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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 11, 2007
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Topic category:  Other/General

Duke Case: Prolonged Prosecutorial Disgrace Finally Stopped

The Duke case is still a Democrat scandal, Durham County, North Carolina District Attorney Michael B. Nifong is still in office, false accuser Crystal Gail Mangum still has not been charged with filing a false report and the problems with North Carolina’s criminal justice system that permitted, facilitated and prolonged the case still have not been remedied, but, HURRAY!: “D Day” (dismissal day in the contemptible criminal case based on unjustified first-degree felony charges made by an accuser (Ms. Mangum) with gall and without credibility and pursued by a pathetic prosecutor (Mr. Nifong) with power and without integrity) finally arrived.

April 11, 2007. Charges dropped. Persecution stopped.

Thanks be to God!

In “Duke Case: Justice Defied, Denied, Delayed, Finally Obeyed,” posted on February 1, 2007, I assured readers that dismissal was coming, albeit slowly:

”In the Duke case, the prosecution initially defied justice by seeking unwarranted indictments and then denied justice by dismissing only the rape charges. Now justice is being delayed, as replacement prosecutors review what was done and not done by and under their infamous predecessor and investigate anew.

“…

“Fortunately, justice eventually will be obeyed in the Duke case, if not based on principle, then out of interest.”

A poster at the Friends of Duke University website was hopeful, if not confident: “Let's hope Gaynor got that right. It will be good to get some ‘justice obeyed’ after all the other nonsense we have been getting. We have been waiting for this too long.”

A prosecutor would have to be as foolish as Mr. Nifong to go to trial on the Duke case now. North Carolina Attorney General Roy Cooper is not that foolish.

Talk Left’s Jeralynn Merritt is rightly stressing the terrible damage done, its avoidability and the need for accountability:

“Question: If the charges are dropped because of lack of evidence or because the accuser won't cooperate, what should be the remedy for the boys? Their lives -- and that of their families -- have been turned upside down and into a hell for the past year. Their schooling has been interrupted, their reputations trashed.

“Duke's reputation has taken a hit. The lacrosse team season was cancelled. Unpleasant racial issues surfaced.

“I put much of the blame for this travesty of a case on D.A. Mike Nifong. If he hadn't glommed on to the media and made outrageously inappropriate comments in the beginning, jumping to the support of the accuser before the facts were in, much of the damage could have been avoided.

“I think the State Bar will hold him accountable, but it still can't undo the damage.”

One point, Jeralynn: Duke’s reputation took a hit because of what the Duke administration did and did not do and a signifcant part of the Duke faculty did in the name of their political agenda, due process and truth be damned.

When asked whether Duke would issue an apology after the dismissal, Duke’s John Burnett asked, “what for?”

At least Don Imus knows how to apologize and did not pretend he did not do something indisputably wrong!

Mr. Burnettt, if Reade Seligmann, or Collin Finnerty, or David Evans, or any of their teammates on the 2005-2006 Duke University Men’s Lacrosse Team had been a son of yours, you wouldn’t have asked.

SUGGESTION TO DUKE DONORS: I APPLAUD YOUR GENEROSITY, AND DO NOT WANT TO DISCOURAGE IT, BUT, LEST YOU BE PART OF THE PROBLEM INSTEAD OF PART OF THE SOLUTION, PLEASE WITHHOLD YOUR CONTRIBUTIONS UNTIL DUKE HAS SETTLED WITH THE DUKE STUDENTS IT BETRAYED IN THE NAME OF POLITICAL CORRECTNESS RUN AMOK AND REMEDIED ITS FAILINGS.

When it comes to what Duke has to apologize for, let’s start with telling the players NOT to contact their parents and leading them to believe that all soon would be well if there was no rape or sexual assault.

Believe it or not, the family of Crystal Gail Mangum is still playing the race and class cards. The family told FOX News that they're poor and black, the players and their families are "rich and white," and the North Carolina Attorney General's office has looked upon the players as "golden boys."

The players passed polygraph tests and their DNA would have been found if the false accuser’s horrid tale had been true, but it was they that the prosecutor and much of the media chose to hound.

