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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:  June 17, 2007
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Duke Case: Sorry, Guys!

As Mr. Taylor rightly says, "one thing that journalists learn that actually makes sense is that if you have an important revelation, it should be at the beginning of the article--not deep down when people might miss it." So, to the team members: "Sorry, guys!"

Short titles (or articles) are not my forte, but this time at least I have a short title.

On the day that Durham County, North Carolina District Attorney was disbarred (June 16, 2007), I was talking about the Duke case instead of writing about it. I relished the news that Mr. Nifong had been disbarred when I heard it, but I already had written that his disbarment had become inevitable and I meant it, of course, so I was not surprised: the spotlight guaranteed that justice would be done.

When I came home at night and checked my email, there were two of particular interest.

One emailer asked if I had written an article about Mr. Nifong's disbarment.

I puckishly emailed back: "My last article stated that Nifong's disbarment was inevitable. I declined to write an article congratulating myself for that statement. Modesty is a virtue."

The other emailer took me back nearly a year, writing:

"As a Duke alum, my interest in the Duke lacrosse scandal is obvious, but I'm amazed that I've only now come across your June 20, 2006, editorial about the matter. While certain half-hearted and delusioned apologies may be too late, particularly those made before the North Carolina DHC yesterday, I offer belated kudos for your prescient commentary. You essentially penned the disciplinary committee's order a year in advance -- I'm impressed that you were able to connect the dots to this hoax long before the hoax fully unraveled. I'm certain you have received other notes of appreciation in the past for your published position, and I wanted you to receive at least one more."

The article to which the Duke alum referred was entitled "Mike Nifong Makes Newsweek look great" and posted on June 20, 2006.

It read:

"The latest issue of Newsweek made Durham District Attorney Mike Nifong freak. 'DUKE: SHOULD THE CASE BE DROPPED?' appears at the top of the cover. The article inside makes it virtually certain that the answer is yes. Example: 'THE PROSECUTOR INSISTS HIS RAPE CASE IS STRONG. ONE BIG PROBLEM: THE FACTS THUS FAR.' Mr. Nifong is partial and utterly wrong, and he should never have been admitted to the bar.

"Give Newsweek due credit: this time it's right. The Duke case is Tawana Brawley Two; dismissing the indictment immediately is the right thing to do; Mr. Nifong's political and legal careers soon should be through; and, for Newsweek, the article is a coup.

"The article begins by reporting a choice that did the entire Duke lacrosse team proud (unlike the choice of 'entertainment' for that infamous party last March): 'The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as "overbroad," too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)'

"Susannah Meadows, who co-authored the Newsweek article with Evan Thomas, had emailed Mr. Nifong while the article was being prepared and asked to talk with him about 'questions about what was known while [he] was making certain assertions.'

"Mr. Nifong emailed back: 'I am afraid that I must decline your request for interview.'

"It makes sense to me that he was 'afraid.' If I were Mr. Nifong, I'd be afraid too. And I would have declined to talk with Ms. Meadows too, since talking with her probably would make things worse for me.

"Mr. Nifong strikes me as both a bully and a 'discretion is the better part of valor' guy. It required valor to refrain from seeking indictment prematurely. Mr. Nifong secured premature indictments, and managed to win that Democrat primary, so that he could keep his job.

"Interestingly, Mr. Nifong in his email reply tried to make a case that he was discrete, writing: 'All of my public comments in this case were made prior to any specific defendant being identified, and were essentially restricted to 1) my belief that the victim had in fact been sexually assaulted at the 610 N. Buchanan Blvd. address, and 2) my hope that one or more of the persons who were present but not involved with the assault would cooperate with the investigation. Once specific defendants were identified, I considered myself to be ethically bound to avoid any further comments on the case or the evidence. This has left the field pretty much open to the defense attorneys. That part, I understand and have no choice but to live with.'

"The most egregious flaw with Mr. Nifong's position is his belief (really, hope) that the accuser was a victim. He raced to indict without waiting for DNA results. He gave the accuser photos of all the white members of the Duke lacrosse team and let her pick. No photos of others, as there should have been, to test her identification. An operating assumption that the accuser, despite her employment, medical and criminal histories, was credible, and at least some of those white lacrosse players had to be guilty, whether or not corroborating evidence was available.

