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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 14, 2007
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Duke Case: Whitewash or Blackwash, The Dirt's Covered

If the Hoax had been a comedy instead of a real-life horror, it would bave been a different kind of scream!

Dr. William L. Anderson's latest article--"Duke and Durham: The Whitewash Continues"--lamented the state of the criminal justice system in Durham, North Carolina and deemed it beyond reform instead of pretending that Durham County, North Carolina District Attorney Michael B. Nifong alone was a fault and a bit of tinkering with the system will do nicely.

Dr. Anderson: "[Durham City Manager] Patrick Baker, in his whitewash of a report, simply confirms once again that the state is a lie, and that Baker has no interest in changing that fact."

I have not joined the reform-is-impossible school of thought, but I do appreciate a principled person who speaks plainly, albeit discouragingly.

Dr. Anderson:

"In the wake of the Duke Non-Rape, Non-Kidnapping, and Non-Sexual Assault Case, people have been asking how it was that such transparently false charges could have remained in play for as long as they did. Despite the fact that the first investigating police officer said shortly after hearing Crystal Gail Mangum’s numerous accounts on the morning of March 14, 2006, declared that she was lying, the case was pursued, indictments secured, and a process of state-sponsored injustice ensued.

"Stung by condemnation from across the country for the actions of its police force, Patrick Baker, the city manager compiled a brief report to examine 'what went wrong.' Those of us who have little confidence in an entity of government to point out how another entity of government engaged in malfeasance waited with very, very low expectations. On Friday, May 11, 2007, Baker released his report and, true to our expectations, it is a whitewash of great proportions."

For Dr. Anderson (a Marylander) and me (a New Yorker), it's easier to be blunt than it would be if we lived and worked in or near Durham, North Carolina. But that does not absolve North Carolinians, especially North Carolina lawyers, of the duty to speak out publicly (and clearly) with the courage of the late Kirk Osborn about the need for reform instead of to celebrate the end (finally) of the Duke case, applaud the progress made over the years in North Carolina's criminal justice system (slavery ended after the Civil War and Open-File Discovery became the law in the twenty-first century) and treat the Duke case as wholly aberrational instead of symptomatic of some basic problems.

The Durham Police Department found no wrongdoing by investigators in the Duke lacrosse case.

Are you surprised?

The report did NOT condemn the photo lineup used to help false accuser Crystal Gail Mangum come up with SPECIFIC victims of false accusation.

The report did note that Durham police worked with Ms. Mangum on six prior lineups according to police procedure -- and she did not identify anyone on any of those occasions. But it excused the notorious April 4, 2006 lineup as an attempt to improve Ms. Mangum's memory, not an attempt to identify. The goal supposedly was to help Ms. Mangum remember who was at the party and, magically, she suddenly identified Reade Seligmann and Collin Finnerty. Mr. Nifong, ever helpful, had merely suggested showing her the photographs of all the members of the 2005-2006 Duke University Men's Lacrosse Team (and anyone who thinks that he was not fair and objective, but insteaded was doing anything he could to get Ms. Mangum to identify some whites to indict and thereby satisfy those black voters complaining that blacks already would have been indicted if the female who cried gang rape was white and the men in her vicinity were black, are too suspicious).

If the Hoax had been a comedy instead of a real-life horror, it would bave been a different kind of scream!

"Given the ultimate use of the results of showing the witness those pictures on that day, we regret the inadvertent creation of the opportunity to perpetuate false charges against these individuals," Durham City Manager Patrick Baker wrote in a letter to Mayor Bill Bell and the City Council.

Inadvertent?

City Manager Baker told WRAL that the process was "flawed."

By this convenient characterization, David Evans attorney Brad Bannon was not awed.

Mr. Bannon called the Durham Police Department's self-serving finding "the ultimate dichotomy."

Dichotomy: "a division or the process of dividing into two esp. mutually exclusive or contradictory groups."

How about calling it what it is: deplorable?

Mr. Bannon's explanation:

"They're saying: 'We really weren't using this to develop information to charge people, but we used this as the only information to charge people.' It really begs an independent inquiry. Someone outside the Durham Police Department needs to investigate the Durham Police Department's handling of this case.

