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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 11, 2007
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Topic category:  Other/General

Professor Everett: From Hall of Fame to Hall of Shame

Duke Law Professor Robinson O. Everett, "On DNA evidence, did Nifong break the law," in The Herald-Sun:

"I have recently been reading articles about the ethics charges brought against District Attorney Mike Nifong by the 'North Carolina Bar Association.' These articles obviously err in one respect – the complaint was filed by the North Carolina State Bar, which is a state-established regulatory organization to which all attorneys must belong, and not by the 'North Carolina Bar Association,' a voluntary professional association in which membership is not required in order for someone to engage in the practice of law.

"The articles refer to allegations that, although Nifong released laboratory test results... revealing that no semen from any of the lacrosse players had been found on the accuser’s body, he did not inform the defense council [sic] that semen of other persons had been recovered from her. I realize that the Supreme Court has held that constitutional due process requires that a prosecutor not use testimony he knows to be perjured and not withhold from the defense exculpatory evidence that would tend to disprove guilt or reduce sentence. Moreover, North Carolina status required that, when a suspect has been the subject of a lab tests for semen or other 'non-testimonial identification procedures,' he or 'his attorney must be provided with a copy of any reports of test results.' Therefore, Nifong had an obvious constitutional and statu[to]ry duty to reveal to the defense any lab results revealing that the dancer’s body contained no semen from any lacrosse player – a circumstance directly contradicting her claim that she had been raped by the three players.

"I am much less certain that Nifong had any duty to provide the defense with evidence about the presence on the accuser’s body of semen from other persons who were not lacrosse players. My concern is with the application of North Carolina Rule of Evidence 412. Like its counterpart, Federal Rule of Evidence 412, this rule creates a 'rape shield' in prosecutions for rape and other sexual offenses. The North Carolina Rule states that the alleged victim of a rape shall not be compelled to reveal her sexual history and that evidence shall not be received at trial concerning the sexual activity by the victim other than that on which the criminal charge against the defendant is based.

"The premise for this exclusionary rule is that in a trial for rape, it should make no difference whether the alleged victim is a virgin or a prostitute; the only issue for the jury to try should be whether she consented to intercourse with the defendant at the time and place of the alleged rape. Otherwise, an alleged victim with a sordid past history or repeated sexual activity may be 'punished' by a jury by its acquitting the defendant. Moreover, if an actual victim of rape knows that at a trial of the rapist her sexual history will be disclosed, the embarrassment for her that might result from the disclosure may deter her from making a complaint or from testifying later at a trial about the rape.

"Rule 412 contains four narrow exceptions which might allow receipt of evidence that alleged victim had sexual relations with persons other than the lacrosse players; but, after examining the rule, I doubt that those exceptions would apply in this case. Therefore, Judge Smith, who will try the case, may not allow the jury to hear this evidence – although the evidence clearly should be admissible that the tests revealed no semen from the lacrosse players on the body of the accused.

"The newspaper articles indicate that Nifong had the private laboratory delete from the report the 'test results' concerning semen of the persons other than the lacrosse players. I wonder whether the district attorney violated any constitutional or statutory requirement if he had the laboratory delete from its 'reports of test result' those that would be inadmissible at trial but which he fears the defense might use to attack the accuser’s character. The answer to this question may be relevant in the State Bar’s consideration of the ethics complaint. Time will tell!"

Professor Everett's Duke biography:

"A.B., 1947, J.D., 1950, Harvard University; LL.M., 1959, Duke University. Everett is a native of Durham, North Carolina. He served for several years as a legal officer in the Air Force and as a commissioner of the United States Court of Military Appeals. He returned to Durham to enter a general practice, which he continued until 1980 when he rose to the bench of the United States Court of Military Appeals as chief judge. In September 1990 he retired from that position to become a senior judge of the Court and resume full-time teaching. From 1961 to 1964, he served as counsel to the Subcommittee on Constitutional Rights of the United States Senate Judiciary Committee. He has been active in the affairs of the North Carolina Bar, the American Bar Association, and of the community of Durham. He has long served as a commissioner on uniform state laws and has been active in various law reform efforts and in numerous Bar activities at local, state, and national levels. He has published on many legal topics, notably military justice, criminal procedure and redistricting. His teaching at Duke University began in 1950. He was elected to regular membership on the faculty in 1967. In 1993, he founded the Center on Law, Ethics and National Security at Duke University Law School. In recent years he has participated actively as a plaintiff and attorney for the plaintiffs in North Carolina’s redistricting litigation and in that capacity has argued four times before the Supreme Court. He received the Judge John J. Parker Award for the North Carolina Bar Association in 2004, and in 2006 was inducted into the Association’s General Practice Hall of Fame."

Did Professor Everett disclose in his unwise writing that he had endorsed Durham County, North Carolina District Attorney Michael B. Nifong in the Democrat primary as well as the general election and therefore has a personal interest in making Mr. Nifong look as respectable as possible?

No.

Did Professor Everett set forth any of what he described as "four narrow exceptions" to North Carolina's so-called rape shield rule, so that a reader might consider for herself or himself whether Professor Everett's professed doubt as to the applicability of any of them is an example of legal wisdom or wishful thinking?

No.

Is Professor Everett right to doubt the applicability of all of the exceptions?

No.

Rule 412(b): Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:

(1) Was between the complainant and the defendant; or

(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or

(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or

(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.  Putting aside the fascinating possibility that (4) does apply, did Professor Everett arbitrarily decide that the suppressed DNA results suggesting that false accuser Crystal Gail Mangum had recently had sexual relations with at least four males who were not members of the 2005-2006 Duke University Men's Lacrosse Team could not be "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by" team members?

Yes.

Last March Ms. Mangum said (among other things) that she had not had sexual relations with anyone for a week before that party and last with her boyfriend (NOT a team member!).

