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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:  May 8, 2007
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Duke Case: LieStoppers, Yes; Brad Bannon, No

North Carolina's criminal justice system needs major reform, not fine tuning.

I enthusiastically applaud LieStoppers' disturbing May 6, 2007 article entitled "NC DA's Push For Legalized Nifonging," NOT David Evans attorney Brad Bannon's much too favorable appraisal of North Carolina's legal system. With the Duke case finally dismissed and the North Carolina State Bar apparently targeting only Durham County, North Carolina District Attorney Michael B. Nifong, the redoubtable LieStoppers (lauded by America's top legal commentator, Stuart Taylor, Jr., for "an amazing performance of journalism on the fly") are still focused on fixing North Carolina's flawed criminal justice system and frustrating the current prosecutorial effort to permit the disclosure of some exculpatory evidence to be delayed, while Mr. Bannon is treating the Duke case as a local aberration instead of something symptomatic of significant underlying problems.

Thanks to North Carolina's open-file discovery law passed in 2004, a North Carolina prosecutor no longer can wait to hand over witness statements to the defense until the witnesses testify. That helped the defense to finally secure the dismissal of the bogus charges in the Duke case, but it was not enough: the world also had to be shown that exculpatory evidence had been concealed and it took until mid December of 2006 for the defense to do that.

LieStoppers had suspected that self-interest had prompted the North Carolina Conference of District Attorneys' split with Durham County, North Carolina District Attorney Michael B. Nifong last December and said so then.

Besides calling upon Mr. Nifong to recuse himself from the Duke case, the Conference's public statement gratuitously set forth the case for the proposition that ample safeguards were in place, as follows: "There are a number of safeguards in place under our laws to regulate actions taken by a District Attorney as well as sanction prosecutorial misconduct. (1) The voters in a prosecutorial district provide the first safeguard - they pass judgment on the qualifications and conduct of the persons who seek the job by casting their votes at the ballot box. (2) Ultimately the courts in each jurisdiction review and rule on each individual case that a District Attorney prosecutes to determine whether the District Attorney has followed proper procedure and the case is legally sufficient. The District Attorney is an officer of the court. The courts have authority to impose various sanctions such as contempt or dismissal of the criminal charges if the court finds prosecutorial misconduct. (3) The North Carolina State Bar has the authority to enforce the rules of professional responsibility that govern all attorneys including prosecutors; there are a number of rules that uniquely apply to prosecutors. The State Bar determines whether or not a District Attorney has violated those rules and, if so, what sanctions are appropriate. (4) N.C.G.S 7A-66 sets forth the statutory procedure for removal of a District Attorney from office. Among the grounds for removal are willful misconduct in office and conduct prejudicial to the administration of justice which brings the office into disrepute. A judge of the Superior Court rules on all issues presented in any sworn affidavit submitted in such removal proceedings. (5) District Attorneys are subject to the provision of the recently enacted State Ethics Act; complaints against a District Attorney that are lodged under the law are reviewed and acted upon by the Senior Resident Superior Court Judge in the District. With these many safeguards in place, the conduct of District Attorneys is thoroughly regulated probably more than that of any other judicial officer in our legal system.”

The Conference's public statement was a plaintive plea by the other 99 North Carolina district attorneys not to regulate them further. It was made after Mr. Nifong's concealment of exculpatory evidence had been exposed, reportedly due to the diligence of David Evans defense attorney Brad Bannon. (The Conference was not moved to issue a statement by Mr. Nifong outrageous public statements with respect to the Duke case made before the Democrat Durham County District Attorneyprimary on May 2, 2006.)

In their latest article, the prescient folks at LieStoppers opined, "The unprecedented statement from the North Carolina Conference of District Attorneys revealed not only that Nifong had become a pariah among his peers, but also that the state’s elected district attorneys shared a concern that they would all suffer if Nifong’s ripples caused the General Assembly to enact stricter safeguards."