"Everyone who has touched this case has said that it was wrong from beginning to end, but there's no one held accountable for it being wrong. So, how can it be wrong and no one be wrong?"

Brooklyn College History Professor Robert K.C. Johnson offered one explanation long ago: Durham is Wonderland.

I offered another: the Duke case is a Democrat disgrace and exposing it fully is bad for Democrat politics (so things like former Democrat party chairman Wade Smith approving no prosecution of false accuser Mangum happen).

City Manager Baker doesn't think that an outside investigation is necessary and claimed not to be concerned about a possible lawsuit against Durham.

The man should be a finalist in the Alfred E Newman "What, Me Worry?" contest.

It would be much better if he is proven wrong, like Baghdad Bob.

But Durham is still Durham, so the report found that (1) Mr. Nifong was not in control of investigating the case and (2) police worked with prosecutors and independently to collect evidence.

"We were in charge of investigation -- both when we worked with the district attorney's office and when we were assisting the special prosecutors in their case," City Manager Baker said.

Mr. Nifong's prosecutorial immunity does not cover him as an investigator, so don't hold your breath waiting for him to dispute the police report and tell us that he really took charge of the investigation, because he's a take-charge guy.

The police report did identify a reason for the delay in putting an end to the Duke case: Mr. Nifong's relationship with defense attorneys hampered the police department's efforts to gather evidence. That relationship "was not conducive to an efficient and thorough review of the facts of this case,." according to City Manager Baker.

City Manager Baker chided the defense attorneys for not coming to the police with the evidence Mr. Nifong did not want to consider: "While I have seen media accounts suggesting the defense counsel made numerous attempts to present the district attorney with their exculpatory evidence, no such attempt was made … to present this information to the Durham Police Department despite numerous requests and opportunities to do so."

James Cooney, a Reade Seligmann attorney more experienced than Mr. Bannon, said in plain English that the claims are "simply not true."

Mr. Cooney didn't mention any dichotomy, but he did make a clear and compelling case, stating: "Seligmann provided an alibi in writing to the police and had evidence to back it up. Dave Evans had time-stamped photos of the dancer at the home that night that also backed Seligmann’s alibi. Also, there was DNA from 46 players.”

That's understandable without a dictionary.

Mr. Bannon too rejected blaming the defense: "It's not the failure of the defense attorney to provide information to the state. It's the failure of the state to investigate Crystal Mangum or her background."

But Dr. Anderson put it much better:

"Now, here is a case in which it has been demonstrated that police lied about the nature of the injuries to Mangum (according to the medical report, there were none, but police insisted there was 'blunt force trauma'), and then rigged a picture lineup in order to get warm bodies for indictment, but, no, this does not constitute 'wrongdoing.'" Professor Johnson was disgusted with the report too: "The report is out. It is divided into two parts, one a memorandum by City Manager Patrick Baker, the other a memo by Police Chief Chalmers. Both use the adjective 'typical' to describe the DPD's behavior in this case – all but begging a federal intervention."

Collin Finnerty attorney Michael Cornacchia asked for it long ago. So did a few Congresspersons, mostly Republicans led by North Carolina Congressman Walter Jones, but also a well known Democrat running for president by the name of Barack Obama.

Professor Johnson: "Baker clings to the preposterous story that the April 4 lineup wasn't a lineup, but rather an attempt to identify witnesses – even though (a) Sgt. Gottlieb told Crystal Mangum that everyone she would see the police believed attended the party; and (b) the police made no good-faith effort to contact any of those identified as 'witnesses.'"

It sure is "preposterous."

Dr. Anderson:

"Not only is the illegal lineup suddenly declared a non-lineup in which the police allegedly only were looking for 'witnesses,' but we now find out why it was that this case dragged on for 13 months: those defense attorneys who insisted on holding onto the exculpatory evidence themselves, as though the material could be unlocked only through a secret code. Writes Baker: 'I need to state that I am deeply troubled by the repeated allegations that the Durham Police Department investigators were not interested in discovering the truth in the matter or as the Raleigh News and Observer put it, "did not pursue basic evidentiary trails to learn what happened at the lacrosse party." The investigative file is replete with numerous attempts by our investigators to contact witnesses and their attorneys seeking exculpatory statements and evidence. Aside from the initial meeting with the team Captains (including David Evans) there was little if any exchange of the critical exculpatory information and evidence with the Durham Police Department that could have aided in bringing this matter to its rightful conclusion in the early stages of the investigation. One of the examples cited as evidence of our alleged indifference to the truth is the fact that our investigators never subpoenaed photographs apparently in the possession of Kevin Coleman. This assertion ignores the fact that our investigators made repeated requests of numerous attorneys to obtain copies of those photographs to no avail. Furthermore, these photographs along with a video recording and all of the remaining exculpatory evidence the Attorney General found to be so compelling in favor of dismissal were ultimately provided to the special prosecutors by the defense team without the need for a subpoena. In attempting to answer what I believe to be the penultimate question as to why justice took nearly thirteen months to arrive on the scene in this case, I would submit the answer rests primarily in the contrasting relationship between the defense team and the two prosecuting agencies in this matter. The working relationship between the Durham District Attorney’s office and the defense team during the first 10 months of this case was not conducive to an efficient and thorough review of the facts of this case.'"

Dr. Anderson found that "a most stunning paragraph" and roundly rebutted it:

"Attorneys from the beginning begged to meet with Nifong and the police, only to be rebuffed. When attorneys said they had exculpatory evidence, Nifong replied that he was 'not interested in reading fiction.' Another time, during a rare meeting with attorneys, Nifong simply put his hands to his ears to signify that no one had anything to say to him.

"Yet, according to Baker, there was nothing wrong with Nifong’s actions, as he declared that the interaction between the defense and the police and prosecutors was the 'typical relationship between the police and the prosecutor.'"

City Manager Baker undermines the position of Mr. Bannon, who said 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."

Dr. Anderson helped out Mr. Bannon by disputing City Manager Baker's credibility (somewhere between that of false accuser Mangnum and rogue prosecutor Nifong).

Dr. Anderson:

"Take Baker’s following statement: 'The investigative file is replete with numerous attempts by our investigators to contact witnesses and their attorneys seeking exculpatory statements and evidence.'

"That simply is not true. For example, police never interviewed the examining physician, Julie Manly, who spoke to no one until attorneys for the players interviewed her in October, 2006. Police never tried to speak to Jason Bissey, who was next door when the alleged rape occurred, and witnessed the angry exchanges between the lacrosse players and Kim Roberts and Mangum.

"However, police were very interested in Moez Elmostafa, the cab driver who picked up Reade Seligmann at about 12:20 a.m., supposedly at the same time that Seligmann was supposed to have been involved in a 30-minute beating and rape. In fact, they were so interested that they arrested him on a bogus shoplifting charge.

"You see, Elmostafa was a witness to exculpatory evidence, and, according to Baker, the police desperately wanted to find such information with which the attorneys were playing Battleship. So, we see just how truthful Baker really is; the police, when faced with someone who could give that information that they allegedly were seeking, were not interested and arrested him and tried to force him to change his testimony.

"(The police could not have arrested the security camera at the bank teller where Seligmann was photographed taking money out of an automatic teller shortly after Elmostafa picked him up. Maybe they could have arrested the bank branch manager.)

"The report goes on and on with the same kind of nonsense. There is nothing as to why a medical report that did not show any signs of a brutal rape that police claimed had occurred could lead to police claiming that Mangum was choked, raped, beaten, and sodomized. There is nothing as to why police destroyed all of the tapes from the first night – after the attorneys asked for those tapes.

"Instead, Baker insists that when the police came to the Duke dorms on a surprise visit on April 13, 2006, to 'interview' the players – knowing that the players had attorneys who were not present and would not have let the players speak to police – the police actually were searching for 'exculpatory evidence.' Right. The police, as we now know, were trying simply to make the players look guilty.

"All throughout the report, Baker insists that the police looked for nothing but the truth, but the players and their attorneys placed a 'wall of silence' between them. That is a bald-faced lie, period. If there is a 'wall of silence,' it is with the Durham Police Department, and now the lies that the police have told are being spun as the truth."

There should be a thorough federal investigation of the Duke Hoax, but that too would take political courage, so don't expect it.

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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