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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  March 6, 2007
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Topic category:  Other/General

Duke Case: Mr. Korn's NYLJ Article: Right on DA Scandal, Wrong on DA Ignorance, Error-Riddled

LieStoppers, March 4, 2007: “Henry H. Korn, Esq., partner, LePatner & Associates LLP, former Assistant U.S. Attorney, Southern District of New York, and former Member, Departmental Disciplinary Committee for [New York’s] First Judicial Department, recently dissected Defendant Nifong's hoax and the State Bar's complaint against him. The full text of Mr. Korn's comprehensive inspection of Nifong's misconduct, originally published in the New York Law Journal on January 30, 2007 is now available online at LePatner's website. To read Mr. Korn's excellent analysis, please follow this link: ‘The D.A. Scandal in the Duke University Case: Michael B. Nifong's Violation of the North Carolina Rules of Professional Conduct’"

Brooklyn College History Professor Robert K.C. Johnson commented earlier that Mr. Korn's article is evidence that "Nifong’s record is increasingly making it into national legal circles as an example of gross prosecutorial misconduct" and its publication "heightens pressure on the Bar to deal with him severely."

Yes and no, depending upon how gross and how severely. 

A prosecutor who prosecutes, or continues to prosecute, for personal political reasons a person (much less more than one person) whom he (or she) does not reasonably believe to be guilty should not be practicing law, much less prosecuting, and if he (or she) lied, deliberately refused to consider exculpatory evidence offered by the defense and consciously concealed exculpatory evidence in an effort to wrongfully convict and incarcerate (for decades), he (or she) should be convicted and incarcerated.

Attorney Mike McCusker (Crystal Mess) is more realistic than Mr. Korn about Mr. Nifong's misconduct as well as familiar with North Carolina's shameful history of leniency toward lawyer misconduct.

Mr. McCusker:

"In 2002, HALT, An Organization Of Americans For Legal Reform, undertook the first comprehensive evaluation of the legal profession's system of self-regulation in ten years. Of fifty-one 'Lawyer Discipline Report Cards' issued (one for each state and the District of Columbia), the State Bar of North Carolina ranked fifieth in the nation. Only North Carolina and Pennsylvania flunked outright, each then receiving an overall grade of 'F.'

"In 2006, HALT again issued Report Cards on lawyer accountability.... The NC Bar received 'Incomplete' grades in the categories of 'Adequacy of Discipline Imposed' and 'Promptness' because it failed to provide data related to those categories to the American Bar Association. Actually, it failed to provide the data because it doesn't even keep records or statistics attending such... issues. Incredibly... the NC Grievance Committee somehow did manage to raise its overall grade, to a pitiful 'D.'

"The criminal misconduct of David Hoke and Debra Graves during the prosecution of Alan Gell would have resulted in the state-sanctioned murder of an innocent man but for the heroic perseverance of Mary Pollard and Jim Cooney. Hoke and Graves were ultimately 'tried' for their unconscionable behavior before the NC State Bar Grievance Committee. They made out quite well, thank you very much. They are still practicing law, still prosecuting cases for the State's Attorney General, still wielding the full armament of the State's power to deprive individuals of their personal liberties, and their lives. Criminal charges never followed. Incarceration was never really their concern."

The explanation: inadequate concern.

Mr. McCusker:

"Okay, okay, Gell cared. His mom cared. Bill Anderson cared. Thankfully, so did his appellate attorneys and Joe Neff. But, really, a poor, red neck petty criminal wrongly convicted of killing a poor, red neck pedophile in a poor North Carolina town? Ho Hum. Woefully insufficient to wake the drive-by media. Woefully insufficient to warrant ink in newspapers outside Bertie and contiguous counties. Woefully insufficient to spur the Bar to abandon the usual business of protecting its own, particularly those ensconced in the mail of State Prosecutorial Power."

Mr. McCusker, on why Mr. Nifong is worrying:

"The whole world is watching! The whole world is watching!