To LieStoppers (and me), "[t]he inclusion of this painstaking outline of supposed safeguards in the NCCDA statement calling for Nifong to recuse himself, makes clear the aversion with which the group viewed additional state regulation, and their expectation that, without their unprecedented intervention, one Nifong ripple would likely lead to exactly that."

Politics as usual rearing its ugly head when reform is needed instead.

What prompted LieStoppers to refocus on that public statement by the Conference was the Conference's subsequent attempt to convince the North Carolina Legislature to pass a bill that would roll back parts of the 2004 law that helped the defense lawyers show the innocence of the three young men charged in the Duke case and give district attorneys and their staffs greater leeway to withhold details from some interviews with witnesses and investigators.

LieStoppers: "Confirming our expectation that the NCCDA primarily moved against...Nifong in order to influence the General Assembly and not for the sake of justice, Anne Blythe reported on the efforts of the NCCDA to lobby for new legislation. One such bill, dubbed by some the 'Nifong Protection Act,' seeks to legally allow North Carolina prosecutors the same opportunity to withhold evidence from potentially innocent defendants as Nifong illegally did in the Durham Hoax."

"Predictably, the NCCDA ignores the rampant withholding of evidence that prompted the open file discovery law in the first place and attempts to maintain the illusion that Defendant Nifong’s misconduct, characterized as 'offensive' by NC Attorney General Roy Cooper, were the isolated actions of one rogue prosecutor."

"Although the NCCDA attempts to paint the egregious misconduct of rogue prosecutor Nifong as an atypical aberration and asks that other prosecutors not be held accountable for his misdeeds, an examination of similar misconduct by several other North Carolina prosecutors serves as a reminder that the open file discovery law not only predates the Durham Hoax, but also was enacted due to the questionable actions of many other prosecutors. While Gell’s case is perhaps the most prominent instance of pre-Durham Hoax prosecutors withholding evidence in order to obtain a wrongful conviction, countless other examples can be found to demonstrate the need to prevent prosecutors from having the ability to totally decide on their own, without any oversight, what evidence they will or will not share with defendants."

Brooklyn College History Professor Robert K.C. Johnson, in a post on his Durham-in-Wondrland website entitled "Brad Bannon: The Unknown Soldier" about David. Dixon's interview of Mr. Bannon, summarized Mr. Bannon's views on the role of the blogs vs. the mainstream media in the Duke case as follows:

"Bannon feels that information from blogs was often more reliable than information from the mainstream media about this case. 'I think that trend followed other trends in blogs about politics, current events, and the War in Iraq,' explained Bannon. 'That was one of the most fascinating things about the news coverage of this case. It wasn’t the mainstream media trying to outdo each other in service to pre-existing meta-narratives. It was people who didn’t have the compensated, corporate backing of the mainstream media and said, "Hey, let’s focus on facts and not an agenda." I know other cases have been discussed on blogs before, but this might be the first case to get this much attention in the blogosphere. And, just like the mainstream media, some of it is reliable, and some of it isn’t. I personally believe there should be standards for bloggers, like putting their real names on their blogs, like Professor KC Johnson has done in this case with his site.'"

I agree about the blogs having done what the mainstream media should have done and the appropriateness of bloggers using their real names (as I have done since I first wrote an article for Internet posting).

But I am disappointed that Mr. Bannon is lauding the North Carolina criminal justice system and treating the Duke case as a bump on the road of steady progress (without a word as to how hard some of that progress was to obtain--for example, then Attorney General and now Governor Michael Easley vehemently, but unsuccessfully, opposed, both before and after enactment, a provision giving death row inmates the right to all police and prosecution files to help with their appeals).

Mr. Dixon quoted Mr. Bannon as saying that he would like to shout from the mountain tops, “I am not going to let the view of North Carolina’s criminal justice system to America be [the Duke] case.”

Lord have mercy.

