a big area of gray that you just donít know about.'

"But other students have long expressed skepticism that the case will be resolved fairly.

"They say the media have 'dogged' the accuser by reporting numerous details of her life, including a 2002 case in which she was accused of speeding away in a strip club customerís taxi while drunk. She pleaded guilty to a series of misdemeanors, according to court records.

ď'What people feared from the very beginning was that we would never know for sure what happened,' said Carl Kenney, a local pastor and freelance journalist who has interviewed North Carolina Central students.

ď'I donít believe anybody is ready to say it (an assault) happened,' Kenney said. 'At the same time, people are frustrated. The consensus Iím gathering, particularly from African-American females, is that the system was weighted very heavily on behalf of the privileged. This justifies in the minds of many what they already believe.'"

Some people can rationalize just about anything.

Meanwhile, the North Carolina Central communications students' instructor is focusing his students on power instead of facts:

"Brett Chambers, the communications instructor whose class debated the case, has urged his students not to accept the notion Ė which many students say the media have bombarded them with Ė that they are powerless compared to undergraduates at Duke.

ď'I tell them Central has political influence, too,' Chambers said. 'It may not be as big as Dukeís. But the governor (Mike Easley) went to law school here. We have people in places of influence.'"

But the Duke case is not comparable to a basketball game between North Carolina Central and Duke or an election: the criminal justice system is supposed to be colorblind and beyond political or racial influence.

In the Duke case, it should not matter where the accuser or the accused go or went to college, what shade of skin they have or how much money their families have.

What should matter is what happened.

Period.

What happened is that there was a false report of kidnapping, rape and sexual offense.

This story about students at NCCU is yet another disheartening account of unreasoned prejudice in the black community in Durham.† This time, those revealed as racially blinded are black students at NCCU.†Nine of 17 in one class still believe the stripper's story. None of those 17 believe it is contrived. To most, the stripper is a victim. Many see the "system" as working in favor of the accused.

What system? Why, the one that indicted†three players after evidence was withheld from the grand jury. The one that leaves them under indictment even though the stripper has decided she didn't know whether she'd been penetrated by a broom or a penis, even though the prosecutor revealed that he knew, before seeking indictments, that the stripper wore the DNA of 4 others, none lacrosse players. One NNCU student, seeming to speak for the group, unwittingly admitted their race-blinded prejudice: "We didn't see an exotic female dancer and lacrosse players. We saw an African-American female and whiteyoung men, and we still see that."

It is not just immature college students. NCCU professors are fueling irrational feelings, calculated to deny the Duke students a fair trial: Brett Chambers, the communications instructor whose class debated the case, has urged his students not to accept the notion - which many students say the media have bombarded them with - that they arepowerless compared to undergraduates at Duke.

The racial and political pandering by which this indictment was conceived continue, now, to prop it up. Were the tables turned - white students and white professors at Duke refusing to acknowledge the force of uniformly and overwhelmingly exculpatory evidence disproving a white Duke stripper's claim that a black NCCU athlete had raped her - one can well imagine the outcry from this same group of NCCU students.

It is sad. They simply do not see their prejudices. What will it take to open their eyes? Too much, I'm afraid. A fair trial in Durham is not possible, unless the defense is given enough peremptory strikes and allowed to exercise them without Batson challenges, to insure that no seated juror will harbor this sort of racial animus.††

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court, by 7 to 2, concluded that "public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.

Holding: "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group,† and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'† Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination."

It is noteworthy that then Chief Justice Burger and later Chief Justice Rehnquist dissented.

Their position:†

"Today the Court sets aside the peremptory challenge, a procedure which has been part of the common law for many centuries and part of our jury system for nearly 200 years.

"Because the Court nonetheless chooses to decide this case on the equal protection grounds not presented, it may be useful to discuss this issue as well. The Court acknowledges, albeit in a footnote, the '"very old credentials'" of the peremptory challenge and the '"widely held belief that peremptory challenge is a necessary part of trial by jury."'† But proper resolution of this case requires more than a nodding reference to the purpose of the challenge. Long ago it was recognized that '[the] right of challenge is almost essential for the purpose of securing perfect fairness and impartiality in a trial.' 'The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way the peremptory satisfies the rule that "to perform its high function in the best way, 'justice must satisfy the appearance of justice."' Permitting unexplained peremptories has long been regarded as a means to strengthen our jury system in other ways as well. One commentator has recognized:

'The peremptory, made without giving any reason, avoids trafficking in the core of truth in most common stereotypes. . . . Common human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases. But to allow this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals and in which each is held reasonable and open to compromise. . . . [For example,] [although] experience reveals that black males as a class can be biased against young alienated blacks who have not tried to join the middle class, to enunciate this in the concrete expression required of a challenge for cause is societally divisive. Instead we have evolved in the peremptory challenge a system that allows the covert expression of what we dare not say but know is true more often than not....'"

In 1992, six years after the Supreme Court barred prosecutors from discriminating against even one potential juror on the basis of race, it ruled in an Ohio case that race bias by defense lawyers also violated jurors' rights.

So the Duke†case constitutes good cause to consider how Batson would impact the trial of Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) if the remaining charges against them are not dismissed, either voluntary by the prosecution or by the Court, upon motion under North Carolina statutory law, as they should be, and reconsider the wisdom (or lack of wisdom) of the Batson decision.

If the†defense †used a preemptory challenge to reject a potential†black juror, would their be a Batson violation?

If Crystal Gail Mangum is prosecuted for making a false report and the prosecution uses a preemptory challenge to reject a potential black juror, would their by a Batson violation?

Is it worthwhile to find out, or were the late Chief Justices right when they concluded that (1) there is a "core of truth in most common stereotypes"; (2) avoiding trafficking in that core of truth is desirable; (3) "[c]ommon human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases": and (4) "allow[ing] this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals and in which each is held reasonable and open to compromise..."?

The Duke case is demonstrating, at least,†that extending Batson to the defense as well as the prosecution was a mistake.

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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