Their false accuser is an ex convict stripper who collected mutiple male DNA in private places.

Like Tawana Brawley, she is sticking to her false, contradictory, ludicrous story.

She’s described herself as “a harmless nut,” but she’s a toxin in the body politic who caused untold (as well as told) grief and other damage.

There have been aspects of the Duke case that I chose to report (“60 Minutes” being on the case and Judge Kenneth Titus having issued an unconstitutional gag order being the most notable), while others who also knew too decided it was not the right thing to do (and I’m glad I did). But I will leave detailing the extent of the damage caused by Ms. Mangum, Mr. Nifong and their backers and enablers to the real victims. I’m sure significant aspects of it never will be publicized. Suffice it to say that the kind of damage done should become apparent to any concerned parent, or sibling, or friend, if they think about how they might have felt and reacted if their son, or brother, or friend, was framed for the heinous imaginary crimes with which each of the Duke Three was charged, with a pernicious prosecutor doing his worst and much of the media and the political correctness crowd treating the false accuser as a terribly tortured victim, the rogue prosecutor as a hero of a noble mission and the Duke Three and their teammates as monstrous menaces.

America’s top legal commentator, Stuart Taylor, figured out quickly that the gang-rape charge was bunkum, at best, and castigated the media for its sensationalism: “Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems."

Of course, Mr. Taylor’s choice for chief rogue in his large Duke case rogues gallery was Mr. Nifong.

Mr. Taylor:

“"Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

"Nifong… should…be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape."

It was even worse: Mr. Nifong was hiding exculpatory evidence.

The Duke case was a deplorable political prosecution that resulted from (1) Mr. Nifong’s eagerness to maximize his income (and pension) and to gratify his ego by finally being elected Durham County District Attorney and (2) his willingness to frame innocent persons and exacerbate racial tensions to do so.

The Duke case lasted so long because the first two judges on the case (Ronald Stephens and Kenneth Titus) were pro-Nifong judges who refused to address the late Kirk Osborn’s bold (and meritorious) motion to remove Mr. Nifong from the case and Judge Titus, on his own initiative (to the delight of the North Carolina NAACP) gagged potential witnesses, even the defendants. It was outrageous, and unconstitutional, and intimidating, but it remained in place until Judge Osmond Smith replaced Judge Ttitus and lifted it, thereby facilitating the “60 Minutes” expose broadcast on October 15, 2006.

Deceived voters gave Mr. Nifong the election he graved last November, but Mr. Nifong’s misconduct soon would force him to remove himself from the case.

North Carolina Attorney General Roy Cooper appointing James Coman and Mary Winstead to take over the prosecution of the Duke case.

With The Wilmington Journal’s “We are watching” editorial swiftly issued andf aimed directly at the politically ambitious Mr. Cooper, it was just as obvious that dismissal would be delayed in the name of politics as it was that prosecution had been pursued for the sake of politics.

What else should have been expected from Mr. Coman and Mr. Winstead? (The defense lawyers who practice law in North Carolina should not be expected to be frank.)

Conan the Barbarian's bad behavior was both understandable and fictional.

Mr. Coman's bad behavior is understandable, but real and inexcusable.

Wikipedia: "Conan is a...barbarian of the far north…. born on a battlefield….Although Conan's adventures often result in him performing heroic feats, his motivation for doing so is typically his own survival or for personal gain; thus, he displays many of the characteristics of an anti-hero.”

Mr. Coman is “an anti-hero” too

The News & Observer's Barry Sanders warned about Mr. Coman in a January 19, 2007 article entitled "Coman may be no prize":

"While you might be tempted to give Coman a pass for being a good soldier and arguing a dog of a case regarding Gell, he deserves no slack for what he did when Hoke and Graves [the original prosecutors] were hauled before the State Bar's disciplinary committee: Coman argued that they'd done nothing wrong and that he would have withheld the evidence, too.

"Knowing that Coman is loyal to his colleagues is admirable; knowing that he is loyal to the law would be even more so."

