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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:  April 6, 2007
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Topic category:  Other/General

Duke Case: Let's Not Minimize The Political Problem

There is a problem with political considerations impacting the criminal justice system and it is obvious in North Carolina, due to the Duke case.

Let's not minimize it, much less pretend it does not exist.

Let's remember that ONE defense lawyer in the Duke case actually had the audacity to sign and file a motion to remove Mr. Nifong from the case: the late, great Kirk Osborn.

In North Carolinas district attorneys are elected and local defense lawyers have more than one case.

In North Carolina Attorneys Generals are not only elected, but aspire to higher office. Example: North Carolina Governor Michael Easley previously was North Carolina Attorney General Michael Easley.

It's the same elsewhere. Examples: Former President Clinton, Governor Spitzer of New York and Senator Liebermann of Connecticut were state attorneys general.

With that ominous Wilmington Journal editorial letting current North Carolina Attorney General Roy Cooper know that he was being watched closely by North Carolina's Black community (critical to him politically) and the Duke case defendants out on bail, any expectation of a quick dismissal of the remaining charges was wishful thinking.

Especially when dismissal is the precursor to civil suits.

Before dismissal, the North Carolina Black community would be given plenty of time to move away from Ms. Mangum and that discrediting photograph of Ms. Mangum would be made public at a propitious moment.

On April 5, 2007, Friends of Duke University spokesperson Jason Trumpbour addressed what he called "The Attorney General's Dilemma" and admitted that he was getting worried.

Mr. Trumpbour:

"When the Special Prosecutors took over the [Duke} case, I preached patience. I expressed the hope that by doing an honest, thorough and diligent review of the case, they could demonstrate to the public how criminal cases are supposed to be handled. That was a long time ago. I knew it would not take them that long to review the file. Even though it is 6000+ pages, only a few are particularly relevant. Still, due diligence required that they verify much of the information and satisfy themselves of any questions they had.

"I must say I am getting a little worried by the present delay. I know that there remains a political dimension to the case and there are still certain groups attempting to influence the process. Having worked in a state attorney generalís office, I know the extent to which politics intrudes into what should be purely legal decisions. Nevertheless, the political challenges presented by the case are obvious and are not going to get any easier to resolve with time. My worry is that there is political pressure being applied from directions that we cannot see and that the Attorney Generalís office is wrestling with that at the moment. Let us hope there is a better reason for the delay.

"How should Attorney General Roy Cooper confront the political difficulties presented by the case? Another friend, William Anderson has the answer: Tell the truth. His most recent article is an open letter to Cooper encouraging him to do just that: Tell the truth. Bill argues that telling the truth is not only the right thing to do, but good politics as well. I could not agree more.

"Mike Nifong offers the negative example. At the beginning of the lacrosse case, he could have been honest. He could have urged patience while he gathered the facts and then told the truth: that not only did the evidence not support the alleged victimís numerous contradictory claims, it actually demonstrated the innocence of the lacrosse players. He could have presented the public with a thorough and professional review of the evidence and shown the public not only that justice was done, but also educated it about how justice is supposed to be done. He could have thus made an effort to defuse whatever tensions existed within the community rather than enflame them and satisfy the concerns of all.

"Make no mistake, Nifong might have lost the primary election had he told the truth. He was thus presented with a genuine temptation. Some people might still not have been satisfied with his decision. Also, he was the weaker candidate at least as far as polling was concerned. However, he might still have attracted the support he needed by demonstrating character, competence and professionalism. In any event, no one can argue that Nifong is in a better position now for having lied. His career will end in ignominy. He is the object of derision and hostility. The works of a lifetime have been obviated. Everything he purported to stand for has been revealed to be false. Roy Cooper will fare no better if he is less than 100% honest in his resolution of the case. Let us hope Roy Cooper chooses the truth. I have no reason to doubt he will."

Perhaps Attorney General Cooper eventually will, but very slowly!

Mr. Cooper did not appoint ethical exemplars as replacement prosecutors.

Mr. Nifong bet and lost, but he did not expect to lose. No one had ever complained about him to the North Carolina State Bar and I am not aware that the North Carolina State Bar ever suspended, much less disbarred, a district attorney.

Let's not forget that the Finnerty, Evans and Seligmann families had the means as well as the will not only to resist, but to expose prosecutorial misconduct much worse than a first-time political candidate's prejudicial public statements about a pending case.

It was announced recently that the "60 Minutes" Duke case expose had won a Peabody award: "A '60 Minutes' team led by correspondent Ed Bradley delved into the allegations of rape against Duke University lacrosse players and stopped a prosecutorial rush to judgment in its tracks."

A prosecutorial rush to judgment?

Why do Mr. Trumpbour and the Peabody award people seem to have a problem recognizing the depth of depravity plumbed in the Duke case.

To be sure, Mr. Trumpbour"got" that Crystal Gail Mangum's gang-rape story was a contemptible canard, but why is seeing evil in action so hard?

Durham County, North Carolina District Attorney Michael B. Nifong went from overzealous prosecutor to persecutor before any of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) were indicted.

Mr. Nifong rejected polygraph test offers.

Mr. Nifong preferred NOT to interview false accuser Crystal Gail Mangum about her story.

Mr. Nifong did not want to see alibi evidence.

Mr. Nifong preferred to treat Ms. Mangum's story as true, to pose as Durham County's protector of black womanhood and to revile the members of the 2005-2006 Duke University Men's Lacrosse Team in outrageous ways that not only hurt them, but hurdled the line between proper and improper public statements by a prosecutor.

Mr. Nifong flip flopped on the significance of DNA evidence (when DNA results contradicted Ms. Mangum's horror story).

And Mr. Mangum chose to try to keep exculpatory evidence from the defense.

That's NOT a rush to judgment.

That's attempted framing in the first degree.

I'm for the "60 Minutes" award, but not for minimizing what Mr. Nifong tried to do.

I'm not worried that the Special Prosecutors will proceed to trial, because the world is watching and if anyone thinks the defense has played all of its cards, there's this bridge in Brooklyn that he or she might want to buy.

OurHeartsWorld.com (which described the NCNAACP, the Triangle Urban League, and The Carolinian, Wilmington Journal and Carolina Times newspapers) just closed.

Its farewell statement stated in part:

"When it was launched on Motherís Day (May 14) of last year, the goal of the website was to defend the right of the accuser in the controversial Duke lacrosse alleged sexual assault case to have her day in court.

"The woman, a Black exotic dancer, was hired by the Duke lacrosse team to perform at a wild, off-campus party on the night of March 13, 2006. She alleges that she was beaten, kicked, strangled, raped, sodomized and robbed.

"Evidence turned over to the defense attorneys representing three players who were ultimately indicted for three first-degree felonies reportedly failed to confirm her allegations. The case was finally turned over to the NC State Attorneyís Generalís Office for a final, pending determination on whether thereís any evidence at all to justify going forward with a prosecution...

"All the website has said is let her tell her story, then let the courts decide after hearing all other admissible evidence.

"But, as you know, the case has taken several dramatic turns.

"In December 2006 it was revealed that the accuser could not substantiate her rape accusations, so those charges against the three defendants were dropped.

"We immediately reflected that change on the website, dropping all administrative reference to an alleged rape, and informing visitors to the site that depending on what happened to the remaining first-degree sexual abuse and kidnapping charges, the website would soon be phasing out.

"Of course, the allegations against Durham District Attorney Mike Nifong per his handling of the investigation and exculpatory DNA evidence was also a factor in our growing weariness about the integrity of the case.

"And just recently, word that the accuser is not cooperating with the special prosecutors of the State Attorney Generalís Office has also concerned us.

"If the essence of our support for her was ensuring her right to tell her story, but she isnít doing it, then the reasons for continuing that support are fewer and fewer.

"We have consulted with the co-sponsors of the website, and they agree with our assessment that the time has come to pull the plug."

Tawana Brawley never publicly acknowledged that she was a hoaxer and it does not appear that Ms. Mangum is about to do so.

Let's pray for both her and Ms.Mangum, but without deluding ourselves.

After we pray for the innocent.

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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