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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 26, 2007
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Topic category:  Other/General

Duke Case: What Makes Nifong Different

Prosecutors should be severely sanctioned for both deliberate and reckless misconduct that severely prejudices accuseds, even when it is not as egregious as Mr. Nifong's misconduct in the Duke case.

When I wrote "Duke case involved societal prosecutorial abuse" last week for posting on June 25, 2007, I did not expect The New York Times' Adam Liptak's "Prosecutor Becomes Prosecuted" in The Times' June 24, 2007 Week in Review section. But The Times is doggedly disgraceful. Mr. Liptak's article is mind-boggling. The Times is still spinning furiously. Pity suspended Durham County, North Carolina District Attorney Michael B. Nifong as a victim of disporoportionate punishment or selective prosecution?

"THE misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Seemed to call? As in it's not really so?

Mr. Liptak: "Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent."

Unfortunately, prosecutors found guilty of severe ethics violations have not been punished severely enough.

I am not worried (should I be?) that suspended Durham County, North Carolina District Attorney Michael B. Nifong will replace Nancy Grace on Court TV.

Ms. Grace was a horror when it came to prejudging and covering the Duke case. But she never tried to frame blacks she knew to be innocent on bogus first-degree felony charges and send them to jail for decades in order to win an election by racial pandering to white racists.

"What makes Michael B. Nifong different?" Mr. Liptzak asked.

His answer:

"The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“'The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,' said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

Professor Gillers is a Times go-to guy on legal ethics matters, but THAT IS NOT WHY, PROFESSOR!

First and foremost, Mr. Nifong gambled big and lost huge.

Mr. Nifong persisted in a bogus prosecution long after any fair-minded prosecutor would have dismissed the charges.

Mr. Nifong proceeded to obtain indictments, notwithstanding DNA results, because he could.

Mr. Nifong chose to pursue the case in the courtroom of public opinion and made outrageous and deliberately racially charged public statements in the pursuit of election success, not justice.

Mr. Nifong was required to be a fair and objective minister of justice, but opted to become a minister of injustice, a persecutor instead of a prosecutor.

He got a taste of power and resolved to keep it, regardless of what he had told the person who had appointed him as interim district attorney, North Carolina Governor Michael B. Easley, and regardless of what it involved doing not only to the members of the 2005-2006 Duke University Men's Lacrosse Team and their families, but also, even more importantly, to Durham County, the State of North Carolina and the United States (not to mention Duke University, which disgraced itself and is trying to shift all the blame for what it did and did not do with respect to the Duke case to Mr. Nifong.

(Note to Duke President Richard Brodhead: You've bought some confidentiality agreements to avoid discovery and trial, but the contemptible Mr. Nifong is not to blame for YOUR failures and the on campus abuse of team members for being team members and the whole truth will become known, even thought it may take a while.)

“'If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,' Mr. Gillers continued, 'we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.'"

Tragically, that's true.

North Carolina has ranked at or near the bottom on legal ethics enforcement and it is the spotlight created by the national attention focused on the Duke case that necessitated Mr. Nifong's disbarment.

The whole story is not yet out.

The North Carolina State Bar received a complaint about Mr. Nifong's conduct with respect to his actions (including public statements) from a defense attorney even before grand jurors were mislead into issuing the initial indictments.

David Evans defense attorney Brad Bannon: "Mike Nifong didn’t necessarily threaten [Mr. Bannon's senior partner, Joseph Cheshire] 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."

Mr. Nifong became an out-of-control prosecutor in the Duke case and should have been charged by the North Carolina long before December of 2006.

Yes, the North Carolina State Bar was right to disbar Mr. Nifong, but it did not pursue all of the charges against Mr. Nifong that it should have and it took far too long to act.

That's why I wrote, in "Concerned Americans, let North Carolina hear from you!," posted on June 14, 2006:

"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).

"Please write to North Carolina's Attorney General...North Carolina's Governor...and the Executive Director of the North Carolina State Bar....

"Share your thoughts with them. Let them know that knowingly prosecuting innocent people for political purposes is a no no (regardless of race, color, creed, national origin or sex)."

I also suggested this language:

"Regarding the Duke University 'rape' case, it has come to my attention that an investigation into how the legal case developed and the actions of Durham County District Attorney Michael Nifong in particular is in order.

"It now appears that some of Mr. Nifong's actions were not only inappropriate, but an egregious abuse of the power entrusted to him for his own political/personal purposes.

"If so, his conduct has been grossly unprofessional and the State Bar needs to act.

"Much more than the futures and lives of three young men indicted on the basis of a misleading presentation of evidence is in your hands. The integrity of the criminal justice system and public confidence in it are in your hands.

"To be sure, the message must be sent that rape, sexual assault and kidnapping will not be tolerated.

"But messages also must be sent that a hoax will not be tolerated either, and the exposure of a hoax will not be delayed for political/partisan purposes.

"Gentleman, you did not ask for it, and you surely did not expect it, but the Duke University 'rape' case has become your responsibility. It is vital that you deal with it responsibly and expeditiously, for everyone's sake.

"Thank you for your anticipated attention to this now monumentally important matter."

Did the Democrat governor and the Democrat attorney general who owed election to a black bloc vote hasten to the rescue?

No.

What about the North Carolina State Bar?

WHAT ABOUT IT? It finally filed a complaint on Mr. Nifong's outrageous public statements, but only AFTER his concealment of exculpatory evidence had been suggested in a defense motion and dramatically exposed in court in December of 2006.

Mr. Liptak: "There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why."

Yes. But there should be widespread agreement that Mr. Nifong actions AND the spotlight left North Carolina no choice but to disbar him or look pathetic.

Mr. Liptak:

"...the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

"In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

"Two prosecutors received a reprimand.

"Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

"The chairman of the disciplinary commission, F. Lane Williamson, discussed those cases as he ordered Mr. Nifong’s disbarment last Saturday. 'In those two cases, the situation was very different, although you could look at it and say the harm that was caused by the conduct was greater,' Mr. Williamson said. 'In both of those cases someone was actually wrongfully convicted of a capital crime.'

"But the earlier cases differed from the case against Mr. Nifong, Mr. Williamson said, because neither one involved allegations of intentional wrongdoing."

Mr. Williamson, we criminalize attempted murder and manslaughter as well as murder. Prosecutors should be severely sanctioned for both deliberate and reckless misconduct that severely prejudices accuseds, even when it is not as egregious as Mr. Nifong's misconduct in the Duke case.

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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