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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:  June 14, 2007
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Duke Case: Disbarring D.A. Nifong Is NOT Enough!

When the pending ethics case against Mr. Nifong is concluded, it should be clear even in Durham that Mr. Nifong is guilty of worse than wishful thing and recklessness.

On June 13, 2006, I was interviewed with respect to the Duke case on "The Morning Show with Ray Dunaway and Diane Smith" on CBS Radio's Affiliate WTIC News/Talk 1080 in Hartford, Connecticut. Among other things, we discussed the conduct (actually, misconduct) of Durham County, North Carolina District Attorney Michael B. Nifong. I opined that Mr. Nifong did not make a good-faith mistake in prosecuting the Duke Three (Reade Seligmann, Collin Finnerty and David Evans), but tried to railroad them.

If Mr. Nifong had jumped to an erroneous conclusion about what happened during the Duke men's lacrosse team's spring-break party last year, he would have dismissed all the charges himself, and not waited until December 2006 to dismiss the rape charges only.

In my opinion, disbarment and removal from office are not enough for Mr. Nifong. He never should have indicted any of the Three, much less continued the prosecution with the intention of trying it in the spring of 2007. He was rotten, not reckless, and he should be prosecuted, not protected from prosecution.

It's not only my opinion and it's not a recently formed opinion.

"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 and a certain Durham police officer should themselves 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."

"Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.

"But when a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed evidence, and when academics and journalists have joined in smearing presumptively innocent young men as racist, sexist brutes in the face of much contrary evidence it's not too early to offer tentative judgments."

So wrote Stuart Taylor, America's top legal commentator, in National Journal, in May of 2006.

Mr. Taylor was right, of course (and the parent of an unindicted member of the 2005-2006 Duke University Men's Lacrosse Team who quickly contacted Mr. Taylor and urged him to look into the Duke case, because he was sure that the rape, kidnapping and sexual offense charges were bogus).

In May 2006 I referred to the Duke case in article titles as "deplorable political prosecutions," "Tawana Two" and "the Duke 'rape' case.

In June 2006, in "D.A. Nifong: dissing Dr, King's dream in Durham," I lamented that "a shameless, opportunistic Southern white male is preventing a couple of white males from completing their college education as they have a right to do by pursuing a wholly unwarranted political prosecution that ingratiates him to blacks who have been misled as to the facts and blacks who don't care about the facts and makes him electable."

Mr. Nifong barely won the Durham County District Attorney Democrat primary, coming from behind, and would go on to win the general election with a plurality (NOT a majority) of the votes.

Finding Mr. Nifong loathesome, I wrote in an article posted on June 13, 2006:

"...Mike Nifong...should be frog-marched out of his office for egregious prosecutorial misconduct in precipitously seeking rape, kidnapping and sexual assault indictments against three Duke lacrosse players and shamelessly failing to have the indictments dismissed after it became apparent that the indictments were not only unwarranted, but based on his grossly misleading presentations to a judge and a grand jury.

"These days Mr. Nifong is stonewalling. He went silent after initially trying the case in the press. Then the defense responded by releasing pertinent fact after pertinent fact that not only effectively destroyed his case, but exposed it as a deplorable political persecution instead of a principled prosecution. NOW he won't discuss the case in public. (He's a shameless opportunist, but not THAT stupid.)"

In "Concerned Americans, let North Carolina hear from you, posted on June 14, 2006, I concluded:

"The Duke lacrosse rape case itself is a travesty of justice. The accuser and the prosecutor need punishment and/or mental health help, not the three indictees.

"All Americans who care about the state of the criminal justice system have a stake in this case. Rapes should be prosecuted to the fullest extent of the law, and so should false accusations of rape by opportunists (including an opportunist who would hope to profit by a false charge and exacerbate racial tension by targeting people of a different color)."

In "Durham D.A. Nifong and prosecutorial ethics," posted on June 19, 2006, I ended this way: "Mr. Nifong, it's time for you to have the indictments dismissed and to resign as district attorney and to surrender your license to practice law."

In "Mike Nifong makes Newsweek look great," posted on June 20, 2006, I reiterated: "Mr. Nifong, JUSTICE would be best served by (1) dismissal of the indictments, (2) investigation of the accuser and you, and (3) you leaving the practice of law, voluntarily or involuntarily."

In "Give it up, Mike Nifong! Even Ruth Sheehan says so," posted on June 25, 2006, I ended: "IF Mr. Nifong had evidence to support the indictments, he would not need to be put out of his misery. As it is, he needs to off the case, out of office and disbarred."

At the end of June 2006, in "Duke case: Does the prosecutor need prosecuting," I reported the DNA test results and went further:

"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.

"And the DNA results should have led Mr. Nifong to conclude that the indictments should be dismissed.

"But, Mr. Nifong, for whom the black vote was decisive in his Democrat primary win last April, still has to face the voters in November, and pretending that he has a case may seem preferable to admitting an egregious mistake.

"The key question now is not whether any of the Duke Three are guilty of any of the charges against them they are not but whether Mr. Nifong is reckless and stubborn, or worse.

"Mr. Nifong should be polygraphed. Ironically, he may be one who should be prosecuted."

Eventually Mr. Nifong was compelled by Judge Osmond Smith to produce to the defense the documentation that shows that he had concealed exculpatory evidence [that DNA in or on false accuser Crystal Gail Mangum from multiple males that I reported on June 30, 2006] and made misrepresentations to both the court and the defense lawyers. (Getting Mr. Nifong to agree to Judge Smith talking over the case was critical.)

The prosecution inevitably collapsed after that.

When the pending ethics case against Mr. Nifong is concluded, it should be clear even in Durham that Mr. Nifong is guilty of worse than wishful thing and recklessness. Mr. Nifong is the first North Carolina district attorney to be tried for alleged ethics violations. Let his next first be first North Carolina district attorney to be criminally prosecuted.

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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