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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 5, 2007
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Topic category:  Other/General

Duke Case: Mr. Nifong's December 28, 2006 Letter

For those who want Durham County, North Carolina District Attorney Michael B. Nifong to be held to account for misconduct, 2006 was unsatisfactory, but this year is getting better and better.

Mr. Nifong's response to the North Carolina State Bar's amended complaint against him is unimpressive, but not uninteresting, especially when read together with his December 28, 2006 missive to the North Carolina State Bar Grievance Committee ("the Letter").

When Mr. Nifong sent the Letter, he was looking to counterattack and longing for the overlooking of the infamous April 10, 2006 meeting.

It's futile, Mr. Nifong.

In the Letter, Mr. Nifong not only requested a copy of the actual grievance, but expressed his specific interest in "the name of the individual member of the State Bar who provided the basis for the grievance," if there was one. If there was an anonymous complaining party, Mr. Nifong objected to that person being given a copy of Mr. Nifong's response to the State Bar's Letter of Notice to him, dated December 19, 2006.

The enclosure with the Letter is fascinating: Mr. Nifong does not admit that the election influenced his decision to indict Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three), but he does try to use it as an excuse for his failure to do what he was obligated to do.

Mr. Nifong made concessions, but, when it came to the date, he was vague:

"I readily concede that I was informed by Dr. Meehan prior to May 12, 2006, that DNA Security’s testing of samples in this case revealed the presence on the victim of male DNA that did not match any of the lacrosse players. I also readily concede that the defendants were entitled to have that information pursuant to [state statute]. But I strongly dispute any allegation that my failure to provide that information prior to October 27 either resulted from or evidences any attempt to willfully, knowingly, or intentionally withhold exculpatory evidence."

Mr. Nifong insisted that his failure was inadvertent and proceeded to list possible explanations without actually asserting that any of them did contribute to his inadvertence:

"There were a number of circumstances that may possibly have contributed to my inadvertent failure to provide the evidence in question or to realize it had not been provided--prior to October 27:

  1. The case giving rise to this complaint arose during the last few weeks of a hotly-contested Democratic Party primary in which I was seeking to retain my office as District Attorney. Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers, I was not always able to give the case my full attention, This, in addition to the other factors outlined above, may have contributed to my not initially paying enough attention to whether the DNA Security report contained everything it arguably should have.

  2. The actual preparation of the discovery packets in my office is normally carried out by the legal assistant for the prosecutor who is handling the case. In this case, due to the volume of material to be copied for each defendant (1278 pages of documents in the initial response) several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were neither concentrating on the actual contents of the documents being copied nor familiar enough with the facts of the case to have known whether anything was missing. [Since this initial response, I have taken over the supervision of the subsequent responses,]

  3. Once the initial discovery response has been sent out, our attention is primarily concentrated on providing copies of material received since the first response date. Often (and this case was no exception), a part of our effort to obtain any additional material (or to determine that it does not exist) results from supplemental discovery requests asking for items that were expected but were not received. Rarely if ever, would any attempt be made to systematically review all the evidence previously provided; that did not happen in this case."
Does that make you feel like the Durham County District Attorney's office is doing the job it should be doing under Mr. Nifong?

Next, Mr. Nifong insisted that he had never been accused of concealing evidence before and asked, so why would he have deliberately concealed information in the Duke case (ironically, in the same enclosure in which he had referred to "a hotly-contested Democratic Party primary in which [he] was seeking to retain [his] office as District Attorney" and admitted that he "had never previously been involved in a political campaign, and...was facing an unusually contentious challenge from an unprecedented number of challengers"):

"I also would submit that my previously stated 27-year commitment to open-file discovery is highly relevant to this issue. In the first place, and most obviously, the grievance would suggest that, after a career of furnishing everything that I had to each of the literally thousands of felony defendants I prosecuted previously, I consciously chose not to do the same thing in this case. For the same reasons that our Rules of Evidence... allow evidence of past habit to be considered in determining performance on a specific occasion, my past practice should argue against such a conclusion in this case. Less obviously, but just as importantly, I would submit that my philosophy of providing full disclosure long before that practice was required by statute would indicate that I have never sought to conceal evidence in the past; by the same token, it would strongly argue that any failure on my part to imrnediately deliver evidence in this case resulted from inattention or inadvertence rather than bad intent."

Like the indictments in the Duke case themselves, it doesn't ring true, Mr. Nifong.

First, we only have your unconfirmed word that you delivered everything that open-discovery required or would have required in those other cases.  

Second, it is a matter of public record that none of the Duke Three had ever been accused of kidnapping, rape and sexual assault before Crystal Gail Mangum accused all of them or all of that and neither that fact, nor Ms. Mangum's lack of credibility, nor the absence of physical evidence or other confirmatory evidence, kept you from having the Duke Three indicted, Mr. Nifong.

