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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 17, 2007
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Topic category:  Other/General

Duke Case: Good News: Dismissal Motion; Bad News: It’s Nifong’s

Durham County, North Carolina District Attorney Michael B. Nifong did quickly what the Duke case defense has yet to do—move to dismiss. 

Ironically, the Duke case defense has a sound dismissal motion and Mr. Nifong does not.

Mr. Nifong’s contentions are that (1) he did not commit any constitutional violation that would justify both a pre-trial dismissal of the Duke case and his disbarment and eventual removal from office (when North Carolina finally gets around to enacting a statute for the purpose and the Governor, Michael Easley, chooses to use it) and (2) his actions in the Duke case were “wholly consistent with the requirements of the United States Constitution, the North Carolina discovery rules, and the court orders entered in this case.”

The absence of a defense motion to dismiss the Duke case (even though the defense has filed many meritorious pre-trial motions) now fits nicely into Mr. Nifong’s own legal strategy.

THAT is a tragedy.

The Duke case defense should have (and still should) make a pre-trial motion to dismiss and IT should be the motion to dismiss granted.

Reade Seligmann attorney Kirk Osborn boldly moved back on May 1, 2006 to have Mr. Nifong removed from the case, but other defense counsel did not join him, pro-Nifong judges left the motion undecided and the defense thereafter opted not to challenge Mr. Nifong personally as powerfully as it should have.

In “Duke case: Move to dismiss to end this travesty ASAP,” posted on November 6, 2006, I urged:

”Move to dismiss NOW.

”Use that motion as an opportunity to put before the public the evidence that supports the claims that Mr. Nifong violated the constitutional rights of the Duke Three to due process and equal protection of the law.”

Because: “Fortunately, the same acts that constituted prosecutorial misconduct were violations of the Duke Three's constitutional rights to due process and equal protection.”

North Carolina has a statute “that permits dismissal under the Duke case's peculiar circumstances: North Carolina General Statutes Section 15A-954(a)(4, which states: ‘The court on motion of the defendant must dismiss the charges stated in a criminal proceeding if it determines that...[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution.’”

The statute obviously recognizes that (1) there can be pre-trial constitutional violations and (2) they can be so egregious as to require pre-trial dismissal.

That was the case with respect to the rigged identification procedure.

Mr. Nifong’s brief in support of HIS motion to dismiss insists that he did not violate the Duke Three’s constitutional, statutory and/or court-ordered rights, because there has not been a trial date set, much less a trial.

But, as I wrote before Election Day 2006: “The Duke Three's constitutional rights to due process and equal protection rights were flagrantly violated and the Duke Three have been irreparably prejudiced: but for the violations, they would not have been indicted.”

Mr. Nifong’s brief noted that, “as concerns [Mr. Nifong’s] Motion to Dismiss, the North Carolina State Bar in paragraph (c) and (d) of the ‘therefore’ clause, contends that, Mr. Nifong violated Rules 3.8 (d) and 3.4 (d) (3) by:

a)… failing to make timely disclosure to the defense of evidence of information known to him in a timely manner;…

b) failing to make a reasonably diligent effort to comply with a legally proper discovery request; …

c.) never providing to the Duke Defendants on or before November 16, 2008 a report setting forth results of all tests or examinations conducted by DSI and a memorialization of Dr. Meehan’s oral statement to him of their meetings;… and

d.) failing to disclose evidence or information that he knew or reasonably should have known was subject to disclosure….”

Nifong Brief: “The plaintiff’s Amended Complaint alleges that after a June 22, 2006 hearing, the court entered an Order directing Nifong to provide all ‘the Duke defendants with among other things: (1) results of tests and examination, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant; (2) statements of any witnesses taken during the investigation, with oral statements to be reduced to written or recorded form: and (3) a report of the results and examinations or tests conducted by an expert witness the State reasonablly expected to call as an expert witness at trial.’ …”

And the allegations are true.

Nifong Brief: “Thereafter, the plaintiff’s Amended Complaint specifically alleges that at the hearing of September 22, 2006, the Duke lacrosse defendants stated that they were seeking the results of any tests finding DNA, even if the DNA did not match any of the Duke defendants or other individuals from whom the State had obtained DNA samples....The Amended Complaint further alleges that the court entered an Order for the defendant to provide the complete file and underlying data from both the SBI and SSI….”