"There was a time when blacks were lynched based on baseless accusations. This time three white men were indicted and jailed (until they each posted $400,000 as bail) on baseless charges. Oh well. At least they were not lynched.

"Mr. Nifong then expressed his self-pity: 'What has surprised me is the utter lack of any degree of skepticism on the part of the national media with respect to the claims of the defense attorneys, many of which are misleading and some of which are absolutely false. As an example, when those attorneys held press conferences to announce that the first round of DNA testing 'completely exonerated' the players (a claim that, of its face, is rather preposterous), I saw not one single report that any reporter had actually seen the test results (none of them had), or had asked to see them and had that request denied (which is what happened to those who bothered to ask). Now you are going over "documents" in that case. Where did you get them? What other documents did they not show you? But, of course, you cannot possibly know that. Is anyone surprised that the defense attorneys are spinning this case in such a way that things do not look good for the prosecution? Their job, after all, is to create reasonable doubt, a task made all the easier by an uncritical national press corps desperate for any reportable detail regardless of its veracity. Did not exactly the same thing happen with the Michael Peterson case in 2003? Do you recall how that one came out at trial?'

"Michael Peterson was convicted of killing his wife, Mr. Nifong. There was no doubt that she was killed. In the Duke case, it's now clear that no one was raped. You used the national media when it suited your purposes and then castigated them when the baselessness of your case became apparent. You did so in conclusory terms and cited but one example: overstatement as to the significance of the first round of DNA test results. And you complained that the press did not have copies of the report on the test.

"Let's be real, Mr. Nifong. You seemed to believe that DNA tests would make your case, but DNA tests showed that the accuser had sex with several men but no DNA of even one Duke lacrosse player was found. The players were not 'completely exonerated' solely by the test results, but the totality of the circumstances completely exonerates them and constitutes reason for you to move to dismiss the indictments and to investigate the accuser. If you are desperate to indict for rape, based on some type of physical evidence, indict that vibrator? It does not have feelings, family and friends. It does not have a life to live, a college education to complete, a personal reputation to maintain.

"Mr. Nifong continued: 'Now, to get specific, what are you accusing me of saying in public "when the facts were known to be different?" None of the "facts" I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion I expressed initially. I have seen quite a bit of media speculation (and it is even worse on the blogs) that either starts from a faulty premise or builds to a demonstrably false conclusion. That is not my fault (although some of your colleagues have acted as if it were). The only people I have to persuade will be the twelve sitting on the jury, and if you want to know how I am going to do that, you will need to attend the trial. If, in the meantime, you and other "journalists" want to continue your speculations in the competition to come up with the most sellable story ó and that seems to be everyone's bottom line ó then please spare me the recriminations when you get things wrong, as you inevitably will.'

"First, it is you who got in wrong, Mr. Nifong. Horribly wrong.

"Second, you did not get 'specific,' you got conclusory.

"Third, your job is NOT to persuade twelve jurors to convict whomever you have caused to be indicted. Your job is to be fair and impartial, not partial or partisan, and, in the words of the United States Supreme Court, to 'be quick to confess error when...a miscarriage of justice may result from their remaining silent.'

"Obviously the DNA results did not make your case and your witness (the accuser) has been shown to be untrustworthy. The young men indicted are entitled to have their indictments dismissed. If they were black and the accuser was a white female with her history, would you have suggested Ms. Meadows attend the trial? Or would you have raced to dismiss even faster than you raced to indict?

"Mr. Nifong concluded: 'Not that this will make the slightest but of difference to you, but the real irony of this whole situation from my point is 1) that my initial cooperation with the press was based not on any perceived political advantage to be had, but on my (in retrospect, admittedly naive) belief that such cooperation effectuate a more accurate public discourse on an issue with great societal resonance; 2) that my initial comments on the situation before there was a case against any identified defendant which would trigger the ethical rules resulting in my being accused of unethical behavior, and now my silence, which is mandated by those ethical rules, is apparently raising further speculation about the ethicality of my behavior; and 3) the lesson I have learned from all of this is that I probably would be best served in the future by avoiding speaking to the press at all.'

"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. Anyone who gives credence to what you described as your 'point of view' has been 'had,' to use your word.

"Also, Mr. Nifong, does you blanket criticism of the national press corps apply to the North Carolina press too?