Yet Mr. Nifong insisted that if he misled the court or defense counsel, it was an honest mistake:

"At no time did I represent to the Court that I 'did not know that the DNA lab had determined that DNA taken from the complaining witness’ body came from unidentified male donors who the lab had determined were not members of the Duke lacrosse team' (had such a representation been made, it would indeed have been false). When I stated to Judge Smith that '[t]he first that I heard of this particular situation was when I was served with...thls motion on Wednesday of this week,' (see Transcript p 14) I was referring not to the existence of such evidence, but to the fact that the defendants were alleging that an intentional attempt had been made to conceal such evidence (which, as has been previously pointed out, had been furnished to them on October 27) from them. Not only should that be clear from context, but it should also be evident from the fact that, of the alternatives for relief sought by the defendants, the one I chose to assist in procuring for them (without waiting for an order from the Court) was the direct testimony of Dr. Meehan."

What gall!

Mr. Nifong evidently thinks people are gullible, stupid or very dense.

Mr. Nifong produced Dr. Meehan without advance notice to the defense!

It was obvious that Judge Smith would order Dr. Meehan to testify,

Hoping that the defense would not be ready was Mr. Nifong's best try.

But it was only a matter of time before the truth about multiple male DNA would come and the defense was ready.

It should have been.

On June 30, 2006, in "Duke case: Does the prosecutor need prosecuting," I wrote: "Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males."

Mr. Nifong could not stop the truth about the DNA test results from becoming public knowledge eventually.

So Mr. Nifong spun like a top:

"To approach this allegation from a different angle, let us start from the presumption that this allegation is true. Then my false representation to the Court would have been made at the same hearing where evidence was received, uncontested and under oath, which revealed its falsity. Judge Smith would then have found himself; as the Court having jurisdiction over the matter in question and having direct knowledge through testimony of my alleged professional misconduct, with 1) the authority under RPC Rule 8.3 to impose discipline on me directly (see Comment [2]), or, in the alternative, 2) the responsibility to report such misconduct to the North Carolina State Bar. Assuming that Judge Smith is not the person who filed the instant grievance against me, his failure to take either of these actions would indicate that he believed either 1) that no such misrepresentation had been made, or 2) that any misrepresentation that might have been made failed to raise 'a substantial question of [my] honesty, trustworthiness or fitness as a lawyer.' Either conclusion would disprove the allegation that I had violated the Rules of Professional Conduct."

No, Mr. Nifong.

First, Mr. Nifong omitted to mention that he and Dr, Meehan had vigorously opposed the defense motion for the prosecution to produce the underlying documentation that showed multiple male DNA and that does not suggest inadvertent mistake.

Second, it was NOT for Judge Smith to presume that Mr. Nifong was guilty of misconduct (even Mr. Nifong is entitled to the presumption of innocence) and even if Judge Smith did believe that Mr. Nifong was not guilty of misconduct, the determination of whether or not Mr. Nifong is guilty of misconduct should be made in accordance with the requirements of due process after a thorough investigation, not instantaneously by a court.  (I don't know whether Judge Smith contacted the State Bar with respect to Mr. Nifong, but I believe that it would have been appropriate for him to do so and was understandable if he, as the judge in the Duke case, relied on others more knowledgeable about Mr. Nifong's behavior in the Duke case than he and not required to be impartial and judicious and to perhaps have to recuse himself if he did file a grievance against Mr. Nifong, would do so, making it unnecessary for him to do so too.) 

Mr. Nifong's closing statement in the enclosure to the Letter exudes self-pity, not contrition:

"After having gone more than twenty-seven years as a prosecutor without ever having had a grievance filed against me, I now find that I must defend myself for the second time in the same case. And while the initial allegations (largely involving statements to the media) were serious enough, the charges to which I am responding today are truly career-threatening.

"The context in which these allegations arise is also unsettling. For some time now, the 'word on the street' in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example, None of us, of course, wants to be that prosecutor; just as importantly, none of us wants to believe that such considerations would ever enter into the Bar’s deliberations in any case.

"The case in which these allegations arise is unlike any other in my experience. I would both hope and imagine that it is also unlike anyone else’s experience. A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals--most of whom are neither in nor from North Carolina-- have taken it upon themselves to ensure that thIs case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversitv.blogspot,com, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)

"It is truly disheartening for me, as someone who has always endeavored to fulfill my oath 'to have the criminal laws fairly and impartially administered,' to have to defend myself against charges like those contained in this grievance. Yet I do so secure in my understanding that such a process is necessary to the integrity of our system, my conviction that my actions as a prosecutor have always upheld the highest principles of that system, and my faith that I will be judged by individuals who hold that system in the high esteem it rightfully commands."

Imagine how disheartening it's been for the Duke Three and their families and friends that the Duke Three were indicted and prosecuted on bogus charges during that "hotly contested Democratic Party primary" and beyond!

Not to mention expensive.

