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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:  July 28, 2007
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Topic category:  Other/General

Duke Case: Nifong "Apology" and Other Nonsense

That "apology" was not real or meaningful. If Mr. Nifong had admitted he tried to frame the defendants in order to win an election, increase his pension and become famous, THEN it would have been real and meaningful.

During his ethics trial, former Durham County, North Carolina District Attorney Michael B. Nifong infuriated Duke lacrosse players and their families, friends and other supporters by saying that despite the overwhelming evidence to the contrary, he believed something happened in the bathroom during the night of the team party.

The joint defense team, led by David Evans lawyer Joseph Cheshire V, essentially traded their request to have Judge Osmond Smith order Mr. Nifong to pay for the hours it took Brad Bannon to realize what I had reported twice in June of 2006 and agasn in September of 2006: that false accuser Crystal Gail Mangum was a multiple male DNA depository on the night of that party, but none of the depositors played lacrosse for Duke, for this "apology" from Mr. Nifong:

"The last 16 months have proven to be a difficult and painful journey for my family and myself. This has also been a difficult and painful journey for Reade Seligmann, Collin Finnerty and David Evans, for their families, for Durham and the state of North Carolina.

"We all need to heal. I believe, however, that this healing process cannot truly begin until all proceedings involving this matter are concluded and everyone is able to go forward.

"I have resigned my position as Durham District Attorney as a part of this process.

"I have read the report released by the attorney general, including his recitation of evidence that I did not have, obtained from his own investigation. I agree with the attorney general’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty and Mr. Evans committed any of the crimes for which they were indicted or any other crimes during the party that occurred on March 13 and 14 of 2006 at 610 N. Buchanan Blvd.

"Mr. Seligmann, Mr. Finnerty and Mr. Evans were entitled to the presumption of innocence when they were under indictment. Surely, they are entitled to more than that now as they go forward with the rest of their lives. And that is what the attorney general tried to give them in his declaration that they are innocent.

"I have admitted on more than one occasion that I have made mistakes in the prosecution of these cases. For that, I sincerely apologize to Mr. Seligmann, Mr. Finnerty, Mr. Evans and to their families.

"It is my hope that all of us can learn from the mistakes of this case, and that all of us can begin to move forward. It is my hope that we can start this process today. Thank you."

Mistake: "a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention."

Mr. Nifong's use of he word "mistakes" is utterly inadequate and misleading. Mr. Nifong is pretending that after reading the report of the North Carolina Attorney General's office he realized that no crimes occurred at the party and the evidence that he had considered credible wasn't credible after all.

Mr. Cheshire: "For many months, we have sought a real and meaningful apology from Mr. Nifong for the pain he has caused these families and these young men."

That "apology" was NOT real or meaningful. If Mr. Nifong had admitted he tried to frame the defendants in order to win an election, increase his pension and become famous, THEN it would have been real and meaningful.

Besides, Mr. Nifong's "apology" does not change a word in the written statement given by David Evans to the police, including his report that another player he identified by name told him he "had" the strippers' money, David did not know whether that player or another player he identified by name "took the money" and after the strippers left, David took $160 "from what had been taken," "put the $160 in [his] desk, and the next day put it on our living room table."

Mr. Nifong's big "mistake" was not realizing he could not frame the three that false accuser Crystal Gail Mangum finally picked.

Make no mistake: he tried to do it!

If his concealment of exculpatory evidence had not been exposed, he would have tried the case and it would have been really ugly.

Should the defense have withdrawn their request for reimbursement in return for the "apology"?

That depends upon how important Mr. Nifong's personal public assurance that no crimes were committed that night is.

Frankly, I find it less than worthless.

Originally, Mr. Nifong trumpeted the gang rape canard and essentially proclaimed team members either rapists or aiders and abetters. The truth: (1) there was no rape, sexual offense, kidnapping, felonious assault or robbery at the party to the best of my knowledge, information and belief; (2) a competent investigation would have established that quickly if Mr. Nifong has accepted the co-captains' offer to take a polygraph test, announced ALL the results of the DNA tests the players eagerly took in order to exonerate themselves; and (3) in order to exploit the situation, Mr. Nifong adamantly (and absurdly) treated false accuser Mangum as credible and male lacrosse players as monsters, because it was the only way to win that upcoming primary election.

Now Mr. Nifong is saying there were no crimes at all. Would you buy a used car from Mr. Nifong? Once again Mr. Nifong simply said what he thought to be in his immediate interest to say. If it's true, it's a coincidence.