"The whole world is watching and waiting to see if the State Bar will yet again thumb its nose at the Constitution; The Canon of Ethics; The Disciplinary Rules; The beyond-a-doubt evidence of a criminal frame-up orchestrated by an avaricious agent of the State solely for personal gain. The whole world is watching and waiting to see the State Bar try to save Good Ol' Blues Brothers Band Boy Nifong."

Mr. McCusker's blunt conclusion: "If [Mr. Nifong] weren't an egomaniacal, narcissistic sociopath possessed of but [insufficient] intellect, he would have thought through the potential consequences of picking on the wrong families. But he's not, so he didn't, and now, hell, everything's gotta change. The Bar and the State must, at least, convey the appearance of giving a damn about that silly piece of parchment deteriorating under bullet-proof glass in Washington. What with the whole world watching, and all. Nifong gives them that chance."

Ironically, the precedent that Mr. McCusker believes seals Mr. Nifong's fate (Matter of Hoke and Graves) Mr. Nifong believes protects him.

Mr. McCusker: "Because of the blog attention devoted to the Duke Hoax, millions of people, myself included, now know of the Gell Frame and the Bar's essential sanctioning of it. The Bar simply cannot act, or fail to act, in Matter of Nifong as it did in Matter of Hoke and Graves. It has made clear that it is going to bend him over. Stick a fork in Mikey's law license. He's done. Continued petulant defiance only hurts his position on the end of the plank, but he's just not wired to appreciate it. He's too stupid to see that he would be better served looking for another job, now."

Mr. Nifong, in his December 28, 2006 letter to the North Carolina State Bar Grievance Committee: "The context in which these allegations [against] me arise is...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."Translation: "There's been worse than me, so leave me be, in the name of proportionality."

Under these circumstances, it is very important that Mr. Nifong's misconduct in the Duke case be recognized as the result not of mere ignorance but of intent to commit an unlawful act or cause harm without legal justification or excuse for an ignoble purpose.

Therefore, Mr. Korn's article helps both sides.The good news is that Mr. Korn reached two correct conclusions: (1) what is scandalous about the Duke case is the misconduct of Durham County, North Carolina District Attorney Michael B. Nifong and (2) Mr. Nifong violated the North Carolina Code of Professional Conduct.

The bad news is that (1) the damage inflicted by Mr. Nifong is greatly understated, (2) the brief article is error-riddled and, incredibly, (3) false accuser Crystal Gail Mangum is treated as a victim instead of Mr. Nifong’s ally in corrupting the criminal justice system in Durham County, North Carolina.

Mr. Korn: “April 2006 marked the beginning of the nightmare for three members of the Duke University men's lacrosse team when the Durham County District Attorney, Michael B. Nifong, charged them with raping a stripper at a lacrosse team party.”

First, the nightmare included all the members of the 2005-2006 Duke University Men’s Lacrosse Team and their families and friends, not only Reade Seligmann, Collin Finnerty and David Evans (the Duke Three).

Second, the nightmare began on March 14, 2006, when the off-campus spring break team party ended early, abruptly and unpleasantly, when one of the stripper announced that she would call the police as a result of words exchanged after the party, the police came and found that everyone had left the house and the other stripper (Ms. Mangum) charged that she had been “gang raped.”

Third, since there had not been a gang rape or any rape (or any sexual assault or kidnapping) but the opportunity to prosecute white team members on behalf of a local black woman was irresistible to Mr. Nifong (admitted engaged in “a hotly-contested Democratic primary in which he was seeking to retain [his] office as District Attorney [to which he had been appointed a few months before]” and “never previously [having] been involved in a political campaign” and “facing an unusually contentious challenge from an unprecedented number of challengers [a white woman who had been an assistant district attorney and a black male civil lawyer], the team members would either be falsely charged with heinous first-degree felonies for which they could be imprisoned for decades or covering up for kidnappers/rapists/sexual assaulters.  [The black team member was absolved of committing any of those crimes by Ms. Mangum, but if he did not come forward and implicate innocent teammates, which he did not, then he would be a possible target for criminal prosecution and sinister threats, which he was.]  Merely being a team member became a nightmare, even for team members who did not attend the party and the cancellation of the remainder of the season was not the worst of it.

