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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:  March 4, 2007
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Topic category:  Other/General

Duke Case: Nifong Subordinates, Speak; NC, Look to an Arizona Case

Hero of the Hoax Bill Anderson is rightly outraged by a recent Herald-Sun editorial, the theme of which (as Dr. Anderson succinctly summarized it) is: "The bar did not severely punish the other prosecutors, so Nifong should only get a slap on the wrist, since there was no trial."

What other prosecutor has been caught doing what Mr. Nifong appears to have willfully done?

Does it make sense to keep Mr. Nifong prosecuting people (or practicing law) because he failed to keep exculpatory evidence secret and failed to win a conviction in the Duke case on any of the bogus charges, despite everything he did?

Not to me.

Dr. Anderson wrote to The Herald-Sun, as follows:

"In your March 2 editorial, 'N.C. Bar Also Faces Scrutiny,' the Herald-Sun once again defends Michael Nifong as though his actions simply were 'mistakes,' something akin to putting down the wrong answer on a math quiz. But, then, you have the following statement:

'Nifong certainly made mistakes, as he concedes, but no one has been wrongly convicted, and no trial has been held.'

"Throughout this ordeal, the H-S has been DEMANDING that the case go to trial, and for the most part, you all but have demanded a conviction. Now you tell us that there has been no 'wrongful conviction.' True, but are you saying that if a jury actually were to convict the three young men, that it would be 'wrongful'? Are you saying now that there should be no trial?

"No harm? What about the millions of dollars the families have had to spend to defend their sons, with the charges being transparently false? What about the damage to the reputations of individuals and to Duke University?

"Furthermore, we are dealing with highly prejudicial statements that Nifong made, and the illegal withholding of exculpatory evidence, something that the H-S apparently thinks to be of no consequence. Now Nifong tells the N.C. Bar in a letter that (1) he did not attend any April 10 meeting, and (2) in the same letter mentions the April 10 meeting. Does the H-S see no problem there?

"No, once again the H-S simply enables Michael Nifong and continues to try to sweep the dirt under the rug. You should be ashamed."

In North Carolina, the list of those who should be ashamed is very long.

Durham County, North Carolina District Attorney Michael B. Nifong tops the list, but he has had plenty of enablers and supporters, whether culpable or not, many of whom appear to be shameless.

On October 15, 2006, "60 Minutes" and the late Ed Bradley not only made it evident that Mr. Nifong's prosecution of Reade Seligmann, Collin Finnerty and David Evans, aka the Duke Three, was not warranted by the actual facts, but that Mr. Nifong had crossed the line separating prosecutors and persecutors.

Yet a few weeks later Mr. Nifong won a plurality victory in the race for Durham County District Attorney.

North Carolina Central University student Chan Hall apparently was not the only one who believed that the Duke case should be pursued for a purpose other than convicting persons who actually committed crimes.  Mr. Hall, then 22 and a student senator, 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."

Like many others, Mr. Hall may well have been deceived by Mr. Nifong's false public statements, but Mr. Hall's own words demonstrate a disregard for the principles of colorblind justice and each case being decided on its own merits and a determination to scapegoat in the name of reparations.

That's not what America is supposed to be about.

What is needed is for (1) Mr. Nifong's honest subordinates to speak out, (2) the Durham County District Attorney's Office and the Durham Police Department to be cleaned out and (3) appropriate punishment to be meted out to those who have corrupted the criminal justice system.

An e-mailer pleased with my piece on Durham County, North Carolina District Attorney Michael B. Nifong's written response to the North Carolina State Bar's amended complaint against him predictably concluded that Mr. Nifong "should be disbarred and removed from office."

Exactly so.

Then the e-mailer asked a question with enormous implications: "How could anyone have confidence in any case this 'Creep' was involved in"?

An excellent question!

Yet it suggests Mr. Nifong's hope to escape his predicament (and it has nothing to do with the merits of the State Bar proceeding against him).

The question implies that any "successful" prosecutions involving Mr. Nifong should be reviewed.

That's not something Durham County, North Carolina seems to be eager to do.

It also suggests a very troubling question: who did Mr. Nifong contaminate?

That's not something everyone wants to have investigated.

Let's be realistic: a district attorney cannot persecute innocent people without some help, especially in a case as publicized and fiercely contested as the Duke case.

Who knew what, and when did they know it?

The State Bar alleged that "[o]n April 10, 2006, Nifong met with Dr. Meehan and two DPD officers at the DSI office" and "[a]t that meeting Dr. Meehan discussed with Nifong the results of the analyses performed by DSI to that point," including the finding of multiple male DNA NOT coming from any (white) member of the 2005-2006 Duke University Men's Lacrosse Team (the black team member having been given a pass by accuser Crystal Gail Mangum).

