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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:  August 2, 2007
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Duke Case: Serendipity Saved the Duke Three?

We who supported the persecuted players from the start are not a homogenous group. Fortunately, Brad Bannon realized what he had, whether he expected to or not, and made the right use of it. That was needed to bring down Mr. Nifong and show as many as possible that the political correctness extremists, feminuts and race hustlers were so terribly wrong.

When innocent people are prosecuted, they should not need brilliant lawyers and wealthy families to avoid imprisonment. Yet many innocent people have been convicted. The United States Government recently was ordered to pay millions of dollars to men framed for murder. We need to make sure race does not taint the criminal justice system and prosecutors don't become persecutors for personal and/or political reasons, whether in North Carolina, New York or elsewhere. We need to create an environment in which prosecutors stay in line because blowing the whistle on them is just fine. The Duke case demonstrated that Durham, North Carolina is not there yet.

In pointing out that I had reported the presence of multiple male DNA three times before the defense obtained and interpreted the underlying documentation and confirmed that my report was right, I ruffled some feathers. Telling an inconvenient truth (I wish Al Gore had used another phrase) tends to do that. It's inconvenient because the defense claims it never noticed my report, which may be true, especially in as weird a case as the Duke case, and therefore looks a bit less thorough and a bit naive. Of course, the defense ultimately prevailed and have many fans, some of whom have so much faith in the thoroughness of the defense that they doubt I reported what I reported or suggest I kept the information from the defense.

A Durham-in-Wonderland poster: "If Gaynor had published the information, kc would have read it as he has said before that he has a google alert that he reads basically anything to do with the case. Now it's possible that kc may not get to every article, but Gaynor is not an obscure person, so kc would certainly have read anything he wrote. Especially since Gaynor claims to have written about it several times. I would sure like to see a link to these articles. I've not read one single person who had this information before it was stated by the defense."

Nearly all of my Duke case articles are archived at www.renewamerica.com. Go to www.renewamerica.com/gaynor, where the articles are in reverse chronological order and read the ones posted on June 20, 2006, June 30, 2006 and September 8, 2006. I don't know whether KC read any of the articles, but whether he did is only of incidental interest, since he could not have gotten the underlying documentation either. I did not have a copy of the underlying documentation (or else I would have sent it to the court, the North Carolina State Bar and "60 Minutes"). Commentators can report and opine from New York or elsewhere and point in the right direction, but we lack the standing to get the needed documents for inspection. I was critical for the defense to get the underlying documentation, undoctored, and then having a reputable DNA expert confirm the presence of multiple male DNA and expose any conspiracy to conceal the exculpatory evidence. (The prosecution could have voluntarily produced the underlying documentation and avoided exposure of the conspiracy by Brad Bannon and Jim Cooney in a dramatic hearing, but it instead fought to avoid production and Judge Osmond Smith did the right thing.)

In "Duke case: LieStoppers, yes; Brad Bannon, no," posted on May 7, 2007, I began: "I enthusiastically applaud LieStoppers' disturbing May 6, 2007 article entitled "NC DA's Push For Legalized Nifonging," NOT David Evans attorney Brad Bannon's much too favorable appraisal of North Carolina's legal system. With the Duke case finally dismissed and the North Carolina State Bar apparently targeting only Durham County, North Carolina District Attorney Michael B. Nifong, the redoubtable LieStoppers (lauded by America's top legal commentator, Stuart Taylor, Jr., for "an amazing performance of journalism on the fly") are still focused on fixing North Carolina's flawed criminal justice system and frustrating the current prosecutorial effort to permit the disclosure of some exculpatory evidence to be delayed, while Mr. Bannon is treating the Duke case as a local aberration instead of something symptomatic of significant underlying problems."

Mr. Bannon and I obviously view the significance of the Duke case a bit differently.

Mr. Bannon had 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." My view: ""I am disappointed that Mr. Bannon is lauding the North Carolina criminal justice system and treating the Duke case as a bump on the road of steady progress (without a word as to how hard some of that progress was to obtain — for example, then Attorney General and now Governor Michael Easley vehemently, but unsuccessfully, opposed, both before and after enactment, a provision giving death row inmates the right to all police and prosecution files to help with their appeals)."

Mr. Bannon: "Most of us recognize that we are all professionals, and we all play necessary roles and have special responsibilities that work toward one goal: the fair administration of criminal justice in our state. I assure you, it gives me no pleasure to be in an antagonistic professional stance with a prosecutor, and I'm usually not. This case is an anomaly, and North Carolina is not a backwoods, regressive society. We are progressive, particularly in the area of recognizing flaws in our criminal justice system and constantly working to improve it. The train has long been on that track of progression, and it was only derailed in people's minds as a result of this case.'"