Amen!

Mr. Saunders summarized the Gell case this way:

"In the Gell case, Coman was brought in as a special prosecutor and gamely argued the same case in 2004 as David Hoke and Debra Graves had at the initial murder trial in 1998. When Coman had to try the case by the rules, a constraint Hoke and Graves ignored, Gell went free.

"Had N&Oreporter Joseph Neff not investigated the case, Gell would probably be ordering up some Nabs and a Coca-Cola -- or whatever low-brow repast inmates typically choose for a last meal at Central Prison -- and preparing to take the state-sponsored dirt nap. As it was, he spent nine years in prison."

Fortunately, Reade Seligmann, Collin Finnerty and David Evans were able to post bail in the Duke case.

At least they haven't had to wait in jail for exoneration.

Last year a very concerned citizen (Concerned Citizen)unconnected to Duke University or to any of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans 06) filed a complaint with the North Carolina Attorney General’s Office about then interim District Attorney Michael B. Nifong's conduct with respect to the Duke case.

The next day (September 22, 2006), that concerned citizen was contacted by a person at the North Carolina Attorney General who identified himself as Assistant Attorney General James Coman (AAG Coman)

AAG Coman stated that the Attorney General’s office was getting hundreds of letters about the Duke Lacrosse Case and also Mr. Nifong.

He then said that there was just something about Concerned Citizen's letter that needed some personal attention. He didn’t want that particular concerned citizen (not a North Carolinian) to receive the standard form letter (and he apparently wanted to discuss the Duke case with a real rape victim).

AAG Coman asked Concerned Citizen about her background as a rape survivor and whether she had done anything about her attacker.

She replied yes, she had pursued him in court.

AAG Coman then asked her if she believed the “accuser” in the Duke lacrosse case.

She told him NO, because real victims don’t change there stories that many times.

She explained that a rape is a snap shot in time, something that is embedded in the mind of the person raped for the rest of that person's life, something the details of which are not forgotten.

She further explained that when an accuser is lying, it is easy to tell: the accuser will start backing away from the main parts of her story and normally the case then is over.

Concerned Citizen then told AAG Coman that Mr. Nifong was doing background check on people that sent him e-mails just saying they weren’t going to vote for him. She had copies of one such e-mail and Mr. Nifong's reply and she reported this to the United States Department of Justice too.

AAG Coman then advised Concerned Citizen not to believe anything that the defense lawyers in the Duke lacrosse case say!

AAG Coman also asked Concerned Citizen to forward the e-mail from Mr. Nifong to him so he could confirm that she actually had a copy.

AAG Coman made it harder, by refusing to give Concerned Citizen his e-mail address, so she had to print out and fax to AAG Coman via a land line fax machine.

The telephone conversation was briefly interrupted by faxing (the concerned citizen's fax machine and home phone shared the same line).

AAG Coman called back and inquired whether the correct e-mail had been sent.

It had NOT been (it's the Duke case), but eventually the correct email was faxed in full to AAG Coman.

AAG Coman then stated that this was indeed Mr. Nifong’s e-mail address and that he noticed that the original sender didn’t give his name or state of residence. When he looked at Nifong’s reply he remarked that Nifong had used a name and the state where the gentleman lives.

AAG Coman asked Concerned Citizen if she lived in the same state.

The answer was no.

AAG Coman not only talked about the Duke lacrosse case with Concerned Citizen, according to Concerned Citizen, but also another case that was either heading for his office or already there, involving a judge accused of taking money from an elderly person and putting it in his own account.

During the conversation, AAG Coman made several statements about the Duke lacrosse case.

According to Concerned Citizen, AAG Coman expressed his feeling that the Duke Three are innocent as well as shared his opinions about Duke students, the Duke Three and their lawyers.

Opinions expressed included:

(1) Ever since Richard Brodhead became the president of Duke University, the university seemed to have gone out of control and “Brodhead would rather throw his students off campus to live rather than keep an eye on the partying that students do."

(2) The students of Duke University are nothing but a bunch of little rich kids that come down here and make trouble and have their parents get them out of trouble.