Mr. Nifong denied that there was an April 10, 2006 meeting!

How many people know that there was such a meeting?

How many of them are coming forward?

What do the records of the Durham County District Attorney's office show about where Mr. Nifong was and what he was doing on April 10, 2006?

What do his telephone records show?

What do his credit card statements show for April 10, 2006? What evidence does Mr. Nifong have to indicate that there was no such meeting?

Reade Seligmann, Collin Finnerty and David Evans have demonstrated in the courtroom of public opinion that they did not kidnap, rape or sexually assault Ms. Mangum.

Mr. Nifong himself finally dismissed the rape charges against them.

The new prosecutors should dismiss the remaining charges before the end of May. (Actually, they should not have needed months instead of weeks to realize that dismissal is appropriate, but they do want to take plenty of time so that they cannot be accused of rushing.)

Sir Walter Scott (1771-1832) was right:"Oh, what a tangled web we weave, When first we practise to deceive."

Mr. Nifong is hopelessly entangled, yet struggling to escape that April 10, 2006 meeting and its devastating implications for him.

In a letter to the State Bar dated December 28, 2006, Mr. Nifong stated that his first meeting with Dr. Brian Meehan, Director of DNA Security, a private laboratory retained to do additional DNA testing in the Duke case, was on April 21, four days after Reade Seligmann and Collin Finnerty were wrongly indicted. 

Mr. Nifong's current position is that on April 21 he first learned of the presence of DNA on the accuser's clothing and body from males other than the white members of the 2005-2006 Duke University Men's Lacrosse Team and a boyfriend of Ms. Mangum. 

In his February 28, 2007 response to the State Bar's amended complaint, Mr. Nifong denied any recollection of an April 10 meeting and even any such meeting.

BUT, in a letter to the State Bar dated January 16, 2007, Mr. Nifong acknowledged the April 10 meeting!

Mr. Nifong wrote that at a May 12, 2007 meeting Dr. Meehan provided a report and "also discussed with us the results of the tests he had performed since our April 10, 2006, meeting."

Surely people in the Durham County District Attorney's Office and the Durham Police Department can prove or disprove whether there was an April 10 meeting and whether Mr. Nifong attended it.   

It should unfold this way: (1)  denial disproven, (2) Mr. Nifong disbarred and (3) Mr. Nifong resigns or is removed from office.

But would there then be a thorough investigation to identify Mr. Nifong's enablers? There surely should be.

Yes, a thorough investigation is very likely to prove very problematic.

Even so, about the vital need for one, good people should be emphatic.

It's bad to show that the criminal justice system has been corrupted.

It's WORSE to pretend that it has not been corrupted.

Dr. Anderson's concern that Mr. Nifong might not be disbarred (as The Herald-Sun hopes) is reasonable, not because Mr. Nifong has not behaved outrageously, but because North Carolina will be lenient.

I suggest that the North Carolina authorities look to the decision of the Arizona Supreme Court in the disciplinary proceeding against Thomas J. Zawada.

The Arizona Supreme Court on its own initiative reviewed "to determine whether the Disciplinary Commission’s recommended sanctions of prosecuting attorney Thomas J.  Zawada were adequate in light of the objectives of lawyer discipline" and held "they were not.

Mr. Zawada was a prosecutor in  Arizona's Poma County Attorney’s Office. He prosecuted Alex Hughes in 1994 for various violent crimes, including first degree murder. Mr. Hughes’ defenses were insanity and self-defense. Throughout Mr. Hughes’ trial, Mr. Zawada was fully aware that each of the six mental health experts who examined Mr. Hughes in relation to the crimes in question, including those retained by the state, found him to be mentally ill.

Arizona Supreme Court:

"Notwithstanding the insanity plea, a jury found [Mr. Hughes] guilty of first degree murder, attempted second degree murder, aggravated assault, disorderly conduct, and felony flight. On appeal, this court reversed Hughes’ convictions, finding that 'the cumulative effect of [Zawada’s] misconduct deprived [Hughes] of a fair trial.'.... On remand, the trial court dismissed all charges, holding that Article 2, Section 10, of the Arizona Constitution, the double jeopardy clause, forbade retrial. This court affirmed that holding after observing that double jeopardy bars retrial when there is 'intentional prosecutorjal misconduct aimed at preventing an acquittal....." 