Me:

"I'm sure that it does not give Mr. Bannon 'pleasure to be in an antagonistic professional stance with a prosecutor,' but his train story is spin. In North Carolina, a prospective defendant can't address the grand jury and there is not a statutory ground for dismissal 'in the interests of justice' (as there has been in New York for a long time).

"Yes, Mr. Bannon, as a defense attorney, wants some reforms, but as a defense attorney practicing in North Carolina, he lauds his state and the people in office and minimizes the great need for reform."

Later, during the Nifong ethics case, Mr. Bannon testified, in essence, that serenpidity decided the case.

(Serendipity is the effect by which one accidentally discovers something fortunate, especially while looking for something else entirely.)

Mr. Bannon testified, in essence, that he believed former Durham County, District Attorney Michael B. Nifong was too honorable to conceal exculpatory evidence, and he found something that he did not expect: evidence of multiple male DNA that saved the day.

I did not always agree with the defense strategy (although I always cheered thew late Kirk Osborn), but it is a myth that I simply criticize the Evans defense team. For example, in "Judging Duke case defense strategy," posted on August 5, 2006, I wrote: "I award the 'smartest legal strategy' accolade to David Evans' legal team, for recognizing that the best thing for his defense would be for him to appear in public and profess not only his own innocence, but the innocence of Collin and Reade, and explain that the charges against all of them had resulted from 'a fantastic lie.'" At that time, I thought that the defense was diligently and doggedly pursing the documentation it needed to explode the Duke case and knew for what to look.

I believe that the defense lawyers should not have trusted Mr. Nifong, as Mr. Bannon essentially testified he did, especially after Mr. Nifong threatened to castrate Mr. Bannon's senior partner, Joseph Cheshire, not long after that foolish party, for complaining privately about Mr. Nifong's outrageous conduct. If Mr. Nifong's outrageous public statements were not a sufficient clue, that threat should have eliminated any doubt that Mr. Nifong was an out-of-control prosecutor to be suspected, not believed.

Frankly, I thought they didn't trust Mr. Nifong. After all, the rationale for not disclosing Collin Finnerty's alibi was (legitimate) concern that the prosecution would change the story (dishonestly) if the alibi was made known. Regardless of whether keeping the alibi secret was good or bad strategy, or contributed or did not contribute to Collin's undeserved conviction in the unrelated D.C., assault case, that rationale reflected a healthy suspicion of Mr. Nifong instead of a blindness to what he was. Stuart Taylor had rightly classified Mr. Nifong as "a rogue prosecutor" very quickly, based on evidence made available to him. In my view, that evidence should have made Mr. Bannon realize that Mr. Taylor was being accurate, not hyperbolic.

The first time Mr. Bannon emailed me was May 8, 2007. My "Duke case: LieStoppers, yes; Brad Bannon, no" article has been posted the day before. Mr. Bannon said he was writing "for clarification, not publication." Obviously we had different views as to how aberrational or symptomatic the Duke case is. Since Mr. Bannon wrote with an expectation, albeit not an agreement, that I would not publish his e-mail, I will not. But if he wants to post the full exchange, that would be fine with me.

I replied in part:

"Thanks be to God (and perhaps for that reason), I ended up being contacted by North Carolinians who apparently found it safer to tell me things than to tell the authorities or the defense team, if that's really true.

"Perhaps their fear of reprisal explains my focus on North Carolina's need for major reform and your practicing in North Carolina has you focused on progress.

"The North Carolina State Bar finally took some public action against Nifong, but it rated at or near the bottom when it comes to ethics enforcement.

"Reade and Collin wisely decided not to return to Duke. Durham proved unsafe for them, thanks to its politics and criminal justice system, and the need to take the politics out of the criminal justice system is obvious.

"I DO distinguish between progress and perfection as well as innocent and not guilty and legal culpability and moral culpability.

"I never thought that all Duke men's lacrosse players or even all three defendants were 'the same.'

"I have much more sympathy with 'the sophomores' than your client and I congratulate you on having your client depicted as well as he has been. It could have been worse than it was and not as good as it is. His written statement is quite illuminating. So too the contrast with the other co-captains' statements. That Summary of Conclusions told a different story about the money than David Evans did. Newsweek called David the master of ceremonies, but David started his statement not by writing about himself, but with Danny as the fellow who ordered strippers and himself as a money collector, then identified either Ryan or Peter as money takers. Of course, anyone reading that statement should realize he would not have raped Crystal for an additional reason not reported: he was afraid Crystal's driver would kill him. David did much better publicly defending Reade and Collin than he did writing that statement."

