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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 21, 2007
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Topic category:  Other/General

Duke Case: The End of Nifong's "Reign of Terror" Is In Sight

Durham County, North Carolina Michael B, Nifong's "reign of terror" has not included improvised explosive devices or the guillotine, but it has been horrendous, especially for the members of the 2005-2006 Duke University Men's Lacrosse Team and their families and friends and the good people of Durham County who expect and deserve a district attorney who will strive to be a fair and objective minister of justice instead of a pathetic political opportunist who will play the race card, pander to the worst instincts of people and pervert the criminal justice system for his own purposes.

 The good news is that the end of that "reign of terror" is nearing.

 The bad news is that it happened and was not stopped long ago: putting an end to it has been sickeningly slow.

 Hopefully, Chan Hall, a North Carolina Central University student who told Newsweek last year that he wanted to see the Duke students prosecuted "whether it happened or not. It would be justice for things that happened in the past," and those who "think" like him learn that (1) the American criminal justice system is supposed to mete out justice in individual cases on their particular merits without discriminating on the basis of race, color, creed or national origin and (2) Mr. Moez Elmostafa, the cab driver who dared to confirm Reade Seligmann's alibi, subsequently was prosecuted (unsuccessfully) on an unrelated charge that would have undercut his credibility had he been convicted, and he is black.  

 Mr. Nifong's "reign of terror" is a threat to all.

 Duke Basketball Report, in "Lax: As The End Draws Near. More Questions Arise" (March 20, 2007), obviously was pleased with (1) "[t]he North Carolina State Bar really ripp[ing]into" District Attorney Nifong, in its memorandum in opposition to his ill-considered motion to dismiss, "accus[ing] him of 'semantic hair-splitting' and "conduct... 'seldom, if ever, excusable,'” and (2) George Washington Law Professor John Banzhaf III' concluding that Mr. Nifong "actually made his situation worse" by moving to dismiss: “He makes the case for his own disbarment even stronger. He tries to defend clearly indefensible conduct…[The bar] literally shreds Mr. Nifong’s arguments and turns his hair-splitting against him.”

Mr.Nifong did what lawyers often do: deny any wrongdoing and make every argument and excuse that came to mind.

In doing so, Mr. Nifong undermined whatever credibility he had left (if any) and made himself even less sympathetic than he had been (if he was still at all sympathetic).

Instead of offering mitigating circumstances (prostate cancer, medication, fear of the humiliation of losing an election and then having Freda Black return the "favor" and send him packing, a desire to maximize his pension, "temporary" insanity when he suddenly found himself prosecutor in the most recent "case of the century), Mr. Nifong was his arrogant , asinine self.

Alas, Mr. Nifong apparently does not appreciate that he cannot bully the North Carolina State Bar like he can subordinates in his office.

Orally telling a subordinate to lie to the court is one thing; lying to the court yourself, or the State Bar, when under investigation, is another. (It's much harder to obfuscate when there is a transcript or a letter, or the other person to whom you spoke is a judge or an official who is not your subordinate.)

DBR on "where things stand": "[T]he district attorney brought charges despite a lack of DNA. The alleged victim (AV) had problems identifying her assailant[s]. The adjusted lineup, consisting of photos of only lacrosse players, made it impossible not to finger lacrosse players, unless the AV said the assailants weren’t lax players, which she didn’t. The exculpatory evidence, DNA and alibi, was ignored. The AV’s story shifted time and again. Multiple samples of DNA not belonging to anyone on the lacrosse team were discovered."

Actually, it's worse: Exculpatory DNA evidence was deliberately concealed, not merely ignored; Mr. Nifong avoided interviewing the AV (aka false accuser Crystal Gail Mangum); there was no "assailant"; and the alleged "assailants" were indicted by grand jurors from whom material information was kept.

DBR: "The D.A’s problems grew so severe that he was forced to turn the case over to special prosecutors, who are reviewing the evidence and attempting to speak to the AV and the second dancer. Allegedly, neither women is cooperating, and according to ABCNews, Kim Roberts says she won’t talk unless she is subpoenaed (which begs the question: why?)"

Mr. Nifong became a defendant himself, in a North Carolina State Bar disciplinary proceeding; the other 99 North Carolina District Attorneys publicly disclosed that he had declined offers of her and call on him to recuse himself; and the person who had appointed him, North Carolina Governor Michael Easley finally publicly lamented his choice and claimed that Mr. Nifong had misled him into believing that Mr. Nifong would not run for election if appointed as interim Durham County District Attorney.

That's REALLY severe!

The replacement prosecutors are searching for a graceful way out of the disaster Mr. Nifong created and there is none.

With The Wilmington Journal having warned that the black community is watching, North Carolina Attorney General Roy Cooper and his designated replacement prosecutors have to take plenty of time, less the black community feel disrespected and not vote Democrat as expected.

The original Tawana Brawley never admitted she was a hoaxer.  Don't count on "Tawana Brawley Two" doing the right thing to do.

DBR: "We’ll return at a later date [to] the broader credibility problems of the AV, but even leaving that aside (and there are serious reasons to doubt her credibility), this case grows increasingly hard to put up with. Barring some bombshell discovery which frankly we can’t conceive of, sometime in the near future, charges will be dismissed, and then a whole different series of questions will arise."