"Subsequent to this court’s ruling in Hughes, a Bar complaint was filed against Zawada alleging prosecutorial misconduct in the handling of the case. The matter went to hearing, following which the hearing officer determined Zawada’s acts of prosecutorial misconduct included (a) appeals to fear by the jury if Hughes was not convicted, (b) disrespect for and prejudice against mental health experts that led to harassment and insults during cross-examination, and (c) improper argument to the jury."

"The hearing officer concluded that Zawada’s conduct, wholly unsupported by evidence of any kind, violated Ethical Rule (“ER”) 1.1 (competence),’ ER 3.1 (assertions made without good faith basis in law or fact), ER 3.4(e) (trial tactics unsupported by admissible evidence), and ER 8.4(d) (conduct prejudicial to the administration of justice) . As a result, the hearing officer recommended (a) that Zawada be censured and placed on probation for six months, (b) that he be required to attend fifteen hours of continuing education that addresses the effective use of and response to psychiatric and psychological testimony, (c) that he be prohibited from handling any case involving a significant mental health component until he completes the continuing education requirement, and (d) that he be assessed the costs and expenses of the disciplinary proceedings.

"The Disciplinary Commission modified the hearing officer’s recommended sanction by removing the probation and continuing education requirement and adding as a requirement a Member Assistance Program (“MAP”) referral. Zawada sought review of the Commission’s decision and this court denied his petition. Nevertheless, the court, under Supreme Court Rule 59(1), determined, sua sponte, to review the proposed discipline and, in light of the record, to decide whether the sanction should include a period of suspension."

The Arizona Supreme Court ruled that it had authority, sua sponte, to review Mr. Zawada's actions: "'[T]he Supreme Court of Arizona has the exclusive jurisdiction to regulate the admission to the practice of law and the discipline of those admitted.'... As a result, “the Bar Disciplinary Board and its committees are mere arms of this court and can have no greater jurisdiction or authority than this court.” Id. at 608, 691 P.2d at 699. Under Zawada’s interpretation of the rule, the court would be bound by the Commission’s disciplinary decision, even though the Commission derives its authority and jurisdiction from the court. Zawada contends that when the Commission recommends a sanction less than suspension, the court has no jurisdiction to review that particular sanction. The result is illogical and inconsistent with case law as well as the Supreme Court Rules.... see also Ariz. R. Sup. Ct. 32(a) (2) (This court may 'discipline a member when it is satisfied that such member is not mentally or morally qualified to practice law even though none of the specific grounds for discipline set forth in these rules exist.') (emphasis added) (formerly Rule 31(a) (2)); Ariz. R. Sup. Ct. 33(b) (stating that the supreme court has power to impose, without limitation and on its own motion, the suspension of an attorney).

The Arizona Supreme Court explained the need for lawyer discipline as follows: "Lawyer discipline serves two main purposes: (1) to protect the public and the courts and (2) to deter the attorney and others from engaging in the same or similar misconduct.... Accomplishing these objectives promotes and maintains confidence in the bar’s integrity."

The Arizona Supreme Court generally approved the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (“ABA Standards”)to help determine appropriate discipline and noted that  ABA Standard 3.0 specifies that the court should consider "1) the duty violated, (2) the lawyer’s mental state, (3) the potential for actual injury or actual injury caused by the lawyer’s misconduct, and (4) the existence of aggravating and mitigating factors."

Note that punishment is not avoidable simply because the culprit is caught before "the potential for actual injury" becomes "actual injury." 

The Arizona Supreme Court held that "the record in this disciplinary matter clearly establishes that Zawada indeed engaged in intentional and egregious prosecutorial misconduct...."

The Arizona Supreme Court opined that the hearing officer "inexplicably...did not find clear and convincing evidence" that Mr. Zawada had knowingly disobeyed an ethical obligation."

That's Mr. Nifong's final line of defense, isn't it?

It would not play in the Arizona Supreme Court:  

Arizona Supreme Court:

"Ethical Rule 3.4(c) states: '[A lawyer shall not] knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]'...  The record demonstrates with utmost clarity that Zawada knowingly disobeyed this obligation under the rule, placing him in direct violation of ER 3.4(c)."

"Knowing behavior is established by invoking, among other things, objective factors that include 'the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion.'...Applying this standard, there can be no doubt that Zawada, an experienced prosecutor, was aware of his direct disobedience of a court rule."

Under that standard, Mr. Nifong better be able to prove that he really was mentally incompetent!

The hearing officer had concluded that Mr. Zawada's "conduct was intentional, although [he] believed that his actions were well-founded and appropriate.”

