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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:  April 5, 2007
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Topic category:  Other/General

Duke Case: Framing as Evidence of Innocence

In People v. Cintron (October 24, 2000), New York State's highest court wrote about flight as evidence of guilt, as follows: "While we have noted that evidence of consciousness of guilt, such as flight, has limited probative value... ), we have also recognized that its probative weight is highly dependent upon the facts of each particular case ....In this case, defendant attempted to flee from the police officers' vehicle when they turned on their lights and siren, nearly knocking down pedestrians and leading the officers on a high speed chase. He continued to flee on foot after crashing the car into a guardrail. Moreover, he gave an improbable explanation for his conduct at trial. These facts are sufficient to support the reasonable inference that defendant knew that the vehicle was stolen and that he did not have the owner's consent to operate it."

Likewise, in Weeks v. Arkansas (November 4, 1998), the Arkansas Court of Appeals ruled: "It was also permissible for the jury to consider Mr. Weeks' flight as evidence of guilt of DWI."

And in Curtis v. Virginia, the Virgina Court of Appeals reiterated that "evidence of flight may be considered as evidence of guilt along with other pertinent facts and circumstances."

Those who want a Duke case trial eventually will be disappointed while the ordeal drags on a bit longer to the consternation of many who abhor prosecutorial abuse and/or prosecutorial excuse.

The Duke case is heading for post-Easter dismissal, when co-prosecutor Mary Winstead is expected to be back from vacation.

The North Carolina Attorney General's office is trying to make its investigation look especially thorough this Holy Week.

Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) never should have been indicted, of course, and they and their families and friends are anxiously awaiting dismissal of the remaining charges instead of looking forward to a trial.

I have explained why the case is not even trial-worthy, and should be dismissed, upon defense motion, as a matter of law, but there would have been a silver lining in case of trial.

Since the law treats fleeing as evidence of guilt, it's only fair that the law treat framing as evidence that there is insufficient evidence to prove guilt.

It would have been fascinating (as Spock would say) to follow a trial if the defense introduced evidence that the prosecution had attempted to frame the Duke Three, say, tainting the prospective jury pool with improper public statements, rigging an identification procedure, withholding key evidence from grand jurors and concealing exculpatory evidence.

It would be a trial like no other trial.

Because the Duke case seems to be a case like no other case.

The North Carolina Attorney General's office won't risk that kind of "trial of the century," of course, even though it's dawdling over dismissal demonstrates that it's not filled with any more regret than Durham County, North Carolina District Attorney Michael B. Nifong is filled with remorse (except remorse over being caught).

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,,, and 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

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Copyright 2007 by Michael J. Gaynor
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