"I note the following from the final edition of the May 16, 2006 issue of Raleigh, North Carolina's The News & Observer:

'For more than six weeks, Cheshire [a defense attorney] and Nifong have criticized each other through newspapers and television cameras. They apparently have not spoken with each other about the case. On Monday, their acrimony seemed to have escalated into all-out war.

'In a profanity-laced tirade Monday morning, Nifong told one of Evans' attorneys that he was unhappy with the Friday news conference. In addition to discussing the test results, Cheshire accused someone in the District Attorney's Office of leaking the test results to the media.

'Nifong told lawyer Kerry Sutton that he would do no more favors for Cheshire. The comment and the swearing could be heard clearly across the sixth floor of the courthouse. A short time later, Cheshire tried to get a few minutes with Nifong but was told the prosecutor was not available.

'Cheshire acknowledged the bitterness at the news conference.

'"After Mr. Nifong made all his statements and we heard there were going to be indictments, we called over and tried to talk to him, and he refused to talk to us. He's refused to look at the exculpatory evidence, and when there is someone who will simply not act professionally and discuss things with you in a professional way, how else do you do things?" Cheshire said.

'"When you have someone's life in your hands, anybody who would say it's not war is not somebody I'd want representing me.'"

"Is that report accurate, Mr. Nifong?

"Was there MORE that could have been reported, Mr. Nifong?

"On the Monday morning (May 15) after the Friday news conference, did you have a meltdown and scream obscenities like a raving lunatic at Kerry Sutton?

"The Kerry Sutton who is a defense lawyer and had been a friend and campaign supporter of yours?

"Were you so in the lady's face that your spit landed on her?

"Do you customarily spit on other attorneys?

"Did you use the MF word?

"Did you suggest that you would perform a sex act involving her?

"Were there witnesses?

"Do you really think you have been fair and objective with respect to the Duke case?"

Defense lawyer Brad Bannon, who confirmed several months later what I had reported in the June 20, 2006 article about the presence of multiple male DNA not from any Duke lacrosse player, emailed me last month. After lamenting "how little I knew about the case" (a potentially dangerous challenge), he proceeded to tell me about the May 15, 2006 incident about which I had written in my June 20, 2006 article, as follows: "Mike Nifong didnít necessarily threaten Joe with discipline, but on May 15 (the morning Dave was indicted), he threatened to rip his balls off in a profanity-laced tirade to Kerry Sutton. You know why he did that? Because Joe had been calling him out since Day One and had just called a press conference that Friday night to announce the results of the DNA Security tests (well, at least those we had been provided at the time). Then when Joe went to confront Nifong about the threat when he was told about it moments later, Nifong refused to come out of his office and make the threat to Joe himself."

That's the kind of misconduct that should have been reported to the North Carolina State Bar. I hope Kerry Sutton and Mr. Cheshire reported it, since not reporting what should be reported is bad too.

Mr. Bannon is right about his senior partner having bravely stood up for the innocence lacrosse players and having been abused (verbally) by the now disbarred cowardly bully, but the person most responsible for the public vindication of the players and the public disgrace and disbarment of Mr. Nifong (besides Mr. Nifong himself, of course), is the late Kirk Osborn, the attorney who represented Reade Seligmann during the darkest days and did what other defense lawyers did not: move to have Mr. Nifong removed from the case based on his unethical behavior. God bless you, Mr. Osborn! It took a lawyer who exemplified the highest ideals of the legal profession to put his name on such a motion. It took Kirk Osborn. (Ironically, if the pro-Nifong judges who sat on the motion instead of granting it had granted it, Mr. Nifong would have been embarrassed, but he would not be disbarred now.)

Mr. Nifong's disbarment is also cause for special celebration of and for Stuart Taylor, America's top legal commentator, who wrote of Mr. Nifong's misconduct back in April of 2006, called for a criminal investigation of him and wrote that "the available evidence le[ft] [him] about 85 percent confident that the three...who have been indicted on rape charges are innocent and that the accusation is a lie" in May of 2006. Then a handful of us were writing in support of the players and in condemnation of Mr. Nifong and Duke and the only academics doing so were Robert K.C. Johnson, a Brooklyn College history professor whom Mr. Taylor described as "obscure" and economist William L. Anderson of Frostburg State University in Maryland (so much for Ivy League educators exercising leadership!), whom Mr. Taylor also could describe as onscure.

Mr. Nifong's disbarment too is special cause for celebration for the parent of an unindicted player (lucky him!) who called Mr. Taylor after hell had broken lose and urged him to look closely into the Duke case because the mainstream media had it so terribly wrong.