But the Arizona Supreme Court concluded "that Zawada’s rebuttal arguments and cross-examination of the experts were grossly improper and deliberate and thus in violation of the rule that protects the defendant’s right to present the defense of insanity. With specific reference to our decision in Hughes, we declared in Jorgensen:

[Zawada’s method of prosecution] was 'a dishonest way to represent the State and it was especially dishonest . where the evidence of insanity was substantial, and where the [s]tate had no evidence that [Defendant] had fabricated an insanity defense.' We unanimously concluded that the 'evidence of mental illness was overwhelming' and Defendant’s case for acquittal on grounds of insanity was 'substantial.' The state overwhelmed Defendant’s insanity defense, 'but it did not do so with evidence; it did so with prosecutorial misconduct.' We condemned this win-by-any-means strategy, agreeing with Defendant’s argument that it 'was a direct attempt to prejudice the jury' and to put the fear of acquittal in the jurors’ minds."

That's the appropriate approach!

Arizona Supreme Court: "In his attempt to discredit, Zawada attacked the experts, their profession and credibility through disingenuous, baseless argument and cross-examination. This was highly improper and provides ample evidence that Zawada’s actions were intentional and knowing, aimed at thwarting Hughes’ insanity defense and gaining a conviction at any cost."

Does that remind you of another prosecutor?

More is expected of an experienced prosecutor like Mr. Nifong.

Arizona Supreme Court: "Because prosecutors’ ethical duties exceed those of lawyers generally, substantial experience as a prosecutor may become a further aggravating circumstance...." 

The Arizona Supreme  Court quoted a relevant New Jersey case: "New Jersey v. Torres, 744 A.2d 699, 708 (N.J. Super. Ct. App. Div. 2000) ('A prosecutor is not simply another lawyer who happens to represent the state. Because of the overwhelming power vested in his office, his obligation to play fair is every bit as compelling as his responsibility to protect the public.')"

Mr. Nifong did not "play fair"!

Refusal to acknowledge wrongful conduct makes it worse too. 

Arizona Supreme Court: 

"Zawada has refused, and to this day continues to refuse, to acknowledge wrongful conduct [in other cases]. His unwillingness to recognize wrongful conduct has led Zawada to outright hostility. Such an attitude is an aggravating circumstance in itself under ABA Standard 9.22(g). At the disciplinary hearing, Zawada stated, 'I’m here not because I did anything wrong. I’m not here because I did anything unethical, and I’m not here because I deserve to be punished for anything that’s transpired.' Since this disciplinary process began, this has been Zawada’s attitude. In his own words, Zawada believes that '[tlhis Court simply wishes to punish [him] for thinking [differently] on the issue of the admissibility of, reliability of, psychiatric-psychological testimony.' He believes this case 'expose[s] the Arizona Supreme Court’s pro-psychiatry/anti-prosecution position; its pop culture values; it’s [sic] overzealousness in pursuit of those values.' Finally, he asserts that 'there is no precedent in the history of Arizona jurisprudence' to suggest that he acted unethically. As the dissenting Commissioner noted,

[Zawada] fails to acknowledge that he is single­handedly responsible for much of the law in Arizona on the consequences of extreme prosecutorial misconduct. His sweeping statement about our jurisprudence omits mention of several pertinent cases, each of which addresses whether he has ever done anything unethical...."

What may appeal to the potbangers doesn't help in a disciplinary proceeding. 

The Arizona Supreme Court's determination:

"A mere censure of Zawada or even the imposition of probation without suspension, in our judgment, would undermine the disciplinary process applicable to all lawyers, would contravene the presumptive discipline suggested by the ABA Standards, and would be grossly disproportionate to discipline imposed in other cases in which serious misconduct was found....

"Sanctions should be reasonably proportionate. On this record, therefore, we believe that a suspension, together with a subsequent probationary period, a referral to the Member Assistance Program, and requiring continuing education hours, will have the best chance of accomplishing the purposes of lawyer discipline."

"Based on the record, Mr. Zawada is hereby suspended from the practice of law in Arizona for six months plus one day, beginning thirty days from the date of this opinion. Further, upon reinstatement, Mr. Zawada shall be placed on probation, under bar supervision, for one year. He shall also be referred to the Member Assistance Program in which he shall participate under conditions imposed on him by Program officers. Mr. Zawada shall attend fifteen hours of continuing education that addresses the effective use of and response to psychiatric and psychological testimony, and shall not participate in any case involving a mental health component until such time as he shall have completed the continuing education requirement. Finally, Mr. Zawada is ordered to pay the costs and expenses of these disciplinary proceedings."

In Mr. Nifong's case, proportionality demands much more: disbarment and removal from office.

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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