Likewise true (and it was obvious that the defense was seeking exculpatory evidence long before September 22, 2006, since every defense lawyer always is seeking exculpatory evidence).

The Nifong Brief noted (in a footnote) that the June 22. 2006 Order further stated, “The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the Court,” and indicated that Mr. Nifong has done so, notwithstanding the State Bar contention that Mr. Nifong had willfully violated “(a) the United States Constitution; (b) discovery provisions contained in N.C. Gen. Stat. § 15A-903(a)(1) and (2); (c) the non-testimonial identification statute outlined in N.C. Gen. Stat, § 15A-282, and (d) the June 22, 2006 Order entered by the Honorable Ronald C. Stephens.”

Had the Duke case defense obtained a pre-trial dismissal, Mr. Nifong’s sly argument that he did not violate because his time to act had not expired would seem much less inspired.

Mr. Nifong acknowledged “the seminal case of Brady v. Maryland, 373 U.S. 83…(1963)” and the United States Supreme Court’s holding in that case that “the suppression of this evidence [by a prosecutor] was a violation of the Due Process Clause of the Fourteenth Amendment,” but argued that he had not committed a constitutional violation, based on a misreading of United States v. Agurs, 427 U.S. 97 (1976).

Nifong Brief: “The Agurs Court discussed the interchange between that duty and a defendant’s right to due process in the context of prosecutors making decisions both pretrial and during trial about what information, if any, to give to defense counsel, and judges then being called upon ‘to decide whether a nondisclosure deprived the defendant of his right to due process.’... Significantly, the Court noted that while a prosecutor may make improper omissions in failing to disclose information, the prosecutor will have breached his constitutional duty to disclose only if there has been a constitutional violation of the defendant’s right to a fair trial.  In the absence of a trial, then, there can be no constitutional violation of the defendant’s right to a fair trial, and therefore no breach of the prosecutor’s constitutional duty to disclose. ‘[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”

BUT, as the North Carolina statute makes clear, that determination can be made without a trial and justify a pre-trial dismissal.

Obviously the United States Supreme Court did not intent to insulate willful prosecutors from punishment because their willful misconduct was discovered before trial!

But, Mr. Nifong contended that a North Carolina Supreme Court case (State vs. Elliott, 380 N.C. 400, 828 S.E.2d 735 (2008) did precisely that.

Nifong Brief:

“As recently as last year, our Supreme Court addressed the issue of a prosecutor’s duty to disclose information to the defendant within the parameters of the United States Supreme Court holding in Agurs....In Elliott, the court began its analysis of a prosecutor’s duty to disclose favorable information by stating ‘[a]s a constitutional matter, the state has “no duty to provide defense counsel with unlimited discovery with everything known by a prosecutor”’….The prosecutor’s duty is limited to providing to a defendant evidence that is favorable and is material as to guilt or punishment and that a defendant's constitutional rights will not be affected unless the withholding of information was favorable material and would have affected the outcome of the trial....The court went on to reiterate the conclusion that the prosecutor’s duty to disclose is limited in time. If a defendant is given the Information in time to effectively use it at trial, then he has not been denied a fair trial by the prosecutor’s failure (or tardiness) to disclose it: therefore, no constitutional violation has occurred.”

But the North Carolina statute recognizes constitutional violations warranting pre-trial dismissal and ithe North Carolina Supreme Court did not rule that prosecutors are immune from punishment for willful misconduct because the willful misconduct is discovered before trial and cannot reasonably be expected ever to do so.  Whether or not a prosecutor should be sanctioned by the North Carolina State Bar was not before the North Carolina Supreme Court in Elliott.

Further, the Nifong Brief’s own characterization of what was at issue in Elliott makes it readily distinguishable: “In fact, in Elliott, the State did not disclose a potentially exculpatory fact--that the State’s witness could not make an in court identification of the defendant--directly to the defendant at all. The defendant became aware of this fact only after the State rested and the trial court asked a direct question of the prosecutor as to why the witness had not been asked to identify the defendant. Even under these circumstances (where the State did not offer the potentially exculpatory evidence of its own volition and the fact was disclosed only after the State rested) the Court found no due process violation. Critical to the Court’s decision was that the defendant was able to cross- examine the witness and had the opportunity to use the inforrriation effectively at trial. Id. at 415-16, 628 S.E.2d at 746.