Ironically, David Evans' written statement indicates that there was some larceny that night and North Carolina does not distinguish between petty larceny and grand larceny. North Carolina General Statutes, Chapter 16, § 14‑70: "Distinctions between grand and petit larceny abolished; punishment; accessories to larceny. All distinctions between petit and grand larceny are abolished. Unless otherwise provided by statute, larceny is a Class H felony and is subject to the same rules of criminal procedure and principles of law as to accessories before and after the fact as other felonies."

§ 14‑71: "Receiving stolen goods. If any person shall receive any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a Class H felony, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security or other thing, shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and any such receiver may be dealt with, indicted, tried and punished in any county in which he shall have, or shall have had, any such property in his possession or in any county in which the thief may be tried, in the same manner as such receiver may be dealt with, indicted, tried and punished in the county where he actually received such chattel, money, security, or other thing; and such receiver shall be punished as one convicted of larceny."

§ 14‑71.1: Possessing stolen goods. If any person shall possess any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a Class H felony, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security or other thing shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and any such possessor may be dealt with, indicted, tried and punished in any county in which he shall have, or shall have had, any such property in his possession or in any county in which the thief may be tried, in the same manner as such possessor may be dealt with, indicted, tried and punished in the county where he actually possessed such chattel, money, security, or other thing; and such possessor shall be punished as one convicted of larceny."

Mr. Nifong had reasonable grounds to investigate the possibility of larceny and to consider whether taking back money believed to have been paid to strippers under false pretenses for a 2 hour show that lasted but a few minutes should be prosecuted, but instead he put that aside to pose as the champion of a black woman who had falsely claimed gang rape, even though there was no rape.

Ironically, Mr. Nifong breached his duty and betrayed his constituents in two ways: (1) by pursuing bogus charges and (2) by not pursuing the possibility of larceny. But Freda Black would have won that Democrat district attorney program if Mr. Nifong had announced that Ms. Mangum's gang rape report was false, but there were possaibilities that the strippers had taken money under false pretenses and someone had taken some of it back without consent.

It's obvious why Mr. Nifong "apologized," but why did the defense team respond the way it did?

LieStoppers' Walter Abbott:

"[It was] the defense team's version of 'it's time to move on.' They all live and have families in North Carolina. They work in the North Carolina 'justice system,' whatever in God's name that is. They don't have the horsepower to fight the state's entire legal community. The governor, attorney general or the judges have never shown the guts to get to the bottom of the corruption, because they know the answer. They work and live there too.

"Long ago, the guardians against government corruption, the newspapers and broadcasters folded. They were never in the fight ever since they were made fools of by Nifong and they've long wanted this thing to go away.

"I can't really blame them. The attorneys and the families didn't get into this as a crusade against injustice - they never claimed to be Don Quixote. They wanted to get out from under and have an apology and move on with their lives.

"The money from Duke will have to suffice as their apology and they've gotten even with Nifong. So they're calling it good.

"Sorry, my fellow Blog Hooligans, but that's just the way it is."

The way it is, yes. The way it should be, no. The fight for justice cannot be left to Don Quixote and not be fictional.

Perhaps the families of the unindicted players will pursue Duke and expose its wrongdoing, so that corrective action finally will be taken instead of avoided.

That would be heroic, not foolhardy.

Bill Anderson: "You will never hear the truth from Nifong. The truth that he was using the students lives as pawns in his bizarre quest to become a famous D.A. is too much for him to admit. I will lay even money that Durham and North Carolina will continue to try to make all of this disappear."

Come on, Bill. Give odds on a sure thing.

An e-mailer:

"In contrast to one of your critics...I certainly would like to be kept current about the Duke Lacrosse case and will consider the case closed when the following happens:

1. Brodhead resigns (or is preferably fired after a false rumor is started about something he didn't do).

2. The sergeant who rewrote the notes is fired (Wilson has already been fired).

3. Most importantly, Nifong faces a stretch in the crowbar motel, a fitting end for someone who gets a small dose of what he doles out with not a single regret for those he has probably been sent to prison who are innocent . I still think Nifong is a good fit for the character of Luzhin in Crime and Punishment. He so richly deserves it."

Mr. Nifong, Duke President Richard Brodhead, Dean of Students Sue Wasiolek, the Group of 88, Mr. Nifong's willing enablers in the Durham Police Department and the Durham County District Attorney's Office, much of the media, especially The New York Times and Durham's Herald-Sun and News & Observer, and others are guilty of more than mistakes and/or wishful thinking in connection with the Duke case.

If we move on too soon, there will be more of the same and we too will be to blame.

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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