Imagine how shameless Mr. Nifong really is: as if playing the race card in the election campaign and the Duke case is not bad enough, now Mr. Nifong is insinuating that if he is sanctioned, it will be because his name is Nifong instead of a name "like Hoke and Graves and Honeycutt and Brewer."

Ironically, back in May of 2006, when I was calling lamenting "The deplorable Duke political prosecutions" and calling for "rectifying a sad situation being exploited by opportunists and racists," Mr. Trumpbour, Trinity 88, Law 91, law professor at the University of Maryland School of Law and the University of Baltimore and moderator and spokesperson for Friends of Duke University, was agreeing with Mr. Nifong that there needed to be a trial of the Duke Three. See his legal response dated May 15, 2006 at the DukeBasketballReport website.

Yes, Professor Trumpbour was "quite certain" that Mr. Nifong was guilty of misconduct (he was right, of course), but insistent that "[t]he actual truth [with respect to the pending charges against the Duke Three] cannot be determined until all facts are known and weighed together at trial" (he was wrong about that).

Now Mr. Trumpbour is reporting that "Mike Nifong named [him] specifically as his chief tormenter and provided the URL for [the FODU] site in" the Letter. 

Mr. Nifong did not actually name Mr. Trumpbour "specifically as his chief tormentor" (a credential to which many can aspire), but he did refer the State Bar to "websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversitv.blogspot,com (a website that banned the name Crystal Gail Mangum for a long time).

Mr. Trumpbour graciously shared credit and celebrated:

"First, this is not my site. I am one of six people who run FODU and my colleagues have contributed as much or more to our efforts as I have. Indeed, site really belongs to all of the many people who participate in our activities by writing letters, getting the word out and posting ideas on the discussion board. Second, I am truly flattered and surprised that Nifong singled us out as his princip[al] critic[], even ahead of the efforts of KC Johnson, LieStoppers and Ethical Durham. I have to say that I think LieStoppers was the first to post step by step instructions on how to file a grievance with the State Bar and we merely linked to them. It is truly rewarding, however, to know I, personally, am inside Nifong’s head."

Apparently I've been too soft on Mr. Nifong.

In "Concerned Americans, let North Carolina hear from you!," posted on June 14, 2006, I wrote:

"The Duke lacrosse rape case itself is a travesty of justice. The accuser and the prosecutor need punishment and/or mental health help, not the three indictees.

"All Americans who care about the state of the criminal justice system have a stake in this case. Rapes should be prosecuted to the fullest extent of the law, and so should false accusations of rape by opportunists (including an opportunist who would hope to profit by a false charge and exacerbate racial tension by targeting people of a different color).

"Please write to North Carolina's Attorney General:

The Honorable Roy Cooper
Attorney General
NC Attorney General's Office
9001 Mail Service Center
Raleigh, NC 27699-9001
Fax — 919-716-6750
NCAGO@NCDOJ.com
North Carolina's Governor:

The Honorable Michael F.Easley
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301
Fax — 919-733-2120
No email
and the Executive Director of the North Carolina State Bar:

L. Thomas Lunsford, II
Executive Director
North Carolina State Bar
P.O. Box 25908
Raleigh, NC 27611-5908
Fax — 919-821-9168
TLunsford@NCBAR.com
"Share your thoughts with them. Let them know that knowingly prosecuting innocent people for political purposes is a no no (regardless of race, color, creed, national origin or sex).

"Use you own words, but feel free to make some of these words your own:

Regarding the Duke University 'rape' case, it has come to my attention that an investigation into how the legal case developed and the actions of Durham County District Attorney Michael Nifong in particular is in order.

It now appears that some of Mr. Nifong's actions were not only inappropriate, but an egregious abuse of the power entrusted to him for his own political/personal purposes.

If so, his conduct has been grossly unprofessional and the State Bar needs to act.

Much more than the futures and lives of three young men indicted on the basis of a misleading presentation of evidence is in your hands. The integrity of the criminal justice system and public confidence in it are in your hands.

To be sure, the message must be sent that rape, sexual assault and kidnapping will not be tolerated.

But messages also must be sent that a hoax will not be tolerated either, and the exposure of a hoax will not be delayed for political/partisan purposes.

Gentleman, you did not ask for it, and you surely did not expect it, but the Duke University 'rape' case has become your responsibility. It is vital that you deal with it responsibly and expeditiously, for everyone's sake.

Thank you for your anticipated attention to this now monumentally important matter."

www.disbarnifong.com links to the article on its homepage.

Why didn't Mr. Nifong refer to that website?

He's a strange man.

If he's not going to own up to misconduct, he should be mentioning his prostate cancer problem and pleading that he was not responsible for his actions.

On March 3, 2007, Zachary Buckler wrote a brief piece entitled "Mike Nifong Claims He was Abducted by an Alien"

Mr. Buckler's premise: Mr. Nifong "kept the case going because a small alien is living inside [his] brain and controlling [his] brain".

In "Wonderland," maybe that excuse would work!

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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