To Mr. Bannon's reply, I wrote: "Me, a Newsweek fan or follower? You don't know what you're taking about. Respect Stuart Taylor, yes. Not Newsweek. The May 1, 2006 Newsweek issue to which you referred came out after I concluded the Hoax was a Hoax and only reinforced my conclusion. Find 'precious' whatever you like, but let me be 'crystal' clear: I have been openly, not 'secretly,' against stripper parties, underage drinking and facilitating underage drinking; I consistently criticized the nature of the party while disputing the bogus criminal charges (since that sort of thing can contribute to a grandfather's death and other bad things) and the racist political strategy that worked in Durham; and I never have believed that anyone should be railroaded on bogus charges because they may have sinned. I didn't mention Newsweek's characterization of David as a BMOC."

That ended our exchange until Mr. Bannon emailed on June 22, 2007: "Mike, I understand why you may have written on June 30, 2006, that 'DNA found inside the accuser [in the Duke case] was determined not to have come from any of the Duke lacrosse players….' After all, we announced on May 12 that the DNA Security report (provided that day) stated that the lab had found DNA from one identified male, Matthew Murchison, on the vaginal swab from the rape kit. What I don’t understand is why you ended that sentence with '…but from several other males.' What was your source of information on June 30, 2006, that DNA from 'several other males' had been identified in the rape kit? --Brad"

Of course, I declined to reveal sources with Mr. Bannon.

Bill Anderson: "I re-emphasize that the outcome of this case was NOT inevitable, despite the realization for more than a year that there was no case. This also should give us pause on just how the current criminal 'justice' system revolves around the word of the prosecutor. Had Brad Bannon not done what he did, would we have had the dramatic moment of Dec. 15? We would not have had Nifong's disbarment, and perhaps this crap would have gone to trial, with conviction by a Durham jury full of 'progressive' people."

I respectfully disagree that the outcome was not inevitable and have for a long time.

In "Give it up, Mike Nifong! Even Ruth Sheehan says so," posted on June 25, 2006, I concluded: "Ms. Sheehan, 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."

By August of 2006, I was predicting the end.

"Doomsday is coming for Durham's diabolical duo," August 6: "The North Carolina Democrat establishment has to cut its losses. Mr. Nifong, don't expect continued protection from the big bosses. The abomination gag order was your last gift. In the future, it will be short shrift. You can't justify what you did, so, of you, they must be rid. To Durham's Diabolical Duo (yes, Crystal and Mike, that means the two of you!), the day of reckoning will come by Fall. The most you can hope to do is stall. At the Duke Three, you shamelessly took your shot. Succeed, it did not."

"Exoneration for the Duke three is coming," August 10: "The Duke Three (Collin Finnerty, Reade Seligmann and David Evans) eventually will be exonerated as to the kidnapping, rape and sexual assault charges pending against them...." "The '60 Minutes' season opener should close the Duke case," August 16: "Mike Nifong, make a note: as of now, on September 24, 2006, an inevitable hour of infamy finally will follow your undeserved and disgraceful fifteen minutes of fame and you will realize that your short-term political gain from your deplorable (political) decision to prosecute (and persecute) the Duke Three was NOT worth it."

LieStopper poster "Twaddlefree" recognized that I reported the multiple male DNA three times, twice in June 2006 and again in September 2006, but implied that I was "sufficiently vague" in order to "enable [myself] to NOW claim [I] knew of multiple male DNA that had no reference samples."

THAT's twaddle!

Put aside the fascinating question as to why I was planning to do that last June and read the words I wrote:

June 20: "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."

June 30: ""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."

If "Twaddlefree" finds that "vague," so be it. To his credit, Mr. Bannon did not claim such imaginary vagueness and instead pleaded ignorance.

"Twaddlefree": "If Gaynor thought defense was reading the blogs, or that defense had the same source that Gaynor had, why didn't Gaynor make any attempt to contact the defense when he SAW that NOTHING was being said or done about it?"

Reality: I was told the defense was tracking the reports on the case closely, including blogs. I had been recruited by a relative of an indicted player to write more (pro bono) on the case. In addition to posting the articles, I sent the articles to that family member (with whom I was literally in daily contact throughout June 2006, as well as for some time before and after). She told me that she forwarded my articles to other family members, including an attorney. I also forwarded the articles to someone else whom I will not identify (not part of the defense team) who was very interesting in the case. My June 20 article was linked at the FODU website.