The North Carolina State Bar has special cause for celebration. In the glare of the spotlight, it disbarred Mr. Nifong. But it rated at or near the bottom when it comes to ethics enforcement before the Duke case and what would it take for disbarment of a prosecutor if Mr. Nifong's misconduct was not deemed egregious enough to warrant disbarment?

What is tragic?

NOT Mr. Nifong's disbarment. He chose to be a minister of INjustice and his disbarment was just.

What is tragic?

These are tragic:

(1) the way the mainstream media (initially with Mr. Taylor as the sole exception, and then came MSNBC's Dan Abrams, Sean Hannity amd some others) treated false accuser Crystal Gail Mangum (absurdly favorably), the members of the 2005-2006 Duke University Men's Lacrosse Team (grossly unfairly) and Mr. Nifong (undservedly positively);

(2) the way Duke University wrongly advised the players and then reflexively and wrongly sided with the political correctness folks railing about imaginary heinous crimes and abandoned its men's lacrosse scholar athletes (neither stripper was physically abused, much less raped, by any team member, at the off-campus spring break party or elsewhere, ever, and if Duke sports teams are to be punished for hiring strippers, why weren't the Duke men's basketball team and the Duke women's lacrosse team punished?;

(3) the way Mr. Nifong's enablers seem to be getting away with having enabled him to do what eventually got him disbarred (example: former ADA Ashley Cannon, do you FINALLY have some things to report?);

(4) the way playing the race card worked so well for Mr. Nifong with Durham County, North Carolina blacks (Mr. Nifong coming from behind to win that Democrat primary, barely, by pandering to gullible blacks who wanted to believe "the African princess" and hard-working single mom struggling to feed her children and better herself in a racist society was a true victim and those white, well-to-do or even wealthy Duke lacrosse players were savages, WAS an accomplishment, albeit a shameless one); and

(5) the time it took to have all the bogus charges dismissed (the case had to won in the courtroom of public opinion, by publicly discrediting the readily discreditable false accuser and rogue prosecutor and, thanks be to God, the late Mr. Osborn knew what needed to be done and, braving the wrath of Mr. Nifong and his political and professional allies, he did it, paving the way to vindication for the lacrosse players and vilification for Mr. Nifong.

Mr. Bannon testified that he did not think there was multiple male DNA to be found: "Q: At that point, did you think there was additional male DNA found by DNA Security? Bannon: No.

WOW!

I reported it first in my June 20, 2006 article, to which Friends of Duke University linked, and repeated it in June 30, 2006 and September 8, 2006 articles, but as Mr. Taylor rightly says, "one thing that journalists learn that actually makes sense is that if you have an important revelation, it should be at the beginning of the article--not deep down when people might miss it."

So, to the team members: "Sorry, guys!"

I consider myself a commentator, not a reporter, so I put it where I thought it fit well in my commentaries, not at the top, in solid caps and red. My bad. Frankly, I thought the defense team and "60 Minutes" had been told too, which is why when I did report as news that "60" was on the case, I entitled my article "The '60 Minutes' season opener should close the Duke case." The expose was delayed until October 15, 2006 and "60 Minutes" offered Crystal-as-pole-dancer video instead of DNA results, but the die had been cast, because Judge Osmond Smith had taken charge of the Duke case and in September of 2006 lifted the gag order imposed by Judge Titus and ordered the production of the documentation that showed the multiple male DNA about which I first had written in June.

In a December 14, 2006 article entitled "As expected, persecution proof detected, I summed it up and praised the defense (which had magnificently managed to get Mr. Nifong to seal his doom by agreeing to Judge Titus--is anyone taking a close look at Judges Stephens and Titus?):

"'18. On April 8, 9, and 10, 2006, DNA Security analyzed the DNA profiles extracted from the cheek scrapings, oral swabs, vaginal swabs, rectal swabs, and panties from the rape kit items taken from the accuser at Duke Hospital in the early morning hours of March 14. While DNA Security's final report would not reflect the findings from that analysis, underlying documents provided to the Defendants on October 27, 2006, reflect that DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit; it was all compared to the known reference samples from the lacrosse players; and none of it matched any of the players.'

"What does THAT mean?

"It means that false accuser Crystal Gail Mangum's story of her sexual history in the days before the lacrosse team party last March is as false as her gang-rape claim.