Fourth, and most importantly for America, Mr. Nifong's egregious abuse of prosecutorial power in a case that attracted worldwide attention rightly undermined public confidence in the administration of justice as no other case has.

Mr. Korn generally appreciated what happened.

Mr. Korn: “[Mr. Nifong] was quick to comment during this prosecution…that the defendants were guilty of the rape. Reviled by faculty and senior administrators at Duke who had prejudged them (and all members of the nationally ranked lacrosse team) and by the news media that escalated the feeding frenzy, these three men faced the dark and dirty side of the criminal justice system, or what Norman Mailer once described as ‘the belly of the beast.’”

For more than a month, all white team members and there families and friends worried about who would win “the Crystal Lottery” (the phrase used by the families to refer to the mechanism by which three team members would be falsely accused).

On April 17, 2006, Mr. Nifong had Reade Seligmann and Collin Finnerty indicted and the remaining 44 white members of the team wondered who would the third and the black team member had to deal with the pressure to support bogus charges.

Unfortunately, Mr. Korn is not thoroughly familiar with the details of the Duke case and used a politically correct word that, as applied, is absurd.

Mr. Korn: “As events unfolded, these men watched the case brought by Mr. Nifong unravel. The victim simply could not keep her story straight, only lately admitting that one of the defendants did not rape her. Although the DNA laboratory findings ultimately exonerated the men from any rape charge, in the initial report produced to defense counsel, Mr. Nifong chose to withhold the exculpatory evidence from the defendants. Their DNA, we learned in late December 2006, simply was not present on the person or property of the victim, while DNA from other men was present.

First, Ms. Mangum is a victimizer, not a victim.

Second, last December Ms. Mangum changed her story yet again, this time to say she was not certain anyone raped her (Mr. Nifong then voluntarily dismissed all the rape charges) AND that Reade Seligmann had not sexually assaulted her (Mr. Nifong inexplicably did not voluntarily dismiss the sexual assault charge against Mr. Seligmann).

Third, the initial DNA report came from the state lab, was not interfered with by Mr. Nifong and it did not implicate any of the white team members.  Mr. Nifong arranged for additional DNA testing by DNA Security and with its director, Dr. Brian Meehan, not to include exculpatory results in its report. 

Fourth, Mr. Nifong provided the defense with copies of the DNA Security report on May 18, 2006 and it was generally known long before December of 2006 that no team member DNA had been found in or on Ms. Mangum or on her underwear.

Mr. Korn DID cite four examples of misconduct by Mr. Nifong: (1) “photo identification was so seriously flawed that any in-court identification by the victim [Note: Ms. Nifong, the Victimizer] might be thrown out”; (2) “Mr. Nifong did not meet the victim to assess her story against the evidence”; (3) Mr. Nifong “never agreed to hear or review the defendants' evidence, although requested to do so by counsel” (4) “Mr. Nifong, who was running for re-election [My Note: election, NOT re-election, he had been appointed] as county prosecutor, held numerous press conferences and made highly disparaging remarks about the defendants, describing them as ‘hooligan’" whose ‘daddies could buy them expensive lawyers,’ including, by Mr. Nifong’s imprecise count, 50 to 70 interviews in one week.  

 

But Mr. Korn wrongly reported that “[t]he case also unraveled because Mr. Nifong cavalierly violated the North Carolina Rules of Professional Conduct (the ‘Bar Rules’).”

NO!  The case unraveled because it was bogus and it has continued as long as it has because “Mr. Nifong cavalierly violated the North Carolina Rules of Professional Conduct.”  If Mr. Nifong has behaved as a fair and objective minister of justice, there would have been no case.  No one would have been indicted for an imaginary kidnapping/ gang rape/gang sexual assault.

The indictments were Mr. Nifong’s fault!

Mr. Korn: “Mr. Nifong chose what to disclose. For example, the DNA report given to Mr. Nifong by the DNA lab shortly after the indictment was filed - and turned over to the defense attorneys as required by North Carolina law - omitted exculpatory evidence that proved the DNA samples found on the person and underwear of the victim were from other men and that that none of the genetic material matched any of the defendants or any other lacrosse player.”