The Duke case is explained by North Carolina's politics and its criminal justice system. Mr. Nifong tried to railroad Reade Seligmann, Collin Finnerty and David Evans because it was the way for him to win the Democrat primary for Durham County District Attorney (tantamount to election in Democrat-dominated Durham County). There were people in the Durham Police Department and the Durham County District Attorney's Office who enabled Mr. Nifong or looked the other way instead of blowing the whistle on him. The case probably would have proceeded to trial if Judge Osmond Smith had not replaced Judge Kenneth Titus (the judge who issued an unconstitutional gag order on potential witnesses, including the defendants) and on September 22, 2006 not only removed the gag (thereby permitting the defendants to be interviewed by the late Ed Bradley for the "60 Minutes" expose on the Duke case finally broadcast on October 15, 2006), but ordered the production of the underlying documentation that showed that false accuser Crystal Gail Mangum had been a multiple male DNA depository on the night of the Duke men's lacrosse team party on March 13, 2006 over the opposition of Mr. Nifong and the man who agreed with him not to fully report the DNA test results, Dr. Brian Meehan.

Getting Mr. Nifong to stipulate to Judge Smith taking over the Duke was great lawyering. Would his pro-Nifong predecessor judges have ordered the production? I hope so, but I wouldn't want to have to count on it. Their performances in the Duke case should be reviewed.

That underlying documentation contained what I had reported it contained in a June 30, 2006 article entitled "Duke Case: Does the Prosecutor Need Prosecuting": "Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males."

The presence of multiple male DNA not only contradicted Ms. Mangum's statement about what she had and had not done before arriving to "entertain" on the night of March 13, 2006 and thus further undermined the credibility of a person with a criminal, medical and sexual history that cried out for confirmation of any charge she made, but also raised the question as to when Mr. Nifong planned to share that information with the defense.

Last December Mr. Bannon let the world know that Mr. Nifong had planned NOT to reveal it and agreed with Dr. Meehan that it would kept out of Dr. Meehan's report.

It was a wonderful moment, but once the underlying documentation was produced, it really was inevitable (unless there had been falsification) and a DNA expert could examine it and interpret the data accurately). Mr. Nifong had crossed a Rubicon back in April of 2006. He fought not to turn over the underlying documentation, but lost. He then turned it over and he was doomed. Dr. Meehan really had no way to justify and was stuck having to own up to what he had done.

Mr. Bannon: “In the Duke case, our clients are factually absolutely innocent, but as criminal defense lawyers, we often represent guilty people who are rightfully charged."

Mr. Bannon is absolutely right about the innocence of Reade Seligmann, Collin Finnerty and David Evans, each wrongly and wrongfully indicted for kidnapping, rape and sexual offense, and about criminal defense lawyers (himself included) representing guilty people rightfully charged.

Unfortunately, that business choice of defense attorneys poses a problem for the innocent: criminal defense lawyers who represent both those wrongfully charged and those rightfully charged tend to defend both the same way, their protestations that all their clients are innocent are not believed and defense lawyers are reluctant to challenge the conduct of the prosecutor, for the sake of their other clients and their business interest.

It was the late Kirk Osborn, a Reade Seligmann attorney, who bravely did was morally right, but potentially professionally suicidal. HE is the hero of heroes among the lawyers on the case, for reasons generally known and not generally known. His course of action was principled, in the best tradition of the legal profession, but not professionally safe or politically wise, much less politically correct.

Mr. Bannon chose to defend the reputation of the North Carolina criminal justice system, but it is hardly as innocent as each of the so-called Duke Three and even Mr. Bannon conceded that some reform is in order.