More importantly, I thought the defense WAS doing what it needed to do--cooperating with "60 Minutes," because the case had to be won in the courtroom of public opinion before Mr. Nifong would be off the case and the case would be dismissed, and pursing the documents in discovery while waiting for a judge who would order their production.

"Twaddlefree" also misunderstood me, quoting these words I had written to Mr. Bannon--"As for trusting Nifong not to conceal exculpatory material, given what he did in the case that I learned about and you know about, well, it mystifies me"--and interpreting that to mean "there is another case where Nifong did something underhanded and which, according to Gaynor, Bannon knew about."

No. I was referring to the Duke case, not another case.

Mr. Bannon: "I did not read Michael Gaynor’s columns back in June of 2006, where he stated that DNA tests in the case revealed that Crystal Mangum had sex with multiple males who were not the defendants, and Michael Gaynor did not bring those columns or that claim to my attention until an e-mail exchange well after the dismissals of the charges. In fact, Gaynor did not bring that claim to the attention of any of the defendants, their families, or their lawyers while the cases were pending. Instead, he apparently thought they read his blog religiously, had noted the rather explosive claim, but had chosen to ignore it."

Not quite true. As stated, I e-mailed each of my two articles to a relative of an indicted player, who had solicited my pro-bono assistance, and I did not think the defense had "chosen to ignore it." I thought the defense,probably even knew before I did (I learned it serendipitously) and that it was pursuing the evidence in order to expose Mr. Nifong and to exonerate the defendants. I titled my December 14, 2006 article on the defense DNA motion "As expected, persecution proof detected," because I expected the defense would get the underlying documentation and make the right use of it. I did NOT expect Mr. Bannon to testify that he had faith in Mr. Nifong's integrity and did not think he would find the evidence, but there it was.

Unsurprisingly, Jim Cooney claimed to believe in Mr. Nifong's integrity too: "yes, we were shocked by what happened. When Brad found the testing data, I immediately suspected Nifong - - but we had no proof. When Nifong claimed in chambers that he did not know, yes, we believed him. It was not until Dr. Meehan admitted to an agreement to withhold those results that the enormity of what Nifong had done, and the lengths that he was willing to go to, became apparent. No matter how hostile or pernicious a DA may be, I was not willing to believe that he would lie and risk his license and career for an advantage in this case."

MR. NIFONG DID IT TO WIN THE DEMOCRAT PRIMARY, NOT FOR 'AN ADVANTAGE IN THIS CASE"!

Whether or not any of the members of the defense team read any of my three articles reporting the multiple male DNA, I think they should have suspected it was there and not been so confident about Mr. Nifong being a person of integrity.

The Duke case sure is weird.

Brooklyn College History Professor Robert K.C. Johnson covered this matter in his Durham-in-Wonderland blog, and I posted the following comment to set the record straight:

"KC: 'As the discussion was going on, Michael Gaynor posted a bizarre item suggesting that Bannon had not been entirely forthcoming, generating a response:

If Michael Gaynor wrote that I knew of 'another case' where Mike Nifong withheld evidence or lied about it, that is not true. I never had a case with Mike Nifong before I represented Dave Evans, and I have no knowledge of any case in which Nifong was accused of withholding evidence before this case."

"Set up straw man; knock down straw man.

"First, I write articles and did not post any 'item' on the LieStoppers Board during the discussion. I never have registered to post there, much less posted there.

"Second, I did not refer to another case. A poster mischaracterized what I written in an e-mail to Mr. Bannon, which was this: 'As for trusting Nifong not to conceal exculpatory material, given what he did in the case that I learned about and you know about, well, it mystifies me'--

"The case" was the Duke case, not another.

"I told Mr. Bannon that he mystified me, not that he "had not been entirely forthcoming."

"I thought Mr. Bannon was much more insightful about Mr. Nifong than his testimony suggested and if he did not suspect he would find evidence of multiple male DNA, as he testified, that is unfortunate in more than one respect.

"After closely observing 'Wonderland' for more than a year, perhaps the simple truth can seem bizarre.

"What I found 'bizarre' was 'Based on his comments in the lacrosse case,...it appears that Joyner's personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas.' Comparing a distinguished Supreme Court Justice who exhibits constitutional fidelity to a law professor who tried to led credibility to a baseless case in which the false accuser was black and her victims were white was...bizarre."

We who supported the persecuted players from the start are not a homogenous group. Fortunately, Brad Bannon realized what he had, whether he expected to or not, and made the right use of it. That was needed to bring down Mr. Nifong and show as many as possible that the political correctness extremists, feminuts and race hustlers were so terribly wrong.

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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