The Duke case was hard to put up with from the start.  The AV is an ex-convict stripper with monumental credibility problems.  Three co-captains of the 2005-2006 Duke University Men's Lacrosse Team offered to take polygraph tests, but Mr. Nifong refused the offers.  All three of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) all passed polygraph tests.  There was no kidnapping, no sexual assault and no rape, much less a gang rape/sexual assault and a contemptible cover up. There will NOT be a bombshell announcement that will justify felony charges against any team members.  There WILL be a dismissal of the remaining charges (the rape charges were voluntarily dismissed by Mr. Nifong last December).  The should be more legal proceedings, because there are many, including Mr. Nifong, Durham County, Duke University and a plenty of outrageous opportunists who should be held to account.

DBR: "The bar, and perhaps another prosecutor, will ask questions of Mr. Nifong, and one hopes he will gain a new respect for the rights of the accused."

It will be much worse than that.  Mr. Nifong is of course for disbarment, removal for office, civil suit and, depending upon the discretion of prosecutors, prosecution.  The North Carolina State Bar started asking Mr. Nifong questions last year, and he will pay for some of his responses in the pending disciplinary proceeding.

DBR: "Other people will have more difficult questions to answer, including many people at Duke."

Very difficult, even impossible, questions to answer, yes.  But the questions to Mr. Nifong may be the most difficult of all.

DBR: "In the 20th century, the American Left achieved some incredible things for the betterment of mankind. Among them you can count the Civil Rights movement and many victories in court which assured a fair shake for people who stand accused of crimes."

First, Check the Congressional Record: the Civil Rights Acts required Republican votes to become law.  The late Senate Republican Minority Leader Everett Dirksen worked with the late President Lyndon Baines Johnson to pass what Democrats Senators Bill Fullbright of Arkanas (President Clinton's mentor) and Al Gore, Sr. of Tennessee tried to block.

Second, the Duke case demonstrates that not all people accused of crimes are assured of "a fair shake"!

DBR: "We instinctively know now that we should be advised of our rights, that we have a right to counsel, that people in prison cannot be treated like animals."

That's not instinct.  That's the result of conditioning. 

DBR: "If you want to sum it up, the American Left, in the 20th century, deserves enormous credit for advancing the notion that human dignity should not be surrendered simply because someone is accused of, or convicted of, a crime, and for following up on Jefferson’s deep distrust of state power and for creating a level playing field for defendants.

Let's not give the credit that belongs to the Founders to the Left or the Right, of the 20th or any other century.  The Due Process Clause was included in the Bill of Rights (Fifth Amendment) in the eighteenth century.  It was made applicable to the states by the Fourteenth Amendment in the nineteenth century

DBR: ".If you read even a bit of legal history, you’ll come across cases like Sacco and Vanzetti, where the judge openly cursed Italians in the courtroom, or the case of the Scottsboro Boys, where the state of Alabama willfully ignored the innocence of the accused. Or even the Dreyfuss affair."

Read all that, and more, carefully!

DBR: "But at Duke at least, the Left has taken a different direction. The professors who tried to shove this case into an ideological straightjacket should have apologized long ago, or at least admitted that they rushed to judgment."

They have not.  What does THAT signify?

DBR: "And we aren’t suggesting that the Left is alone in this sort of behavior; the right does it too. But in our corner of the world, three young men have been terribly wronged. Yet few apologies or retractions are forthcoming from those who rushed to condemn them."

That subtle attempt to create equivalence is as doomed as Mr. Nifong.  The Right did not try to frame and send three young white men from wealthy, out-of-state-families to prison for three decades on bogus charges.  Blithely saying "the right does it too" will not do.  Better to deal in fact.  Less need to retract.

DBR: "It’s growing increasingly hard to avoid the conclusion that the real 'crimes' here are that the lacrosse players are white and (at least appear to be) privileged (not all of them are from what we understand)."

Why try to avoid it?  "Driving while black" never should be criminalized.  Neither should "playing lacrosse while white."  Off-campus stripper parties are very ill-advised, but legal.  Again, a false rape charge is a "real crime."

DBR: "For too many, there is no interest in truth when it collides with ideological predisposition. When this case is dismissed, which seems inevitable, aside from a flurry of lawsuits which will hit Duke as an institution and a number of individuals as well, people should be held accountable for their positions and their unwillingness to be…well, honest. Bob Harris of all people crystallized the case when he was caught on camera telling Mike Nifong that, no, the case wasn’t about Duke, 'it’s about honesty. And you’re not honest.'"

AMEN!  Say it again and again.

DBR: "We mean no disrespect to Bob Harris when we say this. He is a wonderful man and very bright and accomplished. But: for all the academic firepower Duke has, for the amazing intellects and formidable accomplishments, why is it that a sports announcer nailed this case, absolutely pegged it, and the geniuses who sneer at him and the world he represents can’t even admit they were wrong? They don’t have to apologize. But why is it so hard to admit they were wrong?"

An honest man (or women) trumps "all the academic firepower Duke has" when that firepower is disconnected from the truth.

As for why it is so hard to admit being wrong, two answers spring to mind: (1) character defect sand (2) coming lawsuits.

DBR: "Harris was right when he told Nifong it’s about honesty. But he might have also said it’s about character. And for highly intelligent people, who are entrusted with young students and their intellectual growth, for them to perpetuate lies, to accept and encourage prosecutorial misconduct, is just an unbelievable abdication of character. And Duke deserves better."

AMEN AGAIN!  And perhaps they are not as "highly intelligent" as you think.

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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