The Nifong-suppressed test results not only contradicted those claims, but suggested possible alternative explanations for Ms. Mangum's claimed internal injury (which is not necessarily proof of rape by anyone)..

Even more importantly, did Professor Everett blithely ignore the reality that if Mr. Nifong really had believed the suppressed results should have been suppressed, Mr. Nifong arbitrarily took it upon himself to do the suppressing instead of submitting the results to the court for the court to determine whether they should be suppressed?

Yes.

Obviously Mr. Nifong is not both prosecutor AND judge.

Obviously the results should NOT have been suppressed, surely not by Mr. Nifong as prosecutor and not even by a judge.

Obviously Professor Everett ignored the fact that Mr. Nifong not only suppressed, but repeatedly told defense counsel and the court that he had NOT suppressed.

Commenter Luke at LieStoppers:

"The...Rape Shield Laws do not preclude production of this material to the defense; the Rape Shield Laws do not give the prosecution the right to determine whether it is or is not applicable. That is a job for the judge. By failing to turn over the 'other dna' results, the prosecution would preclude the defense from even arguing before the court the applicablility or nonapplicability of any Rape Shield Law because it doesn't even know of the 'other dna' existence and thus does not even know this is an issue. At bottom, the Rape Shield Laws do not give to the prosecution the role of gatekeeper to determine what is and what is not relevant or admissible. To the contrary, the Open Discovery law codified at 15A-903 requires the prosecution to '(1)Make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term 'file' includes the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. Oral statements shall be in written or recorded form. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.' The only exception is provided in 15A-904, which precludes production of what is known as attorney work product -- legal theories, research, legal opinions of the prosecutor. Moreover, if a prosecutor feels that it should not turn over certain information to the defense, North Carolina law provides that it must make a motion to the court under 15A-908 and show to the court that discovery should be precluded because of the risk of harm, intimidation, bribery, economic reprisals, unnecessary annoyance or embarrassment of some person. At bottom, it is the province of a Judge, and not a Prosecutor, to determine which evidence is irrelevant, admissible, or unduly prejudicial."

Should a Duke law professor know that? 

Yes.

Excerpt from North Carolina State Bar complaint against Mr. Nifong:

"c) By not providing to the Duke Defendants prior to November 16, 2006 a complete report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, and memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form, despite repeated requests by the Duke Defendants and inquiries from the Court on these subjects, Nifong:

i. did not make timely disclosure to the defense of all evidence or information known to him that tended to negate the guilt of the accused in violation of former Rule 3.8(d) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § 15A-282, N.C. Gen. Stat. § 15A-903(a)(1), N.C. Gen. Stat. § 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery; and

ii. failed to make a reasonably diligent effort to comply with a legally proper discovery request in violation of former Rule 3.4(d) of the Revised Rules of Professional Conduct, as well as N.C. Gen. Stat. § 15A-903(a)(1) and N.C. Gen. Stat. § iSA-903 (a)(2),

"(d) By never providing the Duke Defendants on or after November 16, 2006 and prior to his recusal on January 12, 2007 a report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, and memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form, Nifong:

i. did not, after a reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused in violation of current Rule 3.8(d) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § l5A-282, N.C. Gen. Stat. § 15A-903(a)(l), N.C. Gen. Stat. § l5A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery; and

ii. failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § l5A-282, N.C. Gen. Stat. § 15A-903(a)(l), N.C. Gen. Stat. § 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery.

"(e) By agreeing with Dr. Meehan to intentionally limit DSI’s report to disclose only the test results in which a positive result was reached between certain evidence specimens and known reference samplers which necessarily excluded reporting the potentially exculpatory DNA test results, Nifong:

i. knowingly disobeyed an obligation under the rules of a tribunal in violation of Rule 3.4(c) of the Revised Rules of Professional Conduct; and

ii. requested a person other than a client to refrain from voluntarily giving relevant information to another party in violation of Rule 3.4(1) of the Revised Rules of Professional Conduct.

"(f) By repeatedly misrepresenting to the Court and to counsel for the Duke Defendants that he had provided all potentially exculpatory evidence and that the substance of all Dr. Meehan’ s oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DSI’s report, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(l), made false statements of material fact to a third person in the course of representing a client in violation of Rule 4.1, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

"(g) By representing or implying to the Court that he was not aware of the potentially exculpatory DNA tests results or, alternatively, was not aware of their exclusion from DSI’s report at the beginning of the December 15, 2006 hearing, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1) and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

"(h) By misrepresenting to the Grievance Committee of the State Bar:

i. that the agreement to limit the information in DSI’s report was based on privacy concerns of releasing the names and DNA profiles of individuals providing known reference specimens,

ii. that he did not realize that the potentially exculpatory DNA test results were not included in DSI’s report when he provided it to the Duke Defendants or thereafter, and

iii. that his statements to the Court at the beginning of the December 15 hearing referred not to the existence of the potentially exculpatory DNA test results but to the Duke Defendants’ purported allegation that an intentional attempt had been made to conceal such evidence, Nifong made knowingly false statements of material fact in connection with a disciplinary matter in violation of Rule 8.1(a), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

"By committing each of the violations set forth above in paragraphs (a)-(h) and by engaging in the pattern of misconduct and violations set forth in paragraphs 10-278 above, which constitutes a systematic abuse of prosecutorial discretion in the underlying criminal cases, Nifong engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Revised Rules of Professional Conduct.”

Professor Everett needs to read the amended complaint against Mr. Nifong carefully.  Then, perhaps, he will appreciate that Mr. Nifong's problem is not the result of zeal to protect privacy, but determination to deprive the defense of exculpatory evidence...unless Professor Everett is hopelessly dense.

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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