The prosecutor in Elliott did not make misrepresentations to the court or defense counsel and agree with a witness to withhold exculpatory evidence from a report, and then oppose the motion for access to the underlying documentation that allowed the exculpatory evidence to be discovered by the defense.

The differences between the prosecutor in Elliott and the prosecutor in the Duke case (Mr. Nifong) are immense!

Mr. Nifong misses the difference between a mistake and willful misconduct.

Nifong Brief:

“Here, the State Bar contends that Nifong did not supply the Duke defendants with ‘a complete report setting forth the results of all tests or examinations conducted by DSl, including the potentially exculpatory DNA test results and evidence,” either prior to November 16, 2006, or between November 16, 2006, and January 12, 2007…. However, it is clear from the State Bar’s own allegations that, after obtaining the same from the State’s expert, Dr. Meehan, Nifong did provide the defendants with both Dr. Meehan’s report and the underlying data....The fallacy in the Duke defendants’ claim, and therefore the State Bar’s allegations against Nifong, is that they had to have reviewed all of the underlying data in order to conclude that the initial report of Dr. Meehan did not contain inforrnation relating to the underlying data produced through discovery. As such, as of December 13,2006, the Duke defendants knew everything the State knew.

“That Nifong disclosed both the report and the underlying data later than the Duke defendants would have preferred does not turn Nifong’s disclosure, or failure to make what the defendants would consider timely disclosure, into a constitutional violation, As the defendants had not yet been tried at the time they received the information (and to date still have not been tried), they, without question, received the information in time to effectively use it at trial. Because no constitutional violation has occurred, Nifong did not breach his constitutional duty.”

Even assuming arguendo that the Duke defense “had to have reviewed all of the underlying data in order to conclude that the initial report of Dr. Meehan did not contain inforrnation relating to the underlying data produced through discovery,  the fallacy of Mr. Nifong’s argument is that Mr. Nifong’s misconduct was willful, the Duke defendants did NOT know of “the agreement” between Mr. Nifong and Dr. Meehan to conceal exculpatory evidence and Mr. Nifong made misrepresentations about it to (1) the court, (2) the defense lawyers and (3) the North Carolina State Bar.

If that’s not enough to warrant disbarment, what is?

Mr. Nifong further argues that he did not violate discovery rules or a court order, to no avail.

Nifong Brief: “The discovery rules… are in place for the purpose of protecting the defendant from unfair surpnse….Since the allegations in the Amended Complaint conclusively establish that Nifong fully complied with N.C. Gen. Stat. § 15A-903(a)(2) and the June 22, 2006 Order the purpose behind the discovery statutes was accomplished and as such there are no set of facts upon which the State Bar can establish that Nrfong violated any statute or order relating to potentially exculpatory evidence contained in the underlying data provided by the State’s expert’s laboratory.

Poppycock!

The allegations in the Amended Complaint show Mr. Nifong to be a contemptible liar who attempted to frame Reade Seligmann, Collin Finnerty and David Evans on three heinous first-degree felonies (kidnapping, rape and sexual offense) and was caught in the act of concealing exculpatory evidence through agreement with his potential expert witness and that’s conduct involving dishonesty, fraud, deceit or misrepresentation and highly prejudicial to the administration of justice and public confidence in it.

It will not be forgotten that both Mr. Nifong and his co-conspirator expert witness (Dr. Brian Meehan) strongly, but unsuccessfully, opposed the defense motion for access to the underlying documentation that led to the exposure of the nefarious agreement.

Mr. Nifong’s excuse for not memorializing conversations with Dr. Meehan is likewise unimpressive wishful thinking:

“It is the position of the State Bar that the amended statute requires prosecutors to memorialize conversations with any witnesses which they or members of their office have prior to trial and to provide these statements to the defendants. The defendant submits that this is not a correct interpretation of the statute and as such, he was never required to perform the act that the State Bar now seeks to impose discipline. Nifong submits that the State Bar’s interpretation violates the protections afforded him under the work product portions of the criminal discovery statute outlined in N.C.. Gen. Stat. § 15A-904. He further submits that this interpretation of the statute will not be upheld on appellate review….”

It all depends upon whether North Carolina wants to be right or ridiculous.

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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