Exactly!

Mr. Nifong also chose not to interview Ms. Mangum, not to consider Mr. Seligmann’s alibi evidence, and not to accept the offers of three team co-captains to take polygraph tests.

Mr. Nifong was pursuing prosecution, not the truth; inculpatory evidence, not all evidence.

Mr. Korn: “ Mr. Nifong conducted this investigation with such disregard for the code of professional responsibility governing the conduct of a prosecutor in North Carolina that on December 28, 2006, the North Carolina Bar filed ethics charges against him, accusing him of making public statements that were ‘prejudicial to the administration of justice’ and of engaging in ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’”

The North Carolina Bar should have acted sooner.  The prejudicial public statements were made before the May 2, 2006 primary in which Mr. Nifong was plurality winner.

Mr. Korn noted that a superseding complaint filed on January 24, 2007 “specif[ied] Mr. Nifong withheld or failed to provide potentially exculpatory DNA evidence, lied to the Court and counsel and made false statements to the Grievance Committee after it sent him a notice of grievance and he responded.”

To his credit, Mr. Korn disdained qualifiers, like alleged or possible

Mr. Nifong had not yet been held in contempt of court, but Mr. Korn was one of many who had come to hold him in contempt.

Mr. Korn:

“The complaint is replete with his direct quotes to the news media of untrue and misleading extrajudicial statements that the State Bar claims were calculated by him to prejudice the rights of the defendants. While making the statements he did to the news media, Mr. Nifong did not adhere to Bar Rule 3.6. That rule governs what a lawyer may say to the media concerning the litigation. Under Rule 3.6 the attorney is strictly admonished to limit statements to those contained in the charging instrument.

“Despite the limitations within Rule 3.6, Mr. Nifong complained that ‘none of the lacrosse players were cooperating with the prosecution,’ stating ‘one would wonder why one needs an attorney if one was not charged and had not done anything wrong’. As the complaint alleges these statements constituted ‘improper commentary on the lacrosse team members' alleged failure or refusal to make a statement to law enforcement authorities and upon the lacrosse team members' alleged invocation of their constitutional rights.’ (Complaint 43).

“Mr. Nifong made comments to news media concerning the results of tests performed as part of the investigation, including the DNA tests that turned out were deliberately reported to conceal exculpatory evidence. (Complaint 54) Despite knowing, from a review of police reports, that the victim stated no condoms were used in the attack, Mr. Nifong suggested a reason why no DNA could be found linking the defendants to the victim by claiming that they used condoms. (Complaint 124)

“Mr. Nifong commented to the news media that ‘I am convinced there was a rape, yes, sir.’ In so doing, he improperly asserted in extrajudicial remarks that they were guilty. (Complaint 76, 84)

“Mr. Nifong commented on the defendants' exercise of their 5th Amendment rights telling the news media ‘[t]hey don't want to admit to the enormity of what they have done.’ (Complaint 103) He made these statements knowing defense counsel in fact had sought to meet him to present the evidence exonerating the defendants, but he declined to do so.

“Mr. Nifong referred to the defendants as a bunch of hooligans and complained that people might be covering up for the hooligans. (Complaint 137) By any construction of the Bar rules, this was improper commentary about the character, reputation and credibility of the accused men. (Complaint 140)”

Bravo, Mr. Korn!  No quibbling in any of that.

Mr. Korn also reviewed Mr. Nifong’s false statements to the court and defense counsel (the reason the initial complaint was superseded, or amended).

Mr. Korn:

“The complaint details scores of examples of [Mr. Nifong’s] false statements and misrepresentations. According to the superseding complaint, he falsely stated ‘the State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant.’ (Complaint 230) The complaint charges that he made false statements to the Court, as well; for example, at a May 18, 2006 hearing, the Court asked him if he had provided the defendants all the discovery materials and he stated ‘I've turned over everything I have.’ (Complaint 235)

