Duke Case: Myopic Memphis Columnist Supports Media
A headline in the February 24, 2007 issue of The Memphis Flyer, a Memphis, Tennessee newspaper, read: "'Waltz' Prosecutor DiScenza Defends Press, Grand Jurors, and Feds.'"
On February 23, 2007, the Rhodes Institute on the Profession of Law had offered a continuing legal education program on ""The Duke Lacrosse Case and What It Says About Our Criminal Justice Process, Academics, and News Media."
Columnist John Branston's article on the program accurately described guest speaker Stuart Taylor, Jr. as "the headliner" of the program, but the article's headline was dedicated to what was local news: "Tim DiScenza, the federal government's trial attorney in the Tennessee Waltz cases in Memphis, stuck up for the fairness of the press and prosecutors Friday in response to a scathing critique by an author who's writing a book about the Duke lacrosse scandal."
That a columnist outside North Carolina then would write of "the fairness of the press and prosecutors" with respect to the Duke case was not necessarily to be expected.
That Mr. Taylor delivered "a scathing critique" WAS to be expected.
Last spring, Mr. Taylor had written that "the available evidence leaves [him] about 85 percent confident that the three members [of the 2005-2006 Duke University Men's Lacrosse Team] who have been indicted on rape charges are innocent and that the accusation is a lie" and was compiling a list of rogues including "more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties" as well as "former Princeton University President William Bowen and civil-rights lawyer Julius Chambers [who] went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal — a report that is a parody of race-obsessed political correctness."
Mr. Taylor, an esteemed member of the media, even dared to call attention to media bias: "Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems."
Further, Mr. Taylor, a lawyer, not only castigated Durham County, North Carolina District Attorney Michael B. Nifong, but called for an investigation of HIM:
"Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.
"Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape."
It turned out to be even worse than Mr. Taylor apparently suspected: Mr. Nifong had arranged to conceal exculpatory evidence from the defense and the court and would make misrepresentation after misrepresentation to the effect that he was not aware of such evidence.
Mr. Branston: "While the comments of DiScenza and state prosecutor Amy Weirich were general in nature, they contrasted starkly with the views of guest speaker Stuart Taylor Jr., the headliner at the Rhodes Institute on the Profession of Law."
Translation: Mr. Taylor is familiar with the facts, not DiScenza and Weirich.
Mr. Branston: "Taylor is legal affairs columnist for the National Journal and a contributing editor for Newsweek."
Not to mention America's top legal commentator.
Mr. Branston's succinct summary of what Mr. Taylor said the Duke case says about the criminal justice process, academics and the news media: it's "mostly bad: Durham N.C. prosecutor Mike Nifong made an 'outrageous rush to judgment,' most of the media botched the story because of their political correctness and general shadiness, and Duke professors and administrators were spineless and all too eager to join Nifong’s side."
Close enough.
But Mr. Branston preferred "not to comment on the Duke lacrosse scandal" and instead to focus on what he deemed "interesting to Memphians...the role reversal..., with Taylor, a New York Times reporter from 1980-1988, bashing the Times and the press in general and DiScenza, a career prosecutor, saying, basically, that it isn’t that simple."
How droll!
This suited Assistant United States Attorney DiScenza, since "[a]ll of the Memphis and Shelby County politicians indicted so far in Tennessee Waltz and Main Street Sweeper are black Democrats."
Mr. DiScenza: "Nobody has been more attacked by people who are politically correct and race-obsessed than I have."
Then you should know better, sir.
Mr. Branston: "DiScenza said that based on what he has heard, Nifong 'violated every prohibition we have about disclosure of evidence' and would probably have been fired by now if he were a federal prosecutor. But he said the rules for state prosecutors in North Carolina may be different than the federal rules. And he praised the role of journalists and noted that the print news business has aggressively been policing its own on such charges as plagiarism."
Probably been fired?
How about disbarred and prosecuted?
Did the federal prosecutor really think North Carolina may have a rule permitting a prosecutor to conspire to conceal exculpatory evidence and frame people?
How does policing plagiarism prevent or punish an "outrageous rush to judgment"?
Mr. Branston: "[DiScenza] and Weirich also took issue with Taylor's claim that prosecutors are political creatures and blind to the other side and that grand jurors are mere rubberstamps for prosecutors."
Surely Mr. Taylor did not speak that way about all prosecutors and grand jurors.
In the Duke case, however, the chief prosecutor WAS a political creature who played the race card to win an election he otherwise would have lost and he was willfully blind, and worse. The grand jurors were manipulated by the prosecution and, as such, WERE rubber stamps.
Good News: the local state prosecutor said, "Just wanting to win a case is not the prevailing view in this office," and "[this] office has a responsibility to see that cases are 'tried cleanly or disposed of fairly.'"
ALL prosecution offices have that responsibility!
Mr. Branston: "DiScenza said that when a case goes to a federal grand jury – one of which was recently led by crusty former Commercial Appeal editor Angus McEachran, a demonstrably independent-minded sort – the prosecutor must have personal certainty of the defendant’s guilt and 'believe that a conviction is what justice demands.'"
Hopefully the grand juror system is better in Tennessee than it is in North Carolina (and North Carolina is making major changes).
Mr. McEachran was not a grand juror in the Duke case and, with exculpatory evidence being concealed and evidence being selectively presented, obtaining indictments from Durham County grand jurors was not hard.
Mr. Branston lamented the focus of the program: "The Rhodes panel would have been even more pointed had the focus been on Memphis instead of an alleged rape case 1000 miles away in North Carolina. DiScenza’s higher-up is U.S. Attorney David Kustoff, a former Republican Party activist, and Weirich's is District Attorney General Bill Gibbons, an elected official who formerly served on the Memphis City Council and Shelby County Commission and ran for mayor of Memphis and has been publicly accused of ducking some cases. Unfortunately, neither attended, nor were there any practicing journalists on the panel (other than Taylor) to defend the Fourth Estate."
It's not even an alleged rape case anymore! (A pity Mr. Branston is so unfamiliar with it.)
Mr. Branston apparently was upset that Mr. Taylor criticized "the Fourth Estate":
"For someone supposedly outraged by outrageous conduct, Taylor said a few outrageous things himself. He said that a DNA evidence kit 'is so sensitive it will pick up my DNA from 20 yards away' yet it did not find anything from the accused Duke lacrosse players. And he said the lacrosse players, who were at an off-campus party with a stripper, were 'bonding' and 'they maybe had a beer.' The lacrosse scandal, he said, is 'the most egregious case of prosecutorial misconduct to unfold in real time in the history of the United States.'
"He later clarified that he was exaggerating about the DNA kit."
First, Mr. Taylor was, is and will continue to be genuinely outraged by the outrageous conduct related to the Duke case, including that of the prosecutor and members of the media and academia.
If Mr. Taylor reflexively defended journalistic irresponsibility, prosecutorial misconduct and/or political correctness run amok, he would be part of the problem instead of the solution to that societal pollution.
Second, Mr. Taylor obviously was joking (NOT exaggerating) about the sensitivity of the DNA kit.
Third, there were TWO strippers at the off-campus party and the party was a bonding experience for the players (although the choice of "entertainment" was atrocious).
Fourth, the Duke case is the real scandal, not the foolish party, and IT is "the most egregious case of prosecutorial misconduct to unfold in real time in the history of the United States."
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.
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