Professor Johnson reported Mr. Bannon's rosy view of the North Carolina criminal justice system this way:

"As proof of North Carolina’s legal progression, Bannon cites numerous examples. 'In the past several years, North Carolina has acted progressively in all branches of government to improve the fairness of our state’s criminal justice system. In 2000, we established the Indigent Defense Services Commission to oversee the provision of legal representation to indigent defendants and to develop training, qualification, and performance standards for that representation. Joe Cheshire [the lawyer who hired Mr. Bannon and now his senior partner] was instrumental in the establishment of IDS and is still the Chair. In 2002, our then Supreme Court Chief Justice established the North Carolina Actual Innocence Commission to study issues related to wrongful convictions and to recommend changes in criminal law and procedure to avoid such miscarriages of justice.

"The Commission’s first major action was a comprehensive study of how to avoid one of the leading causes of wrongful convictions: mistaken or false eyewitness identifications. The study produced the North Carolina Actual Innocence Commission Recommendations for Eyewitness Identification, which were implemented by numerous law enforcement agencies in North Carolina, including the Durham Police Department by General Order 4077 dated February 1, 2006, though that order was ignored and violated during the PowerPoint ‘identification’ just two months later in the Duke case. In 2004, our state’s Conference of District Attorneys and criminal defense bar came together to recommend passage of North Carolina’s open-file discovery law, which went into effect in October of that year and required the complete files of all law enforcement and prosecutorial agencies in felony prosecutions to be provided to the defense. In 2006, we established the North Carolina Innocence Inquiry Commission, the first statewide commission in this country established to review claims of actual innocence by convicted prisoners. Wade Smith [Collin Finnerty chief North Carolina attorney] sits on the Commission. So you can see that North Carolina as a whole has acted progressively and consistently over the last several years on many fronts to improve the fairness of the criminal justice system and has, in fact, been a nationwide leader in some of those efforts. You can also see that defense lawyers in the Duke lacrosse case have been actively involved in those reforms.'

"Bannon also says that the relationship between defense attorneys and prosecutors in North Carolina is much more cordial and professional than that seen in the Duke case with the original prosecutor. 'Most of us recognize that we are all professionals, and we all play necessary roles and have special responsibilities that work toward one goal: the fair administration of criminal justice in our state. I assure you, it gives me no pleasure to be in an antagonistic professional stance with a prosecutor, and I’m usually not. This case is an anomaly, and North Carolina is not a backwoods, regressive society. We are progressive, particularly in the area of recognizing flaws in our criminal justice system and constantly working to improve it. The train has long been on that track of progression, and it was only derailed in people’s minds as a result of this case.'"

I'm sure that it does not give Mr. Bannon "pleasure to be in an antagonistic professional stance with a prosecutor," but his train story is spin. In North Carolina, a prospective defendant can't address the grand jury and there is not a statutory ground for dismissal "in the interests of justice" (as there has been in New York for a long time).

Yes, Mr. Bannon, as a defense attorney, wants some reforms, but as a defense attorney practicing in North Carolina, he lauds his state and the people in office and minimizes the great need for reform.

Professor Johnson:

"Future Reforms in Criminal Procedure Law

"But Bannon does believe that this case highlights the need for additional improvements in certain aspects of criminal procedure. 'I would hope the legislature would explore Grand Jury reform. One of the things we absolutely know is that the lead police officers and prosecutor who were in charge of this case in Durham had meetings with experts about DNA. We know those experts told them that they discovered DNA from multiple people that did not match any of the accused. It would be fascinating to know if that information was presented to the Grand Jury in Durham. The only way we would know that is if there was a record of the Grand Jury testimony, and we do not have that requirement in North Carolina. Unlike federal court, in state court in North Carolina, the Grand Jury is a secret proceeding and not recorded in any way.'"

No grand jury record in a state that has been progressing so nicely for so long. Imagine that!

The late Kirk Osborn will be missed. He realized that Mr. Nifong ought to be removed from the Duke case and he filed a motion for removal when lawyers for the other defendants, including Mr. Bannon, were still treating Mr. Nifong as though he was acting in good faith instead of malevolently.

North Carolina's criminal justice system needs major reform, not fine tuning.

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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