“Additionally, the superseding complaint charges that Mr. Nifong made ‘misrepresentations and false statements to the State Bar's Grievance Committee’ beginning on December 20, 2006 when the Grievance Committee delivered its notice of grievance to him; the superseding complaint charges that his responses were false and misleading. For example, in his responsive letter he stated he did not realize that the potentially exculpatory DNA test results were not included in the lab reports from May 12 until he received a December 13 motion to compel discovery, and the Bar complaint charges that such statements were ‘knowingly false statements of material fact made in connection with a disciplinary matter.’ (Complaint 288)”

Mr. Korn’s article included this excellent summary captioned “The North Carolina Bar Rules relating to Prosecutors”:

“Prosecutors are required to conduct themselves consistent with the highest ethical standards as ministers of justice. Comment No. 1 to Bar Rule 3.8 introduces the subject of the special responsibilities of the prosecutor with this admonition: ‘A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict.’ Based on the allegations in the Bar complaint, it appears that Mr. Nifong treated this prosecution as a circus turning his duty to seek justice into one guided solely by what he could achieve under the mere ‘morals of the marketplace" (Meinhard v. Salmon, 249 N.Y. 458 (1928)). A brief discussion of the applicable Bar Rules proves just that.

“According to Rule 3.6 (a) a lawyer participating ‘in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.’

“Rule 3.8 of the Bar Rules directly relates to the conduct of the attorney as prosecutor. Pursuant to Rule 3.8 (f), this rule admonishes the prosecutor that he shall refrain from ‘making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused’. Rule 3.8 (d) imposes a duty upon the prosecutor to ‘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 the prosecutor that tends to negate the guilt of the accused or mitigates the offense.’

“Comment No. 6 specifies that paragraph (f) supplements Rule 3.6 prohibiting extrajudicial statements that have a substantial likelihood of prejudicing and adjudicatory proceeding. It admonishes the prosecutor that in the context of criminal prosecution, an ‘extrajudicial statement can create the additional problem of increasing public condemnation of the accused.’ Comment No. 6 also makes clear that a prosecutor should ‘avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused.’

“Comment No. 1 to Rule 3.8 admonishes the prosecutor that he ‘has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.’ Comment No. 4 admonishes the prosecutor to be ‘aware of the discovery requirements established by statutory law and case law, specifically referencing N.C.G.S.A. 15A-903 et seq. and Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. U.S., 405 U.S. 150 (1972). Brady and Giglio stand for long established law that a prosecutor must disclose exculpatory evidence as well as evidence that may raise questions about the credibility of a complaining witness.

“By continuously making extrajudicial comments about the defendants, other witnesses, supporting a version of the victim's story (without having interviewed her) and inflaming the public to hold the defendants to scorn and ridicule, lying to the Court and counsel, and to the Grievance Committee, as detailed in the Bar complaint, Mr. Nifong violated Rule 3.4 and 3.6. By failing to turn over exculpatory evidence relating to the DNA tests and directing the lab to conceal the exculpatory evidence from the defendants, he violated Rule 3.8.”

All agreed, except as to the assertion that Mr. Nifong operated under the so-called ‘morals of the marketplace."  Attempting to frame innocent people for heinous crimes is NOT equivalent to failing to disclose a hiden defect to a prospective buyer.

Mr. Korn duly admonished Mr Nifong for not following ABA Standard 3-3.11 (“A prosecutor may not properly refrain from investigation in order to avoid coming into possession of evidence that may weaken the prosecution's case, independent of whether disclosure to the defense may be required. The duty of the prosecutor is to acquire all the relevant evidence without regard to its impact on the success of the prosecution").

But, Mr. Korn concluded (erroneously, in my view) that Mr. Nifong’s misconduct was the result of ignorance and recklessness, not willfulness: “This is a story that squarely teaches that ‘rushing to judgment’ without wisely stepping back and reviewing the evidence runs directly counter to the ethical obligations that govern how attorneys are required to conduct themselves. The harm of such ignorant conduct is that others are grievously wounded.”

“Ignorant” means “resulting from or showing lack of knowledge or intelligence.”

A prosecutor for nearly thirty years, Mr. Nifong’s problem was NOT that he did not know the applicable law or the applicable ethical rules, or that he was too intellectually deprived to appreciate what he was doing.

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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