(3) Several of the defense attorneys are only doing this case for the money and don’t care about there clients.

(4) He had known most of the defense lawyers for more that twenty years and he knows how they operate.

(5) He stated that two of the three main lawyers are media hungry and one of them was not Wade Smith.

(6) He said he would not name names but you seem like a very smart young woman and I think you know whom I am speaking about.

Concerned Citizen replied that she thought he was talking about Kirk Osborn and Joe Cheshire.

AAG Coman did not respond to that, but did say that he is afraid to say anything about Attorney Smith because he would be eaten alive in court if he did.

Note: Wade Smith is John Edwards' former law partner.

According to Concerned Citizen, AAG Coman told her that the accuser needed to be locked up so she could never harm anyone else ever again.

At the end of the call, according to Concerned Citizen, AAG Coman told her that there was nothing that the North Carolina Attorney General could do about Mr. Nifong and that if he had just met Concerned Citizen on the streets of Raleigh and they had just had this same conversation, he would not have believed a word if it, but because Concerned Citizen had the e-mail from Mr. Nifong to another person, he said, “I have to take everything we have talked about for the past hour and twenty minutes as the truth because you are sitting on the evidence."

The gentleman who provided "the evidence" to Concerned Citizens emailed me about it on September 25, 2006, as follows:

"I sent this complaint into the NC AG office today, don't know how many mistakes are in it, but thought I would forward it to you, you can do what you want with this.

"I am writing to complain about DA Michael Nifong, Durham County District Attorney. I sent him an e-mail I asked in the mail why he was withholding discovery from defense lawyers in the Duke Lacrosse Rape Case. I further stated I would vote "anybody but Nifong vote Cheek. I never mentioned my Name or the State where I lived, but somehow in his response he used my name and state of residence. Here was his response: 'Gee, Bill. Does this mean you are moving down here from NJ just to vote against me? I am flattered. Bad news, though. You'll be stuck with me at least until the end of December.' I know that I listed both on my profile page on America on Line, but how does Mr. Nifong get away with looking me up, on company time and how far did that lookup go. I am sure being a quasi law enforcement agency, he has the county resources to look up e-mail addresses or he could simp ly be a member of AOL. Since his e-mail was time stamped 12:52PM 9-19-2006, then he was probably at work using county equipment on county time. Add to that the fact that his answer was sarcastic and arrogant. I really never expected to get an answer from Mr. Nifong and I was quite surprised and flattered that he did answer me. I know that in his last court appearance and in previous ones, that he has told the court that his office had more cases then the Duke case, as a retired P/O, with 25 years of service, I am certainly aware of that, but he seems to have time to answer e-mails from out of state e-mailers and do research on the e-mail addresses. I have been told you cannot do anything unless Mr. Nifong has done something illegal, how about abuse of government computers, resources, time and taxpayer money, in the use of those resources. I want to thank you in advance for listening."

The North Carolina Attorney General's office was on notice that Mr. Nifong was out-of-control, but waited instead of acted.

Finally, evidence of deliberate concealment of exculpatory evidence exploded in a court hearing in December and the North Carolina State Bar and North Carolina's 99 other district attorneys put enough pressure on Mr. Nifong that Mr. Nifong asked the North Carolina Attorney General to replace him on the Duke case.

About North Carolina Attorney General Roy Cooper and his Senior Deputy Attorney General (Mr. Coman), do not be deceived.

They just watched as the prosecution that was a persecution continued and then dawdled after Mr. Nifong decided he had to be relieved.

Concerned Citizen was surprised when North Carolina Attorney General Roy Cooper put James Conan in charge of the prosecution of the Duke case.

And Concerned Citizen is disgusted with the delay in dismissing there remaining charges in a baseless prosecution.

Concerned Citizen chose not to publicize her conversation with Mr. Coman before dismissal, lest any of the Duke Three be further scapegoated (hardly a baseless concern).

But Concerned Citizen authorized release right after the announcement that the Duke case will be dismissed.

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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Copyright © 2007 by Michael J. Gaynor
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