"It means that the joint defense team did some great work.

"It ALSO means that the prosecution did not voluntarily turn over exculpatory evidence, as required under the United States Constitution and North Carolina law.

"That exculpatory evidence was buried in the documentation of the private lab that Durham County, North Carolina District Attorney Michael B. Nifong retained to assist him in prosecuting the Duke case.

"Significantly, in my view, Mr. Nifong and the lab fought hard NOT to provide that massive underlying documentation.

"But, Judge Osmond Smith properly ordered that the documentation be produced and the defense carefully '"mined'" it and struck 'gold' that exonerates the Duke Three and exposes Mr. Nifong as the opposite of the 'fair and impartial minister of justice' that a district attorney is supposed to be.

"[Mr. Nifong apparently thought he could prosecute the Duke Three with 'fool's gold,' but he and his supporters are the fools and/or scoundrels.]

"From the start, the Duke case has been a politically (and racially) motivated persecution by a rogue prosecutor, not a fair prosecution by a mistaken one. David Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J., aka the Duke Three, each was charged with rape, kidnapping and sexual offense after winning the unlucky white guys lottery that served as the identification procedure in the Duke case. They all pleaded not guilty, for the best of all reasons: THEY ARE NOT GUILTY! Fortunately, the truth is prevailing. The evil effort to railroad them that once looked so ominous and was so hurtful not only to the Three, but to their families and friends, will be...unavailing.

"As Duke Three supporters expected, persecution proof has been detected, and it's the turn of the false accuser (Crystal Gail Mangum) and the Durham County, North Carolina District Attorney (Michael B. Nifong) to be dejected. From the case, office and the North Carolina state bar, he should be ejected."

Mr. Bannon swore during the Nifong trial that he did not expect it and he was NOT one of those to whom I had sent one or more of my articles reporting the multiple male DNA, but, considering the list of persons to whom I sent the articles, I really am surprised that Mr. Bannon never got word about what to expect to find. (Fortunately, he's apparently good at reading underlying documentation and finding what he does not expect!)

Reality: I was hardly the only one waiting for the defense to pounce, of course.

North Carolina journalist and television personality Cash Michaels posted this message at TalkLeft:

"The day after Thanksgiving (Nov. 24), I attended a birthday party in Raleigh for a close friend. Close to the end of the party, a gentleman from Durham I know well and trust implicitly, took me to the side, told me he knew one of the technicians at the Burlington lab that did the second set of DNA tests, and that more DNA had been determined, but the results hadn't been made public yet. He didn't know why.

"He speculated that the undisclosed DNA belonged to one or some of the players, though he had no way to prove it.

"Since I'm not one of the DA's favorite people, there was no confirming this with Nifong's office. The source would not ID the tech. But last week I did get wind of the defense motion made public today that filled in the blanks. All that 'wind' confirmed was that there were previously undisclosed DNA samples, but not the source or sources of those samples.

"When I previously said I didn't know which way this would cut, that's why.

"Today we know."

Some people knew sooner.

Pray, resolve and work to make North Carolina genmerally and Durham particularly a place where good people who know the truth are not afraid to speak it, so people like Mr. Nifong are not tempted as Mr. Nifong was. Mr. Nifong's disbarment is a start. But much more needs to be done.

Pray, resolve and work to make Duke University what it is supposed to be, instead of what the Duke case showed it to be. Duke University President Richard Brodhead is not a lawyer, so he can't be disbarred, but he should be replaced and Duke should compensate the betrayed scholar athletes for all damages to which Duke's own acts and omissions contributed. Much, but hardly all, of the bad Mr. Nifong did is now public kmowledge. The public, especially Duke donors and potential Duke donors, need to know just how badly Duke treated the players, and not only the wrongly and wrongfully indicted ones. Duke should be rectifying, or at least trying to rectify, not refusing to admit and to take corrective action and paying silence. (The notorious punitive grading case brought by the Dowd family against Duke and perennial visiting Professor Kim Curtis for punishing an unindicted player by wrongly failing was quietly settled without an admission of guilt and with a confidentiality agreement and no discovery (craved by Duke), a P instead of a grade (reasonably requested by the Dowds) and Professor Curtis ridiculously scheduled to teach again this fall. MUCH better must be done before it can be proclaimed that